Like the mythological hero, though, he has mighty odds against him: constitutional constraints and political opposition. Changing the Constitution requires a parliamentary majority that the new coalition does not enjoy. Whereas changing statutory laws requires the approval of Polish President Andrzej Duda, a politician coming from the PiS party. It seems that Minister Bodnar might be facing a Sisyphean task instead of a Herculean one, after all.

Our blog post reviews changes proposed by the Minister of Justice. In particular, we examine proposals to reset (‘zeroing out’) the CT and introduce new rules for the election of judges. We also reflect on why the proposals for change have been put forward so late and who benefits from the CT’s current situation. Overall, we conclude that the political reality in Poland will impede the effective implementation of the proposed package. However, it does not mean the drafters should be considered politically naïve. The introduction of the package serves its own political purpose. It demonstrates the coalition government’s good intentions and highlights that the present CT is not legitimate. This gives the coalition government the freedom to disregard the CT and ignore its actions.

What is wrong with the Constitutional Tribunal?

The breakdown of the CT is one of the hallmarks of the Polish rule of law crisis. During the PiS government rule, the CT – from an institution upholding the Polish Constitution and the rule of law – has become a puppet institution dependent on the ruling party politicians and actively involved in political disputes. In its infamous rulings, the CT undermined the very fundamentals of the European Convention on Human Rights (e.g. K 6/21; K 7/21) and Poland’s membership in the European Union (e.g. K 3/21, K 8/21). Academics describe the institution as the fallen and degenerated body that used to be the Polish CT. Irregularities in its functioning were identified by the ECtHR, and the European Commission decided to refer Poland to the CJEU for violations of EU law by the CT.

The CT, which is composed of 15 judges, who all have been appointed by PiS, faces two major internal issues. First, three judges who were appointed in violation of the Constitution remain in the CT, the so-called double judges. Second, there are legal doubts about the legality of the election and the prolongation of the term of the CT’s President, Julia Przyłębska, who is a friend of the PiS Party’s leader – Jarosław Kaczyński.

Bodnar’s restoration package

On 4th March 2024, Justice Minister Adam Bodnar, together with representatives of coalition parties and a panel of legal experts, presented the package aimed at restoring the CT. The package consists of four elements:

• the draft resolution of the Sejm (lower chamber of Parliament) on remedying consequences of the constitutional crisis of 2015 – 2023 in the context of the CT’s activity;
• the draft of the law on the CT (internal restructuring of the institution to rebuild the system of constitutional review);
• the draft of the law introducing the law on the CT (transitional provisions);
• and the draft amendments to the Constitution (foreseeing a constitutional reset and the establishment of a new CT).

A. The Sejm’s resolution

The resolution of the Sejm was already adopted by the votes of the ruling coalition (simple majority requirement) on 6^th March 2024. Resolutions of the Sejm do not have a binding force: their role is to call on state institutions to take a specific one-off action as indicated in the resolution (art. 69 of the Sejm Regulations). Similarly to Sejm’s “Resolution calling for the restoration of public media impartiality” from 19th December 2023, the coalition government seeks to use the resolution as a legal justification for further action. In essence, the resolution is a political declaration of the ruling coalition.

The Sejm makes three main statements in the resolution.

First, the appointment of the three double judges was made in flagrant violation of the Constitution. There are individuals appointed to judicial posts already occupied and regarding whom the ECtHR has ruled that their presence in the CT violates the right to a fair trial. Therefore, the Sejm considers that Mariusz Muszyński, Justyn Piskorski, and Jarosław Wyrembak are not judges of the CT and that numerous decisions of the CT issued with their participation are legally defective.

Second, the resolution declares that the CT President’s office is held by an unauthorised person, as Julia Przyłębska was elected without the legally required resolution of the General Assembly of Judges.

Third, the Sejm concludes that there have been significant violations of both the Constitution and ordinary laws by the CT. These violations have become so widespread that the CT can no longer perform its constitutional duties of reviewing the constitutionality of laws and protecting human and civil rights. Therefore, the Sejm believes that CT should be re-established following constitutional principles. The resolution urges the judges of the CT to voluntarily step down and participate in the democratic transition process. Thus, the current judges would allow the establishment of a new CT which would enjoy public confidence and be a true guardian of the Constitution.

