Sunday

28th Nov 2021

Poland's constitutional crisis looms larger

  • The dispute around Poland's constitutional court has been going on since last year, and is likely to drag on further. (Photo: Lukas Plewnia)

Poland’s constitutional tribunal ruled, on Thursday (11 August), that a government-sponsored bill, aiming to reform the court in question, is partly unconstitutional.

"Not even a democratically elected parliament has the right to pass regulations conflicting with basic law,” judge-rapporteur Andrzej Wrobel announced when presenting the verdict. He added that the Polish constitution of 1997 determines the division of powers between different institutions in the country and must be respected.

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The judges rejected provisions that the court should examine bills in a chronological order rather than by way of importance; that four judges can decide to postpone important verdicts by six months; that the general prosecutor - that is, the minister of justice, after the parliament recently voted to link these two functions - must be present at certain proceedings or the case cannot be heard.

The court also rejected an attempt to stack the court with three judges loyal to the government. These so called ’doubles’ were appointed, by the ruling Law and Justice party, to seats reserved for three judges nominated by the previous parliament - who haven’t been able to take up positions, as president Andrzej Duda never invited them to swear the oath.

Anti-government activists from the Committee for the Defence of Democracy cheered outside the court building for every provision deemed unconstitutional.

But judges also dismissed a number of complaints raised by the Polish opposition, which argued that the bill was unconstitutional because of the way it was adopted. Law and Justice had rushed it through the parliament - having MPs to work day and night - ahead of the Nato summit in Warsaw in early July.

Judges said they will rule on the bill, without the struck down provisions, from 16 August.

But Jaroslaw Kaczynski, leader of the Law and Justice party, dismissed their verdict as "political" and "an act of private nature" already in the eve of its rendering and said that the government wouldn’t respect it.

Hereby, he shattered hopes that Warsaw would give in to international pressure to solve the ongoing constitutional crisis, under which the government won't recognise the constitutional tribunal's rulings. As lower courts have sided with the constitutional tribunal, there are parallel legal systems in Poland.

It wasn’t the first time that the court outlawed Law and Justice efforts to reform the court. A similar scenario unfolded in March, when the court outlawed a previous piece of legislation amending the regulation that is currently in force. The government has so far refused to respect that ruling.

