Prime Minister Donald Tusk, who leads Poland’s centre-left coalition government, has rejected any attempt at reaching a compromise with either the opposition-allied President Karol Nawrocki or parts of the opposition, which have floated an idea for reaching an agreement over the membership of the Constitutional Tribunal (TK).
Tusk’s government and Nawrocki are engaged in a stand-off over the membership of the court, with the President having refused to swear in five of the eight judges elected this year by the Prime Minister’s parliamentary majority.
The crisis over the membership of the court has been running since 2015 and deepened on October 14, when Maciej Berek, who until recently was a cabinet minister in Tusk’s government responsible for coordinating that administration’s legislative programme, defied Nawrocki by taking the oath of office as a TK judge in parliament rather than before the President.
Berek used wording stating that he was taking the oath “before the president” even though the President was not present at the event, held in parliament before the speakers of both chambers, and subsequently submitted a written version of the oath, with his signature witnessed by a notary, to the President’s chancellery.
He is the fifth judge elected this year to be sworn in without the head of state. The other four — Krystian Markiewicz, Marcin Dziurda, Maciej Taborowski and Anna Korwin-Piotrowska — held their own ceremony in April.
After taking his oath Berek was taken to the court under a mass police escort protecting him from scores of demonstrators, some of whom have been manning tents pitched outside the TK building to protest at what they believe is a forced takeover of Poland’s constitutional court.
Some scuffles broke out between police and protesters gathered outside the Tribunal when protesters attempted to block access to the building.
Nawrocki said late on October 14 that he would cancel his visit to the informal meeting of EU heads of state at Brdo pri Kranju, Slovenia, on October 15-16 in response to the “serious” situation developing at the TK, and visited the institution that evening. The gathering, known as the Arraiolos Group, brings together the bloc’s non-executive presidents and is hosted this year by Slovenian President Nataša Pirc Musar.
Nawrocki has so far refused to accept the oath of office from Berek because the former minister, whom Tusk once called his “right hand man”, did not have the necessary 10 years of experience as a practising lawyer that is legally required for members of the constitutional court. Berek says he meets the requirement.
Berek sat in Tusk’s cabinet from 2023 until August this year, when he stepped down to stand for the court. He was elected by the Sejm on September 4 with 226 votes out of the 437 cast in the 460-seat chamber.
Even members of the ruling coalition have expressed doubts over the move to appoint him, saying that it contradicted the government’s earlier pledges to “depoliticise” the judicial system, including banning anyone who had served as a politician in the last four years from becoming a TK judge, but Tusk managed to get virtually all of the coalition’s MPs to support Berek in a parliamentary vote. Four coalition MPs voted against, among them the Speaker of the Sejm, Włodzimierz Czarzasty.
The President called Berek’s action of taking an oath without the head of state’s presence illegal and the present head of the constitutional court, justice Bogdan Święczkowski, refused to accept him as a judge of the court.
Święczkowski said Berek had not established “an official judicial relationship” and would not be allowed to hear cases until the President’s position on his oath had been obtained. Nawrocki’s chief of staff, Zbigniew Bogucki, called the ceremony “grotesque”.
Nawrocki’s aides pointed out that both Berek and Czarzasty had refused to answer correspondence from the head of state with regard to the qualifications of the former Tusk minister to sit in the TK and both have said publicly that the President had no right to ask any questions of the nominee.
Until this year, the ruling coalition refused to fill new vacancies that resulted from the expiration of judges’ nine-year terms or their retirement. That position changed in March, when it began to fill the backlog having noticed that it would have a majority for its appointees to the court by the autumn of this year. The TK has 15 members, so admitting the five would hand the current majority’s appointees control of the bench.
The quartet of elected judges took their oaths in parliament, claiming that they could be sworn in without the President since the head of state unjustifiably postponed his participation but were later stopped from taking their seats in court by the TK’s leadership. On September 24 prosecutors charged two officials with preventing them from entering the building.
Nawrocki justified the delay in taking oaths from these four nominees because parliament had for more than two years been blocking electing justices to the TK despite vacancies having arisen. The President questioned whether parliament could now just change its mind and elect new members in its current term of office.
On October 9 the Venice Commission, an advisory body to the Council of Europe, adopted a non-binding opinion at the request of the monitoring committee of the Parliamentary Assembly of the Council of Europe. Published on October 13, it called on Nawrocki to immediately swear in all the nominated judges and stated that “it is constitutionally justified to permit the assumption of office without the President’s participation where the President unlawfully refuses to administer the oath.”
In an earlier ruling the European Court of Human Rights had ruled in favour of the four judges elected but unable to take up their posts saying that stopping them from adjudicating cases was a violation of their rights.
The present composition of the TK has ruled that the ECHR has no jurisdiction to rule on the matter as it does not have the power to interpret the Polish constitution. A similar line was taken by Nawrocki’s aides with regard to the Venice Commission’s opinion.
Commentators have also pointed to the fact that the present government has ignored Venice Commission opinions on the government being obliged to publish all rulings made by the present TK and that there can be no wholesale determination with regard to the independence and qualification of judges based only on their method of selection.
