By Oliver Garner
Listen to Adam Bodnar’s lecture:
What are the most important legal and political challenges in rebuilding the Rule of Law in Poland? Polish Minister of Justice Adam Bodnar highlighted them in his lecture at the CEU Democracy Institute in Budapest.
On May 27 the CEU Democracy Institute Rule of Law clinic was launched with an inaugural lecture from the Minister for Justice of Poland Adam Bodnar. The event provided a unique opportunity to hear a sitting member of an anti-illiberal government explain how the Rule of Law will be restored after nearly a decade of backsliding under the previous government. The key theme of the lecture was the endorsement of incrementalism over revolution as a means to rebuild a ‘sustainable’ Rule of Law.
The first concrete proposal concerned Adam Bodnar’s very own position. The merging of the offices of Minister of Justice and Prosecutor General under Zbigniew Ziobro saw prosecution being used as an ‘instrument of power’. Bodnar will look to separate the offices and restore independence and impartiality to the prosecution system.
The conjoined offices are symbolic of a more widespread infusion of political partisanship into the Polish legal system under the previous PiS government. Bodnar outlined the challenge of political appointees still present in the Constitutional Tribunal and the National Council of the Judiciary (NCJ), marking out these two institutions as needing reform.
Perhaps the greatest challenge for the new government concerns the ordinary judiciary.
The ‘original sin’ of the captured process of judicial appointments under the NCJ has seen 2000 judges promoted after 2018, with 50% being mere promotions, 30% being new appointments, and 20% being graduates of the National School of Judiciary and Public Prosecution. The coalition may be confronted with a dilemma between enforcing principle or bowing to the practical necessity of maintaining a functional system.
Adam Bodnar outlined three pillars of the new government’s legislative plans with the caveat that they will need to be adjusted flexibly to the difficult political reality:
(1) reintegration into the European Union, including implementation of all Court of Justice judgments, commitments to actions that will allow EU to unblock frozen funds, an action plan to end Article 7 TEU proceedings, and joining the European Public Prosecutor’s Office (EPPO);
(2) engaging positively again with other international organizations, including the Venice Commission and implementation of European Court of Human Rights (ECtHR) judgments; and
(3) there is the issue of the legislative process and, more specifically, the challenge of overcoming the presidential veto over legislation that may question the validity of judicial appointments after 2018 or avoiding it by waiting until the end of the current presidential term in mid-2025, which may turn out to be the most difficult one of the three.
Bodnar outlined the steps that he can take in legislative preparation and non-legislative measures despite the shadow of the Presidential veto. Experts are being welcomed back into policy making through the Ministry of Justice’s coordination of codification committees on penal and criminal law.
Beyond legislation, the Minister has appointed ad hoc disciplinary judges who can intervene and take over ongoing disciplinary procedures to prevent abusive prosecutions such as punishment for applying EU law.
This innovation is required to “limit this negative activity” as it is not within Bodnar’s power to dismiss these disciplinary judges. This may raise the specter of attempts to remedy deficiencies in the application of justice, themselves being open to accusations of arbitrariness. Bodnar would, however, go on to stress his position that it is not tolerable to break the law in order to save the Rule of Law.
The watchword principle for the reform of judicial appointments in Poland is transparency. There are now open competitions that may even be livestreamed, including for Poland’s nominations to the ECtHR and the EPPO. The intention is to demonstrate to society that the current (or new) government is doing things differently. Bodnar stated that
“it is not about arbitrary power, it is about giving a voice to society (…) in an open and transparent way.”
A further aspect of this new approach is to re-establish the self-governance of the judiciary and limit the power of politicians. The Minister outlined that he had already instituted a new practice of inviting courts to nominate 2 or 3 candidates for selection as court presidents from whom the Minister then chooses, rather than simply appointing his preferred individual. Forty-two new presidents have already been appointed using this method. This may demonstrate the willingness of the new government to use any currently available measures for Rule of Law restoration.