B. Law on the CT and law introducing the law on the CT

The draft of the law on the CT and the draft of the law introducing the law on the CT, which are complementary and inextricably intertwined, were primarily based on a project prepared by civil society. Members of the Stefan Batory Foundation’s Team of Legal Experts and 17 prominent scholars worked on the drafts. Additionally, the project received support from 48 NGOs, including the Polish Judges Association “Iustitia” and the Association of Prosecutors “Lex super omnia”.

The drafts stipulate the annulment of rulings made with double judges. These judgments shall have no legal effect, and the project introduces an obligation to repeat all procedural actions in which unauthorised adjudicators took part. However, the project foresees the protection of the legal effects of judgments rendered in individual cases as a result of a constitutional complaint or legal questions. The invalidity of a CT judgment does not entail consequences for the validity of judgements and administrative decisions issued in individual cases.

The draft law on the CT proposed by civil society introduces several new solutions regarding the selection of CT judges and its functioning. CT judges will be elected by the Sejm with a qualified majority of three-fifths of the vote. The circle of entities that can nominate a candidate was extended to include, among others, other apex courts in Poland and professional legal associations.

The draft law states that a judge of the Court shall remain in office upon the expiry of their term until a successor is elected. A person between 40 and 70 who has outstanding legal knowledge and possesses the qualifications required to be a judge of the Supreme Court or the Supreme Administrative Court may be elected as a judge. Current and former (with a 4-year gap required) MPs, senators, MEPs, and members of the Council of Ministers cannot be candidates.

Finally, the project foresees a change from the principle of one-person leadership of the CT to the principle of collegiality. Therefore, many competencies of the CT president will be transferred to the General Assembly of Judges.

C. Constitutional amendment

The proposed draft of constitutional amendments seeks to establish a new CT. This would involve a constitutional reset, meaning that the current members of the existing constitutional court would be removed. On the date the amendments come into effect, the incumbent CT judges’ term of office would expire, but they would remain in office until their successors are elected.

Within two weeks of the amendments taking effect, the Sejm will elect new judges by a three-fifths majority. However, if the election cannot be concluded within two months, then the Sejm will elect 15 members of the CT by an absolute majority. If the new judges are elected, the current members of the CT will be able to benefit from the right to retire. They will be eligible to use the title of a ‘retired judge of the CT’. This privilege does not apply to double judges as they have never been properly appointed to judicial positions.

The draft introduces a staggered election: five judges will be elected for a term of 3 years, five for a term of 6 years, and five for a term of 9 years. In short, this idea is intended to prevent the Sejm of one term (4 years in office) from electing the majority of the CT judges. Additionally, the proposed amendments aim to introduce mechanisms to strengthen the independence and impartiality of the CT. Similarly to the draft law on the CT, the proposed change to the Constitution also introduces the requirement that candidates for the judges of the CT should not have been MPs, senators, MEPs, or members of the Council of Ministers for at least four years. Moreover, the draft strengthens the decentralised constitutional review by incorporating expressis verbis the competence of national courts to apply the Constitution directly.

To leave the politics out

The guiding principle of the package is to depoliticise the institution compromised by internal and external politicking. This is evident through the changes to the procedure of electing the judges, the ban on candidates with recent political activity, and the decentralisation of the CT’s internal management. However, we remain sceptical that the package goes far enough to fulfil the goal while not giving way to new potential dangers.

The longstanding peculiarity of the Polish constitutional system is the Sejm’s monopoly on electing all the judges of the CT by the absolute majority. In effect, a parliamentary majority may choose their candidates without referring to the preferences of other state institutions or political actors. The deficiencies of this method have been known before and have only been accentuated with the beginning of the Polish constitutional crisis. The proposal to introduce the 3/5 threshold, both in the law on the CT and in the proposed amendment to the Constitution, may appear as a way to force political parties to find agreeable candidates. At the same time, it underappreciates the threat of blockages of judicial appointments. Although the draft law provides for the incumbent judges to stay up until their replacement is elected, the political actors may still be incentivised to block an appointment. Other European jurisdictions experienced such tribulations, such as Hungary before the 2011 Constitution and Spain. Even in Poland, the public witnessed a similar deadlock when electing a new Ombudsman (in that case, the Sejm’s candidate required consent from the upper chamber of the Parliament). The drafters also cannot expect judges to remain in their post in perpetuity.

