Contemporary Issues Poland’s P o l i Constitutional Crisis: c y B Facts and interpretations r i e f Marcin Matczak w w w . f l j s . o The Foundation for Law, Justice and Society r g in association with the Centre for Socio-Legal Studies and Wolfson College, University of Oxford www.fljs.org The Foundation for Law, Justice and Society © The Foundation for Law, Justice and Society 2018 Executive Summary This policy brief presents the crucial events of ‘the Polish constitutional crisis’, and what has been widely described as a backsliding on the part of Poland into authoritarianism. It attempts to explain the nature and possible causes of the crisis, offering three explanations: (1) historical, originating from the smooth, non-punitive nature of the post- Communist transition; (2) legal, relating to the excessive formalism of Polish legal culture; and (3) sociological, as a crisis of liberalism and of political identification among the youth and across society at large. POLAND’S CONSTITUTIONAL CRISIS: FACTS AND INTERPRETATIONS . 1 Poland’s Constitutional Crisis: Facts and interpretations Introduction response was premature because a constitutional review of the previous appointments was already The Polish constitutional crisis began in November underway, and it was disproportionate because 2015, just after Poland’s governing party Prawo I three out of five of the previous appointments were Sprawiedliwosc (which translates as Law and Justice absolutely compliant with the Polish Constitution. and is commonly abbreviated to PiS) won the country’s parliamentary elections, and is characterized Some of the events that took place at the beginning by two principal phases. The first stage consisted in of December 2015 would not seem out of place in a cancelling the earlier appointment of five political thriller. In a late-night sitting just before the Constitutional Tribunal judges and packing the Constitutional Tribunal was to assess the Constitutional Tribunal with new judges, as well as in a constitutionality of the appointments, the lower series of attempts to commandeer the Constitutional House of Parliament (the Sejm) cancelled the Tribunal by enacting six bills intended to paralyse its appointments of the judges elected by the previous operations. This first stage ended in December 2016, Parliament and appointed five new ones. The newly when the new head of the Constitutional Tribunal was appointed judges rushed to the presidential palace appointed by the President of the Republic. to be sworn in by the President later that night, and then rushed from the palace to the Constitutional The second stage of the crisis started at the Tribunal building to take on their duties. The newly beginning of 2017 and consisted in the political appointed judges were accompanied by the agents takeover of the National Council of the Judiciary, a of the Government Protection Bureau into the constitutional body responsible for protecting the Constitutional Tribunal building and given office independence of judges, and for their appointment space, despite the doubts concerning the legality of and promotion, as well as in commandeering the their appointments. Supreme Court. The following day, the Constitutional Tribunal issued Stage I: Legislative offensive against the its awaited verdict confirming that three out of the Constitutional Tribunal five previous appointments were entirely constitutional. It was against such a verdict that the The first crucial event of the Crisis came when the Parliament had taken such extraordinary eleventh- newly elected Parliament, in which PiS gained a hour measures. Despite the positive verdict, the majority, cancelled the appointment of the five President refused to swear in the previously Constitutional Tribunal judges made by the previous appointed judges on the grounds that all fifteen Parliament. Just after this, the new Parliament places in the Constitutional Tribunal were now appointed five new Constitutional Tribunal judges. In already occupied, thanks to the late-night fact, the previous Parliament had overstepped its appointments. This resulted in a legal limbo: three constitutional rights, as it only had the right to legally appointed judges could not take their places appoint three, not five judges to the Constitutional in the Constitutional Tribunal, and meanwhile the Tribunal. However, the new Parliament’s response President of the Constitutional Tribunal, Andrzej was both premature and disproportionate, and Rzepliński, did not assign cases to the three pseudo- constituted a clear example of court-packing. The judges with whom PiS had packed the court. 