Poland’s struggle over its Constitutional Tribunal reveals a troubling possibility: safeguards that make political abuse difficult can also make institutional repair difficult. Does dividing political power actually protect democracy, or sometimes just protect the status quo?
On 30 October 2026, Polish President Karol Nawrocki turned his plane around while travelling to Senegal. In Warsaw, riot police stood outside the Constitutional Tribunal, protesters gathered, and Judge Anna Korwin-Piotrowska had issued orders purporting to suspend the court’s president and vice-president for a month. Nawrocki returned overnight and entered the court building as rival groups disputed who was entitled to run it.
Prime Minister Donald Tusk’s government defended the intervention as part of its effort to restore judicial independence after eight years of government by the conservative Law and Justice party (PiS). Nawrocki, elected in 2025 with PiS support, condemned the events as an unlawful takeover. On 31 October the confrontation continued through demonstrations and consultations with parliamentary parties. Reuters’s account of the crisis and the Associated Press report describe the rival claims and the scenes outside the Tribunal.
Korwin-Piotrowska’s orders concerned Constitutional Tribunal President Bogdan Święczkowski and his deputy, Bartłomiej Sochański. Their validity was immediately contested, as was her authority to issue them. Poland had reached the point where a court responsible for deciding what the constitution permits could not resolve a dispute over who had the authority to act in its name.
Modern constitutions deliberately divide authority among elected governments, presidents and courts. Presidents may veto legislation; judges may invalidate laws; appointment and amendment procedures can make important decisions hard to reverse. These restraints are meant to protect constitutional order from temporary majorities. They are less well equipped to distinguish an independent institution that deserves protection from a compromised one in need of repair.
Poland provides an acute example of the problem. European courts have found serious defects in the Constitutional Tribunal’s composition, yet the legality of the current effort to change its leadership is also disputed. The country is not simply deciding whether reform is desirable. It is struggling to determine who may lawfully carry it out.
Two questions follow. Does giving a separately elected president substantial blocking powers improve government, or mostly make political change harder? And when the constitutional referee has lost credibility, can the normal machinery of checks and balances still repair the rules under which it operates? The questions are related, but the October confrontation cannot be explained by the presidential legislative veto alone.
How Poland's Constitutional Tribunal Became the Dispute
The struggle began in 2015, shortly before a parliamentary election. The outgoing majority elected five judges to the Constitutional Tribunal; after winning the election, PiS challenged those appointments and elected five alternatives. In December, the Tribunal held that the outgoing parliament had lawfully filled three vacancies that arose during its term but had acted prematurely on two that belonged to the next parliamentary term.
The incoming PiS majority nevertheless sought to replace all five judges, including the three originally chosen lawfully. President Andrzej Duda refused to receive the oaths of those three and instead accepted the oaths of their replacements. The dispute hardened into a struggle over the court’s composition, leadership and authority.
The legal objections went well beyond opposition-party accusations. In the 2021 Xero Flor v. Poland judgment, the European Court of Human Rights found that serious irregularities in one Constitutional Tribunal appointment had violated the right to a tribunal established by law. In December 2025, the Court of Justice of the European Union, ruling in Case C-448/23, found that Poland had failed to meet EU-law obligations concerning an independent, impartial tribunal established by law. It also addressed the Tribunal’s rejection of binding EU judicial authority.
Tusk’s coalition inherited these institutional problems when it took office in December 2023. It could seek to change laws and elect judges when vacancies arose, but the presidency remained with politicians aligned with the former governing camp: first Andrzej Duda, then Karol Nawrocki. The coalition lacked the supermajority needed to override a presidential legislative veto, while judicial appointments raised separate disputes about the president’s role.
On 13 March 2026, the Sejm elected six Constitutional Tribunal judges. Nawrocki received the oaths of two but declined to receive the other four. On 9 April, all six participated in a ceremony in parliament, including the four whose oaths the president had refused to receive. The organisers treated the ceremony as fulfilling the legal requirement; the presidency and existing Tribunal leadership disputed that interpretation.
On 6 May, the European Court of Human Rights granted an interim measure in Dziurda and Others v. Poland, asking the Polish government to ensure that four newly elected judges were not prevented from taking up and exercising their duties. That provisional measure did not decide the merits of the case. In October, the Council of Europe’s Venice Commission issued an advisory opinion stating that the president should receive elected judges’ oaths without undue delay and should not use the ceremony to review parliament’s choices. It considered alternative oath-taking procedures possible, subject to safeguards.
Those conclusions were consequential, but narrow. Neither the interim measure nor the Venice Commission’s advisory opinion adjudicated the legality of Korwin-Piotrowska’s later suspension orders. By the end of October, Poland had legal findings against aspects of the Tribunal’s composition, competing claims to newly elected judges’ authority, and a fresh conflict over who could direct the institution.
