Polish(ing) broken tribunal : the new Polish coalition government's package to restore the Constitutional Tribunal : a wobbly constitutional reset?

Abstract

No one in Poland has ever doubted that cleaning up after the Law and Justice Party’s (PiS) eight years (2015-2023) in power will be an easy task. After almost three months in power, the new governing coalition led by Donald Tusk’s Civic Platform (PO) has decided to take on the Polish equivalent of the Augean stables, the Constitutional Tribunal (CT). Adam Bodnar, the Minister of Justice, took on the Herculean task. Like the mythological hero, though, he has mighty odds against him: constitutional constraints and political opposition. Changing the Constitution requires a parliamentary majority that the new coalition does not enjoy. Whereas changing statutory laws requires the approval of Polish President Andrzej Duda, a politician coming from the PiS party. It seems that Minister Bodnar might be facing a Sisyphean task instead of a Herculean one, after all. Our blog post reviews changes proposed by the Minister of Justice. In particular, we examine proposals to reset (‘zeroing out’) the CT and introduce new rules for the election of judges. We also reflect on why the proposals for change have been put forward so late and who benefits from the CT’s current situation. Overall, we conclude that the political reality in Poland will impede the effective implementation of the proposed package. However, it does not mean the drafters should be considered politically naïve. The introduction of the package serves its own political purpose. It demonstrates the coalition government’s good intentions and highlights that the present CT is not legitimate. This gives the coalition government the freedom to disregard the CT and ignore its actions.