- Donald Tusk’s political camp challenges the status of judges appointed since 2018, because these appointments were made on the recommendation of the National Council of the Judiciary, whose judicial members were elected to it by the Sejm (the lower house of the Polish parliament).
- Speaker of the Sejm representing the post-communist New Left party, Włodzimierz Czarzasty, announced the start of the procedure for the Sejm of the Republic of Poland to elect fifteen members of the National Council of the Judiciary from among judges, under the same rules that have been in force since 2018.
- According to the Minister of Justice, Waldemar Żurek, this procedure will not be marred by the flaws that the current ruling camp claims afflict the procedure in force since 2018, as it will be preceded by “primaries” held within the judiciary.
- The holding of “primaries” that are not provided for by law cannot be regarded as legally relevant in any way—in fact, such “primaries”, if they may lawfully be held at all, should be treated as non-binding, informal consultations.
Pursuant to Article 179 of the Constitution of the Republic of Poland, judges are appointed by the President of the Republic of Poland, upon the motion of the National Council of the Judiciary (KRS), for an indefinite term. The majority of the members of the National Council of the Judiciary (KRS) are those elected from among judges of the Supreme Court, common courts, administrative courts, and military courts, as referred to in Article 187(1)(2) of the Constitution. The Constitution does not specify by whom and how they are to be elected. Since 2018, the members have been elected by the Sejm of the Republic of Poland, in accordance with Articles 9a and 11a–11d of the Act on the National Council of the Judiciary.
So far, the current ruling majority has held that this procedure is unconstitutional—for that reason, the government has challenged the status (ability to adjudicate) of judges appointed by the President of the Republic of Poland since 2018. Meanwhile, on February 11, 2026, the Notice of the Marshal of the Sejm of the Republic of Poland of February 9, 2026, on the commencement of the procedure for nominating candidates for members of the National Council of the Judiciary elected from among judges was published in the official gazette Monitor Polski. The act issued by Włodzimierz Czarzasty of the New Left constitutes the first step in the procedure for selecting fifteen members of the KRS from among judges of the Supreme Court, common courts, administrative courts, and military courts. The procedure, which will be conducted pursuant to the same provisions of Articles 9a and 11a-11d of the Act on the National Council of the Judiciary, under which the members of the KRS were elected, as referred to in Article 187 para. 1 point of the Constitution – in 2018 and 2022. Procedures under which the election of the judge-members of the National Council of the Judiciary (NCJ) will be carried out by the Sejm.
Finally, the procedure as a result of which, according to the current ruling camp (and contrary to both the text of the Constitution itself and the judgment of the Constitutional Tribunal of 25 March 2019, case no. K 12/18), KRS was to:
lose its constitutional identity.
As indicated above, it was precisely the appointment by the President of the Republic of Poland (Andrzej Duda) of judges at the request of the National Council of the Judiciary, whose judicial component was elected pursuant to Article 9a of the Act on the National Council of the Judiciary, that led the current ruling camp and part of the judicial community that does not conceal its support for the government to question the status of such judges. This manifested itself in attempts to disqualify such judges from adjudicating (which was repeatedly held unconstitutional by the Constitutional Tribunal), in vacating judgments solely because such judges sat on the adjudicating panel, regardless of the substantive content of the judgment (which was deemed impermissible by the Supreme Court), and, finally, in pressure by the Minister of Justice on judges to force them to resign. The most prominent manifestation of this narrative is the bill currently under consideration by the Sejm, ie. the Act “on restoring the right to an independent and impartial court established by law by regulating the effects of resolutions of the National Council of the Judiciary adopted in the years 2018–2025”, which provides—while grossly violating the guarantees of judicial irremovability referred to in Article 180 of the Polish Constitution—for the removal from those positions of the majority of judges appointed since 2018 to their current adjudicative posts.
Meanwhile, Minister Żurek, in a recent press interview, stated plainly and bluntly that the above-described defect in the status of judges appointed at the request of the KRS elected on the basis of, we emphasize once again, the same provisions – will no longer occur.
