by Łukasz Woźnicki    

The text was posted on Gazeta Wyborcza on 24 February 2021.

The presidential bill was submitted to the Sejm last week, its first reading was already held on Wednesday. All the indications are that the PiS deputies will vote on the bill very soon – even during the current session of the Sejm. The bill provides for what will now be the eleventh amendment to the presidential Act on the Supreme Court. The Act dates back to December 2017. Since then, it has been amended many times or adapted to suit PiS’s current political interests. It is to be similar this time, although the amendments to it are being proposed not by the PiS MPs, but by President Andrzej Duda.

‘The changes arise from the experience observed while applying the Act to date,’ said Małgorzata Paprocka, secretary of state at the President’s Chancellery.

According to presidential officials, the main objective of the bill is to make changes to the extraordinary complaint. This is a legal tool enabling judgments deemed to be ‘unjust’ to be contested. The three-year period, in which judgments that became final after 1997, will end in April. Duda wants to extend this period by two years. This is certainly not the most important change and, besides, it does not need a presidential bill to be introduced. A similar change is provided for in the Senate’s bill, on which the Sejm is working in parallel.

‘The President’s extension is broader, more comprehensive and better addresses the Supreme Court’s current problems,’ said PiS MP Daniel Milewski in the Sejm.

‘The extraordinary complaint is a smokescreen. The real intention of the bill is to make personnel changes in the Supreme Court,’ said KO MP Arkadiusz Myrcha.

The time has now come for the ‘new’ ones

The main objective of the amendment is to transfer control over the ‘old’ chambers of the Supreme Court to the new judges, who Duda appointed on the motion of the politicised NCJ.

There are more than 40 such people in the Supreme Court today – their judgments are tainted with an irremovable defect, according to a resolution passed last year by three chambers of the Supreme Court, but they continue to rule. The first president of the Supreme Court today is a new judge, Małgorzata Manowska, former deputy minister of justice in the PiS government. The President filled two chambers which he established in the Supreme Court with ‘new ones’ from scratch. But there are still more ‘old’ judges in the other three chambers.

These judges – largely – disagree with the interference of politicians in the judiciary. They also generally do not want to adjudicate with the new judges. Manowska announced that she ‘wants to bridge the gap’ between the ‘old’ and ‘new’ judges, but the presidents of the Criminal Chamber and the Civil Chamber do not appoint judges from both groups to the same benches. In turn, the Labour Chamber is hearing actions to declare that the new judges are not judges. This matter is currently being examined by the CJEU.

This is where Andrzej Duda comes in with his amendment. If the bill becomes law, the new judges will be able to take control of at least one ‘old’ chamber without any obstacles. Andrzej Duda is copying the solution that was tested a year ago, when he appointed Manowska as the first president, despite the protests of the ‘old’ judges. Now, he wants to appoint new presidents of the old chambers on similar principles.

It will be easy to take the Civil Chamber

Such an opportunity will arise in August, when the terms of office of Józef Iwulski, president of the Labour and Social Insurance Chamber, and Dariusz Zawistowski, president of the Civil Chamber, come to an end.

The future presidents will be chosen by the President from among the candidates of the judges from the chamber. It will be difficult to appoint a new president in the Labour Chamber, as there is currently only one new judge there. Well, unless the President shortly announces a recruitment process for more places, and then appoints new judges. Or Manowska transfers new judges to the Labour Chamber, as she has already done in the case of the Civil Chamber.

Of the current 26 judges in that chamber, there are already eight new judges. ‘There will be another two from March, who are being transferred by Ms Manowska from other chambers,’ says President Dariusz Zawistowski.

The ten new judges will be able to vote for their candidate, whom the President will later appoint as president of the chamber. Kamil Zaradkiewicz, a former director at the Ministry of Justice, for example, may become the president of the Civil Chamber.

Amendment of the Act on the Supreme Court. The ‘new ones’ will choose their own

‘The intention of the proposed amendment is to guarantee the ability to choose the President of the Supreme Court,’ reads the justification of the draft. Duda is modifying the procedure for selecting candidates in it: if they cannot be elected because of a lack of quorum, the number of judges needed to elect them is to be reduced to as little as one-third of the chamber’s judges. Theoretically, then, ultimately, the new judges themselves will be able to vote on the candidates. ‘It has not happened to date that candidates were not elected. I find the reasons for introducing such a mechanism incomprehensible,’ says President Zawistowski. If can be presumed that the reduction of the quorum is intended to pacify any objections from the ‘old’ judges.

‘The terms of office are coming to an end, so this is an opportunity for the authorities to make a heist on the positions,’ Myrcha said in the Sejm.

‘The President’s proposal is a safety net in case a president cannot be elected in the basic procedure. Digressions about nominations are completely unjustified,’ said Paprocka.

In the same bill, Duda wrote that, if the candidates are not elected on time – for any reason whatever, e.g. due to the pandemic – the power in the chambers will be taken over by commissioners appointed by the President. The commissioners will conduct the elections, but will also ‘perform the duties and exercise the rights of the president of the chamber’. Meanwhile, the president manages the work of the chamber and, among other things, appoints the benches.

‘There is no justification for this concept. It already arises from the regulations who replaces the president in his absence, so this solution is not needed for the chamber to be able to function,’ says President Zawistowski. ‘This solution gives rise to serious reservations. It is yet another instrument given to the President, who will be able to indirectly influence the functioning of the chamber. Whereas the executive authorities should not have a significant influence on the functioning of the court,’ he adds.

Duda already appointed commissioners last year to replace the first president of the Supreme Court. And these deprived the ‘old’ judges of their influence over the procedure of choosing candidates and conducted it despite the irregularities. One of the commissioners, Kamil Zaradkiewicz, went further: he overruled the order of the previous first president, Małgorzata Gersdorf, and partially unfroze the activity of the Disciplinary Chamber that had been suspended by the EU Court of Justice. This may shortly lead to another complaint by the European Commission against Poland.

Hands-on control of the Supreme Court

Even before the presidents are replaced, they themselves will lose important powers – the ability to assign cases and appoint benches to resolve legal doubts. It will be enough for the first president to make a request for such a decision. According to Duda’s bill, Manowska will then assume the authority of the president of the chamber and appoint a seven-person bench to settle a case that she herself initiated. She will be able to appoint, for example, only new judges to the bench. Why is this so important? Resolutions of seven-person benches may be given the force of a legal principle – the ruling will then be binding on other Supreme Court benches.

‘This is clearly an increase in the powers of the First President at the expense of the powers of the presidents of the chambers. And what can this be used for? The author should be asked,’ says President Zawistowski.

The justification of the President’s bill contains nothing about the reasons for introducing this solution. Minister Paprocka assured the Sejm that this applied exclusively to ‘substantive’ issues. She heard from the opposition MPs that this was actually about manipulating the membership of judicial panels, as is already happening in Julia Przyłębska’s Constitutional Tribunal. ‘The President wants to introduce the same pathologies in the Supreme Court,’ said Myrcha.

‘Insinuations that the first president will manipulate the memberships of benches should be considered scandalous,’ protested Paprocka.

‘This is a dangerous solution that can lead to hands-on control,’ said a lawyer who analysed the presidential bill. ‘The first president will initiate the case and decide on the membership in any chamber. The situation can arise that, in the most sensitive cases, related to the most controversial regulations, the first president asks a question in advance and chooses the membership of the bench, expecting the answer to be as it is supposed to be,’ he adds.

‘I presume a set of such questions has already been prepared,’ he says.

Translated by Roman Wojtasz