The Rule of Law Restoration in Poland – Legal and Political Challenges

This is a repost with kind permission of the authors and Review of Democracy, in which the conversation was published originally.

In this conversation with RevDem editor and a re:constitution fellow Kasia Krzyżanowska, Krzysztof Izdebski (Batory Foundation) and Bartosz Pilitowski (Court Watch Poland) discuss all the current challenges the Polish government is facing with the legal legacy left by the Law and Justice party. How to restore trust in the judicial institutions? How to deal with the irregularly established Constitutional Tribunal and the National Council of the Judiciary? What should be the role of the judges in designing the judicial system?


Kasia Krzyżanowska: There was a hope that after the October elections last year when the opposition got a majority over the Law and Justice party, the reversal of legal reforms would be easy. But Poland’s government is facing an unprecedented problem of “legal dualism,” as some call it, with competing legal authorities and the lack of mutual recognition between the public institutions. What is the biggest legal challenge that the government has to face now?

Krzysztof Izdebski: I would say the biggest challenge for the government is the lack of certainty or lack of being sure in terms of how citizens are feeling. We met to talk about this dualism in terms of the legal system, in terms of the government. I’m using the term ‘governmental dualism’ because it’s far beyond the problem with only the legal structures or the legal institutions, it is a problem of who’s got the power. This has implications for a much wider debate on the place where Poland is now in terms of the political and social life. I would say there are two biggest challenges. So, the first one is the Constitutional Tribunal – we will probably get into more details later – but the worst thing is that I don’t see a reasonable way to get out. We are a highly polarized country; in normal conditions, we could reach some kind of a national agreement, but I’m not super optimistic about it. The problem with the Constitutional Tribunal is that it doesn’t exist in practical terms; it doesn’t exist in legal terms. We have three persons who are not the judges; the rest are legal judges, but we can all agree that from the perspective of the citizens, this just doesn’t work. We don’t have an institution that protects the rights of citizens, and this worries me as a human rights defender. This is the biggest legal challenge, not visible on the citizens’ level, at least yet.

Another challenge relates to the judiciary – so the common courts – and the existence of the so-called neo-judges and the Supreme Court, which is also a huge issue for the political landscape. Only to give you the example of Maciej Wąsik and Mariusz Kamiński, who, for some lawyers and according to law, were deprived of their mandates [they were sentenced by the courts for the abuses of power while being anti-corruption officers but pardoned by the President before the final non-appealable judgement had been issued]. For other lawyers, this was done in a non-legal manner. Nothing is certain – this is something that we should be concerned about. When we talk about the rule of law, there is a word rule, and the rule simply rules. It gives you some certainty of your legal and social position.

Bartosz Pilitowski: I totally agree with Krzysztof that legal certainty for the citizens and firms or organizations like ours is something crucial. You asked: ‘What’s the biggest problem that the government is facing?’ – I would say that the government is not facing this problem, actually. It’s avoiding this problem. I think this should be the cornerstone of thinking about restoring the rule of law – to restore the trust of the society and our international partners, but first of all, our citizens. So, to restore trust and the common understanding of what is law. We should start here and build some solutions that could lead us to the expected situation where there is not only a rule of law, but we also all agree on what law is.

Do you subscribe to the view that some prominent Polish lawyers expressed in the public sphere that in the name of the rule of law, it is permissible to breach the rule of law?

Bartosz Pilitowski: I believe that we should take the long-term perspective on restoring the rule of law. If incorrect methods are used to repair it, its condition will deteriorate even further. It’s like building an Iron Bridge. If there is a corroded element, you need to exchange it, of course, but it’s not enough to use another iron bar. You need to fix it with iron bolts and not with glue or with some kind of strings. In other words, it is not enough to put a new institution, a new decision, or a new official in charge – you need to do it properly. And if you don’t, they won’t really serve the purpose of giving stability and support for people’s actions.

People now will not be sure whether this official has the legitimacy to issue decisions or whether the judgement of the court will be enforceable in the future. The former government made mistakes in their reforms or putting judges into offices. We should rather find ways to restore the rule of law in a better way, not in a worse or similar way.

