Is Poland heading for a constitutional crisis?

by Aleks Szczerbiak

Poland’s bitter political and systemic conflict has been exacerbated by the fact that the two sides appear to increasingly operate within different legal orders. Although the government has resolved this legal dualism for now by using the state apparatus to enforce its will, such a stand-off could continue at least until the current President’s term of office ends in 2025.

Mr Duda’s disputed pardons

Since the new coalition government – led by Donald Tusk, leader of the liberal-centrist Civic Platform (PO) party – took office last December Poland has found itself mired in a bitter political and systemic conflict, and increasing state of legal dualism. The country’s legal institutions have turned into battlegrounds with the opposing camps disputing or simply ignoring unfavourable rulings. At the heart of this is a struggle between the government and President Andrzej Duda – who is closely allied with the right-wing Law and Justice (PiS), Poland’s ruling party from 2015-2023 and now the main opposition grouping – with whom the Tusk administration will have to ‘co-habit’ until his presidential term of office ends in summer 2025.

This battle of wills between the two political camps and legal orders was exemplified by the bitter stand-off over the January arrest and imprisonment of former Law and Justice interior minister Mariusz Kamiński and his deputy Maciej Wąsik. The two politicians received initial convictions in 2015 for exceeding their powers during a 2007 investigation into the so-called ‘land scandal’ (afera gruntowa) when they headed up Poland’s central anti-corruption bureau (CBA). Later that year, while they were still appealing, Mr Duda issued them with presidential pardons, arguing that the two had been victimised by a biased judicial establishment – whose interests, critics argued, were often closely entwined with those of the Poland’s political and business elites – for their effectiveness in ruthlessly uncovering and fighting corruption at the highest levels.

The pardons triggered a dispute among legal experts, and although they were upheld by the constitutional tribunal, Poland’s most senior judicial body, this ruling was ignored by much of the country’s legal establishment who argue that the tribunal is no longer a legitimate body. The issue here dates back to the beginning of the Law and Justice governments in 2015 when Mr Duda refused to swear-in three tribunal members nominated by the outgoing Civic Platform-dominated parliament. Law and Justice argues that these three nominees were appointed unlawfully because, at the time of their election, the outgoing parliament could not have known when the new legislature’s term of office would begin, and so selected them ‘just in case’. Law and Justice’s critics say that the three members who were subsequently nominated by the newly-elected parliament and appointed by Mr Duda occupied tribunal positions that had already been filled. They invoke a 2021 European Court of Human Rights (ECHR) ruling that the presence of these so-called ‘understudy’ judges (dublerzy) rendered the tribunal unlawful (two of them died while in office but their replacements were also deemed illegitimate).

Conflicting supreme court rulings

In June 2023, Poland’s supreme court ruled the presidential pardons invalid on the grounds that they were issued before the full judicial process had been completed. This opened the way for a re-trial, and last December Mr Kamiński and Mr Wąsik were convicted and sentenced to two years in prison. As a consequence, Szymon Hołowina – speaker of the Sejm, the more powerful lower parliamentary chamber, and leader of the liberal-centrist ‘Poland 2050’ (Polska 2050) grouping, one of Civic Platform’s junior governing partners – ruled that the two politicians’ parliamentary mandates had expired.

Mr Kamiński and Mr Wąsik appealed this decision with the supreme court and initially the court’s extraordinary audit and public affairs chamber overturned the Sejm speaker’s ruling. But Mr Hołownia did not accept this ruling citing European Court of Human Rights and EU Court of Justice judgements that this chamber is not a lawfully established body as it is staffed entirely by so-called ‘neo-judges’, those appointed by the national judicial council (KRS) after Law and Justice’s 2017 reforms which stipulated that most of the council was to be elected by parliament rather than the legal profession. For its part, Law and Justice argues that these European bodies have no competence to rule on Polish courts’ legal standing, and points out that Mr Hołownia did not question the chamber’s legitimacy when it ruled on the validity of last October’s parliamentary election. Nonetheless, Mr Hołownia re-directed the two parliamentarians’ appeals (illegally, his critics argue) to the court’s labour and social security chamber, which is still controlled by ‘old’ judges who pre-date the 2017 reforms (many of whom, Law and Justice argues are themselves highly politicised and prepared to use any occasion to undermine the party), that upheld his ruling.

In the event, Mr Kamiński and Mr Wąsik were dramatically detained by the police in the presidential palace where they had sought refuge. Although Mr Duda insisted that his original pardons were still legally effective, at the request of their wives he initiated a second clemency procedure which led to the politicians’ release two weeks later. However, their parliamentary status remains contested. Mr Hołownia insists his order is still in force as the two have criminal convictions. Law and Justice argues that they are still deputies due to the validity of Mr Duda’s original pardon and that parliament is not properly constituted until they are allowed to take their seats. Indeed, using this argument Mr Duda has said he will now refer every new government law for review by the constitutional tribunal, starting with this year’s state budget.

