What is at stake in Poland’s constitutional tribunal dispute?

Keep our news free from ads and paywalls by making a donation to support our work! Notes from Poland is run by a small editorial team and is published by an independent, non-profit foundation that is funded through donations from our readers. We cannot do what we do without your support. By Aleks Szczerbiak Poland’s escalating Constitutional Tribunal (TK) dispute is no longer simply a legal argument about contested appointments but a struggle over who defines constitutional legitimacy. As the liberal-centrist government and right-wing opposition and president advance rival rule-of-law claims, the conflict risks entrenching a system of legal dualism in which judicial authority depends on political allegiance rather than broad constitutional consent. The roots of the crisis Poland’s 15-member TK is a powerful body that rules on the constitutionality of the country’s laws. The roots of the current dispute trace back to late 2015 and began immediately prior to the right-wing Law and Justice (PiS) party taking office following its October parliamentary election victory. In its final weeks in power, the outgoing government, led by the liberal-centrist Civic Platform (PO, now Civic Coalition: KO), fast-tracked the appointment of five tribunal members who were replacing those whose terms were set to expire in November and December. Upon winning an outright parliamentary majority, the incoming PiS-led government refused to recognise these appointments, elected a slate of five new tribunal members, and party-backed President Andrzej Duda swore them in. Fifteen months since the change of government, Poland's rule-of-law crisis continues – indeed, many Poles think the situation has got worse.@J_Jaraczewski explains the roots of the crisis, what its impact has been, and how it might be resolved https://t.co/7KOCURV3dU — Notes from Poland 🇵🇱 (@notesfrompoland) March 17, 2025 The tribunal (still largely composed of pre-2015 judges) ruled that three of the outgoing parliament’s appointments were lawful, so only two of the new ones could stand. PiS refused to accept this, creating the so-called “understudy” judges (dublerzy) controversy. As further vacancies arose, the new parliament gradually installed its nominees, culminating in the appointment at the end of 2016 of one of them, Julia Przyłębska, as tribunal president. Przyłębska’s leadership was contested on procedural grounds, as was that of her 2024 successor Bogdan Święczkowski, a former senior prosecutor closely aligned with the 2015-23 PiS administration. All of this led to the then-opposition parties and much of the Polish legal and the EU political establishments denouncing the tribunal as legally compromised and politically captured. Total non-cooperation Following the autumn 2023 parliamentary election, a new coalition government headed up by KO leader Donald Tusk embraced a policy of total non-cooperation with the tribunal, refusing to publish its rulings. The battle for control took a new turn when, after initially not filling any tribunal vacancies, from March 2026 onwards the new parliament elected successive waves of new members, reaching eight by September. However, PiS-aligned President Karol Nawrocki (who succeeded Duda in August 2025) refused to swear in five of these nominees, including former minister and close Tusk ally Maciej Berek. In response, the government took the unprecedented step of swearing in the contested nominees directly in parliament, a move that both Nawrocki and Święczkowski rejected as illegal. The standoff between the government and president over Poland’s constitutional court deepened today, as Maciej Berek, whom the prime minister recently described as his “right-hand man”, took his oath as a new judge without the presence of the president https://t.co/MrExiJRsEN — Notes from Poland 🇵🇱 (@notesfrompoland) October 14, 2026 The conflict escalated sharply at the end of last month, when, backed by the government and tribunal members elected by the current parliamentary majority, Anna Korwin-Piotrowska, one of the five contested nominees but having the longest judicial tenure, asserted her seniority to order a one-month suspension of Święczkowski and his deputy Bartłomiej Sochański in their official duties and assumed temporary control. Justice minister Waldemar Żurek submitted requests to lift Święczkowski and Sochański’s immunity as the newly appointed members, and the new nominees entered the tribunal building under State Protection Service (UOP) escort. This triggered protests by right-wing opposition supporters at the building’s gates, prompting a heavy police presence and tense stand-off. The severity of this was underscored when Nawrocki cut short an official visit to Senegal mid-flight, returned to Warsaw and entered the tribunal building in the early hours, condemning what he described as a violation of the constitutional order. During a visit to the Constitutional Tribunal last night, President Nawrocki clashed physically and verbally with judges involved in an attempt to take control of the court. The president is today seeking talks with political leaders to discuss the crisis https://t.co/7HmBnuIaDG — Notes from Poland 🇵🇱 (@notesfrompoland) October 31, 2026 Korwin-Piotrowska then convened a tribunal general assembly which critics argued lacked the legally required two-thirds quorum because only eight of