How Poland opened a new "front" in the war between president and government

A high-profile decision by Polish President Karol Nawrocki: he agreed to administer the oath only to two of the six newly elected judges of the Constitutional Tribunal. The government is now threatening to swear in the new judges without the president’s participation.

This crisis has significantly intensified the already long-running conflict between the coalition and the president (as well as the opposition backing him).

Control over the Tribunal in Poland is crucial, because this body can either block or legitimise any decision of the authorities.

It was precisely the preservation of a majority in the Constitutional Tribunal by nominees of the Law and Justice party (PiS) that allowed the current opposition to block many initiatives of Donald Tusk’s government.

Read more about the dispute, which goes far beyond legal procedures and could lead Poland into a deep crisis, in the article by international affairs expert Stanislav Zhelikhovskyi: Constitutional war: how Poland’s key court became a battlefield between the government and the president.

The 2023 parliamentary elections in Poland did not lead to a complete change of power, because during eight years in office the Law and Justice party managed to de facto take control of a significant part of the judiciary, especially the Constitutional Tribunal.

Fixing the situation was very difficult, since constitutional judges in Poland are elected for nine years and cannot be replaced early.

Even a ruling by the Court of Justice of the EU last December did not change the situation. It found that the current Constitutional Tribunal does not meet the requirements of independent and impartial justice.

The EU court also recognised the appointment of four Tribunal judges as unlawful.

In December last year, the terms of office of two more Tribunal judges expired. As a result, on 13 March the Sejm elected six new judges at once: Magdalena Bentkowska, Dariusz Szostek, Krystian Markiewicz, Anna Korwin-Piotrowska, Maciej Taborowski and Marcin Dziurda.

Even the appointment of six new judges by itself did not change the balance in the Tribunal, because PiS can still count on the loyalty of nine others.

However, at the end of the year the terms of two more constitutional judges will expire. Therefore, the coalition gained hope of shifting the balance of power in the Tribunal in its favour early next year.

This change could be very significant, especially with the next parliamentary elections approaching in autumn 2027.

That is why from the very beginning it was clear that the opposition and President Nawrocki would do everything possible to prevent such a scenario.

The key element of the current crisis was President Nawrocki’s decision to administer the oath only to two of the six newly elected judges – Magdalena Bentkowska and Dariusz Szostek.

The head of the Presidential Chancellery, Zbigniew Bogucki, explained this by "two main reasons": first, filling two vacancies that arose during the current president’s term; second, the need to ensure the minimum composition required for the body to function.

The coalition believes that by his actions Karol Nawrocki is questioning the constitutional powers of the Sejm to elect judges.

Predictably, Donald Tusk’s government and the parliamentary majority are not planning to back down.

In response to the president’s actions, the idea of a so-called Plan B has emerged in political circles, allowing the new judges to take the oath in the Sejm without the head of state.

One of the newly elected judges, Krystian Markiewicz, said that if the blocking continues, "we will have to take the oath before the president without his presence."

Such a scenario looks like an attempt to bypass the president’s blockade, but at the same time it creates new legal risks that could lead to a partial paralysis of the Constitutional Tribunal.