Explainer-Polish government seeks to restore independence of Constitutional Tribunal

WARSAW (Reuters) – Poland’s new pro-European government on Monday presented a package of solutions that it says will restore the independence of Poland’s top court from political influence after eight years of nationalist rule.

The Law and Justice (PiS) party, voted out last year, has been accused by critics at home and abroad of undermining democratic rules and increasing political influence over courts.

PiS said the changes were necessary make the system more fair and efficient and rid it of vestiges of communism. Its overhaul of the judiciary resulted in suspension of billions of euros in EU funds for Poland – which were unblocked last week.

The Constitutional Tribunal, which rules on the validity of laws, is at the heart of the conflict. Below are the main points of contention and its most important recent rulings:

LEGALITY OF JUDGES

Critics of PiS say three of the court’s judges should not have been appointed because they replaced judges already appointed to those positions by parliament.

The European Court of Human Rights ruled that such an appointment was illegal and denied citizens the “right to a tribunal established by law”. Similar reservations had been expressed by the EU executive, the European Commission.

Poland’s new government also criticises close ties between some of the Tribunal’s judges and PiS politicians, noting that PiS leader Jaroslaw Kaczynski calls the court president, Julia Przylebska, a “close friend”.

KEY RULINGS UNDER PIS

The Tribunal shocked the EU by ruling twice in 2021 that provisions of EU treaties were incompatible with the Polish constitution, expressly challenging the primacy of European law over national law, a cornerstone of the Union.

The tribunal also ruled that interim measures imposed on the Polish judicial system by the top EU court contravened the Polish constitution.

And it found that the European Court of Human Rights, an institution of the Council of Europe, could not question the appointment of Polish judges.

At home, the Tribunal has sparked massive protests by blocking terminations of pregnancies with foetal defects, making a broad ban on abortion near-total.

The European Parliament accused the government led by PiS, which is close to the socially conservative Catholic Church, of improperly influencing the court on the issue, and said it showed that the rule of law had collapsed in Poland.

last year, the European Commission sued Poland in the EU’s top court over violations of EU law by the Tribunal and its case law.

POST-ELECTION RULINGS

After PiS came first in an election last October but lost its parliamentary majority and could not form a government, the Constitutional Tribunal issued a series of rulings intended to block the new government’s efforts to undo PiS’s reforms, and to complicate efforts to unfreeze EU funds.

In December, it ruled that penalties imposed by the top EU court before a final ruling, known as interim measures, were not compatible with the Polish constitution, and that the judicial reform legislation demanded in return for access to EU funds was unconstitutional.

Later, it set a higher bar for bringing central bank governor Adam Glapinski before the State Tribunal. The ruling coalition accuses him of pursuing monetary policy that aimed to help the previous government in the run-up to the election, a charge he denies.

It rejected as illegal plans to liquidate Poland’s state broadcaster, which the new government said had become a propaganda outlet for the previous administration.

It also moved to block the dismissal of a senior prosecutor accused of helping to politicise the legal system.

The government is set to face further challenges from the court as President Andrzej Duda, a PiS ally, said he would ask it to review any bill adopted by parliament, such as this year’s budget. Duda said he could not support legislation approved in the parliament after two lawmakers were dismissed.

Mariusz Kaminski and Maciej Wasik were convicted of abuse of power when Kaminski was interior minister and Wasik his deputy, and lost their seats in parliament. Both were pardoned by Duda in January.