- Poland’s Constitutional Tribunal issued a ruling in which it found the law amending the rules for electing judge-members of the National Council of the Judiciary (KRS), prepared earlier by former Minister of Justice Adam Bodnar, to be unconstitutional.
- The Tribunal struck down the law in its entirety, citing as the main reason the unlawful exclusion of two lawmakers from the opposition Law and Justice (PiS) party from the deliberations on it.
- Nevertheless, Poland’s Constitutional Tribunal also examined some specific provisions of the Act, pointing to the unconstitutionality of: restricting the right of judges appointed since 2018 to stand for election to the National Council of the Judiciary (KRS), shortening the term of the current KRS, and granting the Supreme Administrative Court (NSA) jurisdiction to hear complaints against certain decisions concerning the electoral process.
- Donald Tusk’s new Minister of Justice, Waldemar Żurek, has meanwhile presented a draft of a new amendment to the Act on the National Council of the Judiciary (KRS), which largely mirrors the above provisions that the Constitutional Tribunal found unconstitutional. Worse still, the Ministry of Justice has no intention of backing away from them.
On November 20, Poland’s Constitutional Tribunal examined the constitutionality of the Act of July 12, 2024 amending the Act on the National Council of the Judiciary.
This bill, prepared earlier by the Ministry of Justice headed by Adam Bodnar, aimed to change the rules governing the functioning of the National Council of the Judiciary, so as to restore arrangements largely similar to those in place before 2018. First of all, the act provided for the abolition of the rule currently in force, according to which the fifteen members of the KRS referred to in Article 187(1)(2) of the Constitution are elected by the Sejm from among judges of the Supreme Court, common courts, administrative courts, and military courts (Article 9a of the Law on the Organization of Common Courts), and for the introduction, instead, of elections of those members carried out by judges at all levels and in all branches of the judiciary.
However, when the statute passed by the Sejm reached President Andrzej Duda, he, having formed doubts as to the constitutionality of both the solutions envisaged therein and the procedure by which it was adopted by the Sejm, referred it to the Constitutional Tribunal for so-called preventive review, pursuant to Article 122(3) of the Constitution.
Unconstitutional restriction of the right of judges appointed since 2018 to stand for election.
In its judgment (Kp 2/24), the Polish Constitutional Tribunal found the statute to be inconsistent with the Constitution in several respects. First, it considered unacceptable the measure set out in Article 2(2) of the Act, which provided for depriving all judges who assumed their current posts under the procedure in force since 2018, i.e., those appointed by the President of the Republic of Poland on the basis of a motion from the National Council of the Judiciary (KRS), whose judge-members were elected by the Sejm, of the right to stand for election to the KRS.
Let us recall here that the change in the method of electing KRS members was one of the main fault lines in the conflict between the then-opposition, which now governs as part of a broad left-liberal coalition led by Prime Minister Donald Tusk, and the then-parliamentary majority led by Law and Justice (PiS). This reform was deemed unconstitutional by Donald Tusk’s camp and challenged by the European Commission, neither of which, however, had the authority to rule on the matter. The Polish Constitutional Tribunal, however, had such powers and in the judgment of March 25, 2019 (K 12/18) found this reform to be consistent with the Polish Constitution. This, however, did not change the stance of Donald Tusk and his successive justice ministers, who do not recognize the legitimacy of the current Constitutional Tribunal and have consistently refused since spring 2024 to publish and enforce all of its rulings.
However, in the aforementioned judgment concerning the statute pushed by Donald Tusk’s first Minister of Justice, the Polish Constitutional Tribunal held that the above provision is inconsistent with Article 187(1)(2) and (4) of the Constitution (rules concerning the composition of the National Council of the Judiciary, including a statutory delegation to determine the manner of electing its members) in conjunction with Article 32 (prohibition of discrimination); Article 179 (principles governing the appointment of judges – by the President of the Republic of Poland, on the motion of the National Council of the Judiciary, for an indefinite period) in conjunction with Article 144(3)(17) (recognizing the appointment of judges as a prerogative of the President) and in conjunction with Article 10(1) (the principle of the separation and balance of powers); Article 178(1) (judges, in the exercise of their office, are independent and subject only to the Constitution and statutes); Article 173 (the principle of the independence of the judiciary); and Article 7 of the Constitution of the Republic of Poland (the principle of legality – public authorities act on the basis of and within the limits of the law).
