Constitutional Tribunal at a crossroads: New judges, lingering controversy

 
The governing coalition is considering a scenario in which President Karol Nawrocki refuses to allow newly appointed judges of the Constitutional Tribunal to take part in adjudication. Politicians from Law and Justice (PiS) are already taking steps in that direction.

For more than two years, the October 15 Coalition delayed appointing judges to the Tribunal. It moved to fill the vacancies only once six seats in the 15-member body were empty. A further two vacancies are expected this year.

Earlier, it had also proved difficult to find candidates willing to join a bench dominated by members appointed by the previous government and led by a president aligned with PiS. Since 2024, the Constitutional Tribunal has been headed by Bogdan Święczkowski, a long-time close associate of Zbigniew Ziobro from his time in the prosecution service and the Ministry of Justice, as well as a former head of the Internal Security Agency.

 
The Tribunal still includes two judges commonly described as “stand-ins” (“dublerzy”). They were elected to seats already filled in excess at the end of the Civic Platform-Polish People's Party (PO-PSL) coalition government in 2015, from whom President Andrzej Duda refused to accept the oath of office. These are Justyn Piskorski, whose term expires on September 18, and Jarosław Wyrembak, whose term ends on January 30, 2027. As further seats in the Tribunal are vacated, the judicial majority centered around PiS-appointed members is set to erode gradually.

Sejm appoints new Constitutional Tribunal judges

A breakthrough came in recent weeks. The Sejm elected six new judges to the Constitutional Tribunal. They are Professors Krystian Markiewicz, Maciej Taborowski, Marcin Dziurda and Dariusz Szostek, Dr. Magdalena Bentkowska, and Judge Anna Korwin-Piotrowska. Two candidates were put forward by Law and Justice (PiS): Professor Artur Kotowski and Dr. Michał Skwarzyński.
No clear declaration has been made as to when the new judges will begin their work at the Tribunal. The next step is the swearing-in before the President of Poland.

Row over the oath of office

Politicians from the governing coalition argue that the oath is merely ceremonial, and that newly elected members of the Tribunal become fully fledged judges at the moment of their election. This view is shared, for example, by Paweł Śliz, an MP from Polska 2050 and chair of the Sejm’s justice committee, in a conversation with XYZ.

“Judges have already been elected. They are chosen by the Sejm and are already judges of the Constitutional Tribunal. What remains is only the ceremony at the Presidential Palace. I expect the President to fulfill his duty and promptly invite the judges to take their oath of office. I cannot imagine a refusal, as there are no grounds for it. As a lawyer and a legalist, I cannot envisage the President taking any other decision. President Andrzej Duda was ready within hours – even at night – to open the Presidential Palace to receive the oath. I do not expect President Karol Nawrocki to do so at night, but I do expect him to act as swiftly as possible,” says MP Paweł Śliz.

What will president Nawrocki do?

The opposition takes a different view. Marcin Warchoł, an MP for Law and Justice (PiS) and a former deputy justice minister, argues that the oath is not merely ceremonial.

“The law on the Tribunal states that office is assumed upon taking the oath. Article 7 of the Constitution provides that every state authority acts on the basis of and within the limits of the law. It is therefore not possible, as some might wish, to allow judges to adjudicate without having taken the oath,” Mr. Warchoł told XYZ.

The former deputy minister has little doubt how President Karol Nawrocki will act.

“The law is neutral and has nothing to do with the wishes of the opposition. The governing camp has itself supplied the president with arguments. Had they appointed judges on time, the president would have had no choice. Instead, they opted for a bulk appointment. The president will take a sovereign decision, but the law is as I have outlined,” the PiS politician said.

Fallback plans

The governing coalition is considering a scenario in which President Karol Nawrocki refuses to administer the oath to the newly elected judges of the Constitutional Tribunal. Justice Minister Waldemar Żurek told Radio Zet that he has a plan for such a contingency. In his view, a failure by the president to act within a week of the judges’ election would amount to a breach of the Constitution.

Another member of the government went further in public speculation. Interior and Administration Minister Marcin Kierwiński said on Radio Zet that the coalition would consider an alternative route. He suggested that the new judges of the Constitutional Tribunal could take the oath before the Speaker of the Sejm, as the second-ranking official in the state, or before the National Assembly. He stressed, however, that the coalition would opt for a solution consistent with the law.

PiS keeps up the fight

Politicians from Law and Justice (PiS) are counting on the newly appointed judges not being admitted to adjudicate by the current members of the Constitutional Tribunal. They have challenged the provisions under which the new judges were elected, requesting interim relief and a temporary suspension of the Sejm from proceeding with judicial appointments. The Tribunal is due to consider the motion on Tuesday, March 17. Marcin Warchoł expects the court to uphold it.

“There has been a breach of the Sejm’s rules of procedure. Article 30 provides for a 30-day period to nominate candidates in overlap with the expiry of their predecessors’ terms. Meanwhile, nominations were submitted in bulk rather than individually, as required by Article 194 of the Constitution. Moreover, the opinion of the Venice Commission of December 6, 2024, takes a negative view of bulk judicial appointments. The ruling of the Constitutional Tribunal of December 3, 2015, under the presidency of Professor Andrzej Rzepliński, explicitly mandates individual appointments. A bulk appointment was carried out, in breach of the Sejm’s rules. I expect the Tribunal to find the provisions under which the appointments were made unconstitutional,” Mr. Warchoł said.

Doubts have also been raised by Zbigniew Bogucki, head of the Chancellery of the President, who is seeking explanations from the Speaker of the Sejm.

The argument concerning a breach of Article 30 of the Sejm’s rules has also surfaced in online debate. Paragraph 4 of that article provides that motions concerning elections or appointments to public office cannot be put to a vote earlier than one week after MPs have been informed of the candidates. The provision, however, concludes with the clause “unless the Sejm decides otherwise.”

