The Speaker of the Polish Parliament Włodzimierz Czarzasty accepted the taking of the oaths of office from four constitutional judges who were elected by parliament in March but who have not as yet been accepted by the head of state.
The move today signals further confrontation between the ruling Polish Government and President Karol Nawrocki.
According to Polish law, any oath of office by a constitutional court judge must be taken in the presence of the president. That legislation does not envisage any alternative as all judicial appointments in the country have to be approved by the head of state.
The opposition Conservatives (PiS)-aligned Nawrocki earlier in April took the oath of office from two constitutional court judges to fill two vacancies that had arisen during his term of office. He did not, though, invite four more judges elected by parliament after a long spell in which the legislature had declined to elect constitutional court judges when vacancies arose.
The constitutional court’s 15 members are elected by parliament for nine-year terms of office and members should be elected as seats become vacant as a result of the expiration of terms of office.
The court is one of Poland’s top three. It rules on all matters relating to the constitutionality of laws and executive actions whereas the Supreme Court rules on all civil, criminal, family and labour law matters. There is also a Supreme Administrative Court, which rules on all matters relating to administrative law.
The parliamentary majority backing the centre-left government led by Prime Minister Donald Tusk has for the first two years of its current term of office, which began in 2023, been refusing to elect judges to the constitutional court. That was on the grounds that three of its members had allegedly been elected illegitimately back in 2015 during the time of the previous PiS administration. The Tusk government has also been refusing to publish constitutional court rulings.
This year, though, the ruling majority changed its mind as more vacancies arose at the court and the prospect of the government’s nominees having a majority on the court by the end of the year beckoned; therefore six judges were elected in March.
The four whom the President has declined to accept decided this week to write to the head of state to invite him to a ceremony of them taking their oaths of office in the Polish parliament today.
In their letter to Nawrocki, they argued that they had an “obligation to immediately begin work as constitutional court judges” and that “in the absence of any response from the President” they informed the head of state that they would be taking the oath of office in the parliament.
Nawrocki’s chief of staff Zbigniew Bogucki replied that the judges-elect had no right to, in essence, appoint themselves.
“These will not be judges; they will be anti-judges. And why? Because even before they became judges of the constitutional court, they are saying ‘we will not comply with the law’,” Bogucki said. The term carries a particular irony in Polish politics: For years, the liberal camp used the same label to describe judges appointed during the PiS era.
According to him, the decision by the four judges to take an oath before parliament and not the President nullifies their mandates.
Bogucki pointed out that although it was often argued that “the composition of the constitutional court needed to be filled quickly”, the judges who took their oath before the President on April 1 have not yet reported for duty at the court preferring to wait for the other four to join them.
“This raises the question of whether these judges are independent or whether they are playing on a political team. A judge is not meant for team play,” added Nawrocki.
The fact that the two judges who took the oaths of office before the President on April 1 took the oath again with the other four judges-elect in parliament is seen by commentators as an act of loyalty to the present ruling majority that elected them.
Responding to the actions taken by the judges-elect and the Speaker of Parliament, the PiS has announced it will report a breach of the law to prosecutors. The party’s spokesman Rafał Bochenek said the event was “a blatant crime, with no legal basis whatsoever” and a “constitutional coup”.
The four judges whom the ruling majority regard as having been appointed and whose nominations are disputed by the opposition and the President will now attempt to take up their posts on the constitutional court. They are not, though, likely to be recognised by the present chief justice of the court Bogdan Święczkowski, a former state official under the last PiS government, who assigns judges to cases.
The present dispute is the latest development in a saga that began in 2015. Then the outgoing parliamentary majority backing a liberal government dominated by Tusk’s party decided to elect two additional constitutional court judges ahead of schedule for vacancies that would only arise in the next parliamentary term, in addition to three judges for seats that were actually vacant.
This decision was not accepted by the new PiS-allied president Andrzej Duda and the PiS parliamentary majority after the 2015 parliamentary election decided to repeat the election process of all five judges elected by the previous parliament. That in turn led the liberal opposition to accuse the new government of usurping power and acting unconstitutionally.
From that moment on the opposition liberals argued that the constitutional court was illegitimate because three of its members were usurpers, a line they have maintained consistently until this year.
During the time of the last government the European Commission and the European Court of Justice (ECJ) had made rulings against the PiS government with regard to judicial reforms that party had initiated and the EC actually blocked Poland’s post-pandemic funding as punishment.
The ECJ has also ruled against Poland’s constitutional court, questioning that court’s ruling that the Polish Constitution takes primacy over European law and cited the dispute over the membership of the court as putting the legitimacy of that body in question.
Since Tusk, who is a former leader of the European Parliament’s largest European People’s Party (EPP), came into office in 2023, though, European Union funding for Poland has been unlocked and the EC has remained silent on the rule of law disputes between the present government and the opposition.
These disputes include the Tusk government’s attempt to invalidate appointments of common and higher court judges made during the time of the previous PiS government. That was on the grounds that they were made on recommendation of a body which it considers illegitimate because, as a result of PiS’s judicial reforms, it is elected by parliament rather than, as before, by senior judges.
The judicial system in Poland is continuing to face problems because the government has questioned the status of the 3,000 judges appointed during the period of the PiS administration. That has led to judges in appeals courts nullifying verdicts of the common courts, even in divorce cases, purely on the grounds that the verdicts were made by judges whose status is under question.
Those attempts at effectively invalidating around 3,000 judicial appointments have now been questioned by both the Council of Europe’s advisory body, the Venice Commission, as well as by the ECJ itself. Both have ruled that judges cannot be assumed to be illegitimate just because of the means of their appointment.
The Tusk government’s quest to resolve these matters through legislation that overturned the PiS reforms has not been accepted by either the previous president Duda or Nawrocki.
The government does not have the three-fifths majority in parliament required to overturn presidential vetoes and the Polish Constitution cannot be changed without a two-thirds majority in parliament.
