Polish Constitutional Tribunal Crisis with Krzysztof Izdebski [PODCAST]

Why is Poland facing another Constitutional Tribunal crisis? What is the story behind the current events? How is legal argumentation instrumentalized by political actors to legitimize partisan objectives? How does systemic political polarization create or sustain a “default state of unlawfulness” within a government? And can the rule of law be fully restored in Poland? Leszek Jazdzewski (Fundacja Liberte!) talks with Krzysztof Izdebski, a lawyer and the Director of Advocacy at the Stefan Batory Foundation. He was previously affiliated with organizations including Watchdog Poland Civic Network, ePaństwo Foundation, and the Open Spending EU Coalition.

Leszek Jazdzewski (LJ): How do you explain the recent constitutional crisis surrounding the Constitutional Tribunal to your foreign colleagues and our listeners, given that it has reached far beyond Polish borders in recent days?

Krzysztof Izdebski (KI): There is a set of events that bring back some memories from 2015 when the entire Constitutional Tribunal crisis began. However, it is necessary to first address some manipulation and disinformation. This is definitely not a coup d’état. This narrative is being pushed by a right-wing part of the political scene in Poland and by former President Andrzej Duda. It was the dominant narrative over the weekend, but it is somewhat lesser now. You may have seen headlines in European or international media suggesting it is a coup d’état or an illegal takeover of power. It is simply another part of the ongoing conflict between two major parties over the Constitutional Tribunal.

This time, Donald Tusk will lead in this race because he was able to finally implement a solution in a very proper, non-artificial way. He was able to engage eight of the judges selected by the current parliament into the building of the Constitutional Tribunal, where they were finally able to proceed with some of the cases. This is what has happened in the last three days.

To provide a very brief historical introduction, the former parliament under Donald Tusk, which finished its term in 2015, selected judges for the Constitutional Tribunal just before the end of their term. They selected two extra judges ahead of the elections and the expected triumph of the Law and Justice Party, which was definitely illegal. The Constitutional Tribunal in December 2015, after the Law and Justice Party took power, ruled that this was not acceptable and that these extra two judges should not function in the tribunal.

The other three judges selected at that time were entitled to be part of the Constitutional Tribunal. However, the Law and Justice parliament and government used this excuse to state that none of those five judges should take the post of a constitutional judge, using the opportunity to elect five entirely new judges instead. This process sounds highly complicated, and it is only the beginning of the story.

A number of events followed, including mass protests, the engagement of the Court of Justice of the European Union in Luxembourg, and rulings from the European Court of Human Rights. These bodies stated that those three places should not be replaced by the new government back in 2015. The judges selected for those places were subsequently referred to as doubles. By the beginning of 2017, following the new selection of judges, the Constitutional Tribunal was composed entirely of individuals loyal to the Law and Justice Party.

The actual objective of the Law and Justice Party and Jarosław Kaczyński himself was not to restore justice and proceed with cases as usual. The tribunal was utilized as a political tool in his hands. A famous example is the 2020 ruling restricting abortion rights. This was not a purely legal concern or something a professional judge would normally put into place. Instead, it was an instance of utilizing the Constitutional Tribunal to change the abortion law to satisfy a very right-wing segment of the Law and Justice electorate that was asking the government to restrict abortion. Jarosław Kaczyński was not brave enough to do it through a direct political decision, so he used the facade of the Constitutional Tribunal to claim that the tribunal found abortion unconstitutional, which led to mass protests on the streets.

Following the 2023 elections in Poland, the race was won by Donald Tusk. Certain ideas brought up by experts from the Stefan Batory Foundation, such as a draft law on the Constitutional Tribunal, were passed through parliament but were subsequently vetoed by President Andrzej Duda, who was connected with the Law and Justice Party. The broader hope around restoring the rule of law and establishing a legal bench of judges was placed on the presidential race. However, Rafał Trzaskowski, the candidate aligned with Donald Tusk, lost the election. Karol Nawrocki, who is also connected with the Law and Justice Party, has been very active in preventing Donald Tusk from restoring the rule of law within the Constitutional Tribunal.