While presiding over the session, Speaker of the Sejm Włodzimierz Czarzasty asked MPs whether they objected to shortening the deadline for the election of Constitutional Tribunal judges. No objections were raised. This point was noted by Marcin Szwed, a legal expert at the Helsinki Foundation for Human Rights. He added, however, that he neither understands nor supports the accelerated procedure for appointing judges.
 
On Tuesday, the Constitutional Tribunal postponed its decision on the motion filed by MPs from Law and Justice indefinitely. It also asked President Karol Nawrocki to submit a written position on the opposition’s motion.

“It’s about preserving influence”

In February, MPs from Law and Justice filed another motion with the Constitutional Tribunal concerning the procedure for appointing new members. They challenged a provision – introduced by PiS itself – allowing a parliamentary majority to reject judicial candidates put forward by the largest parliamentary caucus. In the current term, PiS holds the largest caucus, despite not being in power.

Krzysztof Izdebski, a lawyer and activist affiliated with the Stefan Batory Foundation, described the PiS motion to halt the new appointments as an act of hypocrisy in a conversation with XYZ.

“This is a destructive move and reveals the applicants’ intentions. In their view, the Tribunal should serve as a tool to restrain the government, rather than to assess the constitutionality of legal solutions. The aim is to preserve influence within the Tribunal and to treat it as an extension of party activity,” Mr. Izdebski said.

No new legislation in sight

What, then, of the recognition of rulings issued by the Constitutional Tribunal once the new members take part in adjudication? Paweł Śliz, an MP, argues that such rulings should be published by the government “provided that the panels are properly constituted and do not include stand-in judges.” At present, Tribunal rulings are not being published due to the participation of so-called “stand-in” judges – a situation that Marcin Warchoł considers a mistake.

Asked about potential legislative changes, Mr. Śliz adds that he currently sees little chance of progress. He points to a law adopted by the Sejm in 2024, which President Andrzej Duda referred to the Constitutional Tribunal for preventive review.

“The law on the Constitutional Tribunal was one of the first pieces of legislation handled by this Sejm. It was the first bill I had the honor to steer as chair of the justice committee. It was passed by the Sejm, but unfortunately it was referred by the president to the Constitutional Tribunal. At this stage, I do not see room to work on a new law,” Mr. Śliz says.\

The blocked bill was intended to ensure that judges of the Tribunal would be elected by a three-fifths majority. It also sought to introduce restrictions on individuals holding political office or belonging to political parties, including a four-year cooling-off period between serving as an MP, senator, MEP, or holding a government or party position.

The current coalition has little doubt that President Karol Nawrocki could follow a similar course of action to that taken by President Andrzej Duda in this matter.

Public trust in the Constitutional Tribunal

Regardless of what happens next, tensions surrounding the Constitutional Tribunal are unlikely to ease any time soon. In a conversation with XYZ, Krzysztof Izdebski admits he is concerned about the deepening public mistrust toward the institution.

"It has always been a focal point of political dispute, but over the past decade this has reached an unprecedented scale. The question is whether the other side of the political divide will now also contest the Tribunal’s work with its new members. There is a significant risk that the president will refuse to swear in the new judges. Once again, it would be citizens who lose out, deprived of an institution meant to safeguard their rights. People have already grown accustomed to the Tribunal not functioning,” Mr. Izdebski says.

The lawyer also regrets that the candidate selection process was not more transparent, and that those in power made little effort to remind the public of the Tribunal’s role. From the citizens’ perspective, he argues, the court has for years been part of a broader political tug-of-war.

“I fear we will see a debate focused on who can outmaneuver whom and devise the more effective legal strategy – but this is of little relevance to citizens. Trust in the Tribunal will not rise above its current level; it may well remain unchanged. Some will trust the new Tribunal, while those who trusted the old one will not trust the new,” the expert concludes.

“He should administer the oath, but probably won’t”

The lawyer is unequivocal that the president must administer the oath to the newly elected judges.

“Judges can remain in limbo. For some, the Sejm’s election is sufficient, while others insist on the president’s approval. Being right is not always enough; perception matters. Many citizens no longer know what is or isn’t lawful. If the president were to swear in the judges, it would be an opportunity for him – he could demonstrate care for the Tribunal. The selection of judges could have been handled differently, but it was lawful. The president has no authority to use the swearing-in process to challenge that choice. He should administer the oath, but he probably won’t. Polish politics is not especially rational, and the ability to compromise is often treated as a weakness,” says Krzysztof Izdebski.

Key Takeaways

1. Next step: presidential oath. Following the appointment of six new judges to the Constitutional Tribunal, the next step is their swearing-in before the President of Poland. Later this year, two more seats will become vacant, including one currently held by a so-called “stand-in” judge. This means that before the end of 2026, judges appointed by Law and Justice will lose their numerical majority in the Tribunal. The term of the last stand-in judge ends in January 2027.
2. Dispute over the swearing-in. Coalition politicians argue that, once elected by the Sejm, the swearing-in is purely ceremonial. Paweł Śliz of Polska 2050 maintains that it is the Sejm’s vote, not the oath, that makes new members judges of the Tribunal. Marcin Warchoł that the president cannot administer the oath to judges elected under provisions currently challenged by PiS politicians. Krzysztof Izdebski believes the president should swear in the new judges but acknowledges that he might choose otherwise.
3. Erosion of public trust. Since 2015, the Constitutional Tribunal has struggled with a crisis of public trust. Confidence weakened under the presidencies of Julia Przyłębska and now Bogdan Święczkowski, as the Tribunal often acted in line with PiS interests. The current government does not publish rulings issued with the participation of stand-in judges.