– Wojciech Zomerski, Visiting Fellow (2025–2026) and a former Max Weber Fellow (2024–2025) at the European University Institute in Florence, as well as an Associated Researcher at the University of Wrocław
This is the sixth post of a Symposium on Militant Constitutionalism, comprised of 10 pieces. You can access the introductory post here.
Introduction
In October 2023, the Law and Justice (PiS) party won its third parliamentary election in a row. However, electorally weakened by its policy mistakes and adverse global conditions, the party ultimately paid a political price for eight years of majoritarian and increasingly illiberal rule. PiS was unable to form a government, as no other parliamentary party was willing to enter into a coalition with it. Instead, power was taken over by the so-called “democratic coalition,” an ideologically diverse alliance ranging from Christian democrats and liberals to centre-left parties, centred around Donald Tusk and his ‘catch-all’ party, Civic Platform (PO). Although some commentators warned against excessive optimism already in the immediate aftermath of the vote, the prevailing mood – domestically and internationally – was one of relief and hope. The election seemed to confirm that democratic backsliding could be reversed through ordinary democratic procedures.
In this blog, I discuss key developments in Poland’s rule of law restoration process and ask whether we may be witnessing the emergence of what I term illiberal militant constitutionalism: the strategic use of illiberal enclaves – such as president and constitutional court – to entrench and defend illiberal institutional legacies. In the conclusion, I consider the relevance of this development in the Hungarian context, particularly in light of the recent landslide electoral success of TISZA, which may face similar challenges as Polish government.
Post-2023 elections use of second-best measures
From the outset, the new government faced a structural dilemma: how to undo PiS-era reforms in the presence of entrenched “autocratic enclaves,” such as a PiS-aligned President with veto power, a captured partially – Supreme Court, and a fully-captured Constitutional Tribunal. Some, like Wojciech Sadurski, advised the government a radical scenario of ‘extinguishing the court,’ reinforcing the idea that in the process of post-populist rule of law restoration the government can and should rely on executive and second-best measures, provided that they are proportional and made in good faith. Others, such as Marcin Szwed from Helsinki Foundation of Human Rights, advocated for more moderate solutions, demanding that all the changes will be conducted through fully legitimate legislative measures.
In practice, the government oscillated between these poles, navigating between legal constraints, political feasibility, and its reform mandate. The complex reform of the judiciary – including the re-establishment of an independent National Council of the Judiciary, the regulation of so-called “neo-judges,” and the dismantling of the disciplinary chamber within the Supreme Court – was postponed and envisaged as a legislative project to be pursued under more favourable political conditions, potentially after the 2025 presidential election, in which Rafał Trzaskowski from Civic Platform was expected to win.
Yet, in areas where the government could not afford waiting, it resorted to sub-statutory instruments and controversial “second-best” solutions. One of the earliest examples of such logic concerned public media. In December 2023, lacking the parliamentary majority to overturn the expected presidential veto to any attempt to change the arguably unconstitutional media law, the government initiated liquidation proceedings with respect to the public media companies under the Commercial Companies Code. Although the registration court initially questioned whether the liquidation was merely a “sham” designed to circumvent public law constraints, the changes were ultimately entered into the commercial register. This formal step enabled the replacement of management boards and the restoration of governmental control over public broadcasters through private-law mechanisms rather than direct constitutional or statutory reform.
A similar logic informed the removal of the National Prosecutor, Dariusz Barski, linked to the previous PiS government. Seeking to regain effective control over the prosecution, the Minister of Justice and Prosecutor General, Adam Bodnar, relied on a contested interpretation of transitional statutory provisions. He argued that Barski had never been lawfully reinstated from retirement and therefore had never validly assumed office. Framed this way, the measure was not presented as a dismissal but as a declaration of legal nullity. This construction also had an important constitutional consequence: since the ordinary removal of a National Prosecutor requires presidential involvement, treating the appointment as void from the outset allowed the government to circumvent the president.
The government was slightly less decisive in relation to the Constitutional Tribunal. In March 2024, the Sejm adopted a resolution attempting to “reset” the Tribunal by declaring certain prior judicial appointments and rulings invalid. The move was controversial precisely because parliamentary resolutions do not have the status of binding law, and as such they are not subject to presidential veto. Critics viewed this as an attempt to bypass formal constitutional procedures. Supporters, in turn, argued that the resolution was merely declaratory rather than constitutive – it did not create a new legal situation but acknowledged what had already been established by the Tribunal itself in its pre-capture case law and by European courts regarding defects in judicial appointments.
