Donald Tusk says he’s restoring the rule of law. His president says he’s destroying it. Meanwhile, Poland’s judges can’t agree on who’s actually a judge.
Poland has managed something rather extraordinary. It has a government, a president, a constitution and a Constitutional Tribunal. What it apparently doesn’t have is agreement on who gets to interpret any of them.
On Friday, a judge whose own authority is disputed issued orders suspending the president and vice-president of Poland’s highest constitutional court. Its leadership rejected the orders. Riot police surrounded the building. Protesters gathered outside. And President Karol Nawrocki abandoned a trip to Africa and flew back to Warsaw. All perfectly normal behaviour for a functioning European democracy – obviously.
Prime Minister Donald Tusk says he is restoring the rule of law. President Nawrocki says the government is trampling all over it. Both insist they are defending the constitution. And therein lies the problem. Because when political rivals stop recognising the legitimacy of the institutions meant to settle their disagreements, the argument is no longer simply about judges. It becomes a struggle over who controls the state.
For Poland, one of Europe’s most strategically important countries, that is a particularly dangerous argument to be having. When both sides claim they are defending the constitution from the other, the constitution ceases to be a neutral rulebook and becomes just another front in the political war.
How the Hell Did We Get Here?
The roots of this mess go back to 2015. As Poland’s outgoing Civic Platform-led government prepared to leave office, parliament elected five judges to the Constitutional Tribunal. The court subsequently ruled that three appointments were lawful but two were not.
The incoming Law and Justice party (PiS) government then went considerably further, challenging appointments the Tribunal had already declared valid and installing its own candidates. What followed was nearly a decade of disputes over judicial appointments, court procedures and political interference.
The European Union repeatedly challenged aspects of PiS’s judicial reforms, arguing that they undermined judicial independence. European courts also identified serious legal problems. PiS maintained that it was reforming institutions that had long been politically compromised.
When Tusk returned to power in December 2023, he promised to reverse those changes, restore judicial independence and repair relations with Brussels. You could be forgiven for thinking this is a reasonable enough ambition. Except that the institutions he wanted to reform were themselves responsible for deciding whether his reforms were constitutional. You can probably see the difficulty.
Prime Minister Tusk’s government argued that disputed appointments needed correcting. Judges associated with the previous administration insisted they were lawfully appointed and entitled to remain. Meanwhile, the presidency could obstruct appointments and veto legislation.
Poland had created a constitutional Catch-22. And after years of legal arguments, competing judgments and political manoeuvring, the whole bloody thing has finally exploded.
The President Has Entered the Building
The immediate confrontation began on 30th October. Anna Korwin-Piotrowska, a judge elected under the current parliamentary majority, announced that Constitutional Tribunal President Bogdan Święczkowski and his deputy, Bartłomiej Sochański, were being suspended from their duties for one month.
She accused the court’s leadership of obstructing the work of judges elected by parliament and preventing the Tribunal from functioning properly.
Święczkowski rejected her authority. His argument was that Korwin-Piotrowska had not taken her oath before the president and therefore could not lawfully exercise judicial functions.
The government disputes that interpretation, arguing that the president cannot simply refuse to recognise judges elected by parliament.
President Nawrocki, an ally of PiS, was sufficiently alarmed by developments to turn his aircraft around while travelling to Senegal.
The doubts are not confined to Nawrocki’s political allies. Constitutional law scholar Marcin Matczak, himself a prominent critic of PiS’s judicial reforms, has also questioned whether the legislation invoked provides any lawful basis for suspending the Tribunal’s president. That matters. Opposing PiS’s interference in the judiciary does not automatically mean endorsing every attempt to undo it.
By Saturday morning, the confrontation had spilled into the streets, with protesters, police and politicians descending on the Tribunal. The Nawrocki accused the government of orchestrating an unlawful takeover. Tusk defended the need to restore the court’s independence and functioning.
And somewhere beneath the shouting lay a rather important legal question. Did Korwin-Piotrowska actually have the authority to suspend the Tribunal’s leadership?
Her orders relied on provisions governing judicial duties and temporary substitution for court leadership. But legal questions remain over whether those provisions apply in these circumstances and whether she was entitled to exercise the powers she claimed.
The government argues that the existing leadership had effectively paralysed the court. Its opponents argue that the suspension procedure was itself unlawful. Neither argument can be settled simply by declaring the other side illegitimate. And that is precisely what makes this crisis so difficult.
The institution supposed to resolve constitutional disputes is now fighting over who has the authority to run it. You really couldn’t make this up.
Democracy Is Apparently Whatever My Side Says It Is
There is something deeply uncomfortable about the arguments being made by both political camps.
Tusk’s supporters maintain that extraordinary action is necessary because PiS spent years undermining judicial independence. Nawrocki’s supporters argue that extraordinary action is precisely what governments use when they want to seize control of independent institutions. Both claims require scrutiny.
