With Poland in the throes of forming a new government, the likely ruling coalition led by the former opposition will gain an important opportunity to get the country back on track with a restoration of the rule of law, particularly judicial independence. Although this task will be neither easy nor quick, once in office, the new government should develop a road map for how to walk back from the changes instituted by the outgoing Law and Justice Party.
The process to restore rule of law will be challenging, as Law and Justice (also known by its Polish acronym PiS) will strongly resist any undoing of the repressive changes it instituted. Furthermore, the technical and structural changes that will be needed are complex and intertwined. And the likely new prime minister, former Polish Prime Minister and European Council President Donald Tusk, expected to be sworn in this week after the Law and Justice government faces a vote of no confidence in Parliament, will confront political obstacles such as the veto power of President Andrzej Duda, who remains in office, and a Constitutional Tribunal stacked with Law and Justice appointees. Thus, the restoration of rule of law in Poland will require all those involved and affected to demonstrate patience, strategic thinking, and long-term planning.
The Election and Government Formation
The new government emerges from a surprising and exciting turn of events, when the former opposition won the majority of seats in parliament in Poland’s Oct. 15 elections. The right-wing PiS, which held power since 2015 and initiated Poland’s democratic backsliding, received 35.4 percent of the vote, giving it only 194 seats of 460 in the Sejm (the more powerful, lower house of parliament). The pro-European opposition coalitions – Tusk’s Civic Coalition (KO), as well as the alliances Third Way and left-wing Lewica — together won 248 seats and plan to form a coalition government. The opposition parties also have a majority in the Senate, with 66 of 100 seats.
But while PiS lost its parliamentary majority, it still retained the most seats, so Duda on Nov. 6 designated Prime Minister Mateusz Morawiecki to return to office and take the first opportunity to form a government. It was a move the opposition alleged was intended merely to delay the handover of power and give PiS an opportunity to further reinforce its retrograde actions, even as it would certainly fail to pull together a coalition. The first session of the new parliament took place on Nov. 13, and Morawiecki’s Cabinet was sworn in by Duda on Nov. 28.
But as expected, given the opposition now controls the majority of seats, Morawiecki lost the required vote of confidence in parliament yesterday, paving the way for the Sejm to vote for Tusk to become the new prime minister this week and form the planned coalition government.
A Roadmap for Restoring Rule of Law
Tusk has already announced that former Commissioner for Human Rights Adam Bodnar, a well-known rule of law advocate, will become justice minister. (Bodnar has named one of us, Judge Mazur, as incoming deputy justice minister responsible for courts, effective in the coming weeks.)
The roadmap for restoring rule of law should incorporate four main goals. First, the government should reverse the damage to the legal system by adopting new legislation or amending existing laws to bring them in line with the Polish Constitution and European and international standards. Second, authorities should abstain from systemic repressive practices against judges and prosecutors that were widespread under the PiS government. Third, the new government should pursue the long-term objective of instituting a system of effective checks and balances to ensure that these changes cannot easily be rolled back in the future, no matter what political party is ruling the government. Fourth, the government should carry out true reform of Poland’s judiciary to improve its effectiveness and to increase public trust in the institution.
Poland’s civil society is already working on assisting the government to address these goals. For example, in addition to actively debating the exact mechanisms for restoring rule of law, judicial independence, the Constitutional Tribunal, and effective and independent prosecutorial investigations, civil society also has been brainstorming how to improve the legal and institutional framework to prevent future instances of abuse. Several civil society organizations have prepared draft laws addressing these areas. The organizations include the think tank Stefan Batory Foundation; Iustitia, the largest association of judges in Poland; and Lex Super Omnia, an association of prosecutors. Civil society organizations are also working with youth and young professionals to instill rule of law culture as a necessary predicate to secure Poland’s future within the European Union and the Council of Europe.
However, these restorative efforts will continue to encounter political limitations and obstacles. For example, just two weeks before the elections, the ruling party pushed a law through parliament that transferred the most important managerial and investigative functions in the prosecution service (including the power to change personnel) from the prosecutor general and the minister of justice, who will be changed as part of the appointment of a new government, to the national prosecutor, who will remain in power for the next five years. Another example of such obstruction is staffing courts with PiS-supported judges even after the elections. On Oct. 17, for example, the day after the election results were announced, Duda swore in another 72 judges who were appointed through a politicized process established by PiS.
