—Tomasz Tadeusz Koncewicz, Professor of Law and Director of the Department of European and Comparative Law at the University of Gdańsk, Poland; 2015 – 2016 Fulbright Visiting Professor at University of California Berkeley Law School*
The Polish general elections of October 26, 2015, completely reshaped the political scene, bringing back to power the right-wing conservative party Prawo i Sprawiedliwość (PiS which reads in English “Law and Justice”, rather ironic name bearing in mind the events unraveling now in Poland), which was ousted in 2007 amid scandals of political corruption and nepotism, and concerns about its cynicism, nationalism and anti-European sympathies. Now after eight years out of power, the PiS is coming back with a vengeance, hell-bent on reshaping Poland, its legal system and its constitutional culture, and creating a “new and virtuous Fourth Republic”, free of “invidious networks”. According to the narrative propelled by the PiS, Poland of today is in dire need of a major political and moral overhaul.
The Polish Constitutional Court was the first victim of this revolutionary zeal. The newly elected parliamentary majority acting in unison with the President took no less than one month to dismantle it.
The PiS refused to honor the appointment of justices made by the late Parliament and to swear them in, while instead appointing its own “good judges”, by arrogating to itself the power of constitutional review and retroactively extinguishing the term of office of the current President and Vice President of the Court. To make the new doctrine and legal philosophy completely clear, the honorary speaker of the Lower House of Parliament (Sejm) ominously summed up the state of play few days ago: “it is the will of the people, not the law that matters, and the will of the people always tramples the law”. Needless to say, such language when used in Europe evokes some of the darkest times in our continent’s history. As a result, the most fundamental principles of the Polish constitutional order–the rule of law, legality, separation of powers, independence of the judiciary, supremacy of the Constitution, constitutionalism–are being now being de facto obliterated.
Act 1: “Keep as much as you can for yourself”
To understand the current deadlock and fully appreciate the gravity of the situation one must start with the legislative history behind the Law on the Constitutional Court (hereinafter referred to also as “the Law”). The draft of the Law was submitted in 2013 by the former President of Poland Mr. Bronislaw Komorowski. Without going into details, the presidential draft aimed to reform judicial procedures, streamline the selection process of new justices and to allow more input in the selection from civil society, universities or representatives of legal professions. In the end though, after a protracted legislative process, changes that were supposed to improve and depoliticize the whole process were dropped by the Sejm.
The Sejm reserved the right to put forward the nomination(s) to the Court exclusively to 50 members of the Parliament. Appointments to the Court required simple majority in the Sejm. When the bill went for a confirmation to the Higher Chamber of the Sejm (Senat), participation of the professional circles in the selection of justices was restored but only half-heartedly. It was limited to the selection of the justices whose term of office will come to an end after January 1, 2016. The logic of “keeping the Court in check” by whichever majority rules at the time is nowhere better seen than in breaking with the tradition that justices whose term of office comes to an end are chosen by the Sejm of the day. The Law adopted on June 25, 2015, allowed the old Sejm to select all five justices whose term of office comes to an end this year, even though term of office of two of the justices would not end before December 2nd and 7th, respectively, during the term of newly elected Parliament. This was the crucial provision that sparked the backlash of PiS against the constitutional overreaching by the Civil Platform. As a result, the Sejm emerged as the only player in the selection process of constitutional justices. On July 21, 2015, Mr. Bronislaw Komorowski, the former President of Poland, promulgated the Law in the Journal of Laws and the outgoing Sejm went all the way during the last sitting on October 8, 2015, selecting all five justices who were up for grabs.
The “business as usual” approach took a turn for worse however, with the radical remaking of the political scene in the wake of the parliamentary election in October 2015. With the benefit of the hindsight, one might even say that the old Sejm was gentle with the Court as it never really mounted a systematic attack on its place in the constitutional structure of Polish institutional governance. This subtle fiddling with the Court proved to be only a prelude of things to come.
Act II: “We manipulate now, because you manipulated before”
The fact that two justices were voted in by the Civil Platform before the end of term of the old Parliament although their nine-year terms would expire only later in December backfired almost immediately after the elections which were won decisively by PiS, securing 235 of 460 mandates, and the Platform placing second, far behind with 138 mandates. The prior questionable constitutional overreaching was invoked by PiS as a convenient excuse to give it a claim to moral high ground when reshaping the Court’s composition. The first sitting of the Sejm took place on November 12. Four days later, the new government was formed and the constitutional blitzkrieg started.
Act III: Constitutional blitzkrieg
The speediness of events that followed is mind-boggling. First, the President of the Republic, Andrzej Duda, who took office in August, himself a former member of PiS, refused to swear in the five new justices who were selected by the old Sejm, even though the term of office of at least three of the five judges has already started to run. He argued that these justices were selected in contravention of the Constitution. However in acting this way he arrogated to himself the competence reserved to the Constitutional Court, which has plenary power of constitutional review: as long as the Law is in force, there is a presumption of constitutionality and only the Court can reverse this presumption. The President should have referred his doubts to the Constitutional Court, asking it to assess the constitutionality of the Law which was the basis for the selection of new judges. Instead he chose to wait until his old party PiS proposed an amendment to the Law and selected their own justices! “Blitzkrieg in unison”.