Practical consequences of the resolution, however, were largely symbolic. The Tribunal continued to function institutionally; contested judges continued to receive remuneration. Yet the government ceased publishing its judgments, thereby effectively marginalising the body without formally abolishing it. On the top of this, the government also refrained from appointing new judges to the Constitutional Tribunal, apparently to avoid prematurely “re-legitimising” the body before an independent majority of newly appointed judges could be established. As the terms of individual judges naturally expired over time, the government planned to resume the nomination process around mid-2026, when a sufficient number of vacancies would allow for the formation of such a majority.
Self-Defence of the contested Constitutional Tribunal
The contested Constitutional Tribunal, whose capture in 2016 was justified with the language of political constitutionalism and restoring ‘power to the people,’ very quickly assumed its role of a defender of illiberal legacies. Just one month after declaring the initiation of liquidation procedure of national media, the Tribunal (K 29/23) in January 2024, held that the relevant provisions of the Broadcasting Act, insofar as they were interpreted to permit the liquidation of public broadcasters under the general Commercial Companies Code, were unconstitutional.
Subsequently, following the March resolution of the Sejm, May 2024, the Tribunal (U 5/24) found that the Sejm resolution, which sought to effectively “silence” the Tribunal, constituted an unconstitutional attempt to expand parliamentary powers and override the existing constitutional rules governing the status and adjudication of Tribunal judges. In November 2024 (SK 13/24), it ruled that the government’s January 2024 removal of Dariusz Barski violated constitutional guarantees for prosecutors.
Finally, in response to the government’s refusal to publish Tribunal rulings, the Tribunal addressed the practice directly in September 2025 (P 3/25). It held that the provision on publication, insofar as it was interpreted to mean that a judgment takes effect only once published, was itself unconstitutional. According to the Tribunal, a judgment is binding immediately upon issuance, and the government’s refusal to publish rulings could not lawfully prevent public authorities from their application.
None of these rulings had any tangible effect in practice. The liquidation procedure has already been registered in the registration court, the Constitutional Tribunal has been effectively marginalised, and the change in the office of the national prosecutor has been conducted. While it is possible that ordinary courts may sometimes follow certain rulings of the Constitutional Tribunal, there is little evidence to suggest that they do so because of the September 2025 ruling.
On this basis, one could argue that the 2024–2025 rulings of the Constitutional Tribunal were largely reactive and symbolic in nature, rather than constituting a deliberate strategy to obstruct the process of restoring the rule of law. At the same time, it is also true that after the first months of efforts to restore the rule of law – through executive acts and other second-best measures – the government, for one reason or another, became less active in this regard. Anticipating a change in the office of the president, it waited to pursue reforms through statutory measures. However, the anticipated change never materialized: the presidential transition occurred, but not in favour of the government’s preferred candidate. Instead, the new president, Karol Nawrocki, occurred to be even less likely to cooperate with the government than his predecessor, Andrzej Duda. This shift led to a change in the Ministry of Justice – from more legalistic Adam Bodnar – to the arguably more open for ‘second-best’ solutions Waldemar Żurek. Yet, despite these personal changes, the government did not find a way to solve main problems of the justice system.
Post-2025 Presidential Elections: The Rise of Illiberal Militancy Constitutionalism?
Against this background, it does not seem sound to criticise (or to praise) the post-2023 government along the lines of ‘militant constitutionalism.’ First, following what have been already said, despite several early interventions aimed at undoing reforms introduced by PiS, the government – absent the expected presidential victory of its candidate – ultimately found itself institutionally and politically constrained.
Second, and relatedly, within Poland’s complex system of checks and balances, the government has lacked key institutional instruments typically associated with militant constitutionalism. Most importantly, it has not had at its disposal the Constitutional Tribunal – an institution that, in other contexts, might serve as a central vehicle for nullifying illiberal pieces of legislation and invalidating contested appointments. At the same time, it has lacked a supportive president. As a result, the government’s capacity for systemic constitutional correction has remained structurally limited.
Yet, the very institutional resources necessary to effectively restore the rule of law were those that PiS had previously captured. Moreover, while the judgments of the Constitutional Tribunal in 2024-2025 were largely symbolic, recent months have seen a shift following Nawrocki’s electoral victory. PiS has begun to mobilise the Tribunal more actively – not merely in post hoc responses to contested government actions, but as a preventive instrument aimed at blocking planned reforms and appointments, thereby safeguarding the legacy of its unfinished illiberal project. Two most recent examples illustrate this development.