The situation has descended into absolute chaos. To understand the timeline, this year the parliament lawfully selected eight new judges because the terms for the previous judges had ended. However, President Nawrocki did everything in his power to prevent them from taking office. Specifically, he refused to swear in five of the judges selected by the parliament.

Under the Polish legal framework, judges are selected by the parliament, but they must be sworn in by the president to officially perform their functions. Even though it is widely argued that the presidential oath is purely ceremonial and that the president has absolutely no right to block appointments, President Nawrocki chose to withhold the oath. As a result, these individuals were physically barred from entering the Constitutional Tribunal building, leading to a total neutralization of the institution.

The crisis reached a tipping point on Friday night, October 30, when Donald Tusk, together with the judges, decided that this was the time they would try to enter the building and attempt to organize a so-called general assembly of judges. We are now in a deeply precarious scenario where an extraordinary general assembly was held, but it consisted only of the new judges because the remaining seven old judges selected by the Law and Justice government chose to boycott it.

While certain decisions were made yesterday by this general assembly, the underlying legal interpretations remain highly doubtful. Some people are saying this is a state of emergency, not in a formal way, but that this is an extraordinary situation requiring extraordinary measures. The fact remains that although a vast part of Donald Tusk’s electorate may be happy that he is effective and enabled these newly selected judges to perform their duties, the other half of society views these actions as not very legal.

We now face the realistic threat of a total institutional fracture, resulting in two competing constitutional tribunals if Bogdan Święczkowski, who is the chairman connected with the Law and Justice Party, chooses to organize his own rival general assembly. Ultimately, this conflict ensures that the general public, meaning more than fifty percent of the population, will completely lose faith in the institution. The Constitutional Tribunal is no longer viewed as an independent body; it is seen strictly as a tool deployed by rival factions to push their own agendas and win a high-stakes political game.

LJ: From a purely legal perspective, do you believe the dramatic actions taken at the tribunal a few days ago were actually lawful, especially regarding the suspension of the chairman without explicit statutory grounds and the fact that five judges circumvented the presidential oath by swearing their vows before the speaker of the Sejm instead?

KI: To provide one critical clarification, the chairman was officially suspended rather than removed. He remains the chairman, but he has been stripped of the right to perform his functions. This suspension was tactically important because under the current interpretation, it means he is not counted as an active judge of the Constitutional Tribunal. Consequently, the required quorum for the general assembly is lowered to eight judges instead of ten.

As a lawyer, I must note that the very definition of what is legal and what is not legal has fundamentally shifted over the last few years in Poland. A significant part of the legal academia and doctrine now claims that we are living in extraordinary times that necessitate a militant democracy. Under this framework, while actors try to find a legal basis, the primary objective is to be effective and to make the institutions function, even if it requires operating without a purely traditional legal justification. The general interpretation driving the government is that achieving an active, functioning Constitutional Tribunal is the main goal, while the specific legal path taken to get there is a secondary concern.

However, this secondary concern is deeply important to many jurists. The legal acts in Poland explicitly state that a judge must swear the oath in front of the president, which strictly means in his physical presence. The five judges in question participated in an alternative ceremony in the parliament, swearing their vows in front of the speaker of the Sejm instead. Looking closely from a statutory perspective, they were not lawfully sworn in because the provisions mandate the presence of the president, not any other politician or public official. There is no doubt about that fact.

Conversely, the other side of the legal scene argues that because the president refused to administer the oath without any legal basis, they were forced to circumvent this unlawful obstacle. They question whether a public official who is himself acting illegally should still be considered an indispensable participant in the proceedings. This creates a legal gray area and a pool for creative interpretation to achieve a certain political aim, though it remains highly doubtful.

