Crisis in Poland

Crisis in Poland
By Sebastian Weitz 

Contrary to what many mainstream media outlets report, the crisis surrounding the Constitutional Tribunal did not begin with the previous conservative government. It actually started at the end of the preceding liberal government’s term in 2015. The outgoing parliamentary majority had the right to appoint three Constitutional Tribunal judges but decided to elect five instead. The additional two vacancies would not arise until after the parliamentary elections, which the liberals subsequently lost. The Constitutional Tribunal itself later ruled that those two appointments were unconstitutional.

The crisis has taken many turns over the past eleven years, but I think an important distinction is being overlooked. Whatever one thinks of the decisions taken by the conservative government, its institutional reforms were pursued through legislation passed by Parliament, signed into law by the President and officially promulgated. Their constitutionality could be challenged, and some measures were indeed challenged, but the government operated through the legislative process.

What we are witnessing now is, in my assessment, the abandonment of legality as a principle of government. Tusk cannot force President Nawrocki to sign legislation, and his parliamentary majority is insufficient to override a presidential veto. Rather than accepting these constitutional limitations, his government increasingly resorts to executive measures, parliamentary resolutions and questionable legal interpretations to achieve what it cannot achieve through legislation.

What happened on Friday was, in my view, nothing short of a constitutional coup.

It follows the takeover of public broadcasting in December 2023 and the intervention in the prosecution service in January 2024. This time, however, we are dealing with a constitutional body whose independence is explicitly protected by the Constitution.

The timing makes the whole affair even more remarkable. Everything unfolded on Friday evening, around 6 p.m., when the normal working day was over. It was also the Friday preceding All Saints’ Day, one of Poland’s most important Catholic holidays, when millions of people travel across the country to visit their ancestors’ graves. President Nawrocki was already en route to Senegal and had to turn his aircraft around over southern Spain, not far from Gibraltar, where General Władysław Sikorski died in a plane crash in 1943. It’s of course pure coincidence but a very symbolic one.

The legal justification is equally extraordinary.

The government and its allies are invoking, among other arguments, an opinion of the Venice Commission issued on October 13th. The Commission is an advisory body of the Council of Europe. Its opinions are not legally binding and cannot replace the Polish Constitution or statutory law. Moreover, this particular opinion concerns the President’s role in receiving judicial oaths. It does not authorise the suspension of the President and Vice-President of the Constitutional Tribunal or the use of police forces to enforce a change in its leadership.

In other words, an advisory opinion from an international body is being used as a one of the pretexts for actions whose legal basis under Polish law remains highly questionable.

The extraordinary nature of these methods is increasingly being recognised beyond conservative circles. Even the Helsinki Foundation for Human Rights, which certainly cannot be accused of conservative sympathies, has challenged the legal basis of the suspensions. The First President of the Supreme Court and the President of the Supreme Administrative Court have also raised serious constitutional objections, as Jadwiga explained in her email.

And yet riot police were deployed around the Tribunal, with officers subsequently entering the building. Persons elected by the parliamentary majority, but who had not taken their oaths before the President, claimed the authority to suspend the Tribunal’s leadership and take control of the institution. The resulting confrontation with the President of the Republic, including physical attempts to obstruct his passage, would probably appear quite bizarre to an American audience. It has certainly raised serious concerns in Poland.

As for the European Commission, there is one important update to Jadwiga’s account. A Commission spokesperson did issue a verbal statement over the weekend, effectively endorsing the parliamentary majority’s position regarding judicial appointments. The speed of that response raises an obvious question about whether Brussels had been briefed beforehand. We have no evidence of direct involvement, but the Commission’s selective attention to the rule of law is remarkable. It has so far avoided a clear assessment of the specific methods employed on Friday.

What concerns me most, however, is that I do not believe this is the end of the story.

Government-aligned lawyers and commentators are already raising the question of revisiting the legal status of Supreme Court judges. The same approach could subsequently be directed against other institutions.

The National Bank of Poland is an immediate concern. On November 4th, the mandate of one of its board members expires. Unless the vacancies are filled, the board will fall below its statutory minimum. This is happening despite an earlier understanding regarding appointments, with the Prime Minister withholding the countersignature necessary to complete them.

The National Electoral Commission could become another target. And ultimately, I would not exclude a confrontation aimed directly at the President himself.

Nawrocki’s decisive victory last year remains unacceptable to the most hardline elements of the liberal electorate. I have little doubt that Tusk would prefer nothing more than to remove him from office or, at the very least, neutralise his constitutional powers. The President is effectively the last major institutional obstacle to the government’s ambitions.

That is why I consider the events of Friday a constitutional coup rather than merely another political dispute. We are witnessing an attempt to change the balance of constitutional power without changing the Constitution, using contested interpretations of the law and, increasingly, the coercive apparatus of the state.

And the most troubling aspect is that all of this is being justified as an effort to “restore the rule of law”.