Poland’s constitutional court rejects 4 new judges, deepening rule of law crisis

• Row is latest chapter in Poland’s constitutional crisis, which began in 2015 when PiS first sought to reshape Constitutional Tribunal

Poland’s Constitutional Tribunal descended further into crisis on Thursday after its president refused to recognize four judges elected by parliament, even after they took an alternative oath in the Sejm -- the lower house of the Polish parliament -- in an attempt to bypass President Karol Nawrocki.

The decision deepens an unprecedented standoff between Donald Tusk’s government and institutions still controlled by allies of the previous Law and Justice (PiS) administration. At stake is not only the future composition of the tribunal, but who has the authority to decide what is constitutional in Poland.

The four judges -- Anna Korwin-Piotrowska, Krystian Markiewicz, Maciej Taborowski and Marcin Dziurda -- were among six judges elected by parliament last month to fill vacancies on the 15-member Constitutional Tribunal.

Under the Constitution and the law, judges elected by parliament must take an oath before the president before formally assuming office. But Nawrocki, a PiS-backed president, last week invited only two of the six to the presidential palace, allowing them to be sworn in while refusing to do the same for the other four.

Nawrocki’s chief of staff, Zbigniew Bogucki, argued that only two new judges were needed to restore the tribunal’s quorum of 11 judges and said there were “serious doubts” about the legality of the appointment of the remaining four. The president has claimed the Sejm may have violated its own rules when electing them.

The government rejects that argument, saying the president has no constitutional power to choose which judges elected by parliament can take office.

Alternative swearing-in

After repeated requests to the president went unanswered, the four judges organized their own swearing-in ceremony in parliament on Thursday. In the presence of the Sejm speaker, a notary, and four former presidents of the tribunal, they took an oath and then travelled to the tribunal building together with the two judges already recognized by Nawrocki.

Swieczkowski, however, refused to admit the four into office.

“I cannot recognize them as judges of the Constitutional Tribunal because I have not been informed by the president that they took the oath before him,” he told reporters. He dismissed the parliamentary ceremony as “a performance” and “a media spectacle” staged for political purposes.

The government responded angrily. Maciej Berek, a minister in the Prime Minister’s office, said Swieczkowski had effectively undermined the president’s own argument by acknowledging that all six had been validly elected by parliament.

“By congratulating all six judges on their election, he confirmed that they were legally chosen,” Berek said. “The president has usurped a power that does not exist in the Constitution.”

Justice Minister Waldemar Zurek said the government has a “plan B” if the four judges continued to be excluded, but declined to give details. Earlier this week, he suggested that the government might seek to create an alternative route for the judges to begin work.

The legal dispute centers on whether the president’s role in swearing in tribunal judges is purely ceremonial or whether he has discretion to refuse.

Most constitutional lawyers argue that once parliament has validly elected a judge, the president is obliged to accept the oath and cannot selectively block appointments. That view was endorsed even by some conservative legal figures close to the PiS. Last week, the PiS suspended one of its own MPs, Krzysztof Szczucki, after he publicly said the president had no right to swear in only two of the six judges.

Self-judging judges

However, Nawrocki’s office argues that the Sejm’s procedure for electing the judges was flawed and that the president therefore has the right -- or even the duty -- to wait until the issue is clarified. On Thursday, Bogucki said the president would ask the tribunal itself to rule on the dispute between the Sejm and the presidency.

That could produce a paradoxical situation in which a tribunal whose legitimacy is disputed is asked to decide whether judges excluded from that tribunal are validly appointed.

The row is the latest chapter in Poland’s constitutional crisis, which began in 2015 when the PiS first sought to reshape the tribunal. Since returning to power in late 2023, Tusk’s coalition has refused to recognize the legitimacy of the existing tribunal, arguing that it contains judges unlawfully appointed under PiS and that its rulings are politically compromised.

The government has stopped publishing tribunal rulings and in practice no longer treats the court as binding. PiS and Nawrocki accuse the government of undermining the Constitution and trying to seize control of the judiciary.

The result is that Poland now risks ending up with two competing versions of the Constitutional Tribunal: one recognized by the government and parliament, the other by the president and the tribunal’s current leadership. That could leave future rulings open to challenge and deepen the legal uncertainty that has surrounded Poland’s highest court for more than a decade.