Krzysztof Izdebski: What makes me nervous is this approach – expressed by these prominent Polish lawyers – is the fact that it’s based on the assumption of good faith. It’s like: ‘Yes, we are doing the things which are not really legal, but we are doing it for the good cause, believe us‘. This is not how the citizens-government relations should look. This is not something that I would expect. With all due respect and all the proportions, Jarosław Kaczyński was saying: ‘Yes, we will have a better judiciary, we will have the Constitutional Tribunal that sticks to the rule of law‘ etc. And we end up with a huge mess in the end. So, I don’t believe that we should agree, and I don’t believe that we should accept the narrative that claims we can circumvent the legal provisions just to get to the state when everyone will be happy, and the rule of law will come back -because this is not the guarantee. This is not how the state should operate.

Of course, and now it will show that I am not super consistent here; I’m a realist I am aware that the current government has very limited power to introduce the changes. It is also connected with this theory of having two governments at once. I’m supporting the way how the government is experimenting or testing some solutions. I understand that it can’t be done in the way that it should be done 100%, so going through the Parliament, the decision of the President, if there’s something wrong – then we have control of the independent Constitution Tribunal. We don’t have any of it. We don’t have this culture, not even the political circumstances that allow for the ordinary functioning of the state.

The government has to be innovative, but there are some limits. I might be supportive of the steps taken within the prosecution office and I understand how it works with the prosecution. With what happened to the public media, I think it’s a disgrace. I am not aware of any plan. What is the vision of the Polish government for the public media, apart from kicking out former employees? I don’t have any empathy for these employees. But I want independent, free public media, and I don’t know what this situation is going to bring us to.

Constitutional Tribunal in Warsaw. Source: Adrian Grycuk, CC BY-SA 3.0 PL https://creativecommons.org/licenses/by-sa/3.0/pl/deed.en, via Wikimedia Commons

When you are analyzing diverse projects on the so-called rule of law restoration, do you have an impression that they are trying to – precisely – restore the legal order that was in place before the PiS Party came to power, or do they take this moment as an opportunity to reflect on the pre-2015 rule of law defects and weaknesses?

Bartosz Pilitowski: Let me just analyze an example. We have seen a recently published proposal of a bill amending the law on the National Judicial Council. It is a crucial institution in the Polish system because the National Judicial Council makes the final decisions on who becomes a judge in Poland. But the proposal presented by the Minister of Justice brings back the system that we have had in place before. So, I don’t see any new ideas there. Of course, I’m not saying that it is decisive. It’s very early. It’s hard to tell what the developments will be, but I see that the first step is to bring back the old regime, so I don’t see much innovation here.

Krzysztof Izdebski: I agree with the example given by Bartosz. But I think it also depends on which drafts or who is proposing or writing them. The government is under heavy pressure because of the legal uncertainty, the political situation, expectations of the electorate, expectations of judges, and expectations of prosecution. It’s how I imagine it, not being inside the government, but there’s a pressure to do something. So then, they decided to make it just quick, make it small, maybe not go into revolution. Perhaps there will be time for this. I can understand it. But of course, I am disappointed.

There are some drafts on the table. One of them is elaborated by the legal experts’ team of the Stefan Batory Foundation on the Constitution Tribunal, where the ambitions from the very beginning were rather moderate. It includes the act on the implementing provisions, which is really short, and it mentions double-judges [judges appointed by the President to the positions already taken by other judges elected by the Parliament], but it does substantially engage with the material law. It attempts to answer the question: what kind of vision of the Constitutional Tribunal would we like to have? In this broader perspective, we don’t concentrate exclusively on the President of the CT or other judges who are acting in a disgraceful way, but we propose the vision of the Constitutional Tribunal that will support the people. And I’m proud I was part of the process of drafting this proposal.

