Poland’s constitutional conundrum…explained

DISCLAIMER: All opinions in this column reflect the views of the author(s), not of EURACTIV Media network.

Commission First Vice President Frans Timmermans, Polish PM Beata Szydło and collaborators in Warsaw, 24 May 2016. [Polish government website]

Like other European nations, Poland will remain a source of conflicting messages in years to come. But the EU has nothing to worry about – the democratic government in place can be removed in a peaceful manner next time people come to vote, writes Piotr Macej Kaczyński.

Piotr Macej Kaczyński is an independent analyst. He previously worked in think tanks in Warsaw and Brussels dealing with EU institutional and political issues, and has been an advisor to the Polish delegation of the European Parliament’s EPP group.

To explain the controversy over the Rule of Law row between the Commission and Poland, it is necessary to remember the political situation in the country and the various moves which have led to the constitutional crisis.

On 25 October 2015 the PIS (Law and Justice) won the parliamentary elections in Poland by a landslide. For the first time since 1989 the new Polish government is a single party government, led by Beata Szydło. She is the third female prime minister of Poland, which in itself shows the progress this country underwent since 1989 in terms of gender equality. The leader of the PIS party, however, is not Ms Szydło. PIS remains directly controlled by its founder Mr Jarosław Kaczyński, former prime minister and a twin brother of the late president Lech Kaczyński (2005-2010).

The previous government, composed of two EPP-affiliated parties, stayed in power for eight years under the leadership of Donald Tusk (2007-2014) and Ewa Kopacz (2014-2015). When Tusk resigned to take the position of president of the European Council, he left his party under much weaker leadership of Kopacz. She failed to prolong the rule of the Civic Platform (PO) and the Polish People’s Party (PSL) and surrendered the governmental responsibilities to Szydło and the PO party responsibilities to its new leader Grzegorz Schetyna.

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On 10 April 2010 the then-President Lech Kaczyński accompanied by 95 other senior people (generals, ex-president Kaczorowski, members of the Sejm [the lower house of the parliament], etc) died in a plane accident near Smolensk, Western Russia. Ever since the accident PIS has put the issue of solving the ‘mystery’ of the crash as one of the top agenda priorities. Still, in 2010 Jarosław Kaczyński lost the battle to replace his brother as president, to Bronisław Komorowski, and again lost the parliamentary elections in 2011 to Tusk. In 2015 he was not the front man of the electoral campaigns (the presidential in the spring and the parliamentary in the autumn), as for many years he has been considered one of the least-trusted political personalities.

Four main factors have contributed to the PIS victory. First was the general fatigue from the PO-PSL rule, especially among the first-time voters. Second, the fact that the better-off electorate which largely supports PO did not turn out to vote in as many numbers as before. Third was the Smolensk narrative of PIS. And fourth was the terrible defeat of the Left coalition, as no left-wing parties entered the Sejm in the 2015 elections. Their absence from the parliament benefited the elections winners – PIS was able to form a one party government in no time.

The Constitutional affair

Quickly after taking office, PIS took some controversial steps. One of them concerned the membership of Poland’s top Constitutional Court. In the Polish system, the 15 members of the Court are elected for one, nine-year, tenure. In one of its last motions, the PO-PSL dominated parliament passed a new Constitutional Act and elected five members of the Court, replacing three members whose terms were finishing in November and two in December.

The former parliament’s decision to elect the five judges was controversial from the beginning. The PIS MPs from the outset called the new act unconstitutional. Yet just after elections, they changed their mind and re-wrote the act on the Constitutional Court in such a way that would paralyse the institution’s ability to take binding decisions. The amended document also allowed the new parliament to elect the five new judges, completely scrapping the former parliament’s decisions on the matter. In the meantime, President Andrzej Duda (in office since summer 2015) refused to swear in the judges elected by the former parliament.

