Poland – Harsh blow for the liberal opposition and the European Commission

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By Olivier Bault.

Poland – The liberal opposition and the European Commission, which speak of the rule of law being violated in Poland, have lost their main argument. This argument consisted of claiming that the Polish Constitutional Court had lost its legitimacy as a result of PiS maneuvers. The Liberal opposition refused in particular to recognize the validity of the appointment of three judges by PiS after its electoral victory of October 2015. Three judges were appointed in November 2015 by the new parliament to replace the judges appointed by the previous Liberal majority. In order to appoint judges in advance, by taking the role of the upcoming majority, the Liberals had hastily adopted in May-June 2015 a special law whose constitutionality was clearly a problem. When, as a result of these replacements and also the expiry of the nine-year term of other judges appointed by the previous majority, the Constitutional Court had a majority of judges appointed by PiS, the Liberals and the European Commission no longer wanted to recognize the legitimacy of the Polish Constitutional Court.

However, while some judges were also challenging the legitimacy of the current Constitutional Court, two high-ranking Polish courts whose members were not appointed by the current majority have indirectly recognized the full legitimacy of the Constitutional Court and the three appointments made by PiS. Is this the result of an agreement between the President of the Supreme Court and President Andrzej Duda? Prior to the announcement by the latter on July 24 of his veto on two of the three laws of reforms of the judicial institution voted by the Parliament in July, the latter had met the President of the Supreme Court. On August 1, it decided to suspend its cessation proceedings concerning the former head of the anti-corruption bureau (CBA), now chief of intelligence, pardoned by President Duda. The Supreme Court considered in May that this pardon was not valid since the sentencing of the leader of the CBA had not yet res judicata at the time of the presidential pardon. By referring the matter back to the Constitutional Court on August 1, the Supreme Court clearly recognized the legitimacy of the Constitutional Court in interpreting the Constitution.

The second hard blow for the opposition and for Brussels came in the first week of August from the Supreme Administrative Court (NSA), which, in response to the question of a newspaper specialized in legal issues, clarified the status of one of its judges among the three judges in the Constitutional Court appointed in advance by the previous parliamentary majority and replaced by the current majority. This judge was reinstated by the NSA while the Constitution prohibits the judges of the Constitutional Court from practicing in another court. In its reply, the NSA explicitly acknowledged the validity of the resolution of the Polish parliament which invalidated the appointment of this judge to the Constitutional Court, which is equal to acknowledging the validity of all appointments made by PiS.

Since Poland has a functional constitutional court, whose legitimacy is recognized independently by the country’s highest courts, the European Commission is losing its only fallacious argument to interfere in the internal affairs of this sovereign state.

Read also: Polish Constitutional Court Crisis

Originally published on Présent.
Translated from French by the Visegrád Post.

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