The Polish Politics Blog

Analysis of the contemporary Polish political scene

Month: January, 2017

Is Poland’s constitutional tribunal crisis over?

With one of the judges elected by the current parliament taking over as its new president, and the opposition losing interest in the issue, the political conflict surrounding Poland’s constitutional tribunal is moving into a new phase. Although the European Commission is very unlikely to secure support for EU sanctions against Poland, some tribunal members appointed by previous parliaments could boycott cases involving contested judges elected by the new one.

Contested appointments

The bitter conflict over the membership and functioning of the constitutional tribunal, a powerful body that rules on the constitutionality of Polish laws, has dominated the political scene since the right-wing Law and Justice (PiS) party came to office following its victory in the October 2015 parliamentary election. The most serious constitutional crisis to affect the country since the collapse of communism in 1989 began almost immediately after Law and Justice took office in November. The new government decided to annul the appointment of five judges to the 15-member body by the previous parliament – dominated by the centrist Civic Platform (PO), the former ruling party – who were to replace those whose terms of office expired that month and in December. Earlier these judges were unable to assume their posts because Law and Justice-backed President Andrzej Duda, who questioned the legality of their appointment, did not accept their oaths of office.

However, the tribunal itself ruled that while the appointment of the two judges replacing those whose terms expired in December was unconstitutional the other three were nominated legally. The government, in turn, argued that the tribunal did not have the right to make judgments about the constitutionality of parliamentary appointments, and Mr Duda swore in five judges elected by the new parliament instead. Tribunal president Andrzej Rzepliński responded by only allowing those two filling the December vacancies to assume their duties.

Law and Justice tried to break this impasse 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 recognise all of those appointed by the new parliament. 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. However, in March 2016 the tribunal decided that it was empowered by the Constitution to ignore these amendments and declared the ‘repair law’ unconstitutional. The government, in turn, said that the tribunal had no power to review the law (as the Constitution stipulates its rules are regulated by parliamentary statute), which had come into effect as soon as it was passed, and refused to publish the judgement in the official journal, a necessary step for tribunal rulings to become legally binding.

Undermining democracy or restoring pluralism?

Most of the opposition and legal establishment argued that the government’s actions violated judicial independence and would paralyse the tribunal. They bundled the issue up with a number of other government measures to accuse Law and Justice of undermining 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), an anti-Law and Justice civic movement. The opposition’s narrative was picked up by the EU political establishment and Western opinion-forming media, with whom they enjoyed strong links and many of who shared their dislike of Law and Justice. In January 2016, the European Commission decided to undertake an unprecedented investigation under an EU monitoring mechanism to establish whether the rule of law in Poland was under ‘systemic threat’. Moreover, in March the Venice Commission, an advisory body to the Council of Europe human rights watchdog, issued a critical report which supported the appointment of the three judges elected by the previous parliament and said that the ‘repair law’ was a threat to the rule of law, democracy and human rights.

The government’s supporters, however, robustly denied these allegations and defended its actions as necessary to restore pluralism and balance to state institutions that they said had been expropriated by supporters of the previous governing party. They placed the blame for the constitutional crisis squarely on the Civic Platform-led government which they argued tried to appoint five judges illegally just before the October 2015 election to pack the tribunal with Law and Justice opponents. They pointed out that had these appointments not been challenged all but one of tribunal’s fifteen members would have been elected by Civic Platform-dominated parliaments. More broadly, they said that opposition to the government was being orchestrated by extremely well-entrenched, and often deeply corrupt, post-communist elites and vested interests hostile to its sweeping socio-economic policy reforms and plans to radically reconstruct the Polish state. They also argued that the Commission’s rule of law probe was flawed by lack of objectivity and insufficient knowledge of the Polish Constitution and legal system, and strongly opposed external interference in what they insisted was a domestic political dispute.

The conflict deepens

However, the government also introduced another reform bill which passed through parliament at the end of July 2016. This removed the two-thirds majority threshold and lowered the quorum for tribunal rulings in the most important cases from thirteen to eleven. But it also required the tribunal president to allow the three un-recognised Law and Justice-nominated judges to participate in its work and introduced a new veto mechanism allowing four justices to postpone a case for up to six months.

At its July meeting, the European Commission decided that Warsaw’s efforts did not go far enough and moved to the next stage of the procedure, issuing an official ‘rule of law recommendation’ urging the Polish government to: swear in the judges elected by the previous parliament; publish and fully implement all tribunal rulings; and screen the July law for compliance with the Venice Commission. It gave Poland three months to comply with its recommendations or risk a Commission proposal that the European Council impose sanctions; in the worst-case scenario suspending the country’s voting rights.

Moreover, in August the conflict deepened when the tribunal majority also rejected parts of the July law as unconstitutional, including the provisions that four judges could block a case by up to six months and that the tribunal president should swear in the three contested judges. In response, the government once again claimed that the tribunal had not followed the procedural rules determined by parliament and refused to publish its ruling.

