Editor’s Note: Today we publish the 2016 Report on Polish constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.
–Professor Tomasz Tadeusz Koncewicz, Director of the Department of European and Comparative Law, University of Gdańsk; Professor Marek Zubik, Director of the Department of Constitutional Law, University of Warsaw, Judge of the Polish Constitutional Tribunal; Dr Magdalena Konopacka, Department of European and Comparative Law, University of Gdańsk; Karol Staśkiewicz, (L.L.M.), Researcher, Department of Constitutional Law, University of Warsaw
In 2015-2016, the Polish constitutional scene was reshaped beyond recognition. The Polish Constitutional Tribunal (hereinafter referred to as “Tribunal”) was emasculated to the point that constitutional review was rendered meaningless and reduced to mere rubber—stamping of the majority. In normal times, review of the constitutional jurisprudence would comprise “ordinary” constitutional controversies that made their way onto the Tribunal’s docket. Yet, given the unprecedented attack from the ruling majority on the Tribunal’s stature and functions and the constraints of space, the authors had to make a difficult choice of skipping the “business as usual” case law and instead focusing entirely on the “existential jurisprudence” of the Tribunal. The “existential jurisprudence” aims at safeguarding the essence of judicial review in Poland and saving the Tribunal from complete emasculation. When the institution’s very survival is on the line, everything else must be pushed to the background.
II. The Constitution and the Constitutional Court
The Polish Constitution was adopted in 1997. The Constitution opens with an inclusive Preamble that provides, inter alia, fundamental axiological signposts for constitutional interpretation:
We, the Polish Nation - all citizens of the Republic, Both those who believe in God as the source of truth, justice, good and beauty, As well as those not sharing such faith but respecting those universal values as arising from other sources, Equal in rights and obligations towards the common good – Poland […] Obliged to bequeath to future generations all that is valuable from our over one thousand years’ heritage […], Hereby establish this Constitution of the Republic of Poland as the basic law for the State, based on respect for freedom and justice, cooperation between the public powers, social dialogue as well as on the principle of subsidiarity in the strengthening the powers of citizens and their communities, We call upon all those who will apply this Constitution for the good of the Third Republic to do so paying respect to the inherent dignity of the person, his or her right to freedom, the obligation of solidarity with others, and respect for these principles as the unshakeable foundation of the Republic of Poland.
Building on this, the Constitution is organised in XIII Chapters, of which most important are Chapter I (Republic), II (freedoms, rights and duties); III (sources of law); IV (Legislative branch composed by the lower chamber (Sejm) and upper chamber (Senate)); V (President of the Republic); Chapter VI (executive branch of government); Chapter VII (local government). Judicial power is regulated in Chapter VIII (Courts and Tribunals). The Polish Constitutional Tribunal’s mandate is spelled out in art. 188-197.
III. Constitutional Controversies
2015-2016:-Anni horribili of the Polish Constitutional Tribunal
Polish elections on 26 October 2015 completely reshaped the political landscape, bringing back to power the right-wing conservative party Prawo i Sprawiedliwość (PiS, which reads in English “Law and Justice”), which was ousted from power in 2007. The Tribunal was the first victim of the narrative by PiS, whereby the Poland of today is in dire need of some major political and moral overhaul. The newly elected majority, acting in unison with the President, took no less than one month to dismantle the Tribunal by refusing to honor the election of the judges made by the old Parliament and to swear them in, and instead electing their own “good judges” by arrogating the power of constitutional review and by retroactively voiding the term of office of the current President and Vice President of the Tribunal. In the process, most fundamental principles of Polish constitutional order—the rule of law, legality, separation of powers, independence of the judiciary, the supremacy of the Constitution and the constitutional review by the Tribunal—have been now de facto obliterated.
