Poland’s governing coalition put to the test

Maciej Berek is Prime Minister Donald Tusk’s proposed solution to the dysfunction of the Constitutional Tribunal. Yet, just weeks before a possible vote, it remains unclear whether his candidacy can secure the majority needed for approval.

Maciej Berek, until recently the minister responsible for coordinating legislation and implementing government policy, is officially a candidate for a seat on the Constitutional Tribunal. On Monday, the Monitor Polski official journal of laws published the president’s decision to dismiss him from the government at the prime minister’s request. That same day, lawmakers from the Civic Coalition submitted his candidacy.

Surprise within the Civic Coalition itself

Recall that the news of Maciej Berek’s candidacy was first reported by Polityka Insight. The reports came as a considerable surprise within the governing coalition, including in Donald Tusk’s own party, whose politicians had assumed they were dealing with a rumor.

As recently as Wednesday, Maciej Tomczykiewicz, a Civic Coalition lawmaker who was named in the spring as one of the party’s ten political frontmen for next year’s election, took that view. In an online discussion, he suggested that Berek’s candidacy might be a rumor, much like the possibility that KO lawmaker Robert Kropiwnicki could be nominated. After the prime minister confirmed the reports, however, Mr. Tomczykiewicz told a coalition partner that Berek’s candidacy was a bad idea.

Why? It would run counter to legislation passed by the current parliament in 2024. The law barred former lawmakers and ministers from standing for seats on the Constitutional Tribunal for four years after leaving office.

The legislation was intended to begin the depoliticization of the Tribunal following the Law and Justice (PiS) government’s time in power. The previous government had appointed figures close to the ruling party to the Tribunal, including former PiS lawmakers Stanisław Piotrowicz and Krystyna Pawłowicz, as well as Bogdan Święczkowski, a longtime associate of Zbigniew Ziobro who is now the Tribunal’s president. The law never took effect, however, because President Andrzej Duda vetoed it.

“The candidacy runs counter to the original premise”

Mr. Berek’s candidacy is nevertheless being viewed as a departure from the government coalition’s earlier commitment to depoliticizing the Constitutional Tribunal. Prof. Andrzej Zoll, a former judge and president of the Constitutional Tribunal, believes putting forward such a candidate is a mistake.

“I am setting aside Mr. Berek’s qualifications, which are very strong. Formally, however, he was a member of the government until just a few days ago. Such a candidacy would be inconsistent with the governing coalition’s stated rules on eligibility, which provided for a four-year cooling-off period. This was set out in legislation passed by parliament in 2024. The law did not enter into force because of President Duda’s decision. The intention, however, was to depoliticize the Constitutional Tribunal. Mr. Berek’s candidacy would run counter to that premise,” Prof. Andrzej Zoll says.

In the former Constitutional Tribunal president’s view, if Maciej Berek were appointed as a judge, he would have to recuse himself from cases involving legislation produced by the government he helped shape.

“I understand why the prime minister is taking this approach. I nevertheless believe it is misguided, because Mr. Berek will have no opportunity to influence the Constitutional Tribunal’s future. He will be someone who, in many cases, will be unable to rule. This would apply particularly to cases involving legislation that Mr. Berek himself worked on during the legislative process,” Prof. Andrzej Zoll says.

Another former president of the Constitutional Tribunal, Jerzy Stępień, recently pointed to a similar problem. Before becoming a Constitutional Tribunal judge, he himself served as a senator. Ten years after voting as a senator on legislation concerning the Polish Autocephalous Orthodox Church, the law came before the Constitutional Tribunal, of which he was then a member. The case ultimately reached the European Court of Human Rights in Strasbourg. In an interview with TVN24 news channel, Jerzy Stępień recalled that, to avoid having to pay substantial compensation, the government had to reach a settlement with the Polish Autocephalous Orthodox Church.

In an interview with XYZ, Prof. Andrzej Zoll also considers whether Maciej Berek’s candidacy could be the beginning of an effort to make him president of the Tribunal after Bogdan Święczkowski. In his view, however, there is no prospect of that happening.

“Under President Karol Nawrocki, that is impossible, because he would not appoint him as president. That is the president’s prerogative, and I see no chance of it happening,” Prof. Andrzej Zoll says.