In other words, the judgment held that depriving judges appointed since 2018 of the right to stand for election to the National Council of the Judiciary (KRS) constitutes:
- a violation of the constitutional principles governing the election of the judicial component of the KRS, granting the right to stand for election to all judges and thus constitutes a violation of the principle of equality before the law, as well as
- unlawful undermining of the President’s constitutional prerogative to appoint judges by de facto questioning the status of judges appointed since 2018.
More detailed explanations of this latter issue were set out in the press release following the judgment, where it was stated:
The legislature’s action constitutes an impermissible interference with the head of state’s exclusive competence to appoint judges. The legislature, acting contrary to the principle of legality set forth in Article 7 of the Constitution, has in practice arrogated to itself the authority to review and set aside the President’s official acts constituting the exercise of the President’s prerogatives. In its order of April 21, 2020, the Tribunal emphasized that “[i]n the Polish legal order there are no legal provisions that would confer on any public authority the competence to challenge the act of appointment and the investiture, resulting from that act, authorizing a judge to adjudicate (…).” The constitutional design of the authority deriving from Article 179 and Article 144(3)(17) of the Constitution excludes not only the possibility of challenging the validity of the act of appointment, but also does not permit challenging the scope of the authority of the person appointed by the President of the Republic of Poland to hold the office of judge. Adopting a different view would deprive this competence of the President of the Republic of Poland of its material essence, since appointing a judge who, despite the issuance of an order concerning appointment to the office of judge, could not hold judicial authority, is not an exercise of that competence” (Constitutional Tribunal order of April 21, 2020, case no. Kpt 1/20).
Poland’s Constitutional Tribunal also made a few interesting remarks about the concept of judicial independence referred to in Article 178 of the Constitution, emphasizing that it should be understood as relating not so much to the circumstances of appointment as to the circumstances in which a judge performs their office, in particular the autonomy of the judgments they issue:
The Constitutional Tribunal has repeatedly held that judicial independence is not directly dependent on the manner of appointing a judge to office; it becomes operative only after the judge’s appointment, while in office. Judicial independence is therefore always assessed in the context of a specific case pending before a court (judgments of: July 14, 2021, ref. no. P 7/20; October 7, 2021, case no. K 3/21; November 24, 2021, case no. K 6/21). In the reasoning of the cited judgments, the Tribunal noted that testing the independence and impartiality of judges in abstracto and in gremio is impossible; it can take place only in specific cases on the basis of existing and well-established procedures for the recusal of judges, iudex suspectus and iudex inhabilis. Given that the independence and impartiality of judges are not directly related to the manner of their appointment, it is likewise not possible to assess the manner of appointment, the autonomy, and the independence of judges according to the same criteria.
One can therefore conclude that, on this occasion, the Tribunal recalled the inadmissibility of conducting so-called judicial independence tests outside the procedure described in Article 42a of the Law on the System of Common Courts, which requires demonstrating (and at an early stage of the proceedings, in accordance with the principle of procedural economy) that doubts as to a judge’s independence may affect the outcome of the case, taking into account the circumstances concerning the applicant and the nature of the case, which we reminded readers about in a recent article.
Further incompatibility with the Constitution – shortening the term of office and the NSA’s jurisdiction
Another specific provision of the act that the Tribunal found unconstitutional was Article 3, which provided for shortening the term of office of the current judicial component of the National Council of the Judiciary as of the day the elections of its new members are announced. This solution would be obviously inconsistent with Article 187(3) of the Constitution, according to which:
The term of office of elected members of the National Council of the Judiciary is four years.