One more anticipated obstacle that PiS can employ in its resistance to the new government is Duda’s use of his veto powers, since he is a PiS supporter and will be in power until 2025, to block the bills proposed by the majority from entering into force. The new governing majority coalition’s 248 votes in the Sejm aren’t sufficient to meet the required threshold of three-fifths, or 276 votes, to overturn a presidential veto.
Another potential obstacle might be the ability of the president and 15 PiS members of the parliament to refer laws to the Constitutional Tribunal for review for constitutional compliance. And this Constitutional Tribunal does not have the public’s confidence to be an impartial and independent court.
Nonetheless, the new government, once in office, must move expeditiously to address the daunting array of issues that PiS created to undermine rule of law and judicial independence in Poland.
Disciplinary System for Judges
One of the priorities of the new government will be to unlock 59.8 billion euros of EU funds that were designated for Poland’s economic recovery from the Covid-19 pandemic. The funds were frozen because of the previous government’s flaunting of EU standards on rule of law. The funding will be a substantial boost for the Polish economy, which had a GDP of 654 billion euros in 2022. Initially Poland was set to receive 35.4 billion, but the European Commission, the EU’s executive branch, in November approved a larger amount, including money for an energy transition program.
Release of the funds is contingent in large part on Poland meeting milestones related to the disciplinary system for judges. The PiS government used this disciplinary system to intimidate and attempt to silence Polish judges who criticized the PiS-initiated changes that limited their independence. The European Commission will assess the fulfillment of these criteria.
The new governing majority should remove the politicized regulations on disciplinary responsibility introduced by the previous government, ensuring, above all, that disciplinary matters concerning judges are examined by an independent court, in accordance with EU law and standards established by the Council of Europe. The new regulations also will require new authorizing legislation. In the meantime, the government must immediately ensure that judges are working in an environment free of political interference or harassment, as also required by European and international standards.
If Duda uses his veto power to block such legislation, the new government could attempt to involve the president in negotiations with the European Commission to incentivize him to achieve the desired outcome. The EU will have some discretion on interpreting its requirements related to the recovery funds, so if the governing coalition is unable to enact legislative changes because of potential procedural obstacles, the government could argue that improvements in terms of reduced judicial harassment and pressure are sufficient in practice to meet the requirements for unlocking the funds.
Another core issue concerning the independence of judges in Poland is the method of appointing and promoting judges. This process is overseen by the National Council of the Judiciary (NCJ), consisting of 25 members, including 15 judges chosen for four-year terms. In 2017, PiS altered the process of appointing those judges to the council by shifting the selection power from the judiciary itself to the Sejm, making the process vulnerable to political influence and contradicting international standards and previous Polish practice.
The two most important European tribunals, the Court of Justice of the European Union and the European Court of Human Rights, have ruled that court panels including judges selected by the NCJ through this procedure are not independent. These rulings pertain to approximately 2,000 of 10,000 judges in Poland, including those on the Supreme Court. According to case law from the European Court of Human Rights interpreting Article 6 of the European Convention on Human Rights, the status of these so-called “neo-judges” should be addressed to ensure that courts in Poland are independent and impartial.
The Polish legal community is debating draft legislation on the NCJ prepared by Iustitia. One of the topics of these discussions is how to address the issue of “neo-judges.” Representatives from Iustitia argue that, due to the flawed selection for the composition of the current NCJ, this body does not actually legally exist. Consequently, any NCJ motions for judicial appointments are also legally non-existent. This, in turn, means that persons (judges) nominated under such conditions have never effectively taken up their positions. The competitions for those vacant positions should be announced. The “neo-judges” should be allowed to compete for positions before the new and independent NCJ. However, it is crucial to ensure that such a solution will not lead to a temporary paralysis of Polish courts, which already are overwhelmed by a large number of cases and have a backlog that is substantially higher than before PiS took power in 2015.
The second concept, proposed by the Helsinki Foundation for Human Rights, among others, assumes that the appointments made at the request of the new NCJ have legal effect, but are fraught with significant legal violations. It is necessary to carry out an individualized procedure for evaluating the course of appointments of new judges.