The ruthlessness with which the Tribunal has been captured by the majority, and the persistence with which it has been thwarting the unconstitutional attempts to pack it and disable it, tell a story of democracy and institution in distress. In 2015 and 2016, the Tribunal was defending itself against attacks by the political power on its institutional status and judicial independence. What started as “court-packing” though, soon transformed into an all-out attack on the judicial review and checks and balances. This attack has been unprecedented in scope, efficiency and intensity. With the Court fighting back, the majority resorted to a device unheard of in Europe: refusal to publish judgments delivered by the Tribunal. According to Article 190(2) of the Constitution, rulings of the Tribunal are to be immediately published in the official publication in which the original normative act was promulgated. The Tribunal’s case law of 2016 confirmed that all judgments must be published, as required by the Constitution. Yet, the Government persistently refused to publish judgments rendered by the Tribunal in 2015 and 2016, claiming that they were vitiated by procedural errors and lacked a legal basis. The unconditional publication of the Tribunal’s judgments between 10 March 2016 and 30 June 2016 was also found by the Venice Commission to be the condition sine qua non for any viable constitutional settlement. The Venice Commission regarded the refusal to publish the judgment of 9 March 2016 (case K 47/15) that disqualified court-packing as unconstitutional and contrary to the principle of the rule of law. For the Commission, such refusal constitutes an unprecedented move that further deepens the constitutional crisis.
Separation of powers, judicial independence and effective functioning of the Constitutional Tribunal are keywords underpinning the jurisprudence of the Tribunal. While December judgments have now been formally published after protracted wrangling between the President of the Tribunal and Government officials, a dangerous precedent of cherry picking has been set. Despite publication, to this day they have not been implemented and respected with the President of the Republic being steadfast in refusing to swear in the three judges elected constitutionally by the old Sejm and the Government’s refusal to publish the Tribunal’s judgments becoming a daily weapon of power against “unwanted” case law.
As of this writing, with the new law on the status of the judges in place and the Tribunal’s bench finally captured and staffed with the henchmen of the ruling party, the curtain has fallen on judicial review and the rule of law in Poland.
IV. Major Cases
2015-2016: Existential jurisprudence
On 3 December 2015 (case K 34/15), the Constitutional Tribunal examined the application submitted by a group of Members of the Polish Parliament regarding the articles of the Constitutional Tribunal Act, which regulates, among others, the election of Constitutional Tribunal judges, the status of these judges and the proceedings before the Constitutional Tribunal. The Constitution imposes an obligation to elect a Constitutional Tribunal judge on the lower house of Polish Parliament in the term of office during which the post of the Constitutional Tribunal judge was made vacant. The election of a Constitutional Tribunal judge cannot be conducted somewhat in advance. The Tribunal found that regulation of the Constitutional Tribunal Act is incompatible with the Constitution to the extent of providing the competence for the lower house of Polish Parliament of the previous term of office (2011-2015) to elect two judges to fill the vacant posts of judges whose term of office ended on 2 and 8 December. But the articles regulating the election of three judges to fill the vacant posts of Constitutional Tribunal judges whose term of office ended on 6 November 2015 were found to be compatible with the Constitution.
Consequently, the ruling of the Constitutional Tribunal implies that the legal base for electing the successors of the two judges whose term of office ended on 2 and 8 December is regarded as unconstitutional. Therefore, these two judges, who were elected, cannot take their office. Meanwhile, the legal base for appointing and voting by the lower house of Polish Parliament on the election of three constitutional judges in place of the judges whose term of office ended on 6 November 2015 raises no constitutional doubts. This election was conducted by the lower house of Polish Parliament in the term of office during which the posts were made vacant. In addition, the Tribunal held that articles regarding the oath-taking by the Constitutional Tribunal judge before the President of Poland imposed an obligation on the head of state to accept such an oath immediately. Any other interpretations of this article are bound to be unconstitutional. Moreover, the Constitution doesn’t provide for the President to have a possibility of refusing to accept an oath from the newly elected Constitutional Tribunal judge, and the eventual concerns raised by the head of state regarding the constitutionality of the articles, on the ground of which the election of Constitutional Tribunal judges had been conducted, can be evaluated solely by the Constitutional Tribunal. Despite a lack of statutory articles which could specify the term of accepting the oath it must be understood that the President has to fulfill his obligation immediately.