At the same time, the Polish Constitutional Tribunal emphasized that:
The constitution-maker, in any constitutional provision, has not provided for the possibility of removing members of the National Council of the Judiciary before the expiration of the Council’s term of office.
In particular, the Tribunal emphasized that such a shortening of the term of office would be possible, but only if the following occur:
extraordinary, constitutionally justified circumstances.
Such circumstances occurred in 2018, when the then-adopted Act of 8 December 2017 amending the Act on the National Council of the Judiciary and certain other acts (whose Article 6 provided for shortening the terms of office of the then members of the KRS) implemented the judgment of the Constitutional Tribunal of 20 June 2017 (K 5/17), which found unconstitutional the then-applicable provisions concerning the election of judge-members of the KRS (due to discrimination against judges of lower-level courts and a violation of the constitutional requirements for a uniform term of office for the entire judicial component of the KRS – we discussed this topic in an earlier post). Such circumstances most certainly do not occur at present, especially in view of the fact that in its judgment of 25 March 2019 (K 12/18) the Constitutional Tribunal explicitly found the provisions of the Act on the KRS currently in force, which regulate the method of selecting judge-members of the KRS, to be consistent with the Constitution.
The last specific issue considered by the Constitutional Tribunal was the conferral on the Supreme Administrative Court (NSA) of jurisdiction to hear appeals against resolutions of the National Electoral Commission regarding the acceptance of candidate nominations for membership in the KRS and the election results (Article 1 point 3 of the cited Act, adding Article 11l paragraphs 8-10 and Article 11t to the Act on the National Council of the Judiciary). The Polish Constitutional Tribunal held in this respect that these provisions are incompatible with Article 184 of the Constitution, which defines the scope of the NSA’s jurisdiction:
The Supreme Administrative Court and other administrative courts shall exercise, to the extent specified by statute, control over the performance of public administration. Such control shall also extend to judgments on the conformity to statute of resolutions of organs of local government and normative acts of territorial organs of government administration.
It was also emphasized that:
Article 184 of the Constitution does not provide for the possibility of entrusting administrative courts with matters other than those expressly indicated in this provision. This provision, therefore, clearly limits the jurisdiction of the Supreme Administrative Court to cases concerning the control of public administration. […] Matters concerning the review of complaints against resolutions of the National Electoral Commission (PKW) refusing to accept the nomination of a candidate for member of the Council, and the review of protests against the validity of the election of a member of the Council, do not fall within the jurisdiction of administrative courts as defined by provisions of constitutional rank. Adjudicating these cases does not constitute oversight of the public administration’s activities. It should also be emphasized that the PKW cannot be classified as a public administration authority.
On the other hand, the Constitutional Tribunal did not address the issues raised by the National Council of the Judiciary in its resolution of October 11, 2024 on joining the proceedings before the Constitutional Tribunal. The KRS, while generally supporting the motion of the President of the Republic of Poland, called for a detailed examination of the compliance of the provisions of the Act restoring the principle that judge-members of the KRS are elected by the judges themselves with:
- Article 2 of the Constitution – The Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice,
- Article 4 of the Constitution – 1. Supreme power in the Republic of Poland shall be vested in the Nation. 2. The Nation shall exercise such power directly or through its representatives.
– in connection with Article 104(1) of the Constitution – Deputies shall be representatives of the Nation. They shall not be bound by any instructions of the electorate.
In its opinion, the KRS argued that:
In place of the democratic mechanism, it thus introduces an oligarchic mechanism, the privileging of one group of citizens distinguished by profession, and the disenfranchisement of all the other citizens of the Republic of Poland. […] The method of electing the judicial component of the KRS introduced by the contested statute in essence constitutes a return to the corporatist-curial model that was in force prior to 2018, which is the negation of the democratic model […]. To be regarded as having democratic legitimacy, representatives of the various branches of government do not need to be elected directly by citizens. What is constitutionally necessary, however, is the so-called uninterrupted chain of legitimacy. In light of the principle of democracy, unless the Constitution itself provides otherwise, an indirect link of legitimacy is sufficient, provided it is established by an unbroken chain of legitimacy from the citizens, through their elected representation, to the bodies entrusted with state functions […]. Selection within a professional group is not a democratic election and, as such, is not bound by even an indirect democratic mandate.