The first example concerns attempt to use the Constitutional Tribunal to block judicial appointments finally made by the current parliamentary majority in March 2026. The argument advanced is that the Sejm cannot deliberately refrain from filling vacant positions only to appoint multiple judges at once at a later stage in order to consolidate control over the Tribunal. Initially, the Tribunal has postponed its final ruling and, in an interim decision, requested that President Nawrocki take a position on the matter. The President decided to take the oath to two out of six judges elected by the current majority and consequently refuse to swear in four other judges. In the final decision on the matter (K 3/26), the Constitutional Tribunal upheld the legality of President’s actions. It ruled that the relevant provisions, insofar as they are obliging the President to take the oath from the judges despite legitimate concerns regarding legality of the nomination, are unconstitutional.
The second example relates to the National Council of the Judiciary (KRS). After the Sejm failed to adopt legislation restoring the pre-PiS, judge-dominated model of the Council, the parliamentary majority introduced a “plan B” in the form of a resolution. This resolution provides that, although the formal election of judicial members of the KRS must still occur under the existing statutory framework (which grants the Sejm sole authority in that regard), the legislature will take into account, in the appointment process, the results of the elections conducted by judges themselves. The aim was to give the judicial community a decisive, albeit indirect, role in selecting KRS members without amending the statute. In response, PiS lodged a motion with the Constitutional Tribunal seeking a declaration that such a mechanism is unconstitutional, arguing that the Constitution vests supreme authority in the people represented by the parliament, not in the judiciary. The Constitutional Tribunal subsequently issued an interim measure (K 7/26) calling to hold the “judicial elections” till its final decision on the matter.
The aim of these two proceedings is clear: to sustain the control of PiS nominees over crucial judicial institutions. It therefore appears justified to argue that PiS has learned to deploy the very constitutional mechanisms it once criticized, using back then the language of political constitutionalism centred around the theme of sovereignty of parliament that shall not be constrained by any judicial bodies. By further weaponizing its control over the Tribunal, the party seeks to entrench its reforms and constrain the current parliamentary majority, effectively transforming the Constitutional Tribunal cooperating with President Nawrocki, into key defenders of illiberal political legacies.
Given that contemporary reinterpretations of militant democracy increasingly emphasize the role of constitutional courts – often described as “militant constitutionalism” – Poland may be thus witnessing the rise of the illiberal militant constitutionalism: the use of constitutional adjudication not to defend liberal-democratic fundamentals against anti-democratic actors, but to shield an illiberal transformation from democratic reversal.
Instead of conclusion: From ‘Budapest in Warsaw’ to ‘Warsaw in Budapest’
Seemingly, militant constitutionalism – as a specific form of legal constitutionalism seeking to circumvent popular sovereignty – is a double-edged sword. Instruments originally designed to defend constitutional democracy may equally be employed by illiberal actors to obstruct its restoration once democratic backsliding has occurred. This raises a fundamental question: should liberal democracies respond by further expanding the militant constitutional toolbox in order to fight back populist forces, or should they instead abandon legal constitutionalism in favour of a more political constitutional model?
Recently, Richard Bellamy has provided arguments for the latter approach, suggesting that political constitutionalism is ultimately more conducive to the deep entrenchment of democratic values and therefore less vulnerable to populist or illiberal capture. Others, however, contend that political constitutionalism is itself highly susceptible to abuse by illiberal majorities and therefore advocate strengthening, rather than weakening, legal and militant constitutional safeguards.
Importantly, this debate is far from merely theoretical. Following TISZA’s landslide victory in the recent Hungarian elections, Magyar’s government – even though it commands a supermajority, something Donald Tusk lacks – inherited a system even more deeply entrenched and institutionally shaped by illiberal forces than in Poland. The likely dilemmas facing the new Hungarian government would concern both: substance – what kind of constitutional order is to be established, and form – which instruments of change are permissible in order to avoid reproducing the very patterns of illiberal constitutionalism it seeks to dismantle.
Suggested citation: Wojciech Zomerski, Symposium on Militant Constitutionalism Part VI: The Rise of Illiberal Militant Constitutionalism? On the Perils of the Rule of Law Restoration in Poland, Int’l J. Const. L. Blog, June 15, 2026, at https://www.iconnectblog.com/symposium-on-militant-constitutionalism-part-vi-the-rise-of-illiberal-militant-constitutionalism-on-the-perils-of-the-rule-of-law-restoration-in-poland/