Another topic of debate is the status of cases already decided by “neo-judges,” i.e. whether such decisions would be deemed valid or not. The overwhelming opinion among civil society has been to leave these decisions intact to honor the principle of legal certainty, with the possibility of reopening the proceedings within a short period of time only at the request of the parties.
These debates illustrate the complex and challenging nature of addressing judicial independence issues in Poland in the aftermath of the PiS-induced chaos of the past eight years.
Another necessary step for the new government in restoring checks and balances and the independence of key institutions will be to end the paralysis on the Constitutional Tribunal, which in Poland conducts centralized judicial review of the constitutionality of laws and rules on constitutional disputes among State institutions. The Tribunal is composed of 15 judges elected by the Sejm for nine-year terms. In 2015, the PiS majority in parliament initiated the rule of law crisis in Poland by not recognizing the election of three judges to the Tribunal by the previous parliament and appointing new individuals to those positions. In 2021, the European Court of Human Rights ruled that judgments delivered by these “doubles” violated the European Convention on Human Rights. It was determined that “irregular judicial formations” of the Tribunal issued 85 judgments between 2015 and 2022.
Legal experts are considering various scenarios for how to address these judgments. The ultimate result, though, must protect the principle of legal certainty and citizens’ rights. Currently, the Constitutional Tribunal is not functional due to an internal crisis – the members are so polarized that it often has been impossible to achieve a quorum to hear and decide cases. The “doubles” should not be part of the Tribunal, and these positions should be filled by individuals chosen by the Sejm.
There are various proposals for reforming the Tribunal. Constitutional law expert Professor Wojciech Sadurski suggested a complete overhaul of the Tribunal, considering it a compromised constitutional court under PiS. Less radical ideas also are gaining support. The Legal Expert Group of the Stefan Batory Foundation has proposed that the three positions of judges be filled legally, that a new president of the Tribunal be appointed by the president of Poland, and that the Tribunal’s judges be subject to disciplinary proceedings before a commission consisting of current and retired judges of the Tribunal.
The Prosecutorial Services
There is a need to legislatively separate the roles of the minister of justice and the prosecutor general from being held concurrently by one person, a structure that PiS instituted, so that the new prosecutor general would meet standards of integrity and independence from political parties and would not be perceived as a political tool wielded against the opposition. Lex Super Omnia, the association of prosecutors, has prepared draft legislation to effect such a separation of roles and institute rigorous standards.
Under the new government, the prosecutorial services will need to conduct effective and independent investigations against public officials, including those related to corruption involving Polish public funds and EU funds. Ensuring such independence for prosecutors is a crucial step toward strengthening rule of law and accountability. Politicians from PiS and their loyalists also should be held accountable for their actions, which likely constitute abuse of office and other violations, by assessing cases on an individual basis and in line with the rule of law and human rights standards.
The new ruling coalition also should address the media environment and ensure that state public media coverage is unbiased and impartial. PiS has politicized media regulators, including the constitutional media regulator, the National Broadcasting Council (KRRiT), along with the new National Media Council (RMN) to oversee state media. The new government should consider eliminating the RMN by amending the legislation. However, changing the composition of KRRiT, which was appointed for a six-year term in 2022, might prove challenging. Consequently, altering the leadership of State media entities might also be difficult. This situation may favor PiS, especially with the upcoming 2024 local elections and European Parliament elections, as state-owned media have served as a propaganda platform for the party.
PiS, through the largest oil and gas company in Central Europe, PKN Orlen, also has gained control over Polska Press, a publishing company that owns a majority of regional newspapers in Poland. The new president of Orlen is appointed by the minister of State assets. The new authorities should ensure that Polska Press maintains full editorial independence.
As we have seen in Poland, the rule of law is fragile, and it is vital to make sure that its institutions and foundations will be solid and long-lasting. No matter which ruling party or coalition controls a majority in parliament in the future, democratic principles and rule of law should be imprinted in the very essence of Poland’s legal and political culture. The reversal process is a challenging and difficult task, complicated by strong resistance from PiS and its supporters, in part because of potential threats of prosecutions and criminal responsibility for alleged abuse and embezzlement. But the new government should focus urgently and determinedly on the next steps in order to return Poland to a democratic and rule of law-abiding footing.