Articles regulating the appointment of President and Vice-President of the Constitutional Tribunal by the President of Poland were ruled to be compatible with the Constitution. According to the Constitution, the President of the Republic of Poland is obligated to appoint the President and Vice-President of the Constitutional Tribunal among candidates chosen by the General Assembly of the Judges of the Constitutional Tribunal. The President doesn’t have authority to freely choose the candidates to be appointed to the aforementioned posts. An obligation is imposed on him to appoint one of the previously proposed candidates for these posts.
Furthermore, the Tribunal held compatibility with the Constitution of providing retired Constitutional Tribunal judges with the formal immunity, which indicates that the constitutional judges can be held criminally liable (excluding delinquencies) or deprived of freedom only upon the consent of the General Assembly of the Judges of the Constitutional Tribunal. Retired judges of all types of courts in Poland are entitled to such immunity. This protection has a special meaning for constitutional judges as their term of office is relatively short. Accordingly, they rule on compatibility with the Constitution of the law adopted by politics and they solve disputes over authority between central constitutional public authorities, and in consequence are more likely to be exposed for the eventual repercussions coming from politicians not satisfied with the Constitutional Tribunal judgment.
On 9 December 2015 (case K 35/15), the Constitutional Tribunal examined the applications of a group of Members of Polish Parliament, the Ombudsman, the National Council of the Judiciary and the First President of the Supreme Court, regarding the amendment of the Constitutional Tribunal Act. The statute introduces terms of office in the exercise of the function of the President of the Constitutional Tribunal with a possibility of reelection. The Tribunal held that the procedure of filling leading positions, to the extent in which the amendment provides for a possibility for reelection regarding the position of the President of the Constitutional Tribunal, gives the executive authority room for unlawful interfering with the activity of a Constitutional Tribunal. The Tribunal agreed with the applicant’s charge about the unconstitutionality of the statutory provision, which provides for the person elected to be a judge of the Tribunal to take an oath before the President within 30 days of the election. According to the Tribunal, establishing such a time limit for taking an oath violates the rule that the Constitutional Tribunal judge must be allowed to take an oath immediately after the election. A provision was found as incompatible with the Constitution as well, stating that “taking an oath initiates the term of office of the Constitutional Tribunal judge.” Such a solution-the initiation of term of office of the Tribunal’s judge to be made dependent on taking an oath-would result in postponing the start of a judge’s term of office, and would lead to an indirect participation of the President in the procedure of appointing a Constitutional Tribunal judge, for which the Constitution doesn’t provide. Another statutory provision which was regarded unconstitutional provided for the expiration of the existing President and Vice-President of the Constitutional Tribunal’s “term of office” after three months from the amendment law’s entry into force. The Tribunal held that the article in question was, in fact, an unlawful interference of the lawmaker with the judicial power sphere and it violated the rule of the Tribunal’s independence from other powers. The Tribunal admitted that it is conceivable for the legislature to change the length of the term of office of both President and Vice-President, and the voiding of a term of office that already started to run impinges on the prerogative of the President to appoint the President and Vice-President of the Tribunal. The judgment puts great stock in with provisions on the status of the President and Vice-President of the Constitutional Tribunal, in particular as regards their terms of office are closely linked with the principle of the independence of the Tribunal as such. The legislature may depart from the hitherto adopted solution and may determine the length of the term of office in the case of the President or Vice-President of the Tribunal in a more fixed way. However, amending Law constitutes interference in the scope of the constitutional competence to appoint the President and Vice-President of the Tribunal, which is vested in the President of the Republic of Poland. The Tribunal agreed with the view presented by the applicants that the legislature’s termination of the terms of office of the incumbent President and Vice-President of the Tribunal violates the principle of the independence of those authorities, and thus infringes Article 10 in conjunction with Article 173 of the Constitution, Article 194(1) and (2) as well as Article 7 of the Constitution.
