A controversial new appointee to Poland’s Constitutional Tribunal has taken his oath despite the country’s president, Karol Nawrocki, refusing to swear him in and rejecting the validity of his appointment. Maciej Berek, a former minister in the government of Prime Minister Donald Tusk, was sworn in at the Sejm, Poland’s lower house of parliament, on Wednesday, and directed his oath at the absent president, who would normally lead the ceremony. Neither Nawrocki nor the head of the Constitutional Tribunal (TK) have recognized the appointment, with the latter saying that Berek will not be allowed to adjudicate. The TK, a specialist court that rules on the constitutionality of Polish laws, has been at the center of judicial controversies for years, with the previous government led by the conservative Law and Justice (PiS) party accused of politicizing the institution by stacking it with loyal judges. Tusk’s centrist coalition government, which came into power in late 2023, has consistently ignored the court’s rulings, questioning the body’s legitimacy. Backed by a parliamentary majority, it has recently started appointing new judges to the TK’s benches, but Nawrocki has refused to swear in several of them. Berek is now the fifth judge to have taken the oath in the president’s absence. Clashes at court HQ As Berek arrived at the TK headquarters following his swearing-in ceremony, some protesters gathered outside the building clashed with police. Three people were detained by police over the disturbance, though prosecutors will be informed of the “scandalous behavior” of many more, Interior Minister Marcin Kierwiński said later on Wednesday. Kierwiński added that his ministry had provided two TK judges with additional security from the State Protection Service. The demonstrators were protesting Berek's appointment in view of the fact that he was sworn in without the president, as well as questioning his status as a judge. ‘No reply’ from the president Berek’s appointment is especially controversial given his recent ministerial stint and his close ties to Tusk, who once described him as his “right-hand man”. Even members of the PM’s ruling coalition have expressed doubts over the move. After the oath-taking ceremony at the Sejm, Nawrocki said publicly that he did not recognize Berek’s appointment, telling journalists that if he didn’t take his oath before the president “then he is certainly not a judge of the Constitutional Tribunal.” Nawrocki’s office said that the president would swear Berek in only after he provides documentary evidence that he satisfies the requirements for appointment as a TK judge, including at least 10 years of legal practice. The president said late on Wednesday that he would cancel his visit to the summit of EU heads of state in Slovakia on Thursday and Friday in response to the “serious” situation. However, Nawrocki has been accused of intentionally holding up Berek’s appointment. Berek himself addressed the issue in brief statements to journalists following his oath-taking ceremony at the Sejm, saying he had received “no response” to a letter addressing these issues. The president’s latest move comes on the back of his earlier refusal to swear in four other appointees, who were among six new judges elected to the TK by parliament in March and June. The quartet took their oaths instead at the Sejm, citing a legal provision that states they can be sworn in without the president if the head of state unjustifiably postpones his participation. They were later stopped from taking their seats in court by the TK’s leadership. On Tuesday, the Venice Commission, an advisory body to the Council of Europe, issued a non-binding opinion on the matter, calling on Nawrocki to immediately swear in the remaining judges and stating that “it is constitutionally justified to permit the assumption of office […] without the President's participation where the President unlawfully refuses to administer the oath.” Rule-of-law dispute The disagreement is the latest in a series of rifts between the Presidential Palace and Tusk’s government, and constitutes a continuation of a long-running dispute over the rule of law in Poland. The alleged politicization of the TK by Poland’s former PiS-led government was at the center of years-long discord between the European Commission and Poland, which led to tens of billions of euro in EU funding being withheld. The commission’s position was subsequently supported by a series of rulings by the bloc’s top court, the Court of Justice of the European Union. Tusk’s Civic Coalition (KO) party campaigned in the 2023 parliamentary election largely on promises of reversing PiS’s judicial reforms and restoring the TK’s independence. Critics of the government have accused it of replacing PiS-era politicization of the court with its own appointments.
