Polish government unveils planned overhaul of “defective” constitutional court

Poland’s government has announced a package of measures aimed at “healing” the country’s Constitutional Tribunal (TK) following eight years of rule by the national-conservative Law and Justice (PiS) party, whose actions rendered the body “defective”.

The proposals include declaring as illegitimate three TK judges chosen under PiS as well as the court’s chief justice. They would also reform the way the court’s judges are chosen in future, and would require changes to be made to Poland’s constitution.

The measures aim to address a situation in which the TK has come to be widely regarded as under the influence of PiS, with many of its rulings seen as illegitimate due to violations in the appointment of judges by PiS.

However, even if approved by parliament – where the ruling coalition has a majority in both chambers – the legislation can be vetoed by PiS-aligned President Andrzej Duda and will face opposition from the TK itself, one of whose judges has already condemned the proposals.

„Is Poland heading for a constitutional crisis?” asks @AleksSzczerbiak.

Its bitter political and systemic conflict has been exacerbated by the fact that the two sides appear to increasingly operate within different legal orders https://t.co/Vf9Nk5bTw4

— Notes from Poland 🇵🇱 (@notesfrompoland) February 6, 2024

“Polish citizens deserve to have a constitutional court in Poland that fully implements its constitutional tasks,” declared justice minister Adam Bodnar on Monday afternoon while unveiling the measures.

“We need to create the tribunal anew”, because the current TK has a “defective composition, defective procedures, and a very large range of legal problems” that create “very high legal risk…for citizens, officials and judges”, added Maciej Berek, who heads the standing committee of Poland’s cabinet.

Bodnar’s ministry has published a set of four interlinked measures aimed at addressing these problems. It says they are based on “years of work” by lawyers, legal experts and civil society groups and will “restore the independence of the Constitutional Tribunal”.

Przedstawiamy pakiet rozwiązań uzdrawiających Trybunał Konstytucyjny i przywracających poczucie bezpieczeństwa Obywatelek i Obywateli. Są to: Uchwała Sejmu, społeczny projekt ustawy o TK, przepisy wprowadzające oraz projekt zmian w Konstytucji.

Pełen pakiet rozwiązań w… pic.twitter.com/9oHvMtWWZx

— Min. Sprawiedliwości (@MS_GOV_PL) March 4, 2024

The first proposal is for the Sejm – the lower house of parliament – to pass a resolution calling on illegitimately appointed TK judges “to resign and thus to join the process of democratic change”.

This refers in particular to three so-called “doubler judges” who were nominated by PiS in 2015 and sworn in by Duda in the place of judges legitimately chosen by parliament before PiS took power.

A number of European and Polish court rulings – including one issued by the Supreme Court in January this year – have found those judges, and rulings issued with their involvement, to be illegitimate.

The Supreme Court has found that rulings made by the Constitutional Tribunal (TK) involving judges illegitimately appointed under the former PiS government are invalid.

One such ruling was the near-total abortion ban introduced by the TK in 2020 https://t.co/0tDuHNMQ2p

— Notes from Poland 🇵🇱 (@notesfrompoland) January 3, 2024

The justice ministry’s proposed resolution will also declare the TK’s chief justice, Julia Przyłębska, as “not authorised” to hold the role because she was sworn in by Duda in December 2016 without the required resolution being issued by the general assembly of TK judges.

The ministry adds that, even if Przyłębska’s appointment were accepted as valid, her six-year term expired in December 2022. A number of current TK judges have also argued the same, leading to a rebellion last year when they refused to recognise Przyłębska’s leadership.

The ministry also notes that under the leadership of Przyłębska – who is a close personal associate of PiS chairman Jarosław Kaczyński – the TK “has lost any ability to consider disputes apolitically” and “has become organisationally dysfunctional”.

A group of rebel judges on Poland’s constitutional court have written to its chief justice making clear they will not allow a hearing to take place on a key judicial law intended to unlock billions of euros in frozen EU funds until she steps down https://t.co/Fhifo90cAA

— Notes from Poland 🇵🇱 (@notesfrompoland) April 6, 2023

The second and third parts of the plans relate to legislation that would establish how to select a new chief justice and would cut the length of their term from six years to three. They would also declare that the “doubler judges” cannot sit on the court and that their places should be assumed by the previously correctly nominated judges.

Any former politicians who become TK judges would not be allowed to rule on cases relating to legislation that they had been involved in processing within the last ten years. That measure appears to be a response to PiS in 2019 choosing two of its own MPs to become TK judges.

Likewise, anyone who has been an active politician within the last four years – including even being a member of a political party – would not be eligible to become a TK judge under the new proposals.

They would also change the rules on selecting new TK judges by requiring them to take part in an open public hearing (which is not currently required) and to receive the approval of three fifths of MPs (up from a simple majority at present) to ensure agreement between the ruling majority and opposition.

Justice minister @Adbodnar claims the constitutional court’s order to suspend the government’s removal of a top prosecutor is „defective”.

He says the judge who issued the order – a former PiS MP – should not have been allowed to rule on the case https://t.co/4QRimGUIiX

— Notes from Poland 🇵🇱 (@notesfrompoland) January 16, 2024

The last part of the ministry’s proposal is to introduce changes to the constitution that would allow the aforementioned measures to be introduced, some of which conflict with current aspects of the constitution.

Changing the constitution in Poland requires a majority of at least two thirds in the Sejm and an absolute majority in the upper-house Senate before then passing to the president.

Even while they were being announced by Bodnar, his proposed changes were condemned by a sitting TK judge, Jarosław Wyrembak, who said they show “contempt for the most fundamental principles and values ​​on which the Polish constitutional and political order is based”.

Z mocy Konstytucji RP:
– Trybunał Konstytucyjny jest władzą niezależną od innych władz;
– kadencja każdego sędziego TK trwa 9 lat;
– uchwały Sejmu nie są żadnym źródłem prawa;
– po zaprzysiężeniu sędziego TK przez Prezydenta RP, i po objęciu urzędu przez zaprzysiężonego…

— Jarosław Wyrembak (@JarekWyrembak) March 4, 2024

Wyrembak accused the government of seeking to overhaul the TK simply because it finds it to be a “nuisance” and as an “act of political revenge” against PiS. He argued that it has taken similarly unlawful actions towards other institutions, such as public media and the national prosecutor’s office.

“The state is being plunged into total chaos, uncertainty and anarchy by the ruling majority,” added the judge. In his view these “actions constitute a crime”.

Meanwhile, a senior PiS lawmaker, Marek Ast, told the Do Rzeczy weekly that the government’s proposals represent “an attack on a constitutional body and the [entire] state system”.

Ast, who during PiS’s time in power served as chairman of the parliamentary justice and human rights committee, reiterated his party’s longstanding argument that it and President Duda correctly appointed all current TK judges

„Cała ośmioletnia narracja totalnej opozycji była pozbawiona podstaw. Stworzono historię o sędziach dublerach, a przecież Sejm dokonał prawidłowego wyboru i stanowiska zostały poprawnie obsadzone” ⬇️ https://t.co/iHp7u80K8E

— DoRzeczy (@DoRzeczy_pl) March 4, 2024

Notes from Poland is run by a small editorial team and published by an independent, non-profit foundation that is funded through donations from our readers. We cannot do what we do without your support.

Main image credit: Grzegorz Krzyżewski BRPO (under CC BY-NC-ND 3.0 PL)

Daniel Tilles is editor-in-chief of Notes from Poland. He has written on Polish affairs for a wide range of publications, including Foreign PolicyPOLITICO EuropeEUobserver and Dziennik Gazeta Prawna.

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