Poland’s ruling party moves to allow Constitutional Tribunal to rule with fewer judges

A group of MPs from the ruling Law and Justice (PiS) party have tabled a bill to reduce the minimum number of judges required to rule on cases which must be heard by the full bench of the Constitutional Tribunal (TK) from 11 to nine.

The lawmakers are also proposing to reduce the minimum size of the General Assembly, which puts forward candidates for the tribunal president or decides whether to allow prosecution of a tribunal’s judge, from two thirds of judges, currently 10 out of 15 judges, to nine.

The bill comes as the TK struggles with an internal dispute, with six out of 15 judges calling on the chief justice, Julia Przyłębska, to step down. They claim – as do many legal experts – that Przyłębska’s term as the court’s president expired in December 2022. Przyłębska, however, denies this and has received support from the government, which maintains that her term lasts until 2024.

However, until the conflict is resolved, the “rebel” judges refuse to sit on the bench with Przyłębska. This puts the ruling party in a difficult position, as it is counting on the TK to rule this month on a law amending the disciplinary system for judges, which was supposed to unblock millions of euros from Brussels.

The authors of the bill say the changes are needed to “enable cases of crucial importance to be heard more quickly and thus ensure the continuity of the court in situations where it will be difficult or objectively impossible to assemble an adequate number of judges”.

“The aim of the law is also to prevent possible deliberate obstructionism, which could be destructive both from the perspective of the institution itself and of the Republic of Poland as a whole,” the bill’s justification reads.

The full bench of the TK is scheduled to hear two cases in May, including a law reforming Poland’s disciplinary system for judges. The government says the law is necessary to unlock billions of euros of funds frozen by Brussels, but some legal experts have questioned its constitutionality, leading the President Andrzej Duda to request a ruling from the Constitutional Tribunal.

In the first months after taking power in 2015, PiS sought to raise the number of judges required for a full bench to 13, arguing that “the difference between nine and 15 judges is too great to claim to constitute a full bench”. Since 2016, however, the full bench must consist of at least 11 judges.

In the meantime, judges supporting Przyłębska have already signed an open appeal calling for their colleagues to return to hear cases. The appeal read that the six judges are “chronically preventing the court from being obliged to rule on cases requiring a full bench” and that their attitude exposes the court itself, the president and the judges to “continued vilification by some media”.

One of the rebel judges, deputy chief justice Mariusz Muszyński, wrote on his blog that he had also been asked privately to return to the bench. “With regard to my person, the appeals already started about a fortnight ago,” he wrote in a post published on 28 April.

“You can choose not to go to cases. But come to this one,” said Muszyński, describing one of the requests. “We’ll get the verdict, we’ll get the KPO [money from the Recovery Fund], and after the election, this law will be repealed.”

The proposed law was criticised by the opposition, which saw it as evidence of the Constitutional Tribunal’s dependence on the ruling party. “Why tamper with the law on the TK? Nine or eleven? The chairman [meaning PiS head and Poland’s de facto leader, Jarosław Kaczyński] will rule anyway,” Andrzej Halicki, an MEP from the largest opposition party, Civic Platform (PO), wrote on social media.

Meanwhile, Krzysztof Gawkowski, an MP for The Left, pointed out that such manipulation of the TK will end up with people not believing that tribunals are still needed.

“I don’t think anyone is surprised any more that the TK is under the political boot – under the boot that is pushing it harder and harder – and no judgement, no ruling is without the influence of Kaczyński or his people,” he told private broadcaster TVN24.

Main image credit: Adrian Grycuk/Wikimedia Commons (under CC BY-SA 3.0 PL)

Alicja Ptak

Alicja Ptak is senior editor at Notes from Poland and a multimedia journalist. She previously worked for Reuters.