The legal problems surrounding appointments made under PiS are well documented. They cannot simply be dismissed as political complaints from Brussels. But neither does that automatically make every measure taken by Tusk’s government lawful. Restoring the rule of law cannot mean that the law becomes optional whenever it proves inconvenient.
Equally, defending judicial independence cannot mean allowing disputed appointments and institutional obstruction to remain beyond challenge indefinitely. There is another uncomfortable detail.
In September, parliament elected Maciej Berek, a senior figure from Tusk’s own administration, to the Constitutional Tribunal. His appointment prompted questions about whether selecting someone so closely associated with the government was consistent with its stated ambition to depoliticise the judiciary.
Previous government service does not automatically disqualify someone from judicial office. But when your principal political promise is to remove political influence from the courts, appointing one of your own senior colleagues is hardly going to silence the critics.
The wider problem is that both political camps increasingly view institutional appointments through the lens of political allegiance.
Every appointment becomes suspect. Every judgment becomes political. Every reform is an attempted takeover. And every attempt to resist reform becomes evidence of obstruction. It is a wonderfully efficient way of ensuring that nobody trusts anything.
And Now the Central Bank Is Involved
The judicial confrontation is not Poland’s only institutional dispute. Earlier in October, a parliamentary committee recommended that National Bank of Poland Governor Adam Glapiński face the State Tribunal over alleged constitutional and legal violations.
The allegations include improperly financing government deficits through central bank asset purchases during 2020-21 and acting without the necessary authorisation. Glapiński denies wrongdoing.
The proceedings are politically sensitive because of his longstanding association with PiS. But they also raise a separate constitutional question.
In January 2024, the Constitutional Tribunal ruled that referring the central bank governor to the State Tribunal required a three-fifths parliamentary majority rather than a simple absolute majority. It also ruled against his automatic suspension upon referral. Tusk’s government disputes the legitimacy of the Tribunal’s composition and, consequently, the authority of its rulings. So the same Constitutional Tribunal whose leadership is now being contested has already issued a judgment affecting the government’s ability to pursue proceedings against the central bank governor.
That does not prove the two confrontations are coordinated. Nor does it establish that the latest judicial dispute was engineered to facilitate Glapiński’s removal. But it demonstrates how Poland’s institutional conflicts overlap. And there is another twist …
In a letter dated 1st December 2023, European Central Bank President Christine Lagarde warned that any unlawful measure affecting Glapiński’s ability to perform his duties could undermine central bank independence. She also pointed to his right to challenge a suspension before the Court of Justice of the European Union. Which leaves Tusk with an interesting dilemma.
Having served as President of the European Council from 2014 to 2019, he is hardly unfamiliar with the EU’s rules on institutional independence. His government now wants to restore those standards at home. Yet those same standards protect central banks against unlawful political interference. Accountability and independence are not mutually exclusive. But the procedures used to establish accountability matter.
You cannot credibly restore institutional independence by treating legal safeguards as optional. Nor can officials use institutional independence as a blanket defence against legitimate investigation. That is the distinction Poland needs to resolve.
What About All That Gold?
There is another story circulating around the central bank confrontation. Poland has been accumulating gold at a remarkable rate, making its central bank one of the world’s most significant official buyers.
Claims have circulated that proceedings against Glapiński are part of a plan to introduce the euro and transfer Poland’s gold reserves to Germany. But the evidence for that supposed connection is conspicuously absent. Joining the eurozone would require Poland’s central bank to contribute certain reserve assets to the European Central Bank. It would not require surrendering the country’s entire gold stock to Frankfurt.
More importantly, Tusk’s own finance minister has publicly defended retaining the złoty, citing the advantages of independent monetary policy. There is no established evidence that the proceedings against Glapiński are designed to facilitate euro adoption or the transfer of Polish gold. But the underlying issue of monetary sovereignty is genuine.
Poland’s central bank has been strengthening its gold reserves while the country retains control over its national currency. Those are important instruments of financial resilience. And for a country sitting on NATO’s eastern flank, resilience is not some abstract economic concept. It is a strategic consideration.
The interesting question is not whether Brussels is secretly plotting to acquire Poland’s bullion. It is how Poland balances European integration with retaining national control over the institutions and financial instruments it considers essential to its security.
That is a much more serious argument. And considerably more useful than another conspiracy theory involving Frankfurt.
Geography Doesn’t Give a Damn About Political Arguments
As we explored in our earlier The Return of the Map series, geography is once again shaping political and economic power in ways governments cannot simply wish away. Poland is a textbook example. Its position between Western Europe, Ukraine, Belarus and Russia’s Kaliningrad exclave has transformed it into one of the continent’s most strategically important states.
Its territory is critical to NATO’s eastern security architecture and the movement of military assistance to Ukraine. Its defence spending has risen sharply – it’s defence budget as a percentage of GDP (4.5-4.8%) has considerably exceeded that of the USA (3.1-3.2%) for the last several years. Its economic importance within the EU has grown. Poland is no longer simply Europe’s eastern flank. It is increasingly central to the continent’s security.