On 11 August 2016 (case K 39/16), the Tribunal thwarted yet another attempt at court-packing when it examined the compatibility with the Constitution of a new statute of 22 July 2016 on the Constitutional Tribunal. In this case, the Tribunal built on its previous unpublished (case K 47/15) and unimplemented (K 34/15 and K 35/15) judgments. In view of the repetitive nature (the ruling party pressed ahead with the second court-packing despite the fact that most of the provisions were already declared unconstitutional in K 47/15) of most of the claims and duplicity of the subject-matter, the Tribunal felt strong enough to decide the case by way of a reasoned order rather than a judgment. The order emphasized that most of the provisions in the new Law replicated the Tribunal found unconstitutional in its judgment given on 9 March 2016. The Tribunal reiterated that rulings of the Tribunal must be published immediately in the shortest possible time given the circumstances of each case. Government authorities have no discretion but to publish all rulings of the Tribunal. A fortiori, the Tribunal criticized in the strongest possible words the practice of singling out its rulings that will be published in the Journal of Laws. The Tribunal saw through the intentions of the Sejm. The Sejm performed a review of individual rulings and concluded that judges behind these rulings acted ultra vires. Therefore, the refusal to publish these “negatively reviewed” rulings would be held to be justified and, as a result, make the future publication of the Tribunal rulings dependent on the consent of the Legislative branch. For the Tribunal, this was an inadmissible encroachment by the executive on the competencies of the Constitutional Tribunal and aimed at the stigmatization of the judges who decided these cases. Such practice runs afoul of the standards of the state governed by the Rule of Law (Rechtstaat) and is alien to the legal culture to which the Republic of Poland belongs. The Tribunal was clear: all rulings are unconditionally binding and must be published. As for the vexing problem of the Tribunal’s composition, the order simply referred to the constitutional interpretation already made in December 2015 judgments and calls on the state authorities to bring to an end the situation of disrespect of the Tribunal’s rulings. The Tribunal strongly expressed that the legislator must not elect new judges when there is no vacancy as was the case here. Forcing the President of the Tribunal to allow three judges elected by PiS would be unconstitutional and “incompatible with the judgments of the Court which are binding on all state authorities, the Tribunal and its President included.”
When analysed together, the existential jurisprudence in response to “clipping the wings” of the Tribunal and procedural court-packing stands for the following: “in the context of the Tribunal’s systemic position and the unique nature of its competence, it is particularly justified that proceedings before the Tribunal should be effective and would result–within a reasonable period of time–in issuing a final ruling, especially in cases that are of significance for the functioning of the organs of the state as well as for the exercise of rights and freedoms enshrined in the Constitution. This follows from the principle of efficiency in the work of public institutions, which arises from the Preamble to the Constitution. Consequently, a statutory model of proceedings before the Constitutional Tribunal needs, on the one hand, to take account of the unique nature of the Tribunal’s systemic function and, on the other, ensure efficiency in the exercise of the Tribunal’s powers”.
On 7 December 2016 (case K 44/16), the Constitutional Tribunal examined the application submitted by a group of Members of Polish Parliament regarding the rules of appointing the President and Vice-President of the Constitutional Tribunal. The Tribunal held that the statutory injunction for the General Assembly of the Judges of the Constitutional Tribunal to propose to the President three candidates to the position of President and Vice-President of the Tribunal doesn’t violate the Constitution. Only the correlation between the number of candidates proposed to the President, the precise number of votes to which the Tribunal judges are entitled during the election of candidates and the rules governing this election have an impact on the scope of competence given to the General Assembly of the Judges of the Tribunal as well as on the capacity for this authority to perform its constitutional functions. The Tribunal stated that proposing candidates to the President, performed by a collegial body, must take the form of a resolution which requires for its validity support by a majority of voting judges. Representation may be ensured either by an election in which every judge is entitled to have a such number of votes that is identical with the number of candidates or through a separate voting on each candidate where every judge holds only one vote. The Tribunal regarded as candidates for the position of President and Vice-President of the Tribunal, in the constitutional meaning of this term, only those candidates who received support from a majority of voting judges. Significantly, only such candidates ought to be considered as having the support of the General Assembly of the Judges of the Tribunal.
