In Poland, a Parliamentary Majority Suffices to Appoint Constitutional Judges; in Malta, Two-Thirds Are Required for the Chief Justice

The article published by Brussels Signal on Prime Minister Donald Tusk’s campaign to gain control over Poland’s Constitutional Court deserves close attention. At the heart of this struggle lies a simple but crucial fact: control over the judiciary is ultimately exercised through the appointment of judges.

This issue is particularly relevant when viewed from a Maltese perspective. In Malta, there was once a system in which judges were appointed directly by the Prime Minister. Considerable pressure was later brought to bear on the country, including through institutions such as the Council of Europe, to force constitutional reform of the way judges are appointed.

Among the constitutional changes introduced in Malta was the requirement that a two-thirds majority in Parliament approve the appointment of the Chief Justice. The Brussels Signal article reveals a comparable constitutional tension in Poland. There, the judges of the Constitutional Tribunal are elected by the Sejm, meaning the governing parliamentary majority can effectively shape the court’s composition without any requirement for broad cross-party consensus. Yet while the self-appointed guardians of the rule of law in Malta are quick to cry foul, they seem far less concerned when a similar majoritarian logic operates in Poland under Donald Tusk.

Yet a striking double standard now emerges. In Malta, the government is criticised for failing to reach a political consensus on the appointment of the Chief Justice. In Poland, however, judges are effectively being appointed through a simple parliamentary majority in a system overseen by Donald Tusk — a politician who once stood at the head of the European Union itself.

And yet, despite the obvious implications, there is little comparable outrage. Few are prepared to openly accuse Tusk of what is plainly at stake: an attempt to secure political control over the judiciary through judicial appointments.

If the principle is that judicial independence must be protected from executive or parliamentary domination, then that principle must apply equally to everyone. It cannot be invoked against Malta while ignored in Poland simply because the political actors involved are more acceptable to Brussels.

The Polish parliamentary majority that supports the centre-left government led by Prime Minister Donald Tusk has passed a resolution paving the way for it to change the composition of the constitutional court. 

The change would allow the election of six judges who had opposed the judicial reforms of the previous government. 

The resolution states that the constitutional court has, in the opinion of MPs, “ceased to fulfil its function as an impartial and independent body”. It adds: “It considers it necessary to take steps aimed at shaping the personal composition of the constitutional court in such a way that it meets the requirements of a court established by law.”

It says that assessment has been reflected in rulings by the European Court of Human Rights and the Court of Justice of the European Union, which have questioned the validity of some of the members of Poland’s constitutional court. 

As a result, the resolution states, the election of the present and the former chief justices of the constitutional court were invalid. 

Poland’s constitutional court consists of 15 justices, 12 of whom are elected by parliament and three nominated directly by the president who has to confirm the 12 members chosen by the legislature.

The court rules on the constitutionality of legislation and government decisions whereas a separate Supreme Court rules on all non-constitutional legal matters. 

Today, parliament filled six vacancies in the constitutional court with candidates picked by the parliamentary majority. 

All of those elected were active in opposition to the last Conservative (PiS) government’s judicial reforms and are supporters of plans to remove or demote nearly 3,000 judges appointed during the lifetime of that administration. 

The PiS aligned-President Karol Nawrocki has in the past said he will not sign any judicial nominations of individuals who challenge the status of fellow judges, meaning he head of state may well refuse to appoint the six judges elected by parliament.  

The dispute over the constitutional court has been raging for more than a decade. It dates back to October 2015, when the outgoing parliament elected five judges, two of whom were picked before the terms of office of the people they were to replace had ended. 

After PiS won power in the then-new parliament, it declared that election invalid and chose five different judges, arguing that the previous parliament had violated the law by electing judges ahead of schedule. 

The then-PiS-allied president Andrzej Duda accepted the view of the new parliamentary majority and appointed the five judges elected by the new majority. 

This was never accepted by the opposition, which argued that at least three of the judges elected by the previous parliament should have been allowed to take up their seats on the court. 

After coming to power, the Tusk government has decided to derecognise all constitutional court rulings and has refused to publish them in the Journal of Laws, the official gazette in which legal acts are formally promulgated. 

The opposition PiS has challenged the election, arguing that parliament should have elected the six justices as vacancies arose over the last two years. 

The PiS added the government had no right to suddenly elect six justices wholesale and accused the Tusk administration of paralysing the work of the court through the refusal to publish its rulings.