Polish parliament passes bill to reverse previous government’s reform of judicial council

The ruling majority in parliament has approved a bill that the government says will restore the independence of the body responsible for nominating judges, which under the previous Law and Justice (PiS) administration was brought under greater political control.

The National Council of the Judiciary (KRS) was at the heart of the rule-of-law crisis that emerged under PiS’s eight-year rule. Various Polish and European court rulings found that PiS’s reforms rendered the body no longer legitimate, thereby also calling into question the thousands of judges appointed through it.

However, a former deputy justice minister in the PiS government has criticised the newly proposed measures, saying they would restore an unaccountable “judgeocracy” and would effectively “give the EU control over our judiciary”.

Sejm przyjął dziś nowelizację ustawy o Krajowej Radzie Sądownictwa. Nowe przepisy przywracają zgodność z Konstytucją RP przepisów, które regulują sposób wyboru sędziów do Rady. Usuwają też negatywne konsekwencje wadliwego rozwiązania, obowiązującego od 2018 r.

Pełny komunikat ⬇️… pic.twitter.com/T2f2d3naRh

— Min. Sprawiedliwości (@MS_GOV_PL) April 12, 2024

The proposed legislation would reinstate the previous procedure whereby the majority of members of the KRS are chosen in secret and direct elections held among judges themselves. PiS had changed the system to instead give politicians power to pick most of the body’s members.

In a vote on Friday afternoon, the legislation was approved by a majority of 244 votes – all from ruling coalition – in the 460-seat Sejm, the more powerful lower chamber. The 199 votes against it came from PiS and the far-right Confederation (Konfederacja) party.

“Thanks to this bill, we will free the KRS from political pressure,” Michał Szczerba, an MP from Prime Minister Donald Tusk’s Civic Coalition (KO) group, wrote on X after the bill was passed. “Citizens will regain an independent and impartial judiciary.”

The bill now moves to the upper-house Senate, where the government also has a majority. But once approved by parliament, it passes to President Andrzej Duda, a PiS ally who was closely involved in the former government’s judicial reforms. He has the power to veto the law.

Mamy to! Jest ustawa o KRS. 💪 15 sędziów-członków KRS będzie wybieranych przez wszystkich sędziów w Polsce w wyborach bezpośrednich z zachowaniem tajności głosowania, a nie jak to było dotychczas – przez polityków. Dzięki ustawie uwolnimy KRS od politycznych nacisków oraz…

— Michał Szczerba (@MichalSzczerba) April 12, 2024

Depoliticising the KRS was a central pledge made by the new government when it took power from PiS in December 2023. It was also a demand of the European Commission in order to unlock Polish funds frozen over rule-of-law concerns.

In 2019, Poland’s Supreme Court ruled that, due to PiS’s changes reforms, “the KRS is not an impartial and independent body” as it had been rendered “dependent on the executive authorities”. In 2022, the same court found the KRS to no longer be consistent with its role outlined in the constitution.

In 2021, the European Court of Human Rights likewise found the overhauled KRS was no longer independent from legislative or executive powers. The same year, Poland became the first country to ever be expelled from the European Network of Councils for the Judiciary.

The defects in the KRS have also had a knock-on effect, because they have called into question the legitimacy of the thousands of judges appointed through it after PiS’s reforms.

Poland has become the first ever country to be expelled from the European Network of Councils for the Judiciary.

The politicisation of Poland’s council „blatantly violates judicial independence” and „undermines the application of EU law”, found the ENCJ https://t.co/NFf2NJR0rV

— Notes from Poland 🇵🇱 (@notesfrompoland) October 29, 2021

Under the government’s newly proposed legislation, 15 of the KRS’s 25 members would be judges elected through voting among other judges. That would reverse the situation introduced by PiS, whereby these members of the council were selected by the Sejm.

According to the new bill, among those 15 members, one would be from the Supreme Court, two from the courts of appeals, three from district courts, six from regional courts, and one each from military courts, the Supreme Administrative Court and the regional administrative court.

Applications for candidates would be reviewed by the National Electoral Commission (PKW), which will conduct the elections. Candidates will have to go through a public hearing procedure where they will be asked questions.

Once members are elected under the new procedure, those who are currently in place under the procedures introduced by PiS would be removed and replaced.

The proposed bill would also create a “social council”, an advisory body intended to ensure the open participation of civil and professional organisations in the reform of the judiciary.

Poland’s government has announced a package of measures aimed at “healing” the country’s constitutional court following eight years of rule by the national-conservative PiS party, whose actions rendered the body “defective” https://t.co/kWGJFOEVpw

— Notes from Poland 🇵🇱 (@notesfrompoland) March 4, 2024

Even if the legislation does become law, it remains unclear what will happen to the thousands of judges nominated by the defective KRS. Deputy justice minister Dariusz Mazur told broadcaster TVP Info on Friday that further legislation on this issue would appear before the summer holidays.

But he said that “at the moment”, the preferred option of justice minister Adam Bodnar is for those “incorrectly appointed” judges to be returned to the positions they previously held.

Mazur also noted that “there are still plenty of things we need to continue working on” when it comes to addressing eight years’ of judicial reforms introduced by PiS, including planned new laws on the Supreme Court and the common courts

Nowelizacja ustawy o KRS prezentowana przez Ministerstwo Sprawiedliwości zakłada przede wszystkim, że 15 sędziów-członków KRS będzie wybieranych przez wszystkich sędziów w Polsce w wyborach bezpośrednich z zachowaniem tajności głosowania, a nie jak to było dotychczas – przez… pic.twitter.com/oRhDtwuRr6

— Min. Sprawiedliwości (@MS_GOV_PL) April 10, 2024

The government’s actions were, however, criticised by Sebastian Kaleta, who served as a deputy justice minister in the PiS-led government and is now an opposition MP.

“The act on the KRS adopted by the Sejm is is nothing more than a return to judgeocracy,” he wrote on X, referring to PiS’s argument that judges want to again become a self-governing and unaccountable “caste”.

“[Letting] judges choose among themselves creates a state within a state,” added Kaleta, who also claimed that “such a model simply means giving the EU control over our judiciary” because “some judges in Poland have already declared that they are ‘European’ above all”.

Przyjęta przez Sejm ustawa o KRS to nic innego niż powrót do sędziokracji.

Sędziowie sami siebie wybierający to tworzenie w państwa w państwie.

Przypominam, że część sędziów w Polsce oświadczyło już, że w pierwszej kolejności są „europejscy”, czyli taki model po prostu oznacza…

— Sebastian Kaleta (@sjkaleta) April 12, 2024

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

Agata Pyka is an assistant editor at Notes from Poland. She is a journalist and a political communication student at the University of Amsterdam. She specialises in Polish and European politics as well as investigative journalism and has previously written for Euractiv and The European Correspondent.