It is not often that seven judges storm a country’s constitutional tribunal with a police escort.
It is not often that seven judges storm (well, walk forcefully into) a country’s constitutional tribunal with a police escort, but that’s what happened in Warsaw the night before Halloween. One of those judges, Anna Korwin-Piotrowska, then announced that she was suspending the tribunal’s president, Bogdan Święczkowski, for obstructing its functioning and would assume its presidency herself. Polish President Karol Nawrocki, who like Święczkowski is associated with the the Law and Justice (PiS) party (which had lost office in 2023), was at that point en route to Senegal. As soon as he heard what was going on in Warsaw, he ordered the plane to turn around and, once back home, forced his way into the tribunal building, echoing Święczkowski in describing what was going on as a coup.
For some background, Poland has two top courts, a supreme court, and the constitutional tribunal. The 15-member constitutional tribunal’s role is to confirm whether laws passed by Parliament pass constitutional muster. Its judgments cannot be appealed either domestically or to the EU’s European Court of Justice or, with limited exceptions, to the European Court of Human Rights. Its judges, who must “be distinguished by their knowledge of the law,” are chosen by Parliament and can serve only a single nine-year term.
For the last decade or so, the tribunal has been the focus of a battle between the two sides of the divide that does so much to define Polish politics. To oversimplify, one camp, led for years by the center-right Civic Platform (PO), is more liberal and urban and shares Brussels’s view of Europe’s future. The other, primarily represented for years by PiS, is nationalist, conservative, and more rural, and internationally looks to the U.S.
In October 2015 the “pro-EU” government, a coalition between the PO and its junior partner, the PSL, was anticipating defeat in the upcoming general election. While they still could, they used their majority to vote in five new judges to replace those whose terms on the tribunal (which had a PO majority) were about to expire, three during the life of the then-current Parliament (in November), and, courtesy of a last-minute law rushed in by the coalition, two shortly thereafter (in December). PiS duly won its majority at the end of October 2015.
The tribunal ruled that the appointment of the November judges was constitutional but that of the December duo was not. But Poland’s PiS-aligned President Andrzej Duda (who had been elected earlier in the year) refused to swear in any of the new judges, something that he was not entitled to do (the swearing-in was, the tribunal ruled in November 2015, a formality without any inherent power of review). For its part, the PiS majority in Parliament then appointed five new judges, whom Duda swore in. He later argued that swearing in the PO judges was beyond his powers, as the court’s 15-member quorum had been filled.
Needless to say, the drama did not end there. At that point, the president of the tribunal was still aligned with the previous government. He simply refused to give the five (PiS) judges any cases, an impasse resolved only when his term had concluded and a new PiS-aligned president took over. But by then, the fight over the tribunal had moved on to other fronts, and Brussels was beginning to take a close interest. Not entirely coincidentally, Donald Tusk, a former PO prime minister, had become president of the European Council, an EU institution, in December 2014.
I hope to write more tomorrow on the evolution of this saga, which does not become any more straightforward; but at this stage, it’s worth noting this passage from a perceptive article by Izabella Kaminska on the current crisis and, in particular, its underreported aspects.
In this passage, Kaminska highlights another subtext to the political conflict in Poland:
The starting point for understanding the Polish constitutional crisis is not 2015, when the Law and Justice party, or PiS, returned to power. It is 1989, when Poland negotiated its transition away from communism.
Unlike countries where the old political order collapsed more decisively, Poland’s transition was achieved through negotiations between the communist authorities and the opposition, particularly the Solidarity movement. The Round Table Talks helped create the conditions for democratic elections and the eventual dismantling of communist rule. But the negotiated character of the transition also meant that elements of the old institutional and economic establishment retained influence within the new system.
For Poland’s nationalist right, this is the original unresolved grievance. The argument is not necessarily that committed ideological communists continue to run the country. Rather, it is that networks of influence, patronage, property ownership and institutional privilege survived the transition and adapted themselves to the new capitalist order. In this account, the old nomenklatura did not disappear so much as transform itself into a post-communist establishment, with important elements of the judiciary helping to preserve its influence.
There is something to this, a relic both of the duration of communist rule in Poland and the peaceful nature of its (eventual) passing.