Michael Winiarski: After the drama in the court - difficult way forward for Poland

How is the situation in Warsaw after this weekend's chaotic scenes at the Polish Constitutional Court?

On the surface, the tension seems to have subsided for the moment. Both sides, Tusk's centrist government and the conservative-nationalist opposition, appear unnerved by the near-violent confrontation overnight Saturday. But it is unlikely that President Karol Nawrocki, who burst into the court past the police presence, realizes that he went too far. Prime Minister Tusk, who has control over the powers of order, does not expect the opposition to calm down.

Poland has been plunged into the worst political conflict in years, although it has been bubbling since 2015. That's when the right-wing nationalist Law and Justice (PIS) party took over government power and began undermining the rule of law by staffing courts and public service media with political loyalists.

Didn't Tusk's liberal coalition, which won the 2023 parliamentary elections, try to restore the independence of the judiciary?

Yes, but it was sabotaged by the president, first by Andrzej Duda and then by Karol Nawrocki, although the latter believes that it is the government that violates the constitution. They refused to allow legally appointed judges to be sworn into the presidential palace. Criticism from the EU and the European Court of Human Rights did not help. Nawrocki is determined to let the Law and Justice party maintain its influence over the judiciary and the Constitutional Court.

Many were upset that Nawrocki behaved like a street urchin when he broke into the courthouse. Poland is a parliamentary state and not a presidential republic. The president does not rule the country but mainly has a ceremonial role. Executive power rests with the government, which is appointed by the majority of the Sejm. That doesn't suit Nawrocki, who wants to expand his power. But the system is a hybrid, with the president vetoing laws passed by parliament and appointing judges and ambassadors.

What are the ways out of the acute crisis?

One solution, put forward by the right-wing nationalists, is that the Constitutional Court should continue to be dominated by members who were appointed after 2015. The problem is that they were appointed on party political merits and in violation of the constitution.

Another solution, advocated by some independent experts and lawyers, is a compromise: change the constitution, start from scratch and parliament appoints a new, politically neutral constitutional court. A third proposal comes from Tusk's government, which believes that a solution to the conflict does not require changes to the country's constitution: the president must recognize the judges legally appointed by the Sejm and allow them to fulfill their duties.

Instead, Tusk claims, the president has chosen a confrontation that could prove costly for Poland: "A democratic state, governed by the law, cannot give way to violence, no matter how strong external forces support the attack," Tusk writes on X, with an allusion to Russian sites cheering on the nationalist opposition.

What is the likely future development?

Now the Constitutional Court has a majority of members who have been elected according to the rules, which means that it can eventually begin to function as it was intended. Something similar happened after Tusk's government at the end of 2023, even then by prying the rules of the law, put an end to PIS's political control over the public service channel TVP. The right-wing opposition demonstrated and built a tent city outside the TV house. But soon the protests subsided. Especially when most people could see that the public service media were no longer purely megaphones for a party.