Coup or restoration? Poland’s constitutional court standoff divides Europe

(CN) — For Europe’s far-right populists, Poland has become the scene of a coup. For their liberal opponents, the country is seeing a long-overdue restoration of democracy.The centerpiece to this drama is the Constitutional Tribunal in Warsaw, Poland’s constitutional court — the same court that rocked Europe in 2021 by declaring European Union laws secondary to Poland’s constitution. Four years later, the EU’s highest court hit back by declaring the court illegitimate, ruling it had been illegally captured by the country’s ousted far-right government.On Friday night, with protesters aligned with Polish nationalists keeping watch over the court’s front gates, seven justices appointed by Poland’s ruling pro-EU centrist government entered a side door to the court under police escort.They then took hold of the court’s website and declared the suspension of the court’s president and vice president, justices aligned with the previous hard-right government led by the Law and Justice party, also known as PiS.The announcement ignited a furious response from the Law and Justice side.“As of today, Poland has become a police state, and from there it’s a straight path to authoritarianism, and then to totalitarianism,” Jarosław Kaczyński, the Law and Justice leader, declared outside the court.Bogdan Święczkowski, the suspended chief justice, raced to the court too. After his supporters cut through a fence with a power tool, he tried to enter the court, but he was met with rows of riot police. Święczkowski declared an illegal “coup d’état” was underway.The drama, though, was not over.At around 1 a.m., Polish President Karol Nawrocki showed up at the court, escorted by his security team.The president, who is aligned with Law and Justice, was flying to Senegal for a diplomatic trip when the chaos erupted in Warsaw. He ordered his airplane to turn back mid-flight.Back in Warsaw, Nawrocki forced his way through rows of police and even tussled with Anna Korwin-Piotrowska, a newly appointed judge in charge of court takeover, before he entered the court. Videos showed him arguing with newly appointed judges.Outside the court, the president declared the takeover a breach of the constitutional order and he called for urgent, cross-party consultations among parliamentary leaders.Meanwhile, Polish Prime Minister Donald Tusk, the leader of the center-right Civic Platform, defended the operation and accused Nawrocki of unlawfully intimidating judges.“Restoring the rule of law is our duty,” he declared. “After years of PiS-led lawlessness, this is a difficult process, sometimes painful, and it requires decisive action. There is no other way.”Over the weekend, far-right figures, led by France’s Marine Le Pen, joined the fray by denouncing Tusk and accusing Europe’s liberal establishment of resorting to antidemocratic measures to silence and target their opponents on the right.On Sunday, Le Pen said what happened in Poland was a “forcible takeover of a constitutional body.”“The proliferation of such strong-arm tactics within the European Union itself is beginning to raise serious questions,” she said on social media.The European Commission, meanwhile, issued a carefully worded statement that supported the actions of the Tusk government. It cited a European Court of Human Rights ruling in May that said the Polish Parliament’s appointments to the constitutional court should not be hindered.Nawrocki has stymied the court by blocking judges appointed by Tusk’s government. He’s done that by refusing to administer swearing-in oaths. Instead, newly appointed judges were sworn in by Parliament.Since seizing power in December 2023, the Tusk government has refused to recognize the court’s legitimacy.By Monday, the standoff between Nawrocki and Tusk remained intense with no resolution in sight.The court, meanwhile, faced uncertainty too.Korwin-Piotrowska said she planned to carry out the court’s business and reportedly planned to hold a meeting of its judges Tuesday. But Polish media reported that some judges might not attend.Alberto Alemanno, a law professor at HEC Paris, said Europe’s highest legal authorities — the European Court of Justice, the European Court of Human Rights and the Council of Europe — have ordered Poland to fix the court.“The law is clear;” Alemanno said. “Poland must have an independent Constitutional Tribunal.”However, he said overhauling the court must be done properly.“Respect for the rule of law cannot condemn a country to accept institutional capture indefinitely,” he said. “But restoring it is no blank check to disregard legal constraints.”He also questioned the appointment of Maciej Berek, a close ally of Tusk.“How can Tusk demand a politically independent court while appointing one of his closest associates to it?” he said. That, he said, “contradicts the pledge to depoliticize the court.”Still, he said Friday’s operation “was not a coup” but aimed “to restore a lawful court, not to capture it.”As for Nawrocki, Alemanno said his refusal to accept new judges amounted to an abuse of office.Aleks Szczerbiak, a political scientist and expert on Poland at the University of Sussex, said legal scholars in Poland were divided about the legality of the Tusk government’s actions. Progovernment law experts side with Tusk while antigovernment ones go the other way, he said.“Interestingly there are some liberal legal scholars who have been very critical of Law and Justice but don’t support the government’s actions on Friday,” he said.In the end, the Tusk government will likely be able to overhaul the court, even if that means resorting to the police and security services, he said.But using force could backfire if Poland’s ultranationalists return to power, he added.“A right-wing government will use exactly the same tactics and justifications against a reconstituted tribunal,” he said. Such a government could refuse to recognize the court’s rulings and force judges off its bench.Ideally, the two sides will find common ground to tamp down tensions and arrive at a “‘constitutional reset’ compromise agreement,” he said. “But I can’t see any prospect of this at the moment.”Courthouse News reporter Cain Burdeau is based in the European Union.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads