'Declaration of war': Polish row over judicial independence escalates

A confrontation between the Polish government and senior judges has escalated dramatically after the country’s supreme court and parliament issued conflicting rulings on the legality of judicial reforms.

The rival rulings, which concern attempts by the ruling rightwing Law and Justice party (PiS) to assume direct control over the judiciary, have thrown the country’s legal order into chaos, with judges now liable for prosecution for complying with rulings issued by their own supreme court.

“This is an extreme escalation by the Polish government,” said Marcin Matczak, a professor of law at the University of Warsaw. “It has run out of arguments so it is resorting to brute force.”

After taking office in 2015, PiS assumed direct control of the National Council of the Judiciary, a formerly independent body that oversees the appointment, promotion and discipline of all Polish judges. This allowed the government to fill a newly created judicial disciplinary chamber with party loyalists who have since proceeded to launch disciplinary proceedings against any judge who questions the new regime.

Judges involved in politically sensitive cases, or who have expressed opposition to challenges to judicial independence are frequently threatened with disciplinary proceedings and even criminal charges, and in many cases are subjected to state-led campaigns of intimidation.

In December, the Polish supreme court, which is still independent, ruled that the National Council of the Judiciary and the new disciplinary chamber were unlawfully constituted. The government responded with legislative proposals to make it illegal for any judge to question the legality of its appointments – in effect banning judges from complying with the supreme court ruling.

That led to a remarkable showdown on Thursday evening when the Polish parliament voted through the legislation just as the supreme court was declaring its provisions unlawful. In a show of defiance, the supreme court session was attended by all 60 judges from the three chambers that are not controlled by ruling party appointees.

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Ministers have angrily rejected the court’s ruling, arguing that senior judges do not speak for the nation and that they are motivated solely by a desire to defend their own privileges.

“I don’t give a damn about these 60 professors because I am on the side of the Poles,” Janusz Kowalski, a deputy minister, told the broadcaster Polsat. “I am insulted by judges who usurp the right to decide what is the law in Poland and what is not.”

The deepening crisis is likely to fuel tensions between Poland and European institutions including the European commission and the European court of justice. In November, the ECJ ruled that it was for the Polish supreme court to decide the dispute, meaning that the Polish parliament has now effectively rebuked not only Poland’s top court but the EU’s top court as well.

“This is not just a declaration of war on the Polish legal order,” said Matczak. “It is a declaration of war on our place in Europe.”