Polish NGOs urge PM’s “right-hand man” to withdraw constitutional court candidacy

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A group of Polish civil society organisations has urged a former government minister to withdraw his candidacy to become a Constitutional Tribunal (TK) judge, saying his close ties to the prime minister could undermine confidence in the court’s independence.

In a joint statement, the nine organisations say that restoring the legitimacy of the court, which has been in crisis since 2015 following illegitimate judicial appointments made by the former national-conservative Law and Justice (PiS) government, requires not only addressing legal irregularities but also rebuilding public trust.

“The existence of the Constitutional Tribunal as an organ of judicial power only makes sense if it is an independent arbiter,” they say.

The appeal follows Prime Minister Donald Tusk’s announcement that Maciej Berek, who until recently served as a government minister and whom Tusk has described as his “right-hand man”, would be put forward as a candidate for the Constitutional Tribunal.

The choice has drawn particular attention because Tusk came to power promising to “depoliticise” the court after the previous PiS government appointed former politicians as judges.

“Regardless of the extent to which the tribunal has become politicised, the way to reform this institution cannot be for it to be ‘recaptured’ or ‘taken over’ by another ruling majority,” the NGOs write in the statement.

The organisations, including the Helsinki Foundation for Human Rights, the Institute of Public Affairs and the Stefan Batory Foundation, say Berek’s close ties to the current political leadership could cause his appointment to be perceived as political, regardless of his legal qualifications or personal integrity.

“Not only must courts and tribunals operate independently and impartially, but citizens must also recognise and have confidence in that independence and impartiality. This is not possible when judges are appointed whose links to the government are immediately apparent,” the organisations add.

“We therefore call on Dr Maciej Berek to withdraw his candidacy in the interests of the independence of the constitutional judiciary.”

The organisations also argue that Berek’s nomination goes against a principle that the current ruling coalition sought to introduce: that anyone who has held political office within the previous four years should be barred from appointment to the tribunal. Berek was a government minister until last week.

The coalition’s proposal was included in a bill approved by parliament in 2024. However, the Constitutional Tribunal itself later ruled the provision unconstitutional after former President Andrzej Duda, an ally of PiS, referred the legislation for review.

“Although this law has not come into force, it would be reasonable for the Sejm to adhere to the standard it has adopted,” they said, referring to the lower chamber of the parliament, which is responsible for nominating new TK judges.

However, the selection of Berek, whose candidacy was put forward by MPs from Tusk’s centrist Civic Coalition (KO), has exposed divisions within the ruling coalition, which ranges from centre-right to left.

“We were supposed to be different from PiS; we were supposed to do things differently, not exactly the same way,” Anna Maria Żukowska, the head of The Left’s (Lewica) parliamentary caucus, told Polsat News.

Paweł Śliz, leader of the centre-right Poland 2050’s (Polska 2050) caucus, said Berek would make an excellent Constitutional Tribunal judge were it not for his recent role as a government minister.

“I consider him an excellent, outstanding professional; I value his experience and expertise. However, my position on this matter is unequivocal. I will not compromise my principles,” he told the Polish Press Agency (PAP).

Given that the government has a majority of just nine in the 460-seat Sejm, it would only require a small number of MPs from Tusk’s coalition opposing Berek’s nomination for him to lose the vote.

Last week, Tusk said that he “understands” concerns from some coalition partners but that he would “try to convince those who have doubts”.

However, even if Berek is approved by the Sejm, the law states that new TK judges must swear an oath “before the president”. Nawrocki has used this requirement to refuse to swear in four of the judges chosen by the Sejm this year. He has, however, sworn in three others.

It remains unclear what the president would do in the case of Berek. Presidential spokesman Rafał Leśkiewicz told PAP on Thursday that “there are serious doubts” about Berek’s formal qualifications to become a Constitutional Tribunal judge.

Since Tusk’s government came to power in December 2023, it has ignored all TK rulings because three of the tribunal’s judges were appointed illegitimately under the former PiS government.

The new ruling coalition also criticised the fact that some TK judges were former PiS politicians. Two of them, for example, were appointed in 2019 shortly after stepping down as PiS MPs.

Another, the current TK chief justice, Bogdan Święczkowski, previously served as a deputy justice minister in the PiS government (though he was never a member of the PiS party).

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Notes from Poland is run by a small editorial team and published by an independent, non-profit foundation that is funded through donations from our readers. We cannot do what we do without your support.

Main image credit: Adrian Grycuk/Wikimedia Commons (under CC BY-SA 3.0 PL)

Alicja Ptak

Alicja Ptak is deputy editor-in-chief of Notes from Poland and a multimedia journalist. She has written for Clean Energy Wire and The Times, and she hosts her own podcast, The Warsaw Wire, on Poland’s economy and energy sector. She previously worked for Reuters.