Another key principle that raises a difficult dimension for transition is the accountability of those responsible for illiberal backsliding.
Adam Bodnar outlined his preference for a ‘Commission of Truth’ to investigate the specific targeting of dissident judges. He explained that there are three different types of abuse that would need to be investigated:
(1) financial misconduct;
(2) systemic abuse; and
(3) individual abuse including hate campaigns against judges being conducted from the Ministry of Justice.
Further injustices that require remedy are cases that were stopped and unjustified prosecutions between 2015 and 2023. Bodnar noted that there may be high level of expectations to resolve these problems, but he stressed that procedures must respect Rule of Law tenets such as the right to defense and are also subject to constraints on resources and time. Frustration may grow amongst the concerned citizenry and a feeling that nothing has changed may persist because in a Rule of Law state things cannot be done in a revolutionary manner.
A major problematic question for transition concerns the limit of compromises with members of the previous regime.
Judicial associations have already pushed back against the continuing eligibility of those tainted by “original sin” of NCJ appointment, following a Venice Commission Opinion that a blanket exclusion of those appointed during the backsliding years would not be proportionate. This milder approach may also evidence an element of political strategy: the Senate adopted the new draft law allowing all “neo-judges” to be eligible for appointment, showing, in Bodnar’s opinion, that there may be some minor chance that President Duda will not veto the legislation.
Despite consensus on restoring European integration and domestic Rule of Law precepts there is division between revolutionary and incremental approaches.
However, it would appear that there is a red line for compromises and concessions by the new government – the institution that catalyzed the Rule of Law crisis, the Constitutional Tribunal. Earlier, Bodnar had raised the legal certainty problem of how the point of reference for interpreting the Polish constitution can be determined after 8 years of politically biased activity. Demonstrating the new openness to international standards, he endorsed the judgments of the Strasbourg and Luxembourg courts and the opinions of the Venice Commission as useful guides. The Minister also felt compelled politically to follow the parliamentary resolutions on the Tribunal, despite being non-binding legally, and so he will not submit actions before it. Judgments arising out of the references of his predecessor in K 3/21 and K 7/21 led to some of the most infamous denunciations of international law during the backsliding crisis.
The current practice in relation to Constitutional Tribunal judgments may again challenge the new government’s preference to follow black-letter legality.
He used the example of the investigation into the Pegasus spying scandal being declared unconstitutional as an example of the prior constraint upon the new government. The Minister observed that a growing number of the captured institution’s decisions are not being followed. He recognized that this could be difficult to explain to an outsider. So long as the Constitutional Tribunal continues to function in its current configuration and issues judgments, prolonged non-compliance could strain the institutional balance in the Polish legal system.
Adam Bodnar concluded his lecture on Rule of Law restoration in Poland by observing that the state is once again a “laboratory country” as it was following the fall of communism in 1989. The Minister of Justice stressed that the scale of transition does not encompass simply changing a few pieces of legislation but instead concerns thousands of individual careers in the judiciary. He urged restraint in comparisons to the country’s own history and to Latin American countries following dictatorships: despite the constitutional damage of the PiS years there is not the same level of moral condemnation as this was not a martial state. The new Polish government will have to navigate through the different visions of transition.
The point of view of ordinary citizens must not be lost in this intellectual debate – Bodnar opined that the vast majority expect faster court proceedings, legal stability, and safer regulation for businesses. He closed on the imperative to secure Polish Rule of Law and democracy for the future through a sustainable rebuild and investment in civil education.
As argued by RevDem at the time of the opposition election victory, the incremental approach endorsed by Adam Bodnar could be effective to ensure that loser’s consent and the reintegration of a compliant opposition is not sacrificed in a revolutionary rush to reserve the worst excesses of the PiS government. However, if practice such as non-compliance with Constitutional Tribunal judgments does not match this rhetoric of incremental Rule of Law restoration in accordance with the law, then the new government may risk alienating both sides of the debate.
Ádám Hushegyi edited the audio recording of Bodnar’s lecture.