Against parliament’s own declarations

The Polish Judges’ Association Iustitia, the country’s largest organization representing judges, is also opposed to the move from the government to the Constitutional Tribunal. On Friday, Iustitia’s board adopted a resolution calling on the legislative and executive branches to select Constitutional Tribunal judges in accordance with standards designed to safeguard judicial independence from politics.

“There is no question about his legal qualifications. What matters to me is the substance of the legislation that ultimately did not enter into force because it was referred to the Constitutional Tribunal. It nevertheless reflected parliament’s intention that people who had served as members of the Council of Ministers should not be eligible to seek a seat on the Constitutional Tribunal for four years after leaving office. This was an effort to raise standards. In recent years, the Tribunal has been tainted by the presence of people with political backgrounds. This candidacy runs counter to what parliament declared in that legislation. I am concerned that, if the candidacy is approved, it may not be met with public understanding,” says Judge Bartłomiej Przymusiński, president of Iustitia.

Judge Przymusiński does not rule out the possibility that Berek could be treated differently by the president from judges whose oaths of office he has refused to accept.

“I do not see the president as someone seeking to raise standards. Second, he does not actually have the power to refuse to receive the oath. The justification concerning the selection of judges to seats that became vacant before his term began would not apply here. I expect the oath would be administered. So I would not expect similar problems with Berek taking up his duties,” the Iustitia president says.

“We tried the gentle approach”

Civic Coalition lawmakers are defending the decision to nominate Mr. Berek for a seat on the Constitutional Tribunal. They argue that someone with his abilities can steer the Tribunal in a better direction. They also emphasize his political independence.

“The current method of filling vacancies on the Constitutional Tribunal cannot deliver the results we expect. Our goal is to restore the Tribunal to functioning properly and return it to the citizens. We need someone who, with knowledge and experience in managing the legislative process, will do everything possible to counter efforts by Bogdan Święczkowski to paralyze the Tribunal. The methods used so far have failed. So we need to reach for the nuclear option – but in a positive sense, in terms of effectiveness and the ability to get things done. Prime Minister’s proposal to nominate Maciej Berek is that option,” says Witold Zembaczyński, a Civic Coalition lawmaker.

How should this decision be explained to voters who expected the courts to be depoliticized? The Civic Coalition lawmaker says the government demonstrated its good intentions in the legislation it proposed in 2024.

“President Duda blocked it, however. Sending a group of professional lawyers to the Tribunal has not brought a breakthrough so far. We tried the gentle approach. The Tribunal is essential to citizens and the state. Maciej Berek demonstrated his effectiveness in the Prime Minister’s Office. He was not a minister responsible for managing propaganda; he was responsible for managing the legislative process. Those skills are meant to help the Tribunal function properly. That is how I understand the prime minister’s motivation,” Mr. Zembaczyński says.

Automatic recusal

The Civic Coalition lawmaker has no doubt, however, that as a Constitutional Tribunal judge, Maciej Berek would have to recuse himself from cases involving legislation drafted by the government in which he served.

“There would be an automatic recusal. I want to dispel the notion that the Tribunal would deal only with the fruits of the legislative work of the current parliamentary term. As a member of the Legislative Committee, through which applications to the Constitutional Tribunal pass, I can say that the Tribunal deals with the law as a whole. I can guarantee that, if elected, Maciej Berek will work to return the Tribunal to the people by mounting a counteroffensive against Bogdan Święczkowski’s actions,” Mr. Zembaczyński says.

Despite the optimism within the Civic Coalition, it is by no means certain that Berek’s candidacy will make it through parliament. The coalition’s other partners are not nearly as enthusiastic. They acknowledge Berek’s qualifications, but the idea of sending a government politician to the Tribunal is stirring strong emotions. Politicians from the New Left have been the most outspoken, particularly the party’s parliamentary caucus leader, Anna Maria Żukowska.

Another New Left lawmaker, Anita Kucharska-Dziedzic, is also skeptical. She says others in her caucus share her concerns.

