MAIN POINTS
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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.
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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.
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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.
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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.
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Source of cover photo: Adobe Stock