its 15 nominal members (the newly elected ones, including the five who had not taken the presidential oath) attended. Her supporters maintained that the quorum was met because the suspension of Święczkowski and Sochański, and exclusion of the last remaining “understudy” judge, reduced the pool of eligible members to 12. The government’s “transitional justice” logic For the Tusk government and its legal defenders, these exceptional executive and parliamentary countermeasures were framed through the logic of “transitional justice”: as painful and extraordinary but necessary to restore the rule of law after PiS had violated the constitution and European standards, systematically packing the tribunal with political loyalists. Justifying its non-recognition of tribunal rulings, the government argued that the presence of three defectively elected “understudy” members and their successors, together with Przyłębska’s and Święczkowski’s procedurally flawed presidential appointments, fundamentally “contaminated” the entire body, thereby invalidating its rulings. In its efforts to restore democracy, the government may sometimes take actions that are “not fully compliant with the law”, admits @donaldtusk. But he says this is because of the legal chaos deliberately created by the former PiS government https://t.co/AWlM6hRLie — Notes from Poland 🇵🇱 (@notesfrompoland) September 11, 2024 To provide what it argued was authoritative external confirmation of this defect, the government relied heavily on landmark European Court of Human Rights (ECHR) and EU Court of Justice (CJEU) rulings which determined that, thus constituted, the tribunal could no longer be considered a legitimate body established by legal standards. From this perspective, refusing to recognise the tribunal’s allegedly unlawful rulings was framed as the only available mechanism to neutralise a partisan weapon that PiS had left behind to block the government’s legislative agenda. Alternative parliamentary swearing-in procedures were justified on the grounds that the president’s role in receiving oaths was purely ceremonial, not a constitutionally mandated requirement. Despite his recent political role, Berek’s appointment was defended on the basis that he played more of a technocratic-expert role within the government, and was highly qualified to undertake the extraordinary transitional measures required to repair a damaged institution. Defenders of the tribunal leadership’s suspension and occupation of its headquarters argued that by blocking the new nominees from taking up their roles, Święczkowski had paralysed the institution and decisive measures were necessary to restore its proper functioning. A “coup d’état”? PiS and Nawrocki, on the other hand, maintained that the Tusk government’s actions amounted to an authoritarian attempt to operate completely outside of constitutional powers, treating legality as an option when it conflicted with its political agenda. They insisted that all of its 2015 appointments were in full accordance with the law, correcting an improper attempt by the outgoing PO-dominated parliament to entrench its influence after electoral defeat, and that the tribunal’s ruling on the legality of these three “understudy” judges went beyond its jurisdiction. Successive tribunal general assemblies, they argued, validly and legally selected Przyłębska and then Święczkowski as presidents, and the Tusk government had no constitutional right to pick and choose which tribunal rulings it would recognise. They said that, by delaying the election of some new members when vacancies arose, the government violated existing procedures. The constitution, they said, explicitly required these new nominees to take their oaths directly “before the president” and that by conducting improper parliamentary swearing-in ceremonies they had effectively renounced their offices. The International Commission of Jurists has criticised the takeover of Poland’s constitutional court, saying it “contravenes international standards on the independence of the judiciary” But it also criticised the president for refusing to swear in judges https://t.co/2kBv3GT20d — Notes from Poland 🇵🇱 (@notesfrompoland) November 4, 2026 The candidacy of Berek, a recently active politician with doubtful professional qualifications, they said represented its own form of institutional capture and selective legality. The suspension of the tribunal leadership and occupation of its headquarters amounted to an unlawful power grab or “coup d’état” that completely disregarded established constitutional procedures. PiS rejected the “contamination” thesis and argued vigorously that Poland had never transferred jurisdiction over the organisation of the national judiciary to EU institutions and European courts, who had no authority to evaluate the legality of tribunal appointments. They accused the EU political establishment of double standards, weaponising “rule-of-law” arguments to help a politically aligned government while ignoring the Tusk administration’s own executive overreach. PiS also argued that by delegitimising a tribunal which had in the past ruled that the Polish Constitution superseded EU law, the Tusk government was paving the way for controversial social and economic policies to be pushed through without any domestic judicial oversight. Tusk’s liberal critics On the other hand, more ideologically supportive liberal critics of the