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Polish Constitutional Drama: Of Courts, Democracy, Constitutional Shenanigans and Constitutional Self-Defense

Tomasz Tadeusz Koncewicz, Professor of Law and Director of the Department of European and Comparative Law at the University of Gdańsk, Poland2015 – 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”.[1] 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.[2]

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),[3] 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.

What next?

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”[5], 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”.[6] 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”.[7] 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.

[1] 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.

[2] 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.

[3] Case K 35/15 – all procedural documents in the case are available at www.trybunal.gov.pl.

[4] Page 4 of the order of November 30.

[5] Shapiro, Martin. “The European Court of Justice: Of Institutions and Democracy.” Israel Law Review (January 1, 1998): 3. p. 30.

[6] This blunt statement was made by the anonymous adviser to Polish President Duda; I quote from www.politico.eu.

[7] Shapiro. Supra note 5. p. 30.

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Published on December 6, 2015
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12 Responses

  1. Tomasz Tadeusz Koncewicz

    Tomasz Tadeusz Koncewicz
    Professor of Law and Director of the Department of European and Comparative Law at the University of Gdańsk, Poland; currently 2015 – 2016 Fulbright Visiting Professor at the Berkeley Law School, University of California

    Polish Constitutional Court has spoken.
    Bruised, but not dead (yet)

