Polish constitutional court rejects government bills seeking to overhaul it

Poland's Constitutional Tribunal (TK) has rejected two government bills aimed at overhauling the tribunal itself, with the aim of reversing the politicization of the court that took place under the former Law and Justice (PiS) administration.

The bills would have invalidated rulings that were issued by the Constitutional Tribunal judges illegitimately appointed under PiS and removed these judges from court, while also reforming the rules for selecting new judges.

However, the Constitutional Tribunal – which remains filled with PiS-era appointees, including former politicians from the party – found the measures to be unconstitutional because they undermined the independence of the court and exceeded the Legislature's authority.

The legislation was part of a package of reforms unveiled by the government in March last year and intended to “heal” the Constitutional Tribunal after eight years of PiS rule, during which time the court had come to be seen as being under the influence of the former ruling party .

The bills were approved by the government's majority in parliament in July last year. But President Andrzej Duda, and PiS ally, refused to sign them into law, instead referring the legislation to the Constitutional Tribunal itself for assessment.

Under one of the two bills, Constitutional Tribunal judges who were illegitimately appointed under PiS would have been removed from duty and all previous rulings made with their participation would be invalidated. There are almost 100 such rulings, including the one that introduced a near-total ban on abortion .

The legislation would also have barred anyone who was an active politician within the last four years – including even being a member of a political party – from being eligible to become a TK judge. That was intended to stop situations such as the one in 2019, when PiS appointed two of its recent MPs to the court .

In his justification for sending the bills to the TK for assessment in October last year, Duda ruled that they “undermine the status of some judges of the Constitutional Tribunal” and that overturning some TK rulings would be an “unprecedented event” that could “lead to systemic chaos”.

Now, in a ruling that the TK itself described on social media as “crushing”, it has confirmed the president's concerns and declared the two bills to be unconstitutional because they “violate the constitutional principles of separation, balance and cooperation of powers, as well as the principle of judicial independence”.

It also found that the proposed legislation constitutes an “unacceptable interference” in the “principle of finality and universal applicability of tribunal rulings” and “the principle of trust in the law”, and exceeds the competence of the legislative body.

Deputy Chief Justice Bartłomiej Sochański said that the provisions which invalidate TK rulings and remove TK judges from office “undermine the constitutional basis of the Constitutional Tribunal as an independent judicial authority.” He stressed that granting the Legislature such power would end the Constitutional Tribunal's independence.

The government has not yet commented on the Constitutional Tribunal's ruling. Its general policy is to ignore all the tribunal's judgments as it regards the institution as illegitimate, a position that has been confirmed by multiple European and Polish court rulings.

However, in this case, the court's decision means that the bills in question will not go into force, and the standoff over the TK will continue. The government had hoped for the election of a more friendly president to succeed Duda next month, thereby allowing judicial reform to proceed.

But June's presidential election was won by PiS-aligned Karol Nawrocki, who is likely to continue blocking the government's efforts to overhaul the Constitutional Tribunal. That led one of the ruling coalition's leaders, Szymon Hołownia, to recently call for an end of its boycott of the Constitutional Tribunal.

Main image credit: Lukas Plewnia/Flickr (under CC BY-SA 2.0 )