Ultimately, the validity of both the suspension of the chairman and the controversial method used to calculate the general assembly quorum will be judged by the level of compliance they receive. We will see whether the rulings published by this new Constitutional Tribunal are actually respected by the majority of the political scene and by the judiciary. The tribunal primarily considers legal questions referred to it by the common courts. If the common courts choose to ignore or reject the rulings issued by this body, Poland will remain trapped in a deep gray area where the Constitutional Tribunal performs its tasks but fails to issue respected, legally binding decisions.

LJ: Should we accept that democratically elected leaders cannot find any viable solution to restore lawfulness because of constitutional constraints, or do you believe there is a realistic path to a constitutional reset that could rebuild an independent and universally trusted Constitutional Tribunal?

KI: The context is very important here because in a year we will have a parliamentary election. I would interpret everything happening on the political scene right now through the lens of the upcoming elections. There is a distinct quest for polarization. I do not believe it is a good thing for Donald Tusk, but politicians seem to believe that polarization is the way to achieve the mobilization of their electorates.

Personally, even though I find it legally interesting how different interpretations can be derived from the same legal provisions, I do not believe the current approach is a good way forward. As someone who was very active in protesting against the hijacking of the Constitutional Tribunal eleven years ago and who works on the rule of law, I see that this method looks like pure instrumentalization to the general public. If you interpret the law in a highly dubious way, you also allow your opponents to do the same. If the next parliamentary elections go badly for Donald Tusk and the Law and Justice Party wins alongside other right-wing parties, they will have all the power to change the bench of the Constitutional Tribunal once again. They would turn it into a tool for their own purposes, and it would be very difficult for Donald Tusk and his supporters to oppose it because they were doing the exact same thing.

Therefore, I do not believe that this situation, despite a small tactical win for Donald Tusk now, will lead us to a restored and rightful Constitutional Tribunal. In times of intense polarization, compromise is probably not possible. We have had extensive discussions with other non-governmental organizations and internally at the Stefan Batory Foundation about this. If we allow ourselves to think that compromise is basically impossible to achieve in a democracy—where democracy is fundamentally about compromises and negotiations rather than just the power of the majority—then we must question whether we truly live in a liberal democracy. It is not naive to believe that compromise is still possible in a democratic country like Poland.

Looking at future scenarios, Donald Tusk has gained some extra political points and is currently in a different position than he was even a week ago. He might be able to impose a compromise on President Nawrocki, who is an active participant in this conflict. President Nawrocki also has to find a way to explain to his own electorate why he was unable to defend the Constitutional Tribunal from Donald Tusk. This environment could create an opportunity for a so-called constitutional reset, meaning we start completely from scratch.

Under a constitutional reset, all current judges, whether considered legal or illegal, would be revoked from the Constitutional Tribunal. They could potentially be selected one more time, but the underlying system would change. The Stefan Batory Foundation proposes an alternative selection method where judges are not selected solely by the Sejm; instead, some are chosen by the Sejm, some by the Senate, and some by the president.

Because the different parties in this conflict completely lack mutual trust, this reset would require a formal amendment to the constitution. It is exceptionally difficult to alter the constitution, which means any agreed-upon amendment would serve as a durable, binding contract.

However, right now is not the moment for this to happen. Especially before the upcoming elections, we will see more polarization and more fighting. It is perhaps not the time for full democracy. We have seen some recent news from the United States today while we are speaking, and it raises an interesting parallel regarding whether Democrats there would choose to revoke decisions made by Trump through unconventional legal means or not.

The concept of militant democracy is winning recently. Too often, we as democrats believe that utilizing the concept of militant democracy will successfully bring back democracy. I think it will instead bring more polarization, and we will end up with no actual solution, because sustainable solutions in politics must be based on some sort of compromise.

This podcast is produced by the European Liberal Forum in collaboration with the Movimento Liberal Social and the Fundacja Liberté!, with the financial support of the European Parliament. Neither the European Parliament nor the European Liberal Forum are responsible for the content or for any use that be made of.