The battle for the presidency

Law and Justice then decided to focus its efforts on trying to ensure that, when his term of office expired in December, Mr Rzepliński would be replaced by one of the judges elected by the current parliament. The tribunal president is chosen by the Polish President from among nominees presented to him by its members and the July law was constructed to ensure that at least one of these would be from among the ‘new’ justices. The tribunal majority tried to circumvent this by stipulating that any nominees would also need to secure a majority of votes before they could go forward to the President. However, the Law and Justice-nominated judges prevented the majority from making any nominations by depriving them of the required quorum of ten. Nonetheless, the ‘old’ judges still hoped that Mr Rzepliński’s close ally tribunal vice-president Stanisław Biernat would assume his responsibilities in the interim.

In December, therefore, three new laws were passed which modified the timing and procedure of the election so that from the day that Mr Rzepliński’s term ended the tribunal would be led by an acting president who was the judge with the longest record of service in all courts and positions in central public administration relating to the application of the law. Given that this was Julia Przyłębska, one of the justices appointed by the current parliament, it was assumed that she would then allow the three contested Law and Justice-nominated judges to take office, bringing the total number of ‘new’ judges to seven. Moreover, in order to avoid the risk of the ‘old’ judges rendering the process invalid, the quorum was suspended for the nomination meeting as long as two candidates were proposed and one secured at least five votes.

Consequently, on the night that Mr Rzepliński’s term of office ended Mr Duda signed the new constitutional tribunal bills into law and appointed Mrs Przyłębska as acting president, who immediately recognised the three disputed judges. A tribunal meeting then nominated two of the ‘new’ judges including Mrs Przyłębska whom Mr Duda confirmed as the new president. Although the ‘old’ judges still argued that any nominees required the support of the tribunal majority, they subsequently accepted her appointment. Not only does Mrs Przyłębska now control the tribunal’s day-to-day functioning, when Mr Biernat’s term of office ends in June a majority of the 15 judges will have been elected by the new parliament; indeed, another one of the ‘old’ judges, Andrzej Wróbel, also announced that he would be standing down, even though his term was set to run until 2020.

No longer a source of conflict?

As its salience has declined the opposition has gradually lost interest in the constitutional tribunal crisis as a source of political contestation. The tribunal’s defenders were vocal and well-organised and many citizens had misgivings about the government’s approach to the issue. However, it was too abstract an issue and did not affect the day-to-day lives of most ordinary Poles who were concerned with socio-economic questions where Law and Justice was more in tune with public opinion than its liberal and centrist opponents. The tribunal also saw a substantial decline in its approval ratings as it was sucked into the political conflict. A December 2016 survey by the CBOS agency found that only 28% of respondents evaluated it positively (down from 42% in March 2015) compared with 42% who viewed it negatively (12% in 2005); 30% did not know (46% in 2015).

For sure, having started the ‘rule of law’ procedure it is difficult for the European Commission to back down without losing face. Indeed, at the end of December it gave Warsaw two months to implement its earlier recommendations and respond to additional concerns that there were no provisions in the Polish Constitution for the appointment of an acting president. It called for the tribunal to review the constitutionality of the new laws and Mr Biernat to replace Mrs Przyłębska until it was clear she had been appointed lawfully. However, although the dispute has forced Law and Justice to devote valuable time and political capital defending its position in the European arena, the Polish government has no intention of bowing to what it considers to be opposition-initiated international pressure. It also questioned the legality of the Commission procedure, saying that it was based on non-treaty practices invented by officials, and could challenge it in the European Court of Justice. The only option that the Commission now has is to propose sanctions under article 7 of the EU treaty but this requires unanimity in the European Council and the Hungarian government, for one, has made it clear that it will veto any such measures.

With the tribunal soon to be dominated by justices elected by the current parliament, the government’s opponents claim that Law and Justice has taken it over illegally and packed it with political appointees. Supporters of the ruling party, on the other hand, argue that without Mr Rzepliński at its head the tribunal should now start to function normally rather than as a tool of the opposition. But this will be difficult if the ‘old’ justices boycott cases involving the three contested judges appointed by the new parliament. The danger is that this could spill over into other parts of the legal system with lower courts not recognising judgments involving the contested judges, and the government then threatening them with disciplinary action. So the constitutional tribunal conflict is not over, it has simply moved into a new phase.

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How will Poland’s parliamentary crisis develop?

An occupation of the main legislative chamber and street demonstrations at the end of December, prompted by the exclusion of an opposition deputy following his protest against new parliamentary media rules, precipitated a major political crisis in Poland. Although the right-wing government withdrew its planned media regulations, the sit-in continued throughout Christmas as the opposition refused to recognise the legality of a budget vote. The crisis has reached an impasse and could escalate when the legislature returns in mid-January with the possibility of rival government and opposition parliamentary sittings.