2015-2016 saw an unprecedented attack on the Polish Constitutional Tribunal, judicial independence and the rule of law. Importantly, this attack has not been premised on dissatisfaction with the overall performance or particular acts of the Tribunal, but rather struck at its very existence. We are not dealing with some hasty decisions of the majority as a result of transient dissatisfaction with the Tribunal’s case law. If this were the case, we would not have reason to sound the alarm: political tinkering with unwanted decisions by Constitutional Courts happens all the time and everywhere. This forms part of a larger and more sophisticated plan aimed at debilitating possible pockets of resistance and independence, curbing democracy, the rule of law and the division of powers.
The experience of the Polish Constitutional Tribunal shows how constitutional capture and the piecemeal undermining of the liberal democratic state pose new challenges for the rule of law and external constraints imposed on the domestic pouvoir constituant. As forcefully argued by K. L. Scheppele and L. Pech, “consolidation of majoritarian autocracies […] represents more of an existential threat to the EU’s existence and functioning than the exit of any of its Member States.” Constitutional capture plays a pivotal role in disabling the checks and balances. Constitutional capture makes a sham of a constitutional document as it strips it of its limiting and constraining function. Yet constitutional capture is not a one-off aberration. It is a novel threat to the rule of law as it is not limited to one moment in time. It is a process of incremental taking over the independent institutions and the liberal state. Hungary is a prototype of a “captured state,” and one would be right in assuming that the Commission had learned from its passivity and acquiescence to V. Orban’s tactics of capturing the state and independent institutions. The lesson was loud and clear and yet missed by the Commission, as the Polish case shows the only way to derail constitutional capture or to “constitutionally recapture the unconstitutional capture” is to act preemptively before the capture is complete. Waiting on the sidelines, talking to the perpetrators and hoping for their change of heart only emboldens and entrenches the regime. The constitutional capture as a process needs time, so time plays a pivotal role in striking back at the capture and thwarting it in the building-up process, not later. The regime knows that and will do anything to buy more time to entrench the capture and make the recapture very unlikely.
The recurrent themes that go beyond the “existential jurisprudence” of the Tribunal are the rule of law, separation of powers and exclusiveness of constitutional review vested with the Tribunal. The judgments make perfectly clear that the Tribunal was fully aware of the critical juncture in which it found itself deciding these cases and fully understood the dangers inherent in the belief that the political will of the new majority could replace decisions of the Constitutional Court with a constitutional monopoly of adjudication. Under this belief, moral doubts of the parliamentary majority would suffice to set aside the law, which was validly adopted and upheld by the Court. It would be sheer power that dominates, with constitutional considerations relegated to the margin. So, unsurprisingly, the Tribunal stressed that in the case of constitutional doubts, other branches of government are not to act freely, but must submit these doubts to the Tribunal for an authoritative interpretation.
While the constitutional controversies “here and now” needed solving, the long-term importance of the judicial resistance merits particular attention. The Tribunal stood up for the “balanced constitution” in which separation of powers is more than a mere fig leaf, and for limited government, both of which have a strong tradition in Polish constitutional thinking. In Poland in 2015-2016 we witnessed the redrawing of constitutional lines. For the very first time since its birth back in 1986, the very survival of the Tribunal was on the line. The particular constellation of lucky events that allowed it to survive in the past came to an end. The time finally came to admit that the Polish Constitutional Tribunal did not manage “to get away with it this time.” Its self-defense and steadfast loyalty to the constitutional document were not enough against no-holds-barred political power. The Tribunal we used to know is gone. It is comforting to know, though, that in the darkest of times it never faltered and backed down and was always ready to stand up for the constitutional essentials. The “existential jurisprudence” it managed to build over the last year in response to the attack on its independence and the rule of law is something we must look up to and see it as a reflection of the best constitutional traditions Poland has to offer. That is a lot moving forward while waiting for better constitutional times. Let there be no doubt that they will eventually come and, with them, a full vindication of Polish Constitutional Tribunal.