While we are recording the podcast, the government says that they will accept our draft on the CT as ours and will go with this further. But again, do I have hopes that it will be enacted in the same shape as we proposed? Not really, and I’m not only talking about the influence of the President and the partially unlawful Constitution Tribunal. I am aware that we will be discussing this proposal in the Parliament once the draft law is formally submitted, within the self-limitation of the very same Parliament (the government is aware of what the Constitutional Tribunal could do). If this particular draft law is enacted, it will then introduce better control of the Parliament and the government activities. This is something that is always uneasy between the government and every institution they try to control.

I have had some talks with other ministries about different issues. And generally, my feeling is that this is not only about the rule of law. Maybe it’s just a complicated moment; we don’t have time. We don’t have the opportunity to propose something revolutionary because of these complicated circumstances. But I’m not happy because of it. Maybe this is a moment of transition, a time to present a vision, just think out of the box. Why did 2015 happen, and why was there a general permission for the reforms, or as others say, deforms of Law and Justice government? Also, because the common courts and the Constitutional Tribunal weren’t the best working institutions in the past. We see the need for the reform of the judiciary beyond what was before 2015 to build a barrier against the right-wing populists.

Your NGO takes part in discussions on the National Council on the Judiciary. One of the biggest problems for the government, and you suggested it already, is the problem of the judges appointed after 2018 in a politicized procedure before the National Council of the Judiciary. What are your ideas on how to remedy this situation of new judges who issue rulings that can be challenged before the international courts due to unlawful election and court composition?

Bartosz Pilitowski: The right starting point here would be to answer the questions that the European Court of Human Rights has posed, so whether these judges can guarantee an independent court is the right to a fair trial provided by a court with these judges onboard. The ECtHR gave answers on what to do in such a situation by issuing judgements in numerous cases and pointing out what was wrong. And Poland wasn’t the first country that faced this problem. Iceland was the first country where the appointment of judges of the Supreme Court was challenged before the European Court of Human Rights. In Iceland, they suspended the judges and forced them to go through a procedure that was redesigned according to the expectations of the ECtHR ruling so they could perform their duties as judges again. Their status was not challenged, in the sense that nobody claimed that they were not judges after this judgment, as it happens in our case. But the answer of the state was to create a procedure that would allow them to gain this legitimacy again.

In the Polish context, we are not talking about a few judges, as in the case of Iceland, but this is a case of a few thousand judges. It’s rather about finding a solution that would allow a legitimate body to review those procedures in individual cases and intervene only where it is really needed, when there are some grounds for the lack of trust in the judge’s independence, or there is a question of whether the best candidate was chosen in the given competition. I think that it’s not something that should be assessed based on those formal weaknesses of the appointment procedure.

The judicial selection procedure that is in force right now and was performed during the last five years did not differ much from the procedure that we had before. The judicial appointment was a very discretionary decision of the National Council of the Judiciary. We don’t have a good standard to compare with. We have studied how those competitions for judicial positions looked like before – and I wouldn’t suggest following them in other countries. The first thing we should do is to set a standard of what we expect from a judge: list competencies and virtues, and only when we have this common standard that we are happy to use in the future we can compare those candidates that were analyzed in those past competitions, to actually tell whether really the best one won the competition. There is a chance to reform the whole system when we tackle this problem. Otherwise, we can simply make a radical move to basically annul those nominations – which would be a disaster; it would pose a risk to the efficiency of our system. It would be also very questionable before the European Court of Human Rights. There is only a hard way or the wrong way.

Krzysztof, same question, maybe different solutions?

Krzysztof Izdebski: I know where I want to go. In all these conversations that we’ve had, especially about common courts and the judges, the most important thing is how it would affect the situation of the individual, and I can accept a lot of ideas. There’s the one inspired by the Dutch system that proposes how to select the judges, which is something that Bartosz is working on. There are different ideas prepared by the judges themselves – proposals from the judicial associations like Iustitia or Themis – on what to do with new judges.

