This is why Poland struggle to fix its justice system

When Donald Tusk's government came to power in Poland two years ago, it had high ambitions to roll back a political takeover of the judiciary by its nationalist, conservative predecessor. The reality proved more complicated. Law and Justice (PiS), which ruled Poland between 2015 and 2023, established political control over key judicial institutions by stacking higher courts with friendly judges, and punishing its critics with disciplinary action or assignments to far-away locations. It appointed enough sympathetic judges to the Constitutional Tribunal that a PiS-aligned president can delay government plans by sending them for constitutional review.

European courts have condemned the PiS changes, while regular Poles found themselves facing legal chaos. Efforts to undo them, however, have been blocked by two successive PiS-aligned presidents.

For over a decade, Poland has been deeply polarized between a bloc of urban, pro-EU voters backing Tusk and a mix of conservatives and other voters frustrated with Poland's post-socialist development, who have favored PiS. The gridlock in justice further divides the population. Tusk, who came to power promising to fix the situation, removed his first justice minister, Adam Bodnar, in July because he wasn't seeing enough results. "All those dreams have faded away by now and we can forget about them," Bodnar told The Associated Press. "We will be in a strange process for the next years." His successor, Waldemar Żurek, a former judge known for his opposition to PiS judicial changes, has taken a more confrontational approach. In October, Żurek announced prosecutors were ready to press charges against former Justice Minister Zbigniew Ziobro, the architect of the PiS changes. Prosecutors allege Ziobro misused a fund for victims of violence. Tusk's party says PiS used Pegasus to spy illegally on political opponents while in power. Ziobro says he acted lawfully.

If PiS returns to power at the next parliamentary elections in two years' time, Żurek knows he could pay a high price. He speaks with unusual ease about the possibility that he could end up in prison, saying "it would be an honour." "I have zero tolerance for criminals," Żurek told The Associated Press. He said he will not allow the abuse of power to go unpunished, "even if I am threatened that I will be sitting in jail for a long time."

To fix the judicial system, the government must pass laws — but under the Polish Constitution, those laws must be approved by the president. This is where the coalition's project ran aground. Initially, Tusk's ministers were forced to cohabit with President Andrzej Duda, a PiS ally, until the end of his term in August 2025. They saw this as a temporary inconvenience.

As justice minister, Bodnar did propose draft laws and negotiated with the presidential office. Duda didn't budge.

"It was natural to count on the change of president," Bodnar said in an interview in Warsaw. Among his priorities was to reestablish the independence of the body responsible for appointing judges, the National Council of the Judiciary, known by its Polish initials KRS. In 2018, PiS changed the rules governing KRS, bringing it under party control. As a result, 60% of judges now sitting on Poland's Supreme Court were appointed by the reshaped council. Bodnar wanted to put KRS back under the control of judges as well as restoring the neutrality of the Constitutional Tribunal.

Instead, what happened was that Nawrocki, an independent candidate backed by PiS, narrowly won a presidential election in June. Analysts said the failure to restore judicial independence was a factor in the defeat of Tusk's coalition.

Where presidential approval wasn't needed, Bodnar says he achieved positive change. He removed court presidents appointed by PiS and ended disciplinary cases against independent judges. Poland joined the European public prosecutor's office, which means better accountability for how EU funds are spent. Yet he was perceived as handling the process with kid gloves, advancing carefully and legalistically. Tusk felt he needed someone ready to throw the gloves off. Enter Waldemar Żurek.

After Nawrocki's victory, Żurek presented detailed proposals to fix the justice system, but he says there are already signals from the president's office that they will be vetoed. In November, Nawrocki announced he would not nominate to higher courts judges who opposed PiS changes to the judicial system. "I would much more prefer it if we could sit down at the table and talk, even in front of cameras," Żurek said. "I want to end the Polish-Polish war." In the absence of legislative progress, Żurek's office has announced efforts to prosecute allies of PiS. The cases are the result of painstaking work by prosecutors, who for months have been investigating accusations that the former government used public office for political goals.

"If we can't introduce legislation because the president is blocking us, then we are going to go about it in a different way," is how legal expert Jakub Jaraczewski, from NGO Democracy Reporting International, sums up Tusk's tactics. "We will go after the 'bad guys' and we will make them pay."

Even without convictions, "disclosing the truth" about the abuse of power is important for informing voters, said Bodnar. Nawrocki's election in June indicates that a coalition of Law and Justice and the far-right would win general elections in two years if they decided to run together.

So has Tusk's coalition made enough progress in shoring up judicial independence to ensure PiS will not take revenge if it returns to power? Żurek does not answer directly. Instead, he speaks about his readiness to face any costs, including prison time, in fighting for democracy.

If Tusk's camp does manage to hold on to power, it could wait out some of the PiS appointments until they've retired or finished their terms, says Jaraczewski. But the problems with the Polish judiciary run deeper than the rule-of-law crisis, he cautions. The system is plagued with delays and inefficiencies, undermining trust. Żurek has said he wants to fix this, listing it as one of his two priorities alongside restoring judicial independence. However, that would take time, money and cooperation between the new government and PiS appointees.

Jaraczewski says a "bigger conversation" is needed about how to safeguard democracy, pointing to Hungary, where the European Union has raised the alarm about the decline in the rule of law, and the United States, where President Donald Trump has tested the limits of executive power. "Our constitutional orders should be strengthened against these kinds of takeovers, against the actions of politicians who openly ignore the rule of law," Jaraczewski said.

Even then, preserving democracy will still depend on electing people inclined to respect the rules, he says.

"Political polarization makes protecting the rule of law harder, as voters will accept anything the party they support pursues — including the takeover of courts - and will reject anything that the opposite side proposes, including attempts to undo the damage," Jaraczewski said. It's therefore "crucial to reduce polarization and educate society."

Associated Press