Why Poland's President Can Block Its Government
Poland’s prime minister leads a government dependent on parliamentary confidence, while the president is elected independently for a five-year term. When the two offices are controlled by opposing political camps, political scientists call the arrangement cohabitation. It has occurred repeatedly in France as well as Poland, although the balance of presidential powers differs sharply across countries.
Under Article 122 of Poland’s Constitution, the president may veto ordinary legislation. The Sejm can override the veto only by a three-fifths majority, with at least half its statutory membership present. A coalition can therefore win enough seats to form a government but not enough to overcome presidential opposition. The prime minister remains publicly responsible for governing even when a president elected at a different moment can obstruct substantial parts of the legislative programme.
There are serious reasons to divide authority this way. A president with a separate electoral mandate can provide continuity, insist on wider agreement and restrain a parliamentary majority that would otherwise face few obstacles. The Polish Constitution expressly names the president as guardian of constitutional observance and continuity of state authority. But the president is also a political actor. Winning a separate election confers democratic legitimacy, not immunity from partisan incentives.
The October crisis, however, concerned powers other than the ordinary legislative veto. Receiving a judicial oath is not the same as approving or rejecting a statute, and managing the Tribunal’s leadership involves yet another set of legal rules. Those distinctions matter: the confrontation was not triggered by a presidential veto of a particular bill. The legislative veto helps explain the wider difficulty of judicial reform; the immediate dispute concerns appointments, oath procedures and competing claims about who may exercise authority inside the court.
Do Political Vetoes Actually Produce Better Government?
In principle, divided authority can improve decisions. When governments must negotiate with actors who disagree, they may moderate proposals, accommodate minorities or abandon defective legislation. Political scientist George Tsebelis offered a powerful account of the trade-off in his theory of veto players: actors whose agreement is necessary for policy change determine how far and how readily the status quo can be altered.
The players can be presidents, parliamentary chambers or parties within coalitions. As their number increases, or their preferences diverge, the range of changes acceptable to all of them generally shrinks. The theory helps explain stability and policy inertia, but it cannot tell us whether the preserved policies deserve to survive. A veto may avert destructive legislation or prevent the correction of destructive legislation already enacted.
A 2025 study by University of Warsaw economist Anna Lewczuk offers evidence from Poland itself. In Determinants of Presidential Veto in Semi-presidential System: Empirical Insights from Poland, Lewczuk examined 319 monthly observations from October 1997 through July 2024. Presidential veto activity was associated with cohabitation and ideological distance between presidents and governing parties. The measures of government populism or anti-pluralism were not significant predictors in the reported models.
The study cannot reveal the motive behind an individual veto or establish whether a particular law was constitutional. It is observational and predates Nawrocki’s presidency. Still, its pattern complicates a flattering assumption about veto powers: their actual use appears closely tied to ordinary political competition, not only to identifiable threats against constitutional democracy.
A wider comparison is equally resistant to simple conclusions. In a 2018 study of roughly 5,600 significant socioeconomic reforms in 13 Western European countries, Mariyana Angelova, Hanna Bäck, Wolfgang C. Müller and Daniel Strobl found that economic crises and the ideology of governments helped explain reform activity. Greater ideological distance among veto players predicted reduced reform in some coalition arrangements, particularly minimal-winning governments, but not consistently across government types. Institutional obstacles matter, but their effects are filtered through political circumstances.
The other extreme—that cohabitation itself is an inherent danger to democracy—is not well established either. Robert Elgie’s study of electoral democracies from 1990 to 2008 found little evidence that cohabitation was a major direct cause of democratic collapse. Taken together, these findings support a limited proposition: divided political authority can constrain change and sometimes encourage bargaining, but there is no general empirical guarantee that a strong, separately elected presidential veto improves economic performance or democratic quality.
The Constitutional Trap: When the Court Itself Is Disputed
Ordinarily, a dispute between government and president can be referred to an independent court. Judges interpret the constitution and issue decisions that the other branches are expected to respect. Poland’s difficulty is that the Constitutional Tribunal itself has suffered from judicial appointments found defective by European courts. The government seeks to correct the composition; the presidency and Tribunal leadership challenge aspects of that correction. The institution meant to settle the dispute is entangled in it.
Korwin-Piotrowska’s 30 October orders show how the problem reproduces itself. She relied on provisions concerning the organisation of the Tribunal and temporary interruption of judicial duties, citing alleged obstruction of the court’s operation, including the exclusion of newly elected judges. Yet she was herself among the judges elected in March whose ability to exercise judicial functions had been contested. Her claim to act in place of the Tribunal’s leadership therefore depended on the same unresolved dispute over judicial authority.
The legal criticism was concrete. Constitutional lawyer Mateusz Radajewski argued that the provisions invoked did not empower her to suspend the Tribunal’s president. Supporters contended that decisive intervention was necessary to restore lawful functioning. The issuance and publication of the orders did not, by themselves, settle whether they had legal effect.
