The Chancellery of the President of Poland announced the choice of Małgorzata Manowska to be First President of the Supreme Court (SC) on Monday, 25 May. The decision to appoint her is not a surprise; she has been the favourite to win this position since 2018.

In recent weeks, her competitor Tomasz Demendecki, a former bailiff from Lublin who is associated with Justice Minister Zbigniew Ziobro’s faction, has seen his fortunes rise.

But the president Andrzej Duda did not take too long in deciding to whom to entrust the leadership of the Supreme Court. On Saturday, the list of five candidates was ready, and after two days the president made his decision.

In the current political situation making Manowska the head of the Supreme Court need not be the worst option. She has 25 years of experience as a judge, and her legal opinions have been well evaluated.

However, everything now depends on whether she proves susceptible to political pressure. If she does, the Supreme Court may become just another extension of the current government.

Much also depends on the attitude which the Supreme Court’s judges display, especially those from the old Chambers.

An heir apparent

Małgorzata Manowska became a judge of the Supreme Court’s Civil Chamber when the new National Court of the Judiciary was nominated in 2018. She has carried out her work while simultaneously acting as director of the National School of Judiciary and the Prosecutor’s Office. Accusations have been made that this dual role undermines her independence, because Justice Minister Ziobro appointed her to this position in January 2016, at the beginning of PiS’s rule.

The linking of these functions was opposed by the previous First President of the Supreme Court, Małgorzata Gersdorf, because the law forbade Supreme Court judges to hold additional positions, apart from those connected with scientific and didactic work. At the College’s request, the disciplinary spokesman for the Supreme Court judges dealt with the matter, and in April 2020 the disciplinary spokesman initiated an investigation into this case.

Manowska defended herself by saying that she got the position as head of the National School of the Judiciary and the Prosecutor’s Office as a result of winning a tender which had been announced back when Civic Platform was leading the government.

Manowska has worked in close cooperation with PiS in the past. In the first PiS government, from March to November 2007, she was a deputy to Justice Minister Zbigniew Ziobro; later, she served as a judge pm the Court of Appeal in Warsaw, from where she moved to the Supreme Court.

Her stability in case law shows good results: over 90% of her judgements were final. She is a professor at the private Lazarski University in Warsaw.

In 2020, however, Manowska did slip up. In February, a huge leak of personal data of over 50,000 judges, prosecutors and judicial staff came from the National School of the Judiciary and Prosecutor’s Office.

The prosecutor’s office is conducting an investigation into this case. The leak occurred while data was being transferred from the old training platform to the new one. An external company was to blame. However, the responsibility for the leak is borne by the head of the National School of Judiciary and Prosecutor’s Office, which should have had everything under control.

Manowska will silence the Supreme Court’s voice in defence of the independence of the judiciary in Poland

Manowska’s speech at the General Assembly of the Supreme Court’s Judges shows that the Supreme Court will no longer be the face of defence of the courts’ independence.

In her vision, the Supreme Court will no longer question the status of judges nominated by the new National Court of the Judiciary. She announced that she would take action to change the full composition of Supreme Court judges from January 2020; this will challenge the status of the new National Court of the Judiciary, the Disciplinary Chamber, and the judges whom the new National Court of the Judiciary will appoint.

She will not prohibit judges from asking questions about preliminary rulings from the CJEU, but she is against such questions being asked on ‘political’ grounds. Nor does she approve of judges appearing in the media.

Manowska has also announced that she will not seek revenge or retaliation on the Supreme Court’s former judges. And that is the full extent of her public pronouncements so far.

However, much depends on whether she will bring her many years of experience as a well-respected judge to her new experience, or whether she will allow PiS to ‘take back’ the Supreme Court. Her first decisions and any personnel changes she makes will reveal what direction she will go in.

Also, whether she agrees to the old SC judges being disciplined, because such threats were made to them during the Assembly. Time will tell whether she will also initiate disciplinary proceedings against SC judges who spoke out in the media.

