(CN) – For the past four years, Poland has been at the heart of a uniquely European fight between nationalist politicians and European Union institutions over who gets to decide how an EU nation's laws are made and its courts are run.
This constitutional fight just got even more intense on Thursday after Poland's nationalist government, led by the Law and Justice party, passed a new disciplinary law that threatens the independence of Poland's judges and defies edicts by European institutions.
On the same day, Poland's Supreme Court, whose judges are fighting the Law and Justice reforms, said it didn't recognize the rulings of judges appointed under a new system crafted by the ruling party.
Poland's justice system is now deeply split. On the one hand, there is the authority of the Supreme Court, which enjoys the backing of Europe's institutions, and on the other hand a new legal regime being set up by the Polish government.
“We risk the situation where we have two legal systems in Poland,” said Agata Gostyńska-Jakubowska, senior research fellow at the Brussels-based think tank Centre for European Reform, in a telephone interview Friday with Courthouse News. “We risk this legal chaos in Poland.”
The new disciplinary law passed Thursday must still be signed by Polish President Andrzej Duda, but he supports it and he relies on the backing of the Law and Justice party. He faces reelection in May elections, adding a political dimension to this fight over Poland's justice system.
The new law is aimed largely at the Supreme Court and its resolution to not recognize judges appointed by a judicial body revamped by the Law and Justice party. The high court says changes made to the National Council of the Judiciary, a body that nominates new judges, have made it insufficiently independent from the executive and legislative branches.
The Supreme Court's ruling was based on guidance the European Court of Justice issued to determine whether the council is sufficiently independent. About 500 new judges have been nominated by the National Council of the Judiciary and now rulings issued by these magistrates are thrown into doubt.
In response, the Justice Ministry said the Supreme Court's resolution was illegal and had no legal effect. The ministry said Poland's Constitutional Court was the appropriate body to consider whether the National Council of the Judiciary is independent. The Constitutional Court is considered more favorable to the Law and Justice government.
Thursday's sweeping new legislation is being called a “muzzle law” by opponents because it allows the government to discipline – and even remove – judges opposed to the government's judicial restructuring and who allegedly show a lack of impartiality. The Law and Justice party says the law tackles the “anarchy” of rebellious judges.
After seizing power in 2015, the right-wing and nationalist Law and Justice party made overhauling Poland's justice system a priority, saying it wanted to fix a flawed system ruled by a caste of corrupt judges left over from the communist era. The government also argues the old court system was slow, inefficient and tolerated corrupt practices.
Aleks Szczerbiak, a politics professor at the University of Sussex and an expert on Poland, said in an analysis this week that the Law and Justice party believes Poland's judiciary “was expropriated by an extremely well-entrenched, and often deeply corrupt, post-communist elite, which then co-opted a new legal establishment that perpetuated its legacy.”