- Garlicki, Disabling the Constitutional Court in Poland? in A. Szmyt, B. Banaszak (eds.), Transformation of law systems in Central, Eastern and Southeastern Europe in 1989-2015. Liber Amicorum in Honorem Prof. dr. dres. H. C. Rainer Arnold (Gdańsk University Press, 2016)
- T. Koncewicz,Polish Constitutional Drama: Of Courts, Democracy, Constitutional Shenanigans and Constitutional Self-Defense at www.iconnectblog.com/2015/12/polish-constitutional-drama-of-courts-democracy-constitutional-shenanigans-and-constitutional-self-defense/
- T. Koncewicz, Of institutions, democracy, constitutional self-defence and the rule of law: The Judgments of the Polish Constitutional Tribunal in cases K 34/15, K 35/15 and beyond, (2016) 53 Common Market Law Review 1753.
- T. Koncewicz, The “emergency constitutional review” and Polish constitutional crisis. Of constitutional self-defence and judicial empowerment (2016) Polish Law Review Vol. 2(1)
- Wyrzykowski, Bypassing the Constitution or changing the constitutional order outside the constitution (pp. 159-179) in A. Szmyt, B. Banaszak (eds.), Transformation of law systems in Central, Eastern and Southeastern Europe in 1989-2015. Liber Amicorum in Honorem Prof. dr. dres. H. C. Rainer Arnold (Gdańsk University Press, 2016)
- Zubik, A.D. 2015/2016. Anni horribili of the Constitutional Tribunal in Poland, available at http://www.bbcj.eu/d-2015-2016-anni-horribili-constitutional-tribunal-poland
- The report by the Helsinki Foundation for Human Rights, The Constitutional crisis in Poland 2015-2016, available at http://www.hfhr.pl/wp-content/uploads/2016/09/HFHR_The-constitutional-crisis-in-Poland-2015-2016.pdf
 Nevertheless, for the sake of completeness, it must be mentioned that the Tribunal had decided some interesting cases in this category of “ordinary controversies”. In normal constitutional times they would merit our attention. For example, case K 1/13 (elucidating the principles on the creation of trade unions; judgment of 2 June 2015); K 12/14 (right of a physician to refuse performing an operation inconsistent with his conscience; 7 October 2015); P 31/12 (lustration of the judges, 2 April 2015); Kp 1/15 (supervision of the Ministry of Justice over the courts); P 1/14 (pension scheme, 3 November 2015).
 English text of the 1997 Constitution is available at http://www.sejm.gov.pl/prawo/konst/angielski/kon1.htm.
 This section should be read in light of the Introduction above.
 In this case, the Tribunal dealt with the amendments adopted on 22 December 2015 by the Sejm (lower house of the Parliament) to the Law on the Constitutional Tribunal. The amendments aimed again at limiting the Tribunal’s review functions and debilitating its procedural capacities.
 Judgment in K34/15, point10.3 of the reasons, and repeated in K47/15, point 5.3.2. of the reasons.
 See also T. T. Koncewicz, The “emergency constitutional review” and Polish constitutional crisis. Of constitutional self-defence and judicial empowerment (2016), Polish Law Review Vol. 2(1).
 L. Pech, K. L. Scheppele, Poland and the European Commission, Part I: A Dialogue of the Deaf? p. 2 available at http://verfassungsblog.de/poland-and-the-european-commission-part-i-a-dialogue-of-the-deaf/.
 The relevant part of the judgment in K 34/15 reads: “The Tribunal has vital duties pertaining to safeguarding the supremacy of the Constitution, protecting human rights and freedoms as well as preserving the rule of law and the separation of powers”.