2 .POLAND’S CONSTITUTIONAL CRISIS: FACTS AND INTERPRETATIONS The months that followed were marked by a Judiciary and the Supreme Court, began in January permanent conflict between the Parliament and the 2017. After Rzepliński’s retirement, the Constitutional PiS government on the one side and the Tribunal was fully taken over by PiS with their Constitutional Tribunal on the other. The appointment of a new head, Julia Przylebska, and government refused to publish the critical deputy head, who was one of the pseudo-judges. Constitutional Tribunal verdict and neglected others. This raised significant constitutional doubts, not They also made six attempts to paralyse the least because Rzepliński’s Deputy, Judge Biernat, operation of the Constitutional Tribunal by should have replaced him after his retirement. legislative enactments. Predictably, the first decision of the new head of the The key moment of the Crisis took place in March Constitutional Tribunal was to allow the three 2016, when the Constitutional Tribunal heard the pseudo-judges to sit on its panels. Somewhat less case concerning the constitutional review of the PiS predictably, several weeks later, the new head government’s amendment to the Constitutional suspended three judges appointed in 2010 in Tribunal law. The Constitutional Tribunal operated response to the Minister of Justice questioning the without the three pseudo-judges in the panel and legality of their appointment. In a further move to refused to base their operations on the procedure clear the decks, Ms Przylebska forced Judge Biernat stipulated by the new law while assessing it. Instead, to take leave from his duties. the Constitutional Tribunal based its proceedings directly on the Polish Constitution. The The result of these three actions was that the Constitutional Tribunal’s objective was to avoid a Constitutional Tribunal operated with eleven judges, Catch-22 situation: if it were to base its proceedings six of whom were appointed by the PiS government. on the new rules and then find them Such a configuration allowed for the setting up of unconstitutional, the legal validity of that very new panels or changing the previously set panels verdict would be undermined. (the latter with no legal basis) in a way which ensured a majority of the judges elected by PiS on The Constitutional Tribunal’s verdict was to strike each one. down the amendments proposed by the government. However, its decision not to apply the new law when The commandeering of the Constitutional Tribunal simultaneously assessing it provided the Prime allowed the PiS government not only to remove an Minister, who claimed that the verdict was obstacle to promoting their often-unconstitutional procedurally flawed, with a justification for not policies but to actively use the Constitutional publishing it. This claim was made with little regard Tribunal for political ends. A particularly shocking for the fact that the verdicts of the Polish example of this – and the next step in undermining Constitutional Tribunal are final and irreversible by any the rule of law — took place on 20 June 2017, when authority, including a hostile head of government. the Tribunal heard a case concerning the election of the National Council of the Judiciary of Poland. This Andrzej Rzepliński, the Head of the Polish constitutionally enshrined body is responsible for Constitutional Tribunal, played a crucial role during preserving the autonomy of Poland’s courts and the this first year of the crisis. Not only did he bar the independence of its judiciary; its main power is to pseudo-judges from sitting on the Constitutional appoint new judges and make decisions regarding Tribunal panels, he also strongly criticized the PiS the promotion of currently serving ones. government for undermining the rule of law. Rzepliński’s term of office ended in December 2016, The Constitutional Tribunal decided that certain and with it ended the first stage of the Crisis. provisions of the Act governing the National Council of the Judiciary were unconstitutional. By doing so, Stage II: Assault on the independence of the the Tribunal conceded to the motion of the Minister judiciary of Justice, who had questioned those provisions in the course of work on reform of the Council. The The next stage of the Crisis, comprising the motion to the Constitutional Tribunal was a commandeering of the National Council of the smokescreen to confuse the public and allow the POLAND’S CONSTITUTIONAL CRISIS: FACTS AND INTERPRETATIONS . 3 government to take control of the courts at a lower Popular protests and presidential power grabs political cost. And so, with the help of the recently Following huge street protests in summer 2017 subjugated Constitutional Tribunal, the Minister against the legislative changes, President Duda received a carte blanche to demolish the body vetoed the draft legislation that would have allowed