If the drafters wish to guarantee the plurality of voices within the CT fully, they may instead consider implementing a mixed selection of constitutional judges. This method involves two or more political actors/branches in appointing or nominating candidates for judges. For instance, the Lithuanian Constitution stipulates that the Seimas (Parliament) shall appoint judges from the candidates submitted by the President of the Republic, the Speaker of the Seimas, and the President of the Supreme Court. In Bulgaria, judges are appointed in equal parts by the National Assembly (Parliament), the President and jointly by the Supreme Court of Cassation and the Supreme Administrative Court.

This method also works better with another idea introduced by the drafters, that of the staggered elections. If the Sejm’s monopoly is kept, the chance that the Sejm will elect the majority of judges during a single term is relatively high. In fact, should the constitutional amendment be introduced this year, the Sejm may even elect the majority of judges during the term 2027-2031 (one group in 2027, one group in 2030). Distributing the competence to elect judges to various institutions could decrease the probability that all judges will be introduced by one political camp. The other benefit is that the 3/5 threshold becomes redundant, and with it, the threat of electoral deadlock.

CT judges’ terms of office in relation to the Sejm’s terms if the constitutional amendment is approved this year

But the politics stay anyway

The political reality makes the package’s possible implementation doubtful at present. It seems that from the onset, the package was devised as a form of a two-pronged attack: the changes in statutory law were the plan minimum, and the constitutional changes the plan maximum. Despite these efforts, the package will most certainly be blocked.

The simple parliamentary arithmetic precludes any attempt at changing the Constitution without cooperation with the PiS Party: the constitutional threshold is high and requires a 2/3 majority. Such cooperation has already been refuted by PiS leader Jarosław Kaczyński.

Although the ruling coalition could successfully put the statutory changes through the Parliament, it must face the President next. Currently, the ruling coalition does not have a 3/5 majority to override a potential President’s veto. Moreover, the changes may be challenged by the CT itself, which is dominated by the judges elected by PiS.

Why the hassle, then?

Finally, considering that civil society prepared much of the package beforehand and the chances of its implementation are low, it all begs the question – why now?

The coalition government led by Donald Tusk is facing a legal conundrum. On the one hand, it promised the voters to restore the rule of law damaged during the PiS Party’s years in power. On the other hand, any legal changes can be blocked by the CT by President Duda. While the coalition government can wait until President Duda’s term ends in 2025, it cannot afford to do the same with the CT. In this situation of ‘legal impossibilism’ (ironically, the term was coined by Kaczyński himself), the coalition government sees no other option but to delegitimise the CT. A delegitimised CT is an institution that can and should be disregarded.

In the last three months, we have observed this struggle when the coalition government attempted to take over the public media and the National Public Prosecutor’s Office. Since the normal legislative pathway is politically implausible, the course of action chosen by the coalition government trod on the edge of legality. This left many – even voices usually sympathetic to the ruling coalition, such as the Helsinki Foundation for Human Rights – concerned. However, more importantly, the CT announced multiple interim measures to halt the takeovers; they were all ignored by the coalition government.

The effectiveness of the coalition government’s strategy is dependent on delegitimising the CT. The package is paradoxically the tool to accomplish that goal. First, through the Sejm’s resolution, it declares the CT to be a defective institution and calls public institutions to treat it as such. Second, the coalition government proposes a plan for its restoration that would involve all the political parties (hence, the principle of a 3/5 majority for choosing judges) and, by doing so, shows good faith. If the constitutional reset fails, it is the PiS Party’s and President Duda’s fault. The blockage of the reform may serve as yet another proof that the current CT lacks legitimacy and that the coalition government is right to ignore its decisions.

No justice for the people 

With the continued fight over the CT, the Polish constitutional system appears to be in danger of splitting in two. Depending on which political force controls what institution, state bodies now declare each other not legitimate and cease to respect each other’s legal acts. The potential ramifications of such are easy to predict: legal chaos that will affect every sphere of life. While Adam Bodnar’s proposals for a constitutional reset are not ideal, we desperately need a new constitutional opening that would lead to a new set of principles agreeable to all sides of the political spectrum. Sadly, in the meantime, the true victims will be the citizens, who now lack recourse to constitutional justice.

Andrzej Schultz, Jakub Sawicki

Verfassungsblog,de

Autorzy są doktorantami w Instytucie Europejskim Uniwersytetu we Florencji