Polish President Andrzej Duda presented on September 25 a proposal for judicial reforms that could foil what critics say is the ruling Law and Justice (PiS) party’s strategy to bring the country's courts under party control.

Duda’s bills are seen as likely to fuel the smouldering conflict between the ruling party's chairman Jaroslaw Kaczynski and the president that began when Duda vetoed PiS’ original proposals for the reform. PiS now faces a choice between passing the president's proposals, which do not fit the party’s vision of changes in the judiciary, or rejecting them, risking defeat in a flagship reform.

In the background, there also is Poland’s spat with the European Commission, which criticised the PiS-authored bills for damaging the rule of law. The commission has also said it would pay close attention to Duda’s bills. 

Duda has presented draft bills on the Supreme Court and the National Council of the Judiciary (KRS) – a judge-appointing body – that cancel PiS’ plans to replace the entire lineup of the supreme court at once, and will force political parties to compromise to elect members of the KRS. 

In the KRS bill, Duda proposed that parliament elects the body’s members by a majority of three-fifths, which PiS does not have. The president also proposed that he appoints KRS members in the case parties are unable to reach the required majority.

Duda also proposed that Supreme Court judges retire at 65 unless he personally agrees they can continue working. That would push the current head of the Supreme Court, Malgorzata Gersdorf  – a critic of the government – into retirement this year if the bill is passed, and if the president declines to extend Gersdorf's term.

PiS has made replacing judges of the Supreme Court and single-handedly controlling the KRS two key elements of its judiciary reform, the plans for which also drew ire from the European Commission. 

The ruling party claims the Polish judiciary is in need of a thorough reform to curb “corporatism” of judges and make the system work better for citizens, for example by shortening procedures and the time it takes to close cases. PiS says the commission's concerns about rule of law and the politicisation of courts are groundless.

Duda vetoed two out of three key laws pushed in the parliament by PiS amidst strong street protests in July. Some observers say that the protests were instrumental in Duda’s decision to block changes. The president himself said he felt overlooked by the ruling party in the debate about the reform.

The president signed off on the third bill, which is reforming the system of country’s common courts and, critics say, gives too much power over nominating court chairs to hawkish Justice Minister Zbigniew Ziobro. The bill is subject to an infringement procedure from the European Commission over discriminating against female judges in terms of retirement age. 

Duda also proposed to introduce a new element in the judiciary process, a so-called “extraordinary complaint”, so that anyone who feels a ruling on their case – even in the Supreme Court – was wrong can make a submission to a new chamber of the Supreme Court called the Chamber of Extraordinary Control and Public Affairs. 

Duda also caused a surprise by saying that giving himself the prerogative to nominate KRS members could be against the constitution. To address that issue, the president has tabled a constitutional change, once again raising the eyebrows of experts, who claim bills should be in line with the constitution, not the constitution tweaked to accommodate proposed bills.

Following a meeting with some of the opposition parties, Duda quickly changed his mind about the constitutional change. "It has become clear that the proposed motion to change the constitution would stand no chance in parliament," Duda said. Instead, the president proposed that in case parties do not manage to gather a three-fifths majority to elect KRS members, there will be a second round of voting in which each MP will only be able to vote for one candidate.

Upon Duda's presenting of the bills, the EU officials were cautious not to say anything decisive. The European Commission's First Vice President Frans Timmermans said the bills will have to be analysed before the EU executive will comment about them in detail. Timmermans also declined to give an update about the case against Poland over rule of law. “There’s still a lot a lot we need to do before we can say that the problem has been solved,” he said.