New media rules sparked the crisis

The crisis began when Marek Kuchciński, the speaker of the Sejm (the more powerful lower chamber of the Polish parliament) from the ruling right-wing Law and Justice (PiS) party, which has been in office since autumn 2015, proposed new rules on parliamentary media access. The changes included: limiting the number of reporters with full parliamentary access to two per media outlet; requiring all other journalists to work from a specially designated media centre located away from the main plenary chamber; prohibiting reporters from recording parliamentary proceedings; and only making live broadcasts available to five selected TV news stations.

Up until now, hundreds of journalists were theoretically free to roam all the common areas of parliament without restrictions in search of comments from lawmakers, while multiple TV crews could film the main chamber at will. The system was designed to open politicians up to journalists but the government argued that the chaotic media presence interfered with day-to-day parliamentary proceedings. The new rules, they said, were in line with other Western democracies and would help reporters to organise their work in a more professional manner. However, critics argued that they violated the Polish Constitution which guarantees that ‘a citizen shall have the right to obtain information on the activities of organs of public authority as well as persons discharging public functions’ which includes ‘entry to sittings of collective organs of public authority formed by universal elections, with the opportunity to make sound and visual recordings’.

Sit-in leads to disputed budget vote

The parliamentary turmoil started on December 16th when Michał Szczerba – a deputy from the centrist Civic Platform (PO), Poland’s ruling party between 2007-15 and currently the main parliamentary opposition grouping – was excluded by Mr Kuchciński when he tried to use a debate on the annual budget to raise the media rules issue by brandishing a card saying ‘Free media in the Sejm’ and ignored the speaker’s instructions to leave the rostrum. A number of Civic Platform deputies then occupied the area around the podium and conducted a sit-in holding up similar signs, demanding that Mr Szczerba be re-instated and blocking work on legislation. Following a recess lasting several hours, the Sejm session was re-convened in an ancillary hall outside the main chamber and deputies from Law and Justice, which holds an outright parliamentary majority, and a handful of opposition members approved the 2017 budget together with a bill reducing the pensions of former communist-era security service functionaries.

However, the opposition refused to recognise the legality of the session and called for Mr Kuchciński to re-run it arguing that, with the votes counted on a show of hands instead of the usual electronic system, it was impossible to confirm that the required quorum of 231 lawmakers were present. They also questioned the fact that amendments were voted en bloc rather than individually, and claimed some opposition deputies were prevented from accessing the hall and not allowed to speak and raise procedural motions. Some journalists, they said, were also denied access and not permitted to record the votes, only observe proceedings via an official camera feed, while other persons who were not deputies may have taken part in the vote.

For his part, Mr Kuchciński denied there was any wrongdoing and said that the vote was conducted in line with Sejm regulations. Plenary sessions have been held in rooms other than the main chamber before, all measures were taken to inform deputies of the change of venue, and any of them could have participated. Voting by show of hands is permitted and, government supporters said, a total of 236 deputies were present. They argued that the media had access to the transmitted proceedings and could anyway have filmed them from the end of the room.

Defending democracy or paralysing parliament?

Nonetheless, thousands of people rallied outside the parliament building in support of the opposition’s claims that Law and Justice had caused a constitutional crisis. Anti-government protesters blocked all the parliamentary exits and police had to clear the streets to allow government ministers and Law and Justice deputies to be escorted out of the building in the middle of the night. Protests in Warsaw and other cities organised by the Committee for the Defence of Democracy (KOD), an anti-Law and Justice civic movement who accused the ruling party of allegedly undemocratic practices, continued over the subsequent weekend.

More broadly, the opposition tried to bundle up the parliamentary crisis with its argument that the sweeping changes introduced by Law and Justice to the country’s legal framework, judiciary, public administration and the media since it came to office have undermined democracy and the rule of law. This narrative has been picked up by both the Western opinion-forming media, with whom the government’s opponents enjoy strong links and many of who share their dislike of Law and Justice, and the EU political establishment. For example, last January the European Commission initiated an unprecedented investigation under an EU monitoring mechanism to establish whether the rule of law in Poland was under ‘systemic threat’ following controversy over the membership and competencies of the country’s constitutional tribunal.

For its part, Law and Justice fiercely rejected such accusations and strongly opposed Commission interference in what it insisted was a domestic political matter. It argued that, far from being spontaneous civic actions, the anti-government protests were pre-planned and the result of Law and Justice’s opponents’ inability to come to terms with the fact that they had lost power. Even if the government had not proposed the new media regulations, nor Mr Szczerba been excluded from parliament, the opposition would, they argued, have found another pretext to cause social unrest. While the protests may have involved many politically non-aligned citizens, Law and Justice argued that they were orchestrated by vested interests hostile to the government’s sweeping socio-economic policy reforms and moves to radically reconstruct the Polish state, many of whose institutions, the party claims, have been expropriated by an extremely well-entrenched, and often deeply corrupt, post-communist elite. Indeed, some government supporters even accused the opposition of trying to foster disruption and chaos on the streets in order to paralyse parliament so that they could remove Law and Justice from office.