    The Court stands up
    With two judgments of 3rd and 9th of December, Polish constitutional crisis has entered a new phase.The authoritative interpretation given by the Polish Constitutional Court (“the Court”) left no doubt as to the creeping constitutional coup d’état, yet the judgments are being publicly ridiculed and defied by the ruling majority. Despite enormous political pressure, the Court did not flinch: in both cases it stood up for the Constitution, gathered itself and delivered strong unanimous judgments. However in both cases it was painfully clear that the old powerful, confident and held in esteem court was already gone. The Court we saw on 3rd and 9th of December was alive, but severely bruised, wounded and shell-shocked, hardly able to discharge its constitutional duties.
    On 9th of December the Court, composed of 5 justices, adjudicated on the constitutionality of the amendments of 19th of November made by the new Parliament (Sejm) to the Law of 25th of June on the Polish Constitutional Court. The case was initiated on motions by the Polish Ombudsman, First President of the Supreme Court, the National Council of the Judiciary and the minority members of parliament. The amendments enacted by the majority annulled the selection of the 5 justices made by the old Sejm and paved the way for the selection of new “good” justices on 2nd of December. To make things even more serious, the Law of 19th November envisioned a limited (3 years, today it is 9 years) term of the President and Vice President of the Court, applies this change to the current President and Vice – President and voided their terms of office. It further stipulated that selection of the justices whose term of office expires this year is to take place within 7 days of the entry into force of the Law. It also made the appointment conditional upon taking the oath before the President. The Senate voted in favour of the amendments on November 20th and President signed it into law later that day.
    Back to constitutional basics
    In the judgment of 9th of December, 2015 the Court unanimously declared most of the amendments unconstitutional. Proceeding step by step it identified constitutional flaws in the law. In a nutshell.
    Firstly, the Court ruled unconstitutional the possibility of serving as the President and Vice-President of the Court for two consecutive terms. It held that this creates a danger that the executive branch of the government would try to interfere with the internal functioning of the Court and as such call into question impartiality of the justices and the independence of the Court as a whole. As a result it breached art. 173 of the Constitution (independence of the judiciary) in conjunction with art. 10 (separation of powers).
    Secondly, the Court ruled unconstitutional the provision in the new Law whereby the newly elected justices were to take their oath before the President within 30 days since being elected. The Court stressed that the justices should be able to take the oath immediately after their selection and the President should make this possible. The Court added that 30 days period is unconstitutional because it allows the President to play active role in the selection of the constitutional justices and as such flies in the face of art. 194(1) of the Constitution which says “The Constitutional Court shall be composed of 15 judges chosen individually by the Sejm for a term of office of 9 years from amongst persons distinguished by their knowledge of the law. No person may be chosen for more than one term of office”.
    Thirdly, it is unconstitutional to condition the start of the term of office of the justices on the taking of an oath by the President. The Court clarified that 9 year term of office starts on the day on which the Sejm selects justices, and not on the day of the oath. The Court argued that accepting the latter interpretation would again involve the President in the process of selection of constitutional justices, whereas the Constitution clearly vests the power of selecting the justices with the Sejm.
    Fourthly, the Court ruled that the amendments to the Law on Polish Constitutional Court can not retroactively interfere with the valid selection of the 3 justices already made by the old Sejm to fill in the 3 seats vacated by the justices whose term of office came to an end on 6th of November. This finding is crucial and should be read as reinforcing the judgment of 3rd of December in which the Court held that the election of the 3 justices made by the old Sejm was constitutional, the Court left only two seats vacant. As a result of simple math, new Sejm is empowered to elect 2, not 5, justices. Although the Court did not touch on the issue directly, there is no doubt that the unconstitutionality of this amendment vitiates the election of 5 justices made on Sejm on 2nd of December and, as a result, their swearing in by the President.
    Finally, it is unconstitutional to void the term of office of the current President and Vice-President of the Court within the 3 months of the entry into force of the Law under consideration. It breaches the Court’s independence and art. 173 of the Constitution which reads “The courts and tribunals shall constitute a separate power and shall be independent of other branches of power”. The Court admitted that while it is conceivable for the legislator to change the length of the term of office of both President and Vice president, the voiding of the term of office that already started to run, impinges on the prerogative of the President to nominate President and Vice-President of the Court (according to art. 194(2) of the Constitution “The President and Vice-President of the Constitutional Tribunal shall be appointed by the President of the Republic from amongst candidates proposed by the General Assembly of the Judges of the Constitutional Tribunal”).
    Will the political power come to a halt?
    Indeed, it is hard to imagine judgment that would be more devastating for the majority. The Court’s “No” against redrawing constitutional lines and making inroads into well – established constitutional concepts and practices, could not be clearer and louder. On 9th of December all lingering constitutional doubts were dispelled. These pronouncements should be enough of a warning in the state governed by the rule of law. However, the problem is that the majority of the day has a completely different conception of the rule of law and respect for verdicts of the Constitutional Court does not come within the “rule of law package” as understood by the majority.
    Packing the Court by selecting its own subservient justices, defying the authority of the Court’s judgments (as of writing, the judgment of 3rd of December has not been published in the Journal of Laws) and “mobbing” current justices clearly shows that we are not dealing with just another dispute reserved for legal aficionados. The attack on the Court is unprecedented in scope, cold efficiency and intensity. Its aim to paralyze and incapacitate the Court. The problems the Court had already encountered in K 34/15 in finding enough justices to decide the case clearly show that this long – term plan starts to work. Polish democracy is faced today with the crisis that has more to do with the lack of constitutional culture rather than deficiencies of the constitutional text. The former should underpin all constitutional commitments and guarantee their enforcement. Without constitutional culture and entrenched respect for these commitments, the constitution is not worth the paper it is written on and this is exactly the situation in Poland: constitutional text remains unenforced since the institution called on to enforce it is marginalized and openly defied.
    One can see great dangers in thinking whereby the political will of the new majority could replace decisions of the constitutional court with constitutional monopoly of adjudication. On this reading moral doubts of the parliamentary majority would suffice to set aside law which was validly adopted and upheld by the court. It is the sheer power that dominates, with constitutional considerations relegated to the margins.
    By way of conclusion, we may recall the words of the US Supreme Court Justice Charles Evans Hughes “We are under a Constitution, but the Constitution is what the judges say it is”. The Polish version of this would be located on the other end of the spectrum and might be summed up: “We are all under the Constitution but the Constitution is what the I, the Parliament say it is”. Poland is in for a long and bumpy constitutional ride. Nobody really knows when and how this constitutional roller coaster will come to end. One thing is beyond doubt: it does not look good.