Laskowski as president of the SC’s Criminal Chamber

On Monday 25 May, the President’s Office also unexpectedly announced that Michał Laskowski, the spokesman for the SC, would be appointed as president of the SC’s Criminal Chamber. Laskowski resigned from the office of spokesman at the end of Małgorzata Gersdorf’s term of office, and in recent years he has been one of the faces of the independent SC.

His appointment as president of the Criminal Chamber therefore comes as a surprise. There were three candidates for this position: in addition to Laskowski, judge Jarosław Grubba and Jarosław Matras. The president has been waiting to take this decision since February 2020. The fact that he will now appoint Laskowski is a surprise, because the Supreme Court’s former spokesman has not hidden his criticism on the development of the situation around the Supreme Court.

Professor Wróbel should have become president of the SC

The President’s appointment of Małgorzata Manowska to head the Supreme Court goes against the will of the SC’s Assembly of Judges; the only candidate supported by the Assembly was judge Włodzimierz Wróbel from the Criminal Chamber.

He got 50 votes, meaning that he was supported by the majority of the SC’s judges – to be the only candidate. Manowska got 25 votes.

The judges from the SC’s old chambers voted for judge Wróbel, whose position – like that of many lawyers – was that the candidates for First President of the Supreme Court should be presented to the President by the Assembly. This means that the President should choose the head of the Supreme Court from among those approved by the Assembly, i.e. from those who received more than half of the votes.

The senior Supreme Court judges derive this right of the Assembly from the Constitution, which says that the Assembly should present candidates for head of the SC to the President.

Meanwhile, PiS has repeatedly amended the Supreme Court Act, for the obvious reason that the election of the successor to President Gersdorf should be predictable for the government. That is why it introduced the new rules for selecting candidates to the Supreme Court Act.

The act states that the Assembly should elect five candidates. However, the voting method is important: each judge has one vote, but casts that vote for one person from the list of candidates. For this reason, the president also got on the list of new Supreme Court judges (there were four in total, including Manowska).

The senior Supreme Court judges wanted each candidate to be voted on separately, and for only people who received more than half of the votes to be included on the list sent to the president. Only Prof. Wróbel met this criterion. We have written before about why the voting rules are important:

Manowska’s nomination can be challenged

The judges from the SC’s old chambers and many lawyers believe that Manowska’s appointment as head of the SC will be undermined, because the Assembly which selected the candidates for the president conducted a faulty procedure.

Kamil Zaradkiewicz, whom President Duda has appointed as acting First President, did not consent to the Assembly’s agenda and rules of procedure. He then changed the voting results himself regarding the establishment of a commission to count the votes.

Meanwhile Aleksander Stępkowski, another of Duda’s nominee to be interim President, upheld this faulty procedure. In addition, he did not agree for the list of five candidates to be voted through by the Assembly in a resolution, as the senior Supreme Court judges had demanded. Stępkowski simply sent a letter to the President himself.

For these reasons, the procedure for choosing a new SN president is fraught with legal flaws, and Manowska’s appointment can easily be challenged. If the rules had been respected, the SC’s new president would be Prof. Wróbel, who during several meetings of the Assembly had defended the independence of the Supreme Court in fiery speeches.

However, President Duda believes that his powers are outside the control of any legal body, and in the case of appointing judges, especially the head of the Supreme Court, he has a free hand.

On Sunday 24 May, he said in an interview for TVP Info: “The president may choose completely freely from among them [the five candidates – ed.], there are no rules here that compel the President (…) It is the President who freely chooses according to his own criteria, and this is a completely free decision for him.”

He said that when choosing the new head of the SC he will be guided, among other factors, by the current attitude of the candidates; “Did these people openly present their political views, or did they not present these political views, especially in recent times?” This was an allusion to judge Wróbel, who in recent weeks has spoken publicly about the role of the Supreme Court and the independence of the judiciary.

The president did not appoint him as head of the Supreme Court against the will of the Assembly, but Prof. Wróbel, thanks to his attitude during the SC Assembly, will go down in history as one of the defenders of the independent SC.

Translated by Jim Todd