Constitutional court rejects government bill overhauling body at heart of Poland’s rule-of-law crisis

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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.

Poland’s Constitutional Tribunal (TK) has ruled that a government bill seeking to overhaul the National Council of the Judiciary (KRS), one of the institutions at the heart of the country’s rule-of-law crisis, is unconstitutional and therefore cannot be introduced into law.

The ruling, which comes 15 months after PiS-aligned former President Duda referred the bill to the TK, had long been expected, given that the court remains stacked with judges aligned with the former ruling Law and Justice (PiS) party.

The current government does not recognise the legitimacy of the TK due to it containing unlawfully appointed judges and ignores its rulings. However, even ahead of today’s decision, the justice minister had already proposed a new bill reforming the KRS intended to take into account Duda’s concerns.

The KRS is the body responsible for nominating judges. In 2017, the then PiS government changed how the council’s 25 members were selected. Previously, most were chosen by judges themselves. However, after PiS’s reforms, most were selected by politicians.

The move was widely condemned by expert bodies as undermining judicial independence. Various Polish and European court rulings have found the KRS to no longer be a legitimate body due to its lack of independence.

That in turn has called into question the status of around 2,500 judges who have been appointed through the KRS since it was overhauled by PiS, and the huge number of rulings issued by them.

For example, around 60% of Supreme Court judges, including its chief justice, were nominated by the so-called “neo-KRS”.

When PiS lost power in December 2023, the new government – a broad coalition led by Prime Minister Donald Tusk – pledged to restore the rule of law, including depoliticising the KRS.

A bill to that effect was approved by parliament in April 2024. However, in August of that year, Duda refused to sign it into law, instead referring it to the TK for assessment. He argued that the bill was unconstitutional because it ended the current KRS’s term prematurely.

On Thursday, the court agreed with Duda, ruling that the fixed terms of office for KRS members are essential to the body’s functioning and cannot be cut short through legislation.

The TK judge who delivered the justification for the ruling, Krystyna Pawłowicz, who was a PiS MP until being appointed to the court, noted that not only does their decision mean the bill has been rejected, but that lawmakers must avoid trying to reintroduce provisions the TK has found unconstitutional.

Failure to comply with this could lead to criminal proceedings, said Pawłowicz, quoted by the Polish Press Agency (PAP).

Even before today’s ruling, justice minister Waldemar Żurek had already put forward a fresh draft bill intended as a “compromise” that would take account of Duda’s concerns. Żurek’s proposal would still ensure that KRS members are mostly chosen by the judiciary, but would not cut short the current council’s term.

Żurek’s bill still needs the approval of the cabinet and parliament. But even if, as seems likely, it obtains those, it appears unlikely that President Karol Nawrocki – who replaced Duda in August and is also aligned with PiS – would sign it.

Earlier this week, Nawrocki’s chief of staff, Zbigniew Bogucki, condemned the “terror of lawlessness [being] perpetrated by Minister Żurek at the behest of Donald Tusk”.

He told broadcaster RMF that the president would, by January at the latest, present his own plan to “restore normality in the justice system…instead of the terror and chaos that currently exists”.

Speaking to the Dziennik Gazeta Prawna, Bogucki said that Nawrocki’s plan would include a presidential bill to overhaul the KRS that would still see most of its members chosen by parliament but would change the procedure in ways intended to offer a compromise.

According to the newspaper’s sources, if Nawrocki’s proposals are rejected by the ruling coalition, the president would seek to call a national referendum to settle the issue. Nawrocki himself publicly suggested that idea earlier this month.

Meanwhile, deputy justice minister Sławomir Pałka told the Rzeczpospolita daily that, unless a solution is found soon, the rules introduced under PiS will require parliament to appoint new members of the KRS in May 2026.

That process would be controlled by Tusk’s ruling coalition, which holds a parliamentary majority. “This, I suspect, is not necessarily to President Nawrocki’s liking,” said Pałka.

Last week, in an escalation of both the rule-of-law crisis and the conflict between the government and the president, Nawrocki announced that he was refusing to approve 46 judicial nominations because the judges in question are supportive of the unconstitutional actions of the government.

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: Grzegorz Krzyżewski BRPO (under CC BY-NC-ND 3.0 PL)

Alicja Ptak

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