  2. […] [2] See also my post Polish Constitutional Drama: of Courts, Democracy, Constitutional shenanigans and Constitutional self-defense) available at http://www.iconnectblog.com/2015/12/polish-constitutional-drama-of-courts-democracy-constitutional-s… […]

  3. Jerzy Zajadło

    On February 22, 1787 Thomas Jefferson wrote in a letter to Abigail Adams: “The spirit of resistance to government is so valuable on certain occasions, that I wish to be always kept alive. It will often be exercised when wrong, but better so than not to be exercised at all”. Many years later he wrote on April 22, 1820 to John Holmes in another context concerning Missouri Compromise: “But this momentous question, like a fire bell in the night, awakened and filled me with terror. I considered it at once as the knell of the Union. It is hushed, indeed, for the moment. But this is a reprieve only, not a final sentence. […] But as it is, we have the wolf by the ears, and we can neither hold him, nor safely let him go. Justice is in one scale, and self-preservation in the other”.
    Professor Koncewicz is absolutely right. It is alert-time time for “the spirit to resistance kept alive”, or better to say, for some institutional judicial disobedience, because we hear “a fire bell in the night”. More than that – a fire bell is ringing loud enough to be not too late.

  4. Andrew Arato

    Excellent pieces. Yet even if the battle may b elost, as it was in Hungary and Turkey for the time being, these two Court decisions should be applauded.

    The old parliament was clearly wrong in passing a law to be able to appoint 5 rather than 3 justices. The new parliament was clearly wrong in cancelling all five, and passing a law to appoint five new ones.

    The 3 And 2 decision, is not only Solomonic, but is entirely correct. Behind the letter of the constitution supporting lies a more basic principle: court packing, even where technically allowed on the statutory level, or even the level of the amending power, is repugnant to the basic structure of a liberal democratic constitution.

  5. […] 5 Indeed the “grassroots constitutionalism” might be in the making in Poland right now. M. Konopacka makes a good point about the importance of civil activity. She points out that in the wake of the government refusal to publish the judgment of the Court of 3rd of December, people’s response was to publish the Court’s judgment on social media as part of the bottom-top initiative “Cała Polska niezwłocznie publikuje wyrok Trybunału Konstytucyjnego” which in English reads “All Poles publish immediately the judgment of the Court”. As a result the judgment is available here. See her comment to my Polish Constitutional Drama: Of Courts, Democracy, Constitutional Shenanigans and Constitutional Sel…. […]

  6. Daniel Zielinski

    Professor’s lack of optimism is absulutely justified. PiS perceives democracy as a dictatorship of majority. The winner takes all which means no place for impartial and independet judicial system veryfing the consitutionality of the laws made by the parliament. In the West it is obvious that the politicians should act in accordance with the law. This different approach could be a consequence of different expierences during World War II. For the West-Europeans (especially for the Germans) the war was an expierence of radical right-wing dictatorships built on the ruins of democracy. Therefore the contistutional order should consist of limits to the dismantlement of liberal democracy, rule of law or protection of minorities. All this has been set up in reaction to the crisis of democracy. In Poland the war is soleley perceived as a tragic experience of death and destruction perpetrated by foreign forces (genetically evil Germans and the Soviets trying to impose wrong ideology) where Poles played a role of innocent victims or brave heroes. Recently Jan Tomasz Gross (Polish-American historian at Princeton University) caused a vague of outrage after he wrote for “Die Welt” that the East-Europeans’ problem with refugees is a side-effect of their negation of participation in killing Jews during the World War II. The past experience is strongly present in Polish politics of today. The Constitutional Court which was set up in the final years of the communist regime as a guarantee for more human rights and better law is now perceived by PiS and its supporters as a communist body promoting leftist ideology (For PiS everything from liberal democracy through rule of law to human rights is believed to be leftist. Standards recognised even by the Catholic Church are rejected by Polish Catholics from PiS). We are heading towards a non-liberal democracy with no place for Constitutional Court. Only strong opposition of citizens and international pressure can stop PiS. Hopefully.

  7. […] Tomasz Tadeusz Koncewicz, ‘Polish Constitutional Drama’. […]

  8. […] era avvenuta in maniera corretta, e poteva dunque procedere a una nuova nomina proprio perché “è la volontà del popolo, non la legge, che conta, e la volontà del popolo calpesta sempre la legg…”. È chiaro come il nuovo partito di governo abbia tentato fin da subito di eliminare la […]

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