Too abstract for ordinary Poles?

Nonetheless, sensing that it had little to gain from continuing its conflict with an influential group who were the public’s main channel of political information, Law and Justice backed down and agreed to keep the current parliamentary media access rules in place until new ones could be agreed with journalists. However, the fall-out from these events continued as deputies from Civic Platform and the liberal ‘Modern’ (Nowoczesna) party, which has many fewer parliamentarians but is currently running narrowly ahead of the former in the polls, demanded that the key vote on the 2017 budget be repeated and vowed to continue their sit-in protest until at least January 11th when the Christmas recess ends.

The crisis does not, however, appear to have affected patterns of support among Poland’s main parties. As the ‘Pooling the Poles’ micro-blog that aggregates voting intention surveys shows, Law and Justice still enjoys a clear lead averaging around 37% support compared with 20% for ‘Modern’, 19% for Civic Platform (PO) and 9% for the anti-establishment Kukiz ‘15, the third largest parliamentary grouping. Arguably, the opposition simply mobilised people who opposed the government anyway around questions that are too abstract for ordinary Poles who are concerned primarily with socio-economic issues where Law and Justice is more in tune with public opinion.

For its part, Law and Justice tried to project the image of a government that is continuing to introduce reforms that benefit the many Poles who feel frustrated not to have shared in the country’s recent economic growth, especially low income households who live beyond the large urban centres. Although critics argue that its reforms have placed a strain on the public finances, the ruling party has delivered on many of the social spending pledges which were the key to its 2015 election victory. In April, for example, the government introduced its extremely popular flagship ‘500 plus’ subsidy programme for the first children of poorer households and every second and subsequent child in all families, which has provided a significant financial boost to many low income families. Only last month, Law and Justice-backed President Andrzej Duda approved a law reversing the Civic Platform government’s deeply unpopular 2012 decision to increase the retirement age to 67 (from 60 for women and 65 for men); although critics argue that the reduced value of pensions for those taking early retirement will discourage many from taking advantage of the new provisions.

Rival parliamentary sittings?

Moreover, although the liberal and centrist opposition wrong-footed Law and Justice with their parliamentary occupation, they arguably missed the opportunity to end the protest on a high note when the proposed media regulations were withdrawn. While smaller parliamentary opposition groupings also opposed the new media rules, Kukiz ’15 never supported the occupation tactic while the agrarian Polish Peasant Party (PSL), Civic Platform’s one-time junior coalition partner, withdrew its backing once Law and Justice shelved its proposals. There were also suggestions that Civic Platform leader Grzegorz Schetyna was uneasy about the sit-in, fearing that many Poles viewed it as self-indulgent. Indeed, a survey conducted by the TNS Polska agency just before Christmas found that only 26% of respondents supported the opposition’s tactics while 47% were against. In fact, the impetus for the occupation came from mainly younger deputies who were close to Mr Schetyna’s predecessor, former prime minister Ewa Kopacz, but who have been marginalised by the new leader. However, Mr Schetyna was obliged to (at least publicly) support the occupation as he did not want to be outflanked by ‘Modern’ leader Ryszard Petru, his bitter rival for the leadership of the Polish opposition.

Attempting to de-escalate the crisis, Law and Justice offered the opposition an ‘outstretched hand’ saying that they were willing to give it more rights and privileges: creating the institution of ‘leader of the opposition’ and allowing it to run every fifth parliamentary sitting. On the other hand, there are no indications that the ruling party will back down in the face of what it argues is blackmail and re-hold the budget vote, concerned this will create a dangerous precedent and encourage the opposition to disrupt parliamentary proceedings as an effective tactic in subsequent disputes. Law and Justice has, therefore, indicated that it is only willing to hold discussions with the opposition on condition that they allow parliament to return to its normal operations.

At the same time, the opposition has boxed itself in and does not appear to have an exit strategy for ending its sit-in protest without losing face. If Law and Justice’s opponents continue to prevent parliament from sitting in January there is a danger that they could be held responsible for any ensuing disruption and instability. However, if they end the protest without extracting any concessions from the government the occupation will be seen as a pointless exercise. The crisis has, therefore, reached an impasse and there is a risk that when the Sejm returns in mid-January it could escalate with a possibility of rival parliamentary sittings: most of the government’s opponents continuing to occupy the main plenary chamber, while the ruling party and other opposition deputies try to conduct normal legislative business in an another venue.