The minister justifies this by arguing that the Sejm’s vote on the nominated candidates would be preceded by “primaries” conducted among the entire judicial community. This idea is not new – Minister Żurek’s predecessor – Adam Bodnar – raised it as early as June of last year (2025).
The hypocrisy of the Iustitia community
This idea was taken up by the Iustitia Judges’ Association — which does not hide its support for the current government — which on February 7 adopted a resolution, in which it pointed to:
the possibility of appointing the judicial component of the KRS on the basis of the provisions of the currently applicable Act of May 12, 2011 on the National Council of the Judiciary (consolidated text: Official Journal of 2024, item 1186) provided that the Sejm of the Republic of Poland—taking into account statutory limitations, while respecting constitutional values—will only confirm the selection to the Council of those judges who have previously received the highest support in universal, transparent, and representative elections held among all judges in Poland.
It was emphasized that, in the association’s opinion:
Such a choice will comply with EU standards.
Leaving aside for the moment the fact that the European Union has no competence to set standards for the election of the constitutional body such as the KRS (and the fact that even when, acting beyond its competence, it addressed this matter, it did not consider the Sejm’s election of the judge-members of the KRS to be contrary to EU law), the assumption that such informal, in fact devoid of any legal basis, ‘primaries’ are a sufficient basis for changing the status of judges appointed on the motion of the KRS elected as a result thereof is highly doubtful.
The very fact of holding such elections, without any legal basis, raises serious doubts in light of the principle of legality referred to in Article 7 of the Constitution. This fact was very clearly commented on by the Head of the Chancellery of the President of the Republic of Poland, Zbigniew Bogucki, who reminded that:
Pursuant to the statute in force—never challenged within the Polish constitutional order—it is the Sejm of the Republic of Poland that elects the members of the KRS. Not an association. Not a corporation! If the Sejm was merely to ‘confirm’ the choice made by a private association, it would effectively deprive citizens of influence over the state. Meanwhile, it is the people who elect members of parliament, and members of parliament choose the members of the National Council of the Judiciary (KRS)—not ‘rubber-stamp’ some association’s choice.
Obvious doubts are also raised by the transparency, and thus the fairness, of such informal ‘primaries’. According to Iustitia’s position, they would be carried out by Court Presidents—however, it should be recalled at this point that a number of those very presidents were appointed following the dismissals of their predecessors, carried out by Ministers Bodnar and Żurek in violation of, or indeed directly contrary to, the provisions of the law currently in force.
Finally, it can also be recalled that in 2018 the same association, Iustitita, adopted a number of resolutions (with the resolution of March 1 at the forefront), providing, among other things, for the expulsion from the association of judges who at that time were candidates for the KRS. Meanwhile, it is now calling on its members to take part in a procedure that, in formal terms, will take place on the same legal basis.
All of the above indicates that the Ministry of Justice is determined, in the event that President Karol Nawrocki vetoes the Act of 23 January 2026 amending the Act on the National Council of the Judiciary and the Act – Electoral Code – which repeats unconstitutional provisions provided for in the Act of 12 July 2024 amending the Act on the National Council of the Judiciary—to conduct the election of KRS members from among judges on the basis of Article 9a of the Act on the KRS. The clearest proof of this is that Article 1 of the draft of the aforementioned Act “on restoring the right to an independent and impartial court established by law by regulating the effects of the resolutions of the National Council of the Judiciary adopted in the years 2018–2025” adopts a temporal scope covering:
Effects of resolutions adopted in individual cases by the National Council of the Judiciary operating during the period from March 7, 2018, to May 13, 2026.
This means that judges who would be appointed on the basis of motions from the KRS, whose membership will include judges elected by the current Sejm majority, will not be subject to the consequences provided for in the draft bill (they will not be removed from office, and their rulings cannot be overturned), even though from a legal standpoint, nothing will change! Accordingly, this draft clearly violates the prohibition of discrimination, as set out in Article 32 of the Constitution. Such differential treatment of identical legal situations (based on the same legal basis) is impermissible in a democratic state governed by the rule of law. Unfortunately – it also provides the best summary of the essence of the proposal of the Ministry of Justice and Iustitia, according to which selecting judges according to the same procedure and on the same legal basis – but by the current Sejm majority after informal consultation with the Iustitia community – will make the status of such judges significantly different from the status of judges appointed in 2018–2023.