European judicial findings provide a substantial basis for questioning the Tribunal’s composition, but they do not automatically validate every attempted remedy. Nor should scrutiny stop at the opposition. The Sejm’s September election of Maciej Berek, recently a minister and close Tusk associate, attracted criticism from within the governing coalition and from others concerned about politicised judicial appointments. Such criticism does not prove his election unlawful; it illustrates why a government’s declared reform objective cannot substitute for examining the appointments it makes.
The risks cut both ways. If disputed constitutional procedures become absolute obstacles to repair, flawed institutional arrangements can survive long after the political majority that created them has lost power. But if each new majority may disregard procedures whenever it declares a court illegitimate, judges become vulnerable to the next wave of political replacements. A government cannot establish the legality of its own remedy simply by demonstrating that the problem it hopes to solve is real.
Removing the presidential legislative veto would not, by itself, resolve this crisis. Even a purely parliamentary system can experience a breakdown if political actors refuse to accept judicial appointments or binding judgments. Poland combines two separate problems: political powers that can obstruct legislation, and a loss of agreement about who may interpret and enforce the law. More vetoes cannot cure a breakdown in the legitimacy of the institutions asked to apply them.
What France and Germany Reveal About Constitutional Design
France and Germany show that constitutional restraints can be organised differently. France combines a directly elected president with a prime minister accountable to parliament. Its three periods of cohabitation between 1986 and 2002 included the five years in which President Jacques Chirac served alongside Socialist Prime Minister Lionel Jospin. Political disagreement did not prevent substantial domestic legislation, partly because the French president lacks Poland’s ordinary political veto: the French president can request reconsideration and seek constitutional review, but cannot block an ordinary law through an equivalent supermajority mechanism.
Germany’s federal president, by contrast, is elected indirectly and does not normally compete with the chancellor for political leadership. The office can refuse to sign legislation on constitutional grounds, but it has no general political veto. Legislative checks come primarily through parliament, federal institutions and judicial review. Germany can suffer slow coalition bargaining and federal disagreements, but its president is not a parallel source of routine policy opposition.
Neither comparison identifies an ideal constitution. France and Germany differ from Poland in political history, party structure and judicial institutions. They do show, however, that constitutional constraints need not take the form of a separately elected political veto over ordinary government policy. Restraining unconstitutional action and contesting a government’s policy choices are distinct functions, even if the boundary between them is sometimes disputed.
What Should Checks and Balances Actually Protect?
The crucial design choice is which decisions ought to be hard to change. Tax rates, spending priorities and ordinary administration are contested through elections; governments need room to act, and voters need a plausible way to hold them responsible. Judicial independence, electoral integrity and the rules governing political competition are different. A temporary majority should not be able to rewrite those safeguards whenever they become inconvenient.
Even that distinction cannot be perfectly clean. Election rules shape which votes become parliamentary seats, a point explored in the Journal’s essay on how electoral systems turn votes into power. Administrative and fiscal laws can also affect fundamental rights. The task is not to sort all legislation into two self-evident boxes, but to recognise that different decisions may require different forms of restraint.
Judicial appointments make the trade-off tangible. Supermajority requirements, staggered terms and participation by several institutions can make a court harder for one faction to capture. The same arrangements can produce vacancies when parties refuse to agree. A presidential oath may provide ceremonial continuity, but if the president can indefinitely prevent an elected judge from assuming office, a procedural step becomes an effective political veto. Safeguards need functioning procedures for disagreement, not simply additional opportunities to say no.
A court also needs a lawful means of correcting defective appointments without allowing the next majority to dismiss inconvenient judges at will. No constitutional diagram can eliminate this tension. Institutions depend on participants respecting binding decisions, but design can reduce the rewards for strategic obstruction and make lawful remedies clearer before a crisis arrives.
The Polish case therefore cautions against treating the preservation of existing arrangements as proof of constitutional success. Stability may protect an independent judiciary; it may also shield a court whose composition has been judged defective. The same barrier can prevent an abuse and obstruct its correction. Whether a particular veto is justified depends on the law and the decision at issue, not simply on the presence of another institution able to block change.
That is why the scenes in Warsaw matter beyond the immediate contest between Tusk and Nawrocki. A president abandons an international journey, judges dispute the authority of their colleagues and police stand outside a constitutional court. Poland’s difficulty is not merely that government cannot secure agreement for ordinary reforms. It is that the institution meant to decide the legal limits of reform is itself disputed.
A constitution must make it difficult to abuse power. But if its safeguards also make it impossible to correct abuses, stability can become another name for paralysis.
This article reflects information available through 31 October 2026. The legal effect of the October suspension orders remains contested.
Comments
Post a Comment