Head of Polish constitutional court steps down and prepares to elect successor

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Notes from Poland is run by a small editorial team and is published by an independent, non-profit foundation that is funded through donations from our readers. We cannot do what we do without your support.

The chief justice of Poland’s Constitutional Tribunal (TK), Julia Przyłębska, has stepped down from her position as her nine-year term on the court comes to an end. Later this week, an election will reportedly be held to choose her successor.

The TK is a key institution in Poland’s legal system, tasked with assessing whether laws are consistent with the constitution. However, the current government does not recognise its legitimacy, arguing that it was unlawfully captured by the former ruling Law and Justice (PiS) party.

It notes that Przyłębska – who is a close associate of PiS chairman Jarosław Kaczyński – was not properly nominated to head the TK and also that three of the court’s judges were illegitimately appointed.

It is therefore likely to continue to ignore the rulings of the tribunal – all of whose current judges were appointed when PiS was in power – under whoever is chosen as its next chief justice.

On Friday, Gazeta Wyborcza, a leading daily, reported based on inside sources that Przyłębska had tended her resignation. This was confirmed today on the TK’s website, which no longer referred to her as “president” of the court but as “a judge directing the work of the tribunal”.

That phrasing refers to the fact that, after her resignation as president, Przyłębska – as the court’s most senior judge – will oversee the selection of her successor.

According to Gazeta Wyborcza‘s information, a general assembly of the TK’s judges will take place on 6 December to select candidates from among them to succeed Przyłębska as chief justice. The candidates will then be presented to President Andrzej Duda, who makes the final decision on who to pick.

The newspaper notes that Przyłębska’s term on the court is due to last until 9 December. It suggests that she has chosen to step down early as chief justice so that she can be involved in the process of picking her successor.

Przyłębska was nominated by PiS to the TK in December 2015 and was then picked as its chief justice by Duda, a PiS ally, in December 2016. Under her rule, the court has widely come to be regarded as under the influence of PiS, which ruled Poland from 2015 to 2023.

However, the new government led by Donald Tusk that came to power at the end of 2023 regards both Przyłębska and her court as illegitimate. The justice ministry notes that she was sworn in as chief justice without the required resolution being issued by the general assembly of TK judges.

The ministry adds that, even if Przyłębska’s appointment were accepted as valid, her six-year term expired in December 2022. A number of current TK judges have also argued the same, leading to a rebellion last year when they refused to recognise her leadership.

Moreover, Tusk’s government notes that Duda in 2015 refused to swear in three TK judges nominated by parliament before PiS won a majority and then illegitimately appointed three PiS-nominated judges – often referred to as “doublers” – in their place. That renders rulings issued with the involvement of those judges and their successors unlawful.

Given the continued presence of those “doublers” on the tribunal and the doubts about Przyłębska’s status, that makes it unlikely that the government will recognise any decision made by the TK to choose a new chief justice. However, the justice ministry has so far made no official comment.

Adding to the confusion, parliament is supposed to nominate new TK judges to replace Przyłębska and two of her colleagues whose terms are also expiring this month. However, the ruling coalition has indicated it will not name any candidates as it regards the TK in its current form as illegitimate.

Neither PiS nor any other opposition parties have put forward any candidates either, with a senior PiS lawmaker saying that they know they would have no chance of winning a parliamentary majority in favour of any.

The TK can continue to function even if it is three judges short of a full bench of 15, notes news website Onet. The ruling coalition hopes that, if one of its candidates wins the presidency next year after Duda’s term in office finishes, it will be able to fully reform the TK and allow it to function lawfully again.

Since Tusk’s coalition came to office, the TK has issued a number of rulings against its policies. However, the government has repeatedly stated that it does not recognise the TK and has ignored the rulings.

The standoff surrounding the TK is one example of conflicts between the new government and state bodies that continue to be led by figures appointed under PiS. The Supreme Court is likewise led by a chief justice whose appointment is regarded as illegitimate by the Tusk administration.

Notes from Poland is run by a small editorial team and published by an independent, non-profit foundation that is funded through donations from our readers. We cannot do what we do without your support.

Main image credit: TK (under CC BY-NC-ND 3.0 PL)