A New Chapter in the Polish Crisis: Tribunal Changes 'Unconstitutional'

The Tribunal found the amendment to the Constitutional Tribunal Act, adopted by the Parliament in December, to be entirely unconstitutional.
The Constitutional Tribunal heard on March 8 and 9 the complaints submitted by the national ombudsman, the president of the Supreme Court, the National Council of the Judiciary of Poland and two groups of MPs with regard to the amendment to the Constitutional Tribunal Act.

The controversial reform aimed at paralyzing the work of the Constitutional Tribunal, but that court has now ruled that the entire amendment is unconstitutional.

Although the judgments of the Constitutional Tribunal are final and binding, the representatives of the government have already stated that the judgment will not be published in the Journal of Laws.

“In Poland, after the ruling of the Constitutional Tribunal from March 9 and the statements from the representatives of the government, the constitutional crisis is escalating” – says president of the HFHR, Danuta Przywara.

Appointment of judges

The constitutional crisis that began a couple of months ago in Poland has two aspects. One of them is related to the process of appointing judges to the Constitutional Tribunal.

The Constitutional Tribunal is composed of 15 judges appointed for the nine-year tenure. In June 2015, the former Parliament adopted the act that enabled the Sejm (lower house of the Parliament) to appoint five judges to the Constitutional Tribunal. In November 2015, the tenures of three judges expired and in December 2015, the tenures of another two judges expired.

The amendment to the Constitutional Tribunal Act came into force in August 2015, and in October 2015, during one of the last sessions of the Parliament, the former governing majority appointed five new judges in a single session.

After the parliamentary elections in October 2015, new President Andrzej Duda stated that he would not swear into office the five judges because he had serious doubts regarding the procedure of their appointment.

One of the first steps undertaken by the new governing majority was to appoint five new judges. The Parliament adopted resolutions revoking the appointment of the previous five judges and, after changing the procedural rules of the Sejm, appointed five new judges in December 2015. The President immediately - that same night - swore them into office.

The government changed the rules of the Sejm, the lower house of Parliament, to ease its appointment of five new judges.  (Image: Kancelaria Premiera)

In light of this judgment, at the beginning of January 2016, the president of the Constitutional Tribunal announced that two of the judges appointed in December 2015 by the new governing majority were assigned to cases. Right now the Constitutional Tribunal is composed of 12 active judges.

Controversial changes

Another aspect of the constitutional crisis is related to the amendment of the Act on the Constitutional Tribunal. At the end of December 2015, at an accelerated pace and without any public consultation, the Sejm adopted the amendment to the Act on the Constitutional Tribunal.

The amendment introduced numerous controversial provisions. Under the new act, the Constitutional Tribunal is supposed to make decisions in the majority of cases sitting in full bench, composed of 13 judges instead of the previous 9-judge full bench.

The Helsinki Foundation for Human Rights submitted an amicus curiae brief regarding the proceedings. In the brief, the HFHR said that if such a hasty legislative process is to be adopted for similar laws in the future, it would "put the stability of the constitutional system in jeopardy which may amount to a violation of the principle of a democratic state ruled by law."

Tribunal’s ruling

The Tribunal, in a panel of 12 judges, delivered its ruling on March 9. The court said that it could not perform its work under the new act and found it unconstitutional in every respect.

The Tribunal ruled that the amendments to the act, and the manner in which they were passed through Parliament, violated the constitution.

The legislative process was rushed to such an extent that it was impossible to effectively evaluate the draft bill, even though widespread opinion held it to be unconstitutional, the court said.

Another unconstitutional aspect, according to the ruling, was the fact that the act entered into force on the date of its publication.

The court said that it could not perform its work under the new act and found it unconstitutional in every respect. (REUTERS/Kacper Pempel)


The Tribunal also noted that the requirement to hear most cases with a full bench slows down the procedure, and the rules of assigning cases to particular panels of judges were not based on any rational criteria. The provision of hearing cases chronologically as they are brought to court was also criticized by the Tribunal:

"[Legislators must] create the best possible environment for deciding cases instead of interfering with the process of ruling by setting dates by which the Tribunal may investigate a particular case."

The same conclusion was drawn regarding the regulation that trials can be held no earlier than three to six months after the parties have been notified.

Reactions

Representatives of the government say that the Tribunal’s ruling is only "a message from judges" and that it is not binding. Prime Minister Beata Szydło claims that it is in fact the ruling itself that is incompatible with Polish law.

She said even before the hearing that she wouldn't be publishing the ruling upon its release. "The message that some of the judges will present tomorrow will not be a ruling in accordance with the law. With regard to that, I cannot violate the Constitution by publishing such a document."

In his response to the ruling, the minister of foreign affairs, Witold Waszczykowski, said, "The President of the Constitutional Tribunal seems to behave more and more like an ayatollah from Iran."

The ombudsman, Adam Bodnar, said after the hearing of the Tribunal: "If the ruling is not published, we would enter the realm of legal chaos, a world where particular standards of the rule of law would not be in force."

Minister of Foreign Affairs Witold Waszczykowski said the head of the Constitutional Tribunal was behaving like an ayatollah from Iran. (Image: Polish Institute of International Affairs - Flickr/CC content)

Two legal systems

According to the Helsinki Foundation for Human Rights, the current constitutional crisis in Poland puts the rule of law in jeopardy. The purpose of not recognizing the Tribunal’s ruling is to undermine its political position that, as the HFHR claims, would lead to a serious rupture in the legal system.

The president of the HFHR, Danuta Przywara said, "I am afraid that in the worst scenario, there would be two legal systems. One that does not recognize the Tribunal’s rulings - the government and its whole administration - and the other that does, part of the judicial system."

According to the HFHR, the current crisis seriously violates human rights, and it needs international attention. "Yet, the solution is simple – it is enough to implement the rulings of the Tribunal," said Ms Przywara. "But that doesn't look like it will happen any time soon."