"The draft law amending the Act on the Supreme Court, presented to the Parliament by the governing majority, is an attempt to introduce an unconstitutional change to the system of government of the Republic of Poland and contravene the principle of the separation of powers."

These words were put down in a statement signed by the members of the Managing Board and the Board of Directors of the Helsinki Foundation for Human Rights and the Helsinki Committee in Poland, in response to recent legislative moves in Poland that would further threaten judicial independence.

Kicked off the bench

On July 12, 2017, a group of MPs submitted to the Parliament a draft law amending the Act on the Supreme Court. One of the most controversial provisions of the draft law states that all tenures of judges sitting currently in the Supreme Court will be terminated on the day that the amended act comes into force.

In the light of this provision, the minister of justice will then decide which judges will remain on the bench and whose term of office will be terminated.

"The termination of tenures of all the Court’s judges and granting the minister of justice the competence to single-handedly decide which judges will remain in office on this most important Polish court is tantamount to the revocation of the Supreme Court’s independence. Such a solution is applied only by the governments of authoritarian states," the NGOs say in their statement.

The new judges of the Supreme Court will be selected by the National Council of the Judiciary in Poland. Last week, the Parliament adopted changes to the Act on the Council that allow the Parliament to appoint the members of the Council.

A deepening crisis

In light of these changes, the appointment of a new judge will not be possible without the consent of the representatives of the government, Parliament and president who sit on the Council.

Furthermore, in light of the draft Law on the Supreme Court, the minister of justice will prepare the Statute of the Supreme Court which will regulate its works.

In the opinion of the NGOs, "The draft law on the Supreme Court deepens the Polish constitutional crisis, ongoing since November 2015. A day after the Act on the National Council of the Judiciary was amended, the governing majority strengthens the political influence on the administration of justice in Poland. This in consequence will lead to a situation when the basic human right to a fair trial by an impartial court becomes illusory."

The statement is available here.

About the Supreme Court

The Polish Supreme Court’s competence extends very wide, and it plays a crucial role in sustaining the independence of the entire justice system in Poland.

First of all, the Supreme Court supervises the work of the lower courts through "judiciary control." For example, the Court can adopt decisions in which it presents the legal interpretation of a provision. Such a decision is binding for lower courts.

At the beginning of this year, when the Constitutional Tribunal was taken over by the governing majority, the President of the Supreme Court underlined that now it is the role of the common courts to protect, implement and interpret the Constitution.

Second, the Supreme Court confirms the validity of the elections to the Parliament and presidential elections.

Third, the Supreme Court has a right to issue opinions about draft legislation. For example, in 2016 the Supreme Court presented a very strong opinion regarding the draft Law on Assemblies, in which it called the draft legislation "an attempt to violate the constitutional order of the Republic of Poland."

The draft Law on the Supreme Court has been directed to the first reading in the Parliament’s plenary session which will, most probably, take place this week.