What would convince me to support one of the ideas would be to understand how it will affect individual rights. If we, let’s say, do not concentrate on the future possibilities of how the system should look but only on what to do with the existing problem, what to do with the new judges – then there are some ideas in this regard. Just get rid of all of them, or just make them come back to the previously held posts. It means that there will be a problem in terms of the court’s calendars – you’re waiting for your divorce case, or whatever case, you want to spend your life with a different person. Then you realize that the divorce is not declared in three months but in a year because of the contestation of the judicial status. And this is what I said at the very beginning – how these reforms affect people. The government and the judges have to take that into consideration. Because they will be the subject of hate from the people whose cases are going to be delayed, it is important to elaborate such solutions that will not undermine the trust towards courts but also will not destroy the lives of individuals because of the judicial system. Again, it’s for people, it’s not for judges, and it’s not for the rule of law as an abstract value. These reforms have to serve a purpose, and this should be a priority when we are thinking about various solutions.

Polish minister of justice Adam Bodnar at International Conference on Criminal Law in Berlin. Source: Gov.pl, CC BY 3.0 PL https://creativecommons.org/licenses/by/3.0/pl/deed.en, via Wikimedia Commons

You mentioned the ideas that are prepared by the associations of judges. What do you think about the fact that many of the proposals on the bills on the judiciary are prepared by these judges? How does this affect the separation of powers?

Krzysztof Izdebski: I will say it for the first time in this conversation, but we lawyers are too often saying – it depends. It depends because there was a different time, before the new government took power when a lot of groups wanted to do something constructive. There was absolutely no way that the Law and Justice government would accept any of these suggestions or would involve the proponents in the works on the draft proposals. I was supportive of what the judges or the prosecutors’ associations did because I think it’s good work. There are a lot of good ideas. Also, up until some time, there was no alternative; thus, at least we can have different opinions.

The problem is when you have an opportunity to put your draft on the table, and someone is going to remake it. Then, you have to recognize when you’re not an NGO anymore and when you are becoming a group of interest. That’s a tricky thing, and some judges are realizing that there’s a moment for acting in a different way, especially since there are a lot of hopes vested in this government. There are people from the judiciary, from other legal professions, that join the government themselves [like the Deputy Minister of Justice, Judge Dariusz Mazur], and they are, I would say, on the good side in terms of the ideas.

I don’t know how to phrase it. If I were in the position of the judicial associations, I would try not to be as pushy as possible. Of course, they have to do it in their own way. They’re not only representing themselves, but also, they do represent the public interest, and – this is the most important thing – they do it in a very transparent way. They’re not having some secret meetings with the politicians.

It is, again, an issue of trust. In 2015, when a significant and unfortunate reform of the Constitutional Tribunal had been conducted, we had a big change in the country itself. This CT reform was drafted by the judges of the Constitutional Tribunal themselves, and their draft was actually pretty good. I was supportive of this. The problem happened when they submitted it to the Parliament, and the politicians from the then government of the Civic Platform destroyed the whole idea. They also selected two extra judges beyond what the then government was allowed to do. Whatever you say, the impression among some parts of society is that “Oh, you see, the Constitutional Tribunal judges prepared the laws by themselves, and then they put this provision of selecting extra judges“, which is not necessarily true. But we have to be aware that people can have this perception of judges. And, again, it’s undermining the trust.

Bartosz, are you bothered by the problem that judges are writing statutes for judges?

Bartosz Pilitowski: I do not oppose judges’ participation in the legislative process per se, like through the associations or even giving personal opinions, but I don’t like if they are given a privileged role in this process, especially if it comes to the law that regulates courts or especially the status of judges. There is a big chance that they will not represent the public interest and just use their experience to advise the MPs and enforce their own particular interest like any lobbyist would do. Of course, it’s legal for them to engage in this process even by lobbying, but it should be approached with an appropriate distance by the government by the MPs – they should not allow the judges to have a dominant influence on the laws concerning themselves.

For a couple of years, some judicial associations demanded that their members and other judges not take part in the competitions for judicial positions before the NCJ. Many judges followed this recommendation since if they would compete in these contests, they would be frowned upon. But there are many other lawyers with different views on whether it is a good idea not to take part in those competitions. People got promoted or nominated for judicial positions, but members of the associations resigned from the opportunity to be promoted. After five years, they are extremely frustrated, to be honest. You can read their expressions on social media, calling thieves those who took the offices and were promoted. They’re calling them really strong names. What they expect from the government and the Parliament is to pass a law that would nullify all those promotions and nominations, and those offices would be open for competitions so that they can be promoted.

