The content of the judiciary reform proposal by Polish President Andrzej Duda still makes it possible for the ruling Law and Justice (PiS) party to establish political control over the process of nominating judges and over the Supreme Court, the publication of the full text of the proposals shows.

While Duda is clearly seeking to strengthen his position, his draft bills on the Supreme Court and the judge-appointing body KRS are not principally opposed to the government’s strategy of securing control over the judiciary in Poland.

That also increases the likelihood of the ongoing conflict with the European Commission, which accuses Poland of damaging the rule of law, to continue. It also suggests that Duda is less keen to defy PiS and build a power centre of his own than initially thought.

Duda presented the draft bills on the Supreme Court and the KRS on September 25. The bills do not allow for a replacement of the entire lineup of Supreme Court at once and seek to enforce some degree of cooperation between political parties 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.

Still, given PiS has an outright majority in the parliament – though not enough seats to overturn presidential vetoes, which Duda exploits in his proposals – the party should still be able to ensure the majority of KRS members are loyalists.

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.

Initial reaction to Duda’s presenting his rationale for the reform – without presenting the full text of the proposals, however – was that the president was attempting at gaining at least some independence from PiS. That is still possible, although that appears to have been moved further into the future, suggests Ottilia Dhand of Teneo Intelligence.

“While Duda is trying to play a more assertive role in Polish politics, he is yet to find an alternative support base that would rival PiS' power and social appeal,” Dhand wrote in a commentary.

“Duda will likely continue to search for such a base in collaboration with the anti-systemic Kukiz Movement or independently; however, for now he must seek accommodation with the PiS,” she added.

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 EU 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.