Poland’s Judicial Reform Faces Obstacles Under Tusk Administration

Poland’s current government, led by Donald Tusk, faces significant challenges in reversing the judicial changes implemented by the previous administration of the Law and Justice party (PiS). Since taking office two years ago, Tusk’s coalition has sought to restore the independence of the judiciary, but the political landscape remains complicated and contentious.

The PiS party, which governed Poland from 2015 to 2023, effectively gained control over judicial institutions by appointing judges aligned with its political agenda. This included placing sympathetic judges in higher courts and implementing disciplinary actions against critics. By stacking the Constitutional Tribunal with loyal judges, the PiS government created a mechanism that could delay legislative initiatives through constitutional reviews. European courts have condemned these judicial changes, contributing to widespread legal confusion among Polish citizens.

Efforts to rectify these issues have been hindered by two successive presidents aligned with PiS, limiting Tusk’s ability to pass necessary reforms. The political divide in Poland is stark, with urban, pro-European Union voters supporting Tusk, while a coalition of conservatives and disenchanted voters continues to back PiS. This division deepens the existing gridlock within the justice system.

In a notable development, Tusk replaced his initial justice minister, Adam Bodnar, in July due to a lack of visible progress in addressing the judiciary’s challenges. Bodnar expressed his disillusionment, stating, “All those dreams have faded away by now and we can forget about them.” His successor, Waldemar Żurek, known for his opposition to PiS’s judicial reforms, has adopted a more aggressive stance. In October, Żurek announced that prosecutors were prepared to charge former Justice Minister Zbigniew Ziobro, who played a pivotal role in the PiS changes, with misusing a fund intended for victims of violence. Allegations also include the purchase of the Israeli Pegasus surveillance software, which Tusk’s party claims was used to spy on political opponents.

Under Polish law, any reforms to the judiciary require presidential approval. The coalition’s ambitions encountered obstacles when they found themselves negotiating with PiS ally President Andrzej Duda, whose term extends until August 2025. Despite Bodnar’s attempts to propose new legislation and negotiate with the presidential office, Duda remained unyielding. Bodnar had aimed to restore the independence of the National Council of the Judiciary (KRS), which had been restructured under PiS control in 2018, resulting in a substantial majority of judges on the Supreme Court being appointed by the altered council.

The recent election of a PiS-backed independent candidate, Krzysztof Nawrocki, as president has further complicated efforts to restore judicial independence. Analysts suggest that the failure to re-establish the KRS’s autonomy contributed to Tusk’s coalition’s loss in recent elections. While Bodnar achieved some successes in removing PiS-appointed court presidents and halting disciplinary actions against independent judges, his approach was perceived as cautious.

Following Nawrocki’s election, Żurek proposed comprehensive reforms to improve the justice system but noted early signs of potential presidential vetoes. In November, Nawrocki declared that he would not nominate judges who opposed PiS’s changes to the higher courts.

Despite the legislative stalemate, Żurek’s office has initiated prosecutions against PiS allies, stemming from investigations into the prior government’s alleged misuse of public office for political purposes. Legal expert Jakub Jaraczewski from NGO Democracy Reporting International remarked that Tusk’s coalition has shifted tactics, aiming to hold those responsible for past abuses accountable even in the absence of legislative progress.

The political landscape suggests that if the PiS party or a far-right coalition were to participate in the general elections in two years, they could potentially regain power. Questions remain about whether Tusk’s administration has made sufficient strides in preserving judicial independence to prevent retaliation from PiS. In addressing these challenges, Żurek has expressed his willingness to accept the personal costs of fighting for democracy, including the possibility of imprisonment.

If Tusk’s coalition can maintain power, it may be able to wait out some of the PiS appointments, allowing those judges to retire or finish their terms. Yet, experts caution that the issues plaguing the Polish judiciary extend beyond the immediate crisis of rule of law. Systemic delays and inefficiencies continue to erode public trust in the judiciary.

Żurek has emphasized the need for reform in both judicial independence and operational efficiency. Achieving these goals will necessitate cooperation between the current government and judges appointed by the previous administration. Jaraczewski advocates for a broader dialogue on safeguarding democracy, drawing parallels with Hungary, where the European Union has raised concerns over democratic backsliding.

Ultimately, preserving democracy in Poland depends on electing individuals committed to respecting the rule of law. As political polarization intensifies, the challenge remains for voters to support accountability across party lines. The urgency for reform is underscored by the unprecedented outreach efforts of independent Polish judges during PiS’s tenure, who engaged with citizens through protests, educational tours about the constitution, and public discussions at cultural events.

Żurek articulates the necessity of connecting with those outside the legal community to educate voters and mitigate the potential for manipulation by politicians. “We must speak also to those who do not understand the language of lawyers, but who take part in elections,” he stresses, recognizing the critical role of public engagement in shaping the future of Poland’s democracy.