Is Poland’s constitutional tribunal crisis over?

by Aleks Szczerbiak

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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