Chaos At Poland’s Constitutional Tribunal

WARSAW, Poland – Poland is living through a serious institutional crisis centred on the Constitutional Tribunal, one of the most important bodies of Polish democracy, which has been surrounded by police for hours. The reason for it all is the dispute between Karol Nawrocki, the head of state, and Donald Tusk, the country’s prime minister.

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The dispute between the two is over control of the tribunal, which is key because it determines whether laws passed in parliament respect the Constitution or not. The underlying problem lies in the legitimacy of the judges who make it up, in who has the authority to appoint and lead them, and also in the government’s capacity and the limits of the head of state’s powers. What is basically at stake is the real independence of the Polish judiciary, something that has even drawn the attention of the EU Court of Justice, which less than a year ago questioned both its independence and its impartiality over certain appointments, appointments that are meeting Nawrocki’s veto.

The country’s president is closer to the PiS, in government from 2015 to 2023, than to the prime minister. During the years the conservatives were in power they changed the functioning of judicial institutions, making at the very least striking appointments to the Constitutional Tribunal. With Tusk already in charge, the problem in the way of recovering, in his view, judicial independence was the inherited system, and despite wanting to bring in several judges, in many cases the head of state has blocked their appointments.

The story, which goes back a long way, reached its peak on 30 October, with the situation escalating to the point of exploding after judge Anna Korwin-Piotrowska, appointed by Tusk, suspended for a month both the tribunal’s president, Bogdan Święczkowski, and its vice-president, Bartłomiej Sochański, assuming that she was the one who should take charge and lead the Constitutional Tribunal. All this came after Nawrocki at the start of the year refused to swear in three of the six judges proposed by parliament, with Święczkowski denying that the judges chosen by the current majority could take up their duties. The additional nomination before parliament of Maciej Berek, the prime minister’s chief legal adviser, as a Constitutional Tribunal judge ended up accelerating the situation, with President Nawrocki also refusing to swear him in.

The names of Święczkowski and Sochański even disappeared from the tribunal’s website by order of Korwin-Piotrowska, who said she was taking command amid accusations from the court itself of an “illegal takeover” of the tribunal and of not representing the court, with the court stating that anyone participating in these activities commits the crime of coup d’état. And so the situation reached the point it has. Donald Tusk, seeing the risk of possible disturbances, sent police to the Constitutional Tribunal to surround the building and even blocked Nawrocki’s entry, with the head of state interrupting his official trip to Senegal to return to Warsaw.

After pushing his way through, the head of state managed to access the tribunal to leave, before departing, a written statement read by Pavel Szefernaker, the presidency’s spokesman, saying there had been a violation of Poland’s constitutional order and a takeover by force of a constitutional body of the state. “Faced with the threat to the internal security of the Republic of Poland, I am convening urgent consultations with the participation of representatives of the parliamentary forces in order to achieve stabilisation of the political situation and restore constitutional order,” the text read.

What happened changes depending on who tells it, since while Nawrocki’s side speaks of a “crime” when “the occupiers tried to prevent the president’s entry into the tribunal, violating his inviolability,” Maciej Berek, Tusk’s chief legal adviser, states that the head of state “physically assaulted Korwin-Piotrowska and the rest of the Constitutional Tribunal judges.”

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Poland is thus living through a confrontation between the head of state and the prime minister, who has the parliamentary majority, over control and restructuring of the Constitutional Tribunal, with both defending their position with the Constitution in hand.