Tusk government’s approach acknowledged the original 2015 irregularities but warned that selective non-recognition of an entire institution, combined with attempts to install a new tribunal without presidential participation, risked creating the same dual legitimacy problem that they accused PiS of having started. They stressed that lasting repair required broad political consensus and careful adherence to formal procedures so that future majorities did not simply invert the non-recognition tactic. They noted the tension with earlier condemnations of PiS for elevating politically aligned figures or recently active politicians. While sympathetic to the goal of reforming what they believed was a deeply compromised tribunal, these critics argued that, by employing legally questionable shortcuts and executive force, the Tusk government risked setting dangerous precedents and deepening the very disorder that it was claiming to correct. Interestingly, the government’s broader “transitional justice” justificatory logic – that ordinary procedures would not adequately address a systemic capture and the priority had to be functional restoration rather than abstract purity – mirrored the arguments PiS itself advanced for its own judicial reforms after 2015. The right-wing party argued that the post-1989 judiciary remained dominated by a post-communist elite that required deep structural overhaul rather than incremental change. A high-risk escalation The latest escalation is likely to entrench and intensify the profound systemic polarisation that characterises the Polish political scene, for a long-time embodied in the KO-PiS duopoly, with the conflict framed in existential terms of either “restoring the rule of law” or “defending the constitutional order”. This fierce dispute lies at the heart of the Tusk government’s broader political “reckoning” (rozliczenie) agenda involving visibly removing PiS’s influence from key institutions. For the ruling coalition, this was a central 2023 election campaign message, and being seen to deliver on it is an absolute political necessity to satisfy and mobilise its electoral base. A confrontational approach thus serves to consolidate the government’s support among these core voters, who have grown increasingly impatient and want to see decisive action. However, the government’s strategy is fraught with political risk. High-stakes tactics risk uniting its right-wing opponents and alienating moderate voters increasingly exhausted by endless, hyper-partisan institutional confrontation, legal brinkmanship and the optics of police deployments around a key state body. They provide the president and right-wing opposition with a powerful counternarrative of constitutional vandalism ahead of the next parliamentary election. Escalation is also straining relations within the ruling coalition, especially among more conservative or legalistic coalition partners who believe that a more fundamental constitutional “reset” based on a cross-party settlement is required to break the impasse in the longer term. The leader of one of the parties in Poland’s ruling coalition has proposed a “constitutional reset” to resolve the crisis around the country’s top court. It would involve removing all current judges and choosing new ones in a more consensual process https://t.co/xDwpRUVHxG — Notes from Poland 🇵🇱 (@notesfrompoland) November 6, 2026 Internationally, although the EU political establishment remains supportive of the Tusk government’s actions, they invite uneasy scrutiny of the stability of Poland’s legal system and have drawn explicit criticism from the US embassy. The reliance on a “transitional justice” framing that echoes PiS’s earlier justifications for systemic change, combined with the appointment to the tribunal of a recent minister despite prior criticisms of politicised nominations, also undercuts government claims of consistent principle and provides the right with a powerful narrative of hypocrisy. Legal dualism Ultimately, this bitter dispute has paved the way for a protracted and deeply destabilising “legal dualism” that could plague the Polish state for years to come, with a tribunal simultaneously legitimate and illegitimate depending on who holds power. By treating the tribunal as an illegitimate entity when its nominees did not control it, the current government has established a precedent. Even if it now appears to have secured a clear majority for its own nominees, a future right-wing government and sympathetic president will have every incentive to use the exact same playbook: treating the reconstituted tribunal as a captured instrument of the liberal establishment, and regarding it as no more legitimate than the Tusk government did the PiS-era one. Consequently, the tribunal’s authority, and legal certainty in Poland more generally, have been further eroded, leaving the country without a widely accepted arbiter to resolve constitutional disputes. There are no immediate prospects for a durable resolution of this conflict. Notes from Poland is run by a small editorial team and published by an independent, non-profit foundation that is funded through donations from our readers. We cannot do what we do without your support. Aleks Szczerbiak is Professor of Politics at the University of Sussex. The original version of this article appeared here. Main image credit: Komenda Główna Państwowej Straży Pożarnej (under CC BY-SA 4.0)