But geography cuts both ways. It can make a country indispensable without making it stable. Poland’s location guarantees it strategic relevance. Whether its political institutions can translate that relevance into consistent influence is another question entirely.
A prolonged constitutional confrontation does not mean Poland suddenly becomes incapable of defending itself or supporting Ukraine. Its armed forces, bureaucracy and international commitments do not disappear because politicians are arguing in Warsaw.
But institutional uncertainty can complicate legislation, encourage political obstruction and create doubts over the authority of judicial decisions. It also consumes political attention. And there is no shortage of external challenges demanding Poland’s attention.
Moscow does not need Poland to collapse. It benefits whenever one of Europe’s most strategically important states becomes distracted by internal confrontation. That is not to suggest Russia is directing events in Warsaw. Poland’s constitutional problems are overwhelmingly home-grown. But their strategic consequences do not stop at Poland’s borders.
Geography has made Poland indispensable. Its politics will help determine how effectively it can exercise that influence.
Brussels Has a Problem Too
The European Union spent years criticising PiS for undermining judicial independence. When Tusk returned to power, Brussels welcomed his commitment to reform and moved to release previously frozen funding. But the current confrontation creates an uncomfortable test.
The EU cannot credibly insist on judicial independence under one government and then ignore questionable procedures under another, should those procedures prove unlawful. Equally, it cannot disregard the documented problems inherited from the PiS era.
The challenge is to apply consistent legal standards rather than political preferences. That sounds straightforward right? Wrong!
In practice, it is considerably more complicated when the institutions responsible for interpreting those standards are themselves disputed. Europe has spent years insisting that the rule of law is a fundamental principle of EU membership.
Poland is now testing what happens when political actors disagree not only about the law, but about which judges and institutions are entitled to interpret it. Brussels cannot resolve that problem merely by choosing which politicians it likes.
Tuesday’s Test: Who Actually Runs the Court?
The next chapter could arrive remarkably quickly. A General Assembly of Constitutional Tribunal judges has reportedly been called for 3rd November, ostensibly to discuss the court’s 2027 budget.
Under normal circumstances, a meeting about judicial budgets would struggle to attract an audience beyond a handful of lawyers and particularly dedicated insomniacs. Not this time.
The real question is who has the authority to convene the meeting, who is legally entitled to attend and whether any decisions taken will be recognised by the competing factions.
Święczkowski has reportedly declared several days off for Tribunal employees, beginning on 3rd November. Korwin-Piotrowska, meanwhile, maintains that she is entitled to direct the institution. The legal effect of their competing instructions remains disputed.
And there is a distinctly absurd possibility that Poland could emerge from Tuesday’s meeting with two groups of judges, each insisting that the other has no authority to speak for the country’s highest constitutional court. That is not a prediction. It is a risk created by the competing claims.
The meeting may clarify matters. It may deepen the confrontation. Or it may simply demonstrate how difficult it has become for Poland’s constitutional institutions to function normally.
Whatever happens, the outcome deserves close attention. Because the issue is no longer simply whether Donald Tusk can complete his promised judicial reforms. It is whether Poland can produce constitutional decisions that its political leaders are prepared to recognise, even when those decisions go against them.
Who Guards the Guardians?
There is a broader lesson in Poland’s predicament. Democratic institutions depend on more than constitutions, elections and impressive buildings filled with people wearing judicial robes. They depend on political actors accepting that those institutions possess authority even when their decisions are inconvenient. Once that acceptance disappears, the system becomes vulnerable.
Every appointment is disputed. Every ruling becomes political. Every reform is an attempted takeover. Eventually, the argument stops being about what the law says. It becomes about who has enough power to impose their interpretation of it. That is a dangerous place for any democracy to find itself.
Tusk’s government has legitimate reasons to pursue judicial reform and investigate credible allegations of misconduct. But those objectives do not remove the obligation to follow lawful procedures.
Nawrocki and the opposition have legitimate constitutional rights of challenge. But those rights cannot provide unlimited authority to obstruct appointments or disregard binding legal obligations.
The difficult question is where those boundaries lie and who gets to enforce them.
Poland has spent decades establishing itself as an increasingly influential European power. It has the economic weight, military capabilities and geographical importance to play a central role in Europe’s future. But international influence ultimately depends, in part, on domestic institutional credibility.
A country can accumulate gold, purchase weapons and become indispensable to its allies. It still needs a constitutional system whose authority does not change every time the government does.
Poland’s geography has made it indispensable to Europe’s security. Its political leaders now face a different challenge – demonstrating that the institutions governing that strategically vital country can function even when those leaders disagree.
Because the battle isn’t simply over who governs Poland. It’s over who gets to decide what governing within the constitution actually means.