There is a particular interest in supporting these ideas, which are not really in line with the Polish Constitution. As I said, in Iceland, the judges weren’t really removed from office. They were just suspended for a short time, and one judge who didn’t want to go through this procedure again was not performing his duties as a judge but retained a judicial status. It wasn’t his fault that the procedure that the government and the state had designed was faulty. In the case of Poland, where more than 2000 offices were taken up during those five years, especially removing the judges that were just appointed for the first time would create an enormous hole in the human resources of the judiciary, which would affect the citizen’s right to a speedy trial and access to justice.

We see here a major problem, where this motivation to take part in those legislative works might be very complex. Especially in this case, I would approach the ideas coming from the judicial associations with a distance so as not to hurt the citizens, who are the most important stakeholders.


In collaboration with Aman Mehta.


About the authors

Krzysztof Izdebski – senior policy officer at the Stefan Batory Foundation and Co-Lead of Open Spending EU Coalition.  He is a member of the Osiatyński Archive Advisory Board, the Marshall Memorial, Marcin Król, and Recharging Advocacy Rights in Europe alumnus. He is a lawyer specializing in Freedom of Information, the reuse of public sector information, and technologies that impact democracy. He has wide expertise in relations between public administration and citizens. He is the author of publications on freedom of information, technology, public administration, corruption, and public participation. He was recognized as one of Poland’s 50 most influential lawyers in 2020

Bartosz Pilitowski – the founder and President of Court Watch Poland, an NGO that engaged over 3’000 volunteers to monitor courts and improve the quality of justice. He has a background in sociology of law and conducts research and analytical work on the right to fair and public trial, procedural and restorative justice, as well as management of the judiciary. He has authored over 50 academic articles and reports on various aspects of the justice system. He has been awarded by the Polish Business Council for his work for the common-good and is an alumnus of the International Visitors Leadership Program of the US Department of State. His vision is a society in which every person entering the court feels confident that they will be treated fairly and with respect.

Katarzyna is a PhD candidate at the European University Institute, Department of Law, where she conducts a research on the judicial understanding of constitutional identity in times of the rule of law crisis in the Polish context. She employs empirical methods (semi-structured interviews with the constitutional agents) to discern the ways in which these actors (political and legal) conceive of the relations between the national constitutional law and EU law.

For her studies, she visited the Centre of Law and Society at Cardiff University (2022), the Institute for European Studies at ULB (2023), and iCourts, the Danish National Research Foundation’s Centre of Excellence for International Courts (2023). Katarzyna is also an editor of the Review of Democracy, an online platform issued by the CEU Democracy Institute, where she is a Head of the Review of Books section and a contributor to the History of Ideas section.


Citation: Kasia Krzyżanowska, The Rule of Law Restoration in Poland – Legal and Political Challenges, in: TRAFO – Blog for Transregional Research, 06.03.2024, https://trafo.hypotheses.org/50677


OpenEdition schlägt Ihnen vor, diesen Beitrag wie folgt zu zitieren:
Forum Transregionale Studien (6. März 2024). The Rule of Law Restoration in Poland – Legal and Political Challenges. TRAFO – Blog for Transregional Research. Abgerufen am 18. Juli 2024 von https://doi.org/10.58079/vym0


Forum Transregionale Studien

The Berlin-based Forum Transregionale Studien promotes the internationalization of research in the humanities and social sciences. It provides scope for collaboration among researchers with different regional and disciplinary perspectives and appoints researchers from all over the world as Fellows. More...

Das könnte dich auch interessieren …

Schreibe einen Kommentar

Deine E-Mail-Adresse wird nicht veröffentlicht. Erforderliche Felder sind mit * markiert

Diese Website verwendet Akismet, um Spam zu reduzieren. Erfahre mehr darüber, wie deine Kommentardaten verarbeitet werden.

Suche in OpenEdition Search

Sie werden weitergeleitet zur OpenEdition Search