Controversy over state appointments

Controversy over Mr Kamiński and Mr Wąsik’s status is one of a number of bitter legal-political disputes that have dominated the Tusk government’s first two months in office and served to highlight this legal dualism. At the root of these controversies is the fact that one of the new administration’s top priorities is to replace Law and Justice appointees running key state institutions. Elite replacement is quite normal in Polish politics when there is a change of government but the problem here is that in some cases legislation is required to replace the current appointees, and the Tusk administration lacks the three-fifths parliamentary majority required to over-turn Mr Duda’s legislative veto. So to move swiftly and decisively it has tried to find get-arounds and loopholes which some critics (and not just those aligned with Law and Justice) argue have been legally and constitutionally dubious, if not outright illegal.

For example, one of new government’s first moves was to replace the management of the state-owned media companies. These appointments are made by a body called the national media council, and legislation is required to change its composition or shorten its term of office, which runs until 2028. So the government has tried to use the fact that it is the sole shareholder in the companies to by-pass the council, initially simply replacing the existing management, and then, fearing (rightly as it turned out) that the courts might not uphold this, adopting the apparently less legally dubious approach of putting the companies into insolvency and appointing liquidators to take over their running.

All of this was in contravention of a so-called ‘safeguard order’ issued by the constitutional tribunal last December obliging the government to refrain from making any changes to state-owned media management, and later January ruling rejecting the government’s moves as unconstitutional. The government refused to recognise both rulings on the grounds that they involved ‘understudy’ judges, and in the case of the latter also arguing that two other tribunal members had conflicts of interest as former Law and Justice parliamentarians involved in amending the media law, and that the tribunal’s president was incorrectly appointed.

In January, in another controversial elite replacement move, justice minister and prosecutor general Adam Bodnar dismissed his deputy, national prosecutor Adam Barski, who was appointed by the previous government, and replaced him with an acting figure more closely aligned with the current administration. Although the previous parliament passed a law making the national prosecutor’s appointment and removal contingent upon the President’s agreement, Mr Bodnar presented legal opinions that Mr Barski’s original appointment had been defective, thereby providing him with an apparent legal get-around.

Mr Duda strongly disagreed that such a move was lawful, as did other senior prosecutors appointed by the previous government, and the constitutional tribunal issued an injunction ordering Mr Bodnar to refrain from suspending Mr Barski pending a full ruling on the issue. Mr Bodnar, in turn, argued that this tribunal order was also defective on the grounds that the case should have been first considered by the labour law court and, again, that one of the tribunal members had a conflict of interest as a former Law and Justice parliamentarian and election candidate alongside Mr Barski.

Still enjoying a post-election ‘honeymoon’?

This legal dualism reflects, inter-acts with and re-inforces the fact that Poland has a bitterly divided and polarised political scene. Both sides view the conflict as critically important for, and will fight vigorously to promote their different visions of, Poland’s future democracy. So far, this escalating polarisation and systemic conflict does not appear to have harmed the government’s political prospects. The new administration is still enjoying a post-election ‘honeymoon’ and Poles are not especially interested in what they see as legal nuances or abstract constitutional questions. Ultimately, the Tusk government is more likely to be judged on how it delivers on bread-and-butter socio-economic issues (although this could change if the rulings of the thousands of ‘neo-judges’ in ordinary civil, criminal or administrative cases are questioned).

Indeed, its most radical supporters actually want decisive action to, as they see it, ‘repair democracy’ and ‘restore the rule-of-law’ and are pleased that some kind of effective reckoning with Law and Justice’s legacy is taking place. Some use a ‘transitional justice’ logic to justify its actions: that constitutional safeguards can (indeed, should) sometimes be ignored when taking steps to restore legal order to institutions that have been corrupted and whose legitimacy is questionable. However, critics argue that, even if one accepts this analysis of the nature of Law and Justice’s systemic reforms and elite appointment policies (which it strongly contests, of course), this kind of ‘state of emergency’ framing uses the same justificatory logic that the previous ruling party used: that its reforms were necessary to repair the flawed institutions and elites that emerged following Poland’s distorted post-1989 transition to democracy.

The government’s combative approach has put those junior coalition partners, such as Mr Hołownia’s party, which appeared to offer a break with the polarising logic of Polish politics, in an awkward position – although it may also actually end up binding them more closely to the governing camp. At the same time, while polarisation helps Law and Justice to consolidate its electoral base, concentrating on these kind of ‘rule-of-law’ and systemic issues is not winning the party any new supporters, and arguably preventing it from focusing on more salient socio-economic questions and developing new ideas to broaden its appeal.

Are legal dualism and political polarisation sustainable?

Such political polarisation is containable within a framework of commonly accepted rules, institutions, procedures and practices. But legal dualism means that both sides now have their own set of laws, experts, judges and tribunals, and feel that some judicial authorities are acting on the basis of political sympathy rather than an objective legal framework. For now, the government has resolved this legal dualism by using the state apparatus to decisively enforce its will. Its supporters argue that if opponents feel that these actions are legally questionable then they can appeal through the courts, although government critics respond that these are lengthy processes during which time the new state appointees remain in post, and that the Tusk administration simply ignores unfavourable rulings anyway. Either way, the stage appears set for a protracted stand-off that could last at least until the end of Mr Duda’s mandate.