How will Poland’s constitutional crisis develop?
by Aleks Szczerbiak
Poland’s constitutional crisis has escalated as the government refuses to recognise a constitutional tribunal ruling striking down a law amending the body’s procedural rules. With the stakes so high, neither the government nor its opponents show any signs of backing down. This could move the crisis into a new, more dangerous phase, drawing in the international community and threatening the country with legal paralysis.
Controversy over appointments and procedures
The crisis began last November when, immediately after taking office, the new government led by the right-wing Law and Justice (PiS) party decided to annul the appointment of five judges elected by the previous parliament to Poland’s 15-member constitutional tribunal to replace those whose terms of office were due to expire that month and in December. The tribunal is a powerful body that rules on the constitutionality of laws. Earlier these new judges were unable to assume their posts because Law and Justice-backed President Andrzej Duda did not accept their oaths of office. The move met with widespread criticism from most of the opposition and legal establishment, who accused the government of violating judicial independence. The tribunal’s critics, however, see it as a highly politicised body that struck down key elements of the previous Law and Justice-led government’s legislative programme. They placed the blame for the crisis squarely on the outgoing government, led by the centrist Civic Platform (PO) party, which, they argued, tried to appoint five judges illegally just before the October parliamentary election to pack the tribunal with opponents of Law and Justice.
However, the tribunal itself ruled that while the appointment of the two judges replacing those whose terms of office expired in December was unconstitutional the other three were nominated legally. Government supporters, in turn, argued that the tribunal did not have the right to make judgements about the constitutionality of parliamentary appointments, and Mr Duda swore in five judges nominated by the new parliament instead. Tribunal president Andrzej Rzepliński responded by declaring that the five would not participate in its work, although he subsequently allowed two of them to assume their duties.
Law and Justice tried to break this impasse in December by amending the constitutional tribunal law to increase the number of judges required to make rulings in the most important cases from nine to thirteen; thereby hoping to oblige Mr Rzepliński to accept the five judges appointed by the new Sejm. The so-called ‘repair law’ also increased the threshold for tribunal rulings to a two-thirds majority, making the votes of these new appointees more significant, and stipulated that cases would be considered in the order they were received rather than at the tribunal’s discretion. The new law would take effect immediately which, the government hoped, would prevent the tribunal from declaring it unconstitutional.
The government’s opponents claimed that that these changes would paralyse the tribunal and make it more difficult to challenge the government’s legislation. They bundled up the dispute over the tribunal’s membership and competencies with a number of other government measures – notably new laws which they claim politicise the civil service and public broadcasting, the expansion of state surveillance, and bringing the public prosecutor’s office back under the control of the justice ministry – to accuse Law and Justice of undermining the fundamentals of Polish democracy and the rule of law. As a consequence, thousands of Poles participated in demonstrations organised by the Committee for the Defence of Democracy (KOD), a new anti-government civic movement.
The government’s supporters, however, defended its actions as necessary measures to restore pluralism and balance to state institutions that they say had been expropriated by supporters of the previous governing party. They pointed out that had the new government not challenged the five appointments made at the end of the previous parliament all but one of tribunal’s 15 members would have been appointed by Civic Platform-dominated parliaments, and argued that the ‘repair law’ increased the legitimacy of tribunal’s judgements and prevented the timing of cases being manipulated. More broadly, they claimed that opposition to the government was being orchestrated by well-entrenched, and often deeply corrupt, post-communist elites and vested interests hostile to its plans to radically reconstruct the state and introduce sweeping socio-economic reforms.
The crisis escalates
In March the crisis escalated when tribunal judges decided that they were empowered by the Constitution to ignore the changes introduced in the ‘repair law’ and rule on its legality under the old procedural rules. They declared that the December amendments were unconstitutional arguing that they dramatically limited the tribunal’s ability to function properly, while the rushed way in which the ‘repair law’ was adopted violated constitutional procedure. For its part, the government argued that the tribunal had no power to review the ‘repair law’ as the Constitution stipulates that its rules are regulated by parliamentary statute and thus the new procedures had already come into force. It refused to publish the judgement in the official journal, a necessary step for tribunal rulings to become legally binding, arguing that this was simply a private statement delivered by its members.
At the same time, the Venice Commission – an advisory body on constitutional matters to the Council of Europe human rights watchdog (which the Law and Justice government had actually invited, hoping that it could help end the controversy) – issued a very critical report which said that the December amendments obstructed the tribunal’s functioning and were a threat to the rule of law, democracy and human rights. It also called upon the government to accept the tribunal’s ruling on the ‘repair law’. However, although the government said that it would take the Commission’s opinion into account, and highlighted the fact that it also blamed the previous Civic Platform-led administration for precipitating the crisis, Law and Justice supporters played down the report’s significance saying that it was not binding.
