Poland’s Constitutional Crisis Deepens Under Donald Tusk with the Swearing-In of New Constitutional Judges Without the President

Oath as a condition for taking office

Today in the Sejm, the newly elected judges of the Constitutional Tribunal were sworn in before the Speaker of the Sejm, bypassing the President of the Republic of Poland. Under Poland’s Constitution and established constitutional practice, a judge of the Constitutional Tribunal assumes office only after taking the oath of office before the head of state. As emphasized in the Ordo Iuris analysis published today (in Polish), the oath is not merely ceremonial; it constitutes the “final legally significant act,” without which no appointment to the position of constitutional judge takes legal effect. 

In its case law, Poland’s Constitutional Tribunal has unequivocally indicated that only taking the oath enables the commencement of the exercise of a judge’s mandate. Moreover, statutory provisions expressly link the establishment of a Constitutional Tribunal judge’s service relationship to the moment it is submitted. 

The Ordo Iuris analysis leaves no doubt: the oath cannot be taken before any authority other than the President of the Republic of Poland. This follows both from statutory provisions and from the constitutional principle of legality, under which public authorities act solely on the basis of and within the limits of the law. 

The President as the Guardian of Procedure

The authors of the analysis extensively discuss the constitutional role of the President in the process of appointing judges. “He is not—as has been emphasized—merely a “notary” of the decisions of other bodies, but an active participant in the proceedings, whose task is to ensure compliance with the Constitution. 

In this context, the President’s administering of the oath constitutes an element of the system of checks and balances. Only the combination of election by the Sejm and the act of taking the oath before the head of state results in the effective assumption of office by a Constitutional Tribunal judge. Consequently, those who took the oath before the Speaker of the Sejm today have not—in the constitutional sense—acquired the status of judges of the Constitutional Tribunal capable of adjudicating.

A new stage of the rule of law crisis

According to the authors of the analysis, today’s event is part of a broader process of erosion of constitutional standards. Bypassing successive steps of constitutional procedures leads to a situation in which state authorities begin to act outside clearly defined legal frameworks.

Allowing the practice of alternative oath-taking may have far-reaching consequences, ranging from undermining the validity of the Constitutional Tribunal’s judgments, through deepening legal uncertainty among citizens, to lowering the standard of protection of individual rights and freedoms, notes Łukasz Bernaciński, Ph.D., a co-author of the analysis.

The failure to unequivocally respect constitutional procedures threatens a shift from a legal dispute to a state of systemic destabilization, in which the determination of what constitutes binding law becomes a matter of political interpretation rather than legal norms. Today’s swearing-in before the Speaker of the Sejm may therefore be remembered not as a procedural incident, but as a symbolic turning point—another step toward deepening the crisis of the rule of law in Poland.

Read also:

• The Polish Sejm Finally Elected Constitutional Tribunal Judges—By Violating Its Own Rules

• How to End the Rule-of-Law Crisis in Poland – An Ordo Iuris Report Submitted to the President