Dramatic scenes are unfolding at Poland’s Constitutional Tribunal amid growing debate over the legality of actions taken by Prime Minister Donald Tusk’s government and judges appointed by the parliamentary majority supporting him.
The situation has raised a broader question: must democrats sometimes break the law to restore institutions undermined by populist authoritarian governments? But in Poland’s case, according to legal scholar Maciej Kisilowski, that is the wrong question.
Kisilowski argues that the legal position is relatively straightforward and supports the government’s actions.
Eleven years ago, Poland’s right-wing Law and Justice party (PiS) unlawfully appointed three members of the Constitutional Tribunal, he writes. Two years later, PiS passed a series of laws that unlawfully shortened the terms of judicial members of the National Council of the Judiciary, the constitutional body responsible for nominating judges to courts across the country, with the exception of the Constitutional Tribunal.
PiS replaced those members with its own nominees, creating what Kisilowski describes as a politically controlled body operating outside Poland’s constitutional framework.
When the democratic opposition led by Tusk returned to power in 2023, more than 2,000 people had been appointed or promoted to judicial positions through procedures that Kisilowski says were unconstitutional.
Those procedures had been repeatedly challenged by Polish and European courts, as well as by constitutional scholars internationally.
According to Kisilowski, the legal consequences should be clear: the three members appointed by PiS to the Constitutional Tribunal were never lawfully appointed as judges, and their decisions should therefore be treated as invalid.
To illustrate his argument, he offers a hypothetical comparison involving the United States.
Imagine, he writes, that a U.S. president issued an executive order appointing two MAGA podcasters as the tenth and eleventh members of the Supreme Court. A subsequent Democratic administration would hardly be expected to recognize their decisions as legally valid, and could investigate those involved in facilitating the appointments.
Kisilowski argues that Poland is now facing essentially the same situation.
He therefore disputes descriptions of recent developments as the “dismissal of the president of the Constitutional Tribunal.”
Bogdan Święczkowski, a former deputy justice minister under PiS, was never, in Kisilowski’s view, the legitimate president of the court. The General Assembly that nominated him consisted of individuals who, according to the author, were not legally recognized as judges and therefore had no authority to participate in that decision.
The debate over the Constitutional Tribunal has become a central part of Poland’s wider struggle over judicial independence, constitutional legitimacy and the institutional legacy of the previous PiS government.
Kisilowski’s argument is that the current dispute should not be understood as a government overriding the law, but as an attempt to address appointments and institutional decisions that he considers unconstitutional.