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The new parliament chose their five judges on 2 December 2015. Just after midnight President Duda swore in four of them (the fifth was sworn in a week later). The following day (3 December) the Constitutional Court pronounced the review of the act of the Constitutional Court by the former parliament, declaring its decision to appoint the two judges whose mandate was expiring in December unconstitutional, while the decision to appoint the judges whose mandate expired in November was considered to be in line with the constitution. A week later the Constitutional Court also reviewed the changes made by the new parliament, considering that it had breached its mandate and should have elected elect two judges, instead of five.

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Poland’s lower chamber of parliament passed a constitutional court law amendment yesterday (22 December) that the supreme court and activists said would undermine the separation of power and paralyse the constitutional court.

Broken Rule of Law?

What seemed like a political fight between PIS on one side and PO-PSL on the other on judicial appointments, quickly turned into a legal struggle, without any authority able to have a final say. The new parliament and President Duda were quick in saying that they could not follow the court’s ruling, since the five judges were already sworn in. After major hesitation (the publication in the official journal was put on hold by the prime minister herself), the government published the court’s rulings. Poland’s top court has now 12 members actively participating in its work. The fate of the last three judges is still on hold. Even if the president has sworn them in, the court’s president refused to allocate them with cases to address.

What seemed like a truce was no peace. Soon after PIS started work on a new Constitutional Court Act. In its standard working method, within two days after a draft act arrived in the Sejm it was voted through by Christmas Eve. On 28 December the new act entered into force. It’s most divisive aspect was that the court should proceed on the most important aspects with 13 members present (while only 12 were undisputed). There were other controversial issues (i.e. there was no vacatio legis, no period between the promulgation of the law and the time when the law comes into effect). The opposition to the draft law came not only from political centrists, but also from legal circles (associations of judges, of attorneys, of councillors, for example.)

On 9 March 2016 the Constitutional Court pronounced the December act unconstitutional in its entirety. Only 12 judges participated in the meeting. Worse, the court did not proceed on the basis of the act it was reviewing. The basis of its action was the constitution itself. This was enough for the Prime Minister Szydło never to publish its ruling. Basically, the PIS argument is that the Court should be reviewing the legality of the December 2015 Act on the Constitutional Court under the proceedings as provided by the December 2015 Act on the Constitutional Court.

The opposition to that argument recognizes the paradox of ruling on a constitutionality on the basis of a potentially illegal act.

While hundreds of thousands of people are protesting against the prime minister’s decision not to proceed with the publication of the Constitutional Court ruling, the court is paralysed and many of its rulings have not been published in the official journal since the December 2015 Act on the Constitutional Court. As a result, Poland lives in a dual legal system. Many of the top judicial leaders stated they would follow the rulings of the Constitutional Court no matter if they are published or not, since the basis for the Court’s ruling is primarily the constitution itself.

The domestic opposition to the government’s actions against the court has been growing since December 2015, when the movement KOD (Committee for the Defense of Democracy) took off with its frequent marches, demonstrations and other activities. The largest of the demonstrations to date took place on 7 May 2016 with a quarter million of people taking to the streets of Warsaw. This was labelled as the largest protest in modern Poland.

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Opposition politicians frequently attend KOD activities. PO and PSL credibility to speak on legality of actions when it comes to electing members of the court back in 2015 was clearly compromised. However, they underline the respect for the finality of the court rulings, even if they lost in the court back in December. The new liberal party .Modern (.Nowoczesna) is also part of the movement. The new protest party Kukiz ’15 is not participating in its activities.

Societal reawakening

The movement against the Government grew very fast. The civil society, the media, the regional authorities, the cities, the judicial organisations – at various levels what we have seen is a societal reawakening. However, PIS remains highly popular among the general public. From time to time there are counter-demonstrations organized by the pro-government partisans. For them, the KOD & al. are just a whining opposition protective of their own benefits, unworthy to talk to.

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The government recognises there is a crisis. It attempts to solve it by talking to the parliamentary opposition, but without giving any substantial compromises. The leverage the opposition has is limited only to the fact that PIS cannot change the constitution, as it would like to. It seems there are no backdoor channels of communication between the parliamentary parties. Hence both sides reached out to the outside world for help.

