The ongoing stand-off between the government and the Supreme Court is creating increasing uncertainty in the judiciary system, which could start hurting the country’s business environment. Moreover, while the ruling Law and Justice (PiS) will push forward the contentious judiciary reforms ahead of the May presidential elections, this may prove counter-productive for incumbent president Andzej Duda (independent, supported by PiS).
On 4 February, Duda signed into law controversial legislative amendments that introduce disciplinary measures for judges – including fines or dismissal – for questioning the government’s judicial policies. These measures came in response to recent rulings of the country’s Supreme Court, which concluded that the constitutional body responsible for nominating judges (the National Council of the Judiciary) – overhauled by the PiS in late 2017 – was not independent and judges appointed by it were illegitimate. The Supreme Court also annulled all decisions of its disciplinary chamber as it could not be considered a court under Polish or EU law. The government has appealed these rulings before the country’s Constitutional Tribunal, which is expected to announce its position this month.
These latest developments raise uncertainty in the judiciary system and could adversely affect the country’s business environment. Lack of clarity on whether certain judges have been appointed legally or not paves the way for challenging their rulings. Hearings in some cases have already been postponed due to this ambiguity, while judges questioning the legal status of their peers face harsh disciplinary measures.
The response of the European Union (EU) has been vocal but lacking in content, at least for now. European Commission Vice President Vera Jourova paid a visit to Warsaw, aiming to relaunch the dialogue with Polish authorities, but her calls to suspend the implementation of the disputed measures had little success. Also, the European Parliament on 16 January adopted a resolution calling to resume the Article 7 procedure for Polandand Hungary and emphasized the “imminent need” for a mechanism linking EU funding to the rule of law. The upcoming EU budget talks on 20 February could provide more clarity on this front.
In the meantime, the EC will likely launch infringement procedures against Poland over the disciplinary measures and the continued operation of the disciplinary chamber of the Supreme Court. This could result in financial penalties for Poland and eventually force the PiS to compromise on specific issues. This was the case in November 2018, when the ruling party overturned the legislation forcing the Supreme Court judges into early retirement.
However, with the crucial presidential election upcoming in May, the PiS is unlikely to take any steps that could be perceived as a compromise. Controversies surrounding the judiciary have helped the ruling party mobilize its supporters in the past as these reforms have been portrayed as attempts to tackle corruption and inefficiencies in the system.
However, there is no guarantee that such tactics will work again. Faced with the increasingly chaotic functioning of courts and mounting international criticism, PiS voters could start questioning the government’s actions. Opposition warnings of “Polexit” could also hurt as recent surveys show that nearly 90% of Poles do not want to leave the EU. Despite Duda’s strong lead in the polls, the second-round fight for the presidential post is expected to be very close, and the topic of the judiciary could play a decisive role.