The government was also indignant that a draft of the Commission’s report was leaked to the liberal anti-government ‘Gazeta Wyborcza’ newspaper, which prompted Law and Justice supporters to argue that the Commission was allowing itself to be used for political advantage rather than offering an objective legal assessment. The Commission’s defenders pointed out that draft reports were circulated widely before the hearings which approved them (although their contents were meant to be confidential until the report was finalised). A draft of the constitutional tribunal ruling was also leaked, this time to the right-wing ‘wPolityce.pl’ internet portal, which suggested that it had been drafted in advance of the hearing; although the tribunal’s supporters said that this was not unusual in such complicated cases.
Both sides are entrenched
The row over the tribunal is the most serious constitutional crisis to affect Poland since the collapse of communism in 1989 and is unlikely to end soon as both sides are entrenched in their positions. The tribunal majority led by Mr Rzepliński (whose term of office does not expire until the end of the year) does not recognise the December amendments nor three of the five justices appointed by the Law and Justice-dominated parliament, while the government will not publish tribunal judgements which are not in line with the ‘repair law, nor will the President swear in the three Civic Platform-nominated justices. Moreover, if the tribunal starts to rule in other cases on the basis of the old procedural rules, and the government continues to refuse to recognise these judgements by not publishing them, this could lead to legal paralysis with courts forced to decide whether or not to apply the challenged legislation.
Moreover, while many anti-government protesters and activists genuinely believe its actions are undermining Polish democracy, it is also in the opposition’s interests to keep public attention focused on the constitutional crisis, as it is an issue where Law and Justice is clearly on the defensive and around which government opponents can mobilise support from the international community. The opposition enjoys close links with the EU political establishment and Western opinion forming media, many of whom share their dislike of Law and Justice. The European Commission – which, in January, initiated a preliminary investigation of Poland under the EU’s so-called ‘rule of law’ monitoring mechanism – looks set to return to the issue in April when it considers the Venice Commission’s report, and the European Parliament (EP) is likely to pass a resolution highly critical of the Law and Justice government at its next plenary session. This follows a decision by Civic Platform – now the main opposition grouping and a member of the European People’s Party, the EP’s largest political faction – to attack the ruling party more openly in EU forums. In fact, the Commission and EP interventions could be double-edged swords: while Poles support their country’s EU membership overwhelmingly, many of them also dislike the idea of the Union interfering in Polish domestic affairs.
Law and Justice is, however, much more sensitive to pressure from the USA, which the government considers Poland’s most important foreign policy ally. Some commentators have suggested that that the constitutional crisis could lead to the July NATO summit in Warsaw, which the government is hoping will agree to the permanent stationing of Alliance forces on Polish territory, being downgraded or ending in humiliation for Poland. A number of articles extremely critical of Law and Justice have appeared in US opinion forming media and last month three US Senators, including 2008 Republican presidential candidate John McCain, expressed concerns about the state of democracy in Poland. Law and Justice supporters argue that many US commentators are either unsympathetic to the party or have been misinformed by well-placed individuals hostile to the government. The government’s opponents have clearly been much more successful at getting their case across in American foreign policy-making circles. However, although US administration officials have expressed increasing concern about how the constitutional crisis is developing they have not, in their public statements at least, linked it explicitly with the forthcoming NATO summit.
Not surprisingly, the government has been keen to shift political debate back on to socio-economic issues where it feels it is more in tune with public opinion than its liberal and centrist opposition critics. Indeed, many commentators feel that ultimately the government’s fate is more likely to depend on whether or not it delivers on its high-profile social spending pledges. In fact, while Law and Justice has a significant number of vocal and well-organised opponents, it also retains widespread support among a large segment of the population. A March survey for the CBOS agency, for example, found that 36% of respondents supported the government while 33% opposed it and 27% were neutral. Other surveys show that the ruling party retains a clear opinion poll lead over the divided opposition. However, notwithstanding the fact that the constitutional crisis is forcing the government to devote time and expend political capital responding to criticism, including in international forums, the issue also has the capacity to overshadow it’s more popular policies.
No end in sight
With the stakes so high, neither the government nor its opponents show any signs of backing down. The opposition says that it is not prepared to discuss any compromise solution until Mr Duda swears in the three judges elected by the outgoing Sejm and the government publishes the tribunal’s verdict on the ‘repair law’. The government says this would be illegal and is calling upon the opposition to enter negotiations without such pre-conditions. Not only would agreeing to the opposition’s terms represent a huge climb-down, Law and Justice is clearly willing to pay a high political price for actions it feels are necessary to ensure that its legislative programme is not de-railed. It is also unlikely to back down as a result of EU pressure, although it is more sensitive to influence from the USA. In the meantime, there is a danger that the crisis, which has already deeply polarised the political scene, could escalate further if it starts to spillover into other parts of the legal system.