Tusk’s government has argued that all judicial appointments made during the time of the last Law and Justice (PiS) government are illegitimate and has refused to publish rulings made by the TK as it views the present membership of the court as lacking legitimacy.
According to the constitution and Polish law all judges must take their oaths of office in front of the President, though in regard to constitutional court judges who are elected by parliament many constitutional lawyers regard the President’s role as purely ceremonial. The Venice Commission took the same view.
In the past, though, presidents Lech Kaczyński and Andrzej Duda, both like Nawrocki allies of PiS, have delayed or refused to take the oath of office from some individuals when they felt they had grounds to doubt the qualifications of the candidate or questioned the validity of his election.
The TK, the top court responsible for the constitutionality of Polish laws, has been at the centre of judicial controversies for years, with the previous government led by PiS accused of politicising the institution by stacking it with loyal judges.
But in fact the crisis began in the last days of a previous administration led by Tusk’s Civic Platform (PO) when it decided to elect two constitutional court judges ahead of schedule anticipating its expected defeat in the 2015 parliamentary elections. Tusk had by then left for Brussels to chair the European Council and the government was headed by Ewa Kopacz.
The electoral defeat brought in a PiS administration which in 2015 decided to invalidate the election of not only the two judges elected before vacancies had arisen but also the election of three other judges on grounds of parliamentary procedure, a vote having been taken on all five judges in one block.
That move outraged the opposition which appealed to the European Commission and the European courts to react to the PiS government’s alleged attempt to take over the TK.
This, along with another PiS decision to elect the National Council for the Judiciary (KRS), the body responsible for recommending judicial appointments to the President, by parliament rather than as previously by senior judges, led to years of conflict between the PiS government and European institutions which eventually led to several European Court of Justice rulings against the Polish government and the EC freezing Poland’s post-pandemic funds of about €60 billion.
Throughout the dispute the PiS government maintained that its reforms were in line with practices in key EU member states such as Germany and Spain and that the way the judiciary is organised is the domain of the member states.
The PiS government and the TK also drew the EC’s ire over their assertions that the Polish constitution took precedence over European law, an assertion which has also been made by the German constitutional court with regard to German law taking precedence over European legislation.
Tusk in his remarks on the events of October 14 doubled down on the course of action he was taking. He said his government would work to restore the country’s legal and constitutional order “by the means available to the state”, that the judges recently elected by parliament had been chosen “in accordance with the law, the Constitution and good practice”, and that Nawrocki’s refusal to receive their oaths meant the President was “renouncing the duties” imposed on him by the constitution.
In a video posted on X, Tusk said the events at the TK including what he called an attempt by “usurpers” to block duly elected judges, as well as clashes and disturbances, recalled what he said his government had been fighting against for the past three years.
“Three years ago, Polish voters decided to remove from power those who violated the constitution, broke the law and persecuted citizens in violation of legal, ethical and moral standards,” Tusk said.
He said his government had sought from its first days in office to restore the rule of law in Poland and would continue doing so “step by step”. He added that “nobody in Poland — not even the President — has the right to put the interests of citizens or the state at risk”, said the police, prosecutors and other state agencies would act calmly and consistently to restore order and said the newly elected judges would receive state protection.
The government has proposed legislation to make the KRS elected by judges with those appointed during the lifetime of the PiS government excluded and to create a process for wholesale demotions of judges appointed during the last administration’s time in office. These bills were vetoed by both Duda and Nawrocki but were enough to see Poland regain its EU funding in 2024.
Those remarks have been taken by conservative commentators as a hint that the ruling coalition may want to use the TK once it controls it to suspend the President from performing his duty so that the pro-Tusk Czarzasty can deputise for him in signing legislation.
Other commentators see that as being unlikely and point rather to the ability of the TK to effectively invalidate many of the laws passed during the time of the last PiS government on constitutional grounds.
Rozwój Plus (Development Plus), the centre-right movement of former PiS prime minister Mateusz Morawiecki, set out a “reset” plan on October 7 under which all sitting judges would be retired and 12 new ones elected by a three-fifths majority for 12-year terms. The libertarian nationalist Confederation (Konfederacja) has argued along similar lines. That would mean both the ruling coalition and the opposition having to come to some accommodation over the membership of the court — a three-fifths majority Tusk’s coalition does not have.
According to Grzegorz Sroczyński, commentator for the YouTube broadcaster Kanał Zero, only such a compromise could endure and restore lost confidence in the TK.
But he fears that Tusk is “hellbent on providing ‘red meat’ to his core voters who want to see a takeover by force rather than compromise”.
According to Sroczyński, “the problem with a forced takeover is that it will not be recognised by the President or the opposition, may even cause problems with the US administration and come next year a new government with Nawrocki’s support will just appoint its own people in place of those forced through now, which of course will lead to protests from the liberals and their allies in the EU.”
PiS MEP Adam Bielan said in September that the stand-off risked a “very brutal decision” from Washington, such as a halt to construction of a planned US base in Poland, and that Tusk would bear “full responsibility” for it.
Some commentators believe that the Prime Minister and his allies are sceptical whether US President Donald Trump will sign off on the base and therefore see no need to stop their actions on the TK.