Secondly, last week in the wee hours of Wednesday, Sejm mercilessly pushed ahead and passed resolutions, which are a non-binding form of a legal act in Poland, calling the election of the five justices invalid. It asserted that such a step was necessitated by the illegal elections undertaken by the old Sejm. The constitutional blitzkrieg was far from over, however. Indeed it was only gaining momentum. To make good on its promise of rectifying the overreaching by the old Parliament, on November 19, the Sejm passed an amendment to the Law on the Constitutional Court, annulling the election of the contested five justices, which paved it a way for the election of its own new justices. To make things even more serious, the Law of November 19, envisions a limited three-year term, while today it is nine years, of the President and the Vice President of the Court and applies this change retroactively to the current President and Vice President, extinguishing their functions. It further stipulates that the selection of justices whose term expires this year is to take place within seven days after the Law comes into force. It also makes the appointment conditional upon taking the oath before the President. The Senate voted in favor of the amendment on November 20, and President Duda signed it into law later that very same day. No other law since 1989 was enacted so speedily, without necessary consultations or parliamentary discussion. Indeed a constitutional blitzkrieg at its very best.
Thirdly, constitutional challenges to the old Law of June 25, amended by the Law of November 19 keep popping up. On November 23, the Civil Platform and Polish Ombudsman challenged amendments to the Law before the Court, claiming that the retroactive annulment of the appointment of five justices is unconstitutional. The National Council of Judiciary, the Polish Bar Council and the First President of the Supreme Court followed their suit. These constitutional challenges will be heard by the Court on December 9 (case K 35/15), whereas on December 3, the Court held a separate hearing on a motion by the Civil Platform to declare unconstitutional the Law of June 25, as far as it allowed the old Sejm to select two new justices whose term of office was to come only at an end in December, after the end of term of the old Sejm itself (case K 34/15). The Court held that the Sejm acted unconstitutionally by selecting these two justices. As a result the Court, as of Thursday, December 3, has two parallel compositions: one constitutional (13 justices = 10 “old” ones” and 3 “new” ones) and the other unconstitutional (18 justices = 10 + 3 + 5).
Despite all these doubts, on December 2, 2015, the current Sejm went ahead and voted on five new judges to replace the ones allegedly unlawfully elected, and the President took no time in swearing them in late into the night after the information of the selection was made public in the Journal of Laws. The pace of the constitutional blitzkrieg is truly unmatched.
As rightly noted by Professor Martin Shapiro “… courts that owe their existence to democratic institutional choice must act prudently, or the choice may be withdrawn”, and the Polish Constitutional Court is no exception. On balance, its jurisprudence in the last 30 years respected the choices made by the principal and acted prudently, building the credibility and legitimacy incomparably greater than that of other Polish public institutions. Yet this year’s attack on the Court is not premised on the dissatisfaction with the overall performance or particular acts of the Court, but rather strikes at its very existence. It forms part of a larger and sophisticated plan aimed at debilitating possible pockets of resistance and independence, curbing democracy, the rule of law and the division of powers. The Constitutional Court clearly stands in the way. Some in Poland still believe that there is a possibility of a constitutional compromise. I am not one of these optimists. Professor A. Rzepliński, expressed his belief that “the political power will eventually come to a halt”. All signs on the ground point rather in the opposite direction that “now begins the process of reconquering the country, and it may be brutal”. Too much planned and cold-blooded effort went into procuring the current constitutional impasse only for those responsible to simply retract now. There is a long-term grand plan in the making: to incapacitate the Court through politically motivated judicial appointments and make it completely subservient to the majority of the day.
By a way of tentative conclusion it is useful to recall once again M. Shapiro’s argument about the consequences of the choice made by constitution makers to resort to a court as a conflict resolver. Such choice entails the acceptance of “the inherent characteristics, practices, strengths and weaknesses of that institution… and some law making by courts and a certain capacity for judicial self-defense of its law making activity”. At this point all the attention should be paid to the “self-defense” and the Court’s inner capacity to stand up against the brutal attack that threatens its institutional survival. The Polish Constitutional Court is not dead yet but it was pushed dangerously close to a total marginalization and the blitzkrieg is far from over. In the wake of the judgment of December 3, the official reaction of the new majority speaking through the Speaker of the Sejm was that Poland needs a constitutional overhaul and a new Constitutional Court altogether. Today nobody really knows what will happen next. Therefore and unfortunately, the Polish constitutional drama is to be continued…
Suggested Citation: Tomasz Tadeusz Koncewicz, Polish Constitutional Drama: Of Courts, Democracy, Constitutional Shenanigans and Constitutional Self-Defense, Int’l J. Const. L. Blog, Dec. 6, 2015, at: http://www.iconnectblog.com/2015/12/polish-constitutional-drama-of-courts-democracy-constitutional-shenanigans-and-constitutional-self-defense
* I am grateful to Professors Malcolm Feeley and Martin Shapiro for the insightful comments on an earlier draft of the post. The usual disclaimer applies.
 W. Sadurski, Constitutional Courts and Constitutional Culture in Central and Eastern European Countries, in A. Febbrajo, W. Sadurski, eds. Central and Eastern Europe After Transition. Towards a New Socio-legal semantic, 2010.
 See also my op-eds for two major Polish daily papers – Rzeczpospolita and Gazeta Wyborcza: Atak na Trybunał i co dalej? (The Court under attack and what’s next?) in Rzeczpospolita, 27th of November 2015, p. 8 and Manipulacja nad Wisła (Manipulation on the Vistula river) in Gazeta Wyborcza, 1st of December 2015, p. 8.
 Page 4 of the order of November 30.
 Shapiro, Martin. “The European Court of Justice: Of Institutions and Democracy.” Israel Law Review (January 1, 1998): 3. p. 30.
 Shapiro. Supra note 5. p. 30.