“We have no reservations about Mr. Berek’s qualifications or his conduct, but he was, after all, the prime minister’s right-hand man. We promised our voters that we would depoliticize the Tribunal, and we passed legislation to that effect, but the president did not agree. We will discuss what to do with this candidacy. There will certainly be a political battle, and the president will certainly argue that this is a political nomination and that the coalition is doing what PiS did before it,” Anita Kucharska-Dziedzic says.

Coalition partners have their doubts

Paulina Hennig-Kloska, leader of the Union of the Center party and climate minister, said on TVN24 that the prime minister’s decision had not been consulted with coalition partners. She admitted that she would find it difficult to vote either for or against Berek. Sławomir Ćwik, a lawmaker from her party, shares those reservations.

“The caucus has not made a decision yet. Personally, I have a problem with this. I was one of the sponsors of the Constitutional Tribunal bill. If two years ago I was arguing before the committee, the Sejm, the Senate and the Venice Commission that a cooling-off period for politicians was a good solution, I cannot hide the fact that I have a problem with this,” Sławomir Ćwik says.

Another lawmaker from the Center caucus, Rafał Komarewicz, has also publicly spoken out against the candidacy.

Paweł Śliz, leader of the Poland 2050 parliamentary caucus, was critical even when the reports about Berek’s possible nomination were still unofficial. Two Poland 2050 lawmakers – Bartosz Romowicz and Deputy Digitalization Minister Michał Gramatyka – have already said they will support the former minister.

“The overwhelming majority are opposed, but there may be individual lawmakers who support Minister Berek’s candidacy. The Poland 2050 caucus will discuss the matter at its first September meeting. We remember, however, that we promised Poles a depoliticized Constitutional Tribunal,” we hear unofficially from Poland 2050.

Among lawmakers broadly aligned with the governing coalition, Marcin Józefaciuk, who left the Civic Coalition caucus and now sits as an independent, has announced that he will vote against Berek.

The opposition, needless to say, will not help Maciej Berek secure a majority.

From the Prime Minister’s right-hand man to a judicial nominee

Prime Minister Donald Tusk, announcing Maciej Berek’s departure from the government, described him as his right-hand man.

Two days later, Mr. Tusk confirmed that he had agreed to his former minister standing for a seat on the Constitutional Tribunal. He also described Mr. Berek as “one of Poland’s most outstanding practicing lawyers” and said that his non-partisanship was his defining characteristic.

Mr. Tusk acknowledged that the nomination had one drawback: Mr. Berek had only recently been a member of the government. The prime minister said, however, that he could no longer stand by and watch the situation surrounding the Constitutional Tribunal.

Maciej Berek is not and has never been a member of a political party. As an independent candidate, however, he ran in the 2005 Sejm election on the Civic Platform (PO) ticket. In later years, he served in governments formed by PO (Civic Platform) and the Civic Coalition (KO).

Maciej Berek for the Constitutional Tribunal

The October 15 Coalition only began putting forward candidates for Constitutional Tribunal judgeships this year. Of the first six nominees, only two were invited by President Karol Nawrocki to take their oaths: Dariusz Szostek and Magdalena Bentkowska. They nevertheless stand in solidarity with the four other judges elected by the Sejm whom the president has barred from taking part in rulings.

In July, Prof. Sławomir Patyra became the Constitutional Tribunal’s newest judge. A vote on Berek’s candidacy could take place as early as the Sejm’s first sitting in September, which begins on September 5. Less than two weeks later, the term of Constitutional Tribunal judge Justyn Piskorski expires.

Key Takeaways

1. The prime minister and his party justify Maciej Berek’s nomination as an attempt to fix the Constitutional Tribunal, even if the candidacy is flawed because of his recent membership in the government. They argue that just as Berek proved effective in shaping legislation, he will be effective in reforming the Tribunal.
2. Former presidents of the Constitutional Tribunal have criticized the prime minister’s move. Prof. Andrzej Zoll acknowledges that the nomination falls short of the standards the current coalition sought to introduce. Judge Bartłomiej Przymusiński, head of the Polish Judges’ Association Iustitia, takes a similar view.
3. The coalition’s smaller partners have their doubts and do not share Civic Coalition politicians’ optimism. They, too, say the nomination runs counter to the standards the coalition has advocated. Individual lawmakers, however, have declared that they will support Mr. Berek.