Unfortunately, in the judgment in question, the Tribunal did not directly address the above argument, which is highly interesting and important from a constitutional point of view. In practice, however, this omission had no direct significance.
Procedural defect – finding a statute unconstitutional in its entirety
Indeed, irrespective of the foregoing detailed considerations, the Tribunal also declared the unconstitutionality of the entire statute on procedural grounds. Specifically, the Tribunal found that the exclusion of the opposition MPs Mariusz Kamiński and Maciej Wąsik (from PiS) from participating in the Sejm’s proceedings during the consideration of the bill in question (due to the unlawful declaration of the expiration of their mandates by the then Marshal of the Sejm, Szymon Hołownia, who ignored their pardon by the President), and allowing Monika Pawłowska to take their place, in particular violated Article 96(1) of the Constitution, according to which:
The Sejm shall be composed of 460 Deputies.
Poland’s Constitutional Tribunal also emphasized that, although:
As a rule, statutes are not enacted by the Sejm with the participation of all 460 deputies. Most often, this is due to circumstances of a fortuitous nature (e.g., a deputy’s illness), or to the occurrence of temporary vacancies resulting from circumstances specified in Article 247 § 1 of the Electoral Code, when the mandate has actually expired.
However,
in the present case, the reason for the unconstitutionality of the statute under review does not lie in the fact that it was enacted by the Sejm without the participation of all 460 Members of the Sejm, but rather in the fact that two deputies, on the basis of arbitrary actions by the Marshal of the Sejm, lacking any basis in the legal order in force in the Republic of Poland, were not permitted to participate in the proceedings, in particular to take part in the Sejm vote (through the deactivation of their voting cards and denial of access to the Sejm buildings). […] Thus, the body — proceeding in a composition formed as a result of unlawful actions of the Marshal of the Sejm that prevented Mariusz Kamiński and Maciej Wąsik from participating in legislative work, while operating with the participation of Monika Pawłowska, who at the time of the law’s adoption was not authorized to exercise a parliamentary mandate, cannot be classified as the Sejm in the constitutional sense.
The Tribunal also emphasized that this position is consistent with its earlier jurisprudence, as expressed in the rulings in cases K 7/24, U 4/24, K 14/24, K 6/24, and K 14/24.
The effect of this ruling by the Polish Constitutional Tribunal is as follows:
Pursuant to Article 122(4), first sentence, of the Constitution, the President of the Republic of Poland is required to refuse to sign it; the performance of the aforementioned duty by the President is not contingent upon the publication of the judgment in the Official Journal. The consequence of the obligation to refuse to sign the bill under review is its failure to take effect and the termination of the legislative process.
In other words, the act is repealed in its entirety and none of its provisions will take effect.
Minister Żurek pushes unconstitutional measures.
Although the mere finding of a procedural defect in the statute would have sufficed to strike it down in its entirety, the Tribunal also explained why it decided, as a supplementary measure, to declare unconstitutional some of the specific provisions it contains:
The examination of substantive-law allegations and the finding of unconstitutionality of individual provisions of the statute under review mean that the legislator, in any future regulation of matters related to the procedure for electing judges to the KRS, should refrain from reproducing normative solutions deemed by this judgment to violate the constitutional standard.
This observation is particularly important in the context of the current actions of the Polish Minister of Justice, Waldemar Żurek, who two weeks ago (on November 6) presented a new draft amendment to the Act on the National Council of the Judiciary.
Although the Minister described his proposal as:
compromise draft.