The Polish foreign minister asked the Venice Commission to have a look at the December 2016 Act on the Constitutional Court. The Venice Commission concluded that the government should publish the Court’s 9 March ruling. The Council of Europe Secretary General Thorbjørn Jagland said in April that the Polish Constitutional Court was paralysed.

‘Good changes’

Since the beginning of the year the European Parliament has been closely monitoring the developments. Prime Minister Szydło participated in the plenary debate in January laying out her views on the matter.

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In her narrative, the democratic government of Poland was elected to introduce the “good changes” and the opposition and the world outside should respect it. “Good changes” became a slogan for all the PIS actions. Again in April the parliament adopted a resolution calling on the Polish government to respect the rule of law principle in general, and publish the Constitutional Court ruling of 9 April.

The European Commission has been engaged in a dialogue with the Warsaw government since the beginning of the year on the rule of law situation. By 1 June it concluded its negative opinion about the developments in Poland.

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The EU today (1 June) formally warned Poland that it should find a solution to roll back Warsaw’s overhaul of the top Polish court, which critics say endangers its independence.

One of the most important aspects of that opinion was the publication of the ruling of the Constitutional Court. This is the second stage in the three stage process before the issue is addressed by the Council of Ministers. Currently the Warsaw government faces pressure on timing to solve the problem domestically.

On that, the PIS Government and the European Commission agree: the crisis exists and should be solved domestically. However, Law and Justice does not see why the Commission is pursuing its actions against Poland on the rule of law principle. This political crisis should be solved domestically, but the PIS politicians say that it was started by the opposition back in 2015 and by now, the Constitutional Court became a party in the conflict.

The confrontation between the two philosophies was never clearer than on a day the Sejm adopted a resolution on sovereignty (20 May). The PIS MP Maciej Małecki said: “it is the Sejm’s duty to take a decisive position against the attempt to limit the Polish sovereignty” as referring to the Commission-led rule of law proceedings. Prime Minister Szydło added: “We want Europe to respect our sovereignty the same way it respect everybody else’s”. On the other hand, the leader of .Modern Ryszard Petru MP accused the prime minister of in fact initiating the process of leaving of the EU.

Poland shrugs off EU warning

Poland downplayed the EU’s unprecedented warning on Thursday (2 June) to the country’s right-wing government to respect the rule of law, or face punitive measures. EURACTIV Poland reports.

Investors weary

It is a developing story. It seems the Commission got it right. The point of using Article 7 is not to punish the government in question. The point of using this article is to initiate a constructive dialogue that helps the government in question in getting out of a paradoxical situation.

It does not seem, however, that the parties in question truly want to solve the problem. The issue of the legality of judges may, in fact, be removed by the latest attempt to re-write the act on the Constitutional Court once again. It is not in the Polish interest for the crisis to become perpetual. The Deputy-Prime Minister in charge of the economy, Mateusz Morawiecki, admitted recently that some 20% of investors were hesitant to invest in Poland depending on the solution to the constitutional crisis.

Whatever solution to the constitutional crisis, there are a few other outstanding issues, including the civil servants law, media law, the reform of the judiciary (upcoming) and the fact that the minister of justice has become (again) Poland’s top prosecutor.

As other European nations, Poland will remain a source of conflicting messages in years to come. On the one hand there is a democratic government in place that can be removed in a peaceful manner next time people come to vote (which is not comparable to the Russian or Turkish cases). On the other hand, Poland is no Hungary and there is no Jobbik-type political force as an alternative to the current government. The opposition seems to be vibrant and has plenty of room to organise itself, it can present its views and argue its case. The the civil society outfit, the Committee for the Defence of Democracy (KOD) was just awarded the European Parliament’s Citizens Prize on 2 June – to the delight of its members and to the disgust of those on the other side.

The main conclusion is that the Warsaw government will no longer hit above its weight. The current government is already on the defensive in Brussels. Some critics of the PIS leader say Jarosław Kaczyński political philosophy is a ‘continuous conflict.’ If so, the future of Poland in the EU is not fully predictable.

He remains the person behind the puppets. If he decides this conflict needs to end, it shall…until the next round.

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