Next steps in the initiated procedure
Pursuant to Article 11a of the National Council of the Judiciary Act, the next step, following the Marshal of the Sejm’s announcement, is the nomination of candidates. Two types of entities are authorized to do this:
- two thousand citizens of the Republic of Poland who have attained the age of eighteen, have full legal capacity and enjoy full public rights, or
- twenty-five judges, excluding retired judges
– which have 30 days to do so.
Upon completion of the nomination procedure, pursuant to Articles 11c and 11d of the National Council of the Judiciary Act, the Marshal of the Sejm will transmit to the Members of the Sejm a list of the nominated candidates, and will then ask the parliamentary clubs to indicate from among that list the candidates recommended by those clubs—each club may in this way indicate up to 9 candidates. The motions from the parliamentary groups will then be considered by a Sejm committee, which will prepare a single list of 15 candidates that will, in turn, be put to a vote by the Sejm. Such a list must include at least one candidate nominated by each parliamentary group that was active at the beginning of the Sejm’s term. This means that on such a list it cannot include only candidates nominated by the current governing majority, including those selected in informal “primaries” — however they might be conducted — but there must be at least one candidate nominated by each of the two opposition parties’ groups— the Law and Justice Parliamentary group and the Confederation Parliamentary group. The Sejm may only vote to approve or reject the list prepared by the Commission—adoption requires a three-fifths majority in the first vote, but if that is not achieved, an absolute majority is sufficient in the next vote.
Summary
Undoubtedly, the entire situation described above, related to the appointment of judges to the KRS for a new term, attests to an extremely instrumental approach of the current ruling majority to the law. On the one hand, with regard to the actions taken by its political opponents, this majority proclaims an extremely principled stance on the rule of law, resorting to very sophisticated interpretations, whereas, it takes no account whatsoever of their impact on the situation of ordinary citizens. On the other hand, when the law in effect would prevent the current government from making any action, the government of Donald Tusk not only tries to circumvent it in various ways, but they even break it outright, while judging in a diametrically opposite way actions that are essentially the same as those they accuse their opponents of, if not worse.
In principle, one could be pleased that the ruling majority, by its actions, in a sense acknowledges that one can use the current procedure for electing members of the KRS from among judges. On the other hand—especially in light of the above-mentioned statements by Minister Żurek and the bills he has submitted—there is no reason to expect that, even after the current ruling majority makes this choice, its (unconstitutional) narrative regarding the status of judges appointed since 2018 will change in any way.
One can only hope that, even despite any possible informal consultations — for that is, in fact, how these so-called ‘primaries’ should be described — the entire procedure will be carried out in accordance with the law and will, in particular, include candidates put forward by genuinely independent judicial circles (especially independent of the current government) and then named by opposition parliamentary caucuses. Perhaps this will make it possible to genuinely test the procedure under the rule of a political camp different from the one that introduced it—and thus allow it to become established.
On the other hand, the aforementioned dispute seems to be a perfect pretext to return to the discussion of the optimal way to select members of the KRS from among judges. As we have pointed out several times on this site, a solution that, on the one hand, would avoid the risk of a return to the oligarchization of the judiciary that would accompany a reversion to the pre-2018 arrangements, and, on the other hand, would put an end to the debate about the excessive influence of the legislative branch on the composition of the KRS that has arisen under the current model, would be to introduce the election of judge-members of the KRS directly by citizens, by popular vote. On the one hand, this would guarantee greater independence of the judiciary, yet without the risk of oligarchization, and on the other hand it would comply with the principles set forth in both Article 4 (the principle of the Nation’s sovereign power) and Article 10 (the principle of the separation and balance of powers) of the Constitution. So far, however, such a proposal has not been formally submitted by any party to the political dispute.
Illustration source: Wikipedia.