– in essence, the draft duplicates a number of provisions laid down in the earlier act prepared by Adam Bodnar, which the Constitutional Tribunal has just (as described above) ruled unconstitutional.
First and foremost, the draft still provides for discrimination against some judges, namely depriving them of the right to stand for election to the KRS. This applies to two groups:
- current members of the judicial component of the KRS (Article 2(2) of the draft),
- judges who have been judges for less than 10 years or have held their current judicial office for less than 5 years (Article 1 point 3 of the draft adding Article 11f(2) to the Act on the National Council of the Judiciary).
This second provision is worded in such a way that, in effect, it will cover a significant portion of judges who were appointed to their current positions since 2018. Accordingly, it should be concluded that, to the extent indicated above, the bill is unconstitutional for the same reasons as the Act of July 12, 2024.
The draft also contains provisions analogous thereto that confer jurisdiction on the Supreme Administrative Court over appeals against actions of the National Electoral Commission concerning the conduct of elections among judges (to be added to the Act on the National Council of the Judiciary by Article 1 point 3 of the draft: Article 11l(8–10) and Article 11t), that are inconsistent with Article 184 of the Constitution.
In light of the above, the position of Minister Żurek, who, after the Constitutional Tribunal’s judgment, stated that:
We have a new draft ready that meets constitutional standards and fulfills Poland’s obligations to European courts.
– should be considered a textbook example of disinformation.
The only seemingly significant improvement over Adam Bodnar’s bill is that Minister Żurek’s draft does not provide for shortening the term of office of the current National Council of the Judiciary, which would be contrary to the Constitution. However, this is due not so much to the Minister’s goodwill as to the current circumstances, as the said term will end soon anyway—in May 2026.
On the other hand, according to media reports, the President of the Republic of Poland, Karol Nawrocki, has a completely different idea for reforming the way the KRS operates.
According to those reports, the Polish head of state is expected to present a proposal in January of next year, in which the principle that the Sejm elects the judicial members of the National Council of the Judiciary (KRS) will be maintained, although certain details of that procedure would be changed. If the current Sejm majority does not accept this proposal, President Nawrocki will want to submit it to a referendum in which all citizens will be able to express their views on the preferred model for selecting the judicial component of the KRS.
It seems, however, that a genuine compromise between the solution that operated before 2018 and is advocated by the current government, which obviously entails the risk of oligarchizing the judiciary and raises serious doubts from the standpoint of the principle of the balance of powers, and the solution introduced in 2018, which nevertheless undoubtedly strengthens the legislative branch, would be to introduce the election of judge-members of the KRS directly by citizens, by popular vote. Such a solution would, on the one hand, guarantee greater independence of the Polish judiciary, yet without the risk of its oligarchization, and, on the other hand, would comply with the principles set out in the aforementioned Article 4 of Poland’s Constitution. So far, however, such a proposal has not been formally submitted by any party to the political dispute.
For now, everything indicates that the ruling majority will once again pass an unconstitutional law, which the President of the Republic of Poland, Karol Nawrocki, will either once again refer to the Constitutional Tribunal (which will find it invalid) or veto outright. In such a situation, Donald Tusk’s government will likely try to implement the scenario that in June of this year was already suggested by Minister Adam Bodnar, and that last month was reiterated by Minister Żurek – the election, by the current Sejm majority, of judges to the KRS under the current regulations, but preceded by informal primaries held among judges. Such a solution, as we already pointed out in June, will, however, raise obvious doubts about its transparency, and moreover will significantly undermine the entire narrative of the current government about the unconstitutionality of the current regulations.
One can only hope that rejecting this baseless narrative will, in due course, allow a return to a much-needed substantive discussion on the reform of the Polish judiciary. A discussion in which the European Union authorities should not interfere, as in has in the past, only to make things worse, since the Republic of Poland has never ceded to the European Union the power to decide on the shape and organization of the national judiciary.
Image source: iStock.
