Polish Constitutional Court crisis

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By Olivier Bault

Poland, Warsaw – On the 13 of April, the European Parliament adopted a resolution asking Warsaw to publish and to implement the Polish Constitutional Court’s resolutions, so the principles of the rule of law are respected in accordance with European treaties. A resolution voted by a clear majority – with the votes of the extreme-left, the socialists, the liberals, the Greens and the European People’s Party (without the Hungarian Fidesz MEPs that all voted against the resolution). In their text, MEPs refer to the opinion of the Venice Commission (12 March 2016) on 22 December 2015 Amendments to the Act of 25 June 2015 on the Constitutional Tribunal of Poland. The Polish Government itself asked for the Commission’s opinion – that is more nuanced than the European Parliament’s resolution of 13 April – because it recognises that the current crisis was caused by the previous majority, in May/June 2015. So if the crisis is of political origin, the solution should be political.

It should also be noted that European Commission started a «structured dialogue» with Poland, about her Constitutional Court, to ensure respect for the rule of law. That same Commission that asked to the Polish Parliament to suspend its work on reform of the law of 25 June 2015 about Constitutional Court. Of course the Parliament of Poland didn’t complied.

It is unfortunate that the same Commission did not show the same zeal in May/June 2015 when the previous majority, composed by the liberals of the Civic Platform (PO) and the PSL, becoming aware of its very likely defeat in the parliamentary elections of 25 October 2015, had passed a special law for the occasion. A law prepared with the help of the president and two judges of the Constitutional Court, and which allowed the outgoing majority to replace in advance, on 8 October 2015, the fifteen judges of the Court – three judges whose mandates expired on November 6th and two judges whose mandates expired on December 2nd and on December 8th. This would have blocked for a long time the constitutional Court already widely dominated by close relations of the former majority, and among which the president, Andrzej Rzepliński, had even been anticipated as Minister of Justice of the government PO-PSL before he was appointed to the constitutional Court.

President of Poland Andrzej Duda refused to swear in these judges, stating that their appointment was contrary to the Constitution – as the outgoing Parliament claimed the right to appoint judges, right that belonged to the new Parliament.

On November 25th, the new majority of the conservative party Law and Justice (PiS), supported by the opposition party Kukiz’15, declared that the resolutions of October 8th that appointed the five new judges were invalid. The PO opposition, that caused the conflict, brought its own law of June to the Constitutional Court. December 2nd the Polish Diet (the Lower House of parliament, which is competent for the choice of the judges) appointed five new judges whom president Duda swore. The president of the constitutional Court allocated them offices, but he decided at the same time that he would entrust them no court case as long as the legality of their appointment would not have been confirmed.

In a judgement rendered on December 3rd, the constitutional Court then asserted that the law of June actually violated the Constitution, but only regarding the anticipated appointment of the judges whose mandate had to take effect in December. For the Constitutional Court, the appointments as a replacement of the three judges whose mandate ended at the beginning of November were in accordance with the constitution. For the parliamentary majority, nevertheless, the constitutional Court is not allowed by the Polish Constitution to pronounce on the validity of the appointments of the judges made by the Parliament, because the Diet has an exclusive competence on the subject and because it makes it by adopting resolutions – whereas the constitutional Court is allowed to rule only on the constitutionality of the laws.

Since then, President Rzepliński, which term is due to last until next December, has been refusing to assign cases to three of the five judges appointed by the new parliamentary majority. A majority that blames Rzepliński for his political commitment and his lack of duty of confidentiality in the media, and also for his involvement in the preparation of the law of June 2015, that the Constitutional Court recognized later as being partially unconstitutional.

To solve the conflict in its favour, the PiS majority thus voted on December 22nd for an amendment in the law of June 25th on the constitutional Court. The Polish constitution indicates that it is the Parliament that defines the operating procedures of the constitutional Court in the simple majority and it is thus what the parliamentary majority made.

So what are the changes brought to the Polish law which, according to their detractors, are going to establish a “dictatorship” of the parliamentary majority in Poland by blocking de facto the functioning of the constitutional Court? According to the new measures, the constitutional Court has to examine the remedies against the laws voted by the entire Parliament, that is to say thirteen judges at least (on fifteen), and not in small group of some judges chosen by the president of the Court AndrzejRzepliński, maybe according to the wished decision. The second major change is that the appeals must be examined in the order of their reception by the Constitutional court and either in the order decided by the same president of the Court which is one more time accused of having used these last years this privilege to support his former party. The importunate appeals could wait several years whereas those that were wished by the previous government could be almost immediately examined. The third change concerns the dismissal of a judge of the Constitutional court for grave fault or inability. So far the Court was only competent itself. From now on, it is always it which makes the decision to discharge one of the judges, its decision must be approved by the Diet. Besides, the president of the Republic and Minister of Justice can also take the initiative of such a dismissal even if the decision stays itself within the competence of the Constitutional court.

But the problem is, on 9 March 2016 the constitutional Court met with twelve judges (without three litigious judges) to pronounce on the constitutionality of these amendments in the law. One might as well say that the Court was at the same time a judge and party, and its sentence has leaked in the media even before being rendered. There were charges of preliminary consultation of the sentence between the PO judges of the constitutional Court and PO members of parliament of the Diet, however it can be proved. The fact remains that on March 9th the constitutional Court considered that the amendments of December 22nd were unconstitutional and that it is thus always the law of June 25th, 2015 that applies. But as it met without respecting the law (such as modified on December 22nd) regulating its functioning it met to twelve judges instead of the minimum required of thirteen and it did not respect the order of arrival of the recourses to be examined. The government of Beata Szydło refused to publish this sentence. Because for the PiS majority and a part of the constitutional law experts that express themselves in the media, there is not to deal with a judgment but with a simple legal advice returned by a part of the judges of the constitutional Court. The major part of the opposition and the other constitutional law exerts are of a completely opposite opinion and consider that it is the government that violates the constitution by refusing to publish what they consider, them, as a sentence.

Actually the conflict is inextricable on the legal plan, and that is why the Venice Commission was right to notice the necessity of a political agreement between the majority and the opposition. But it is not only in Warsaw that an solution can be found, provided that the big political strengths, including the PiS, find a way to modify together the law on the constitutional Court and also the Polish constitution, so that such a situation cannot happen again. Discussions are in progress, but the mutual charges continue to come from all sides in the media, that does not support no compromise.

The biased and misinformed interventions from Brussels, that at the request of PO members – that are at least co-responsible of the crisis and that the bad faith is quite obvious in this case, can only aggravate things and risk as well to make the Polish conservative right, that is the majority, even more eurosceptical than it already became after the euro crisis, the attacks of Brussels against Hungary since 2010 and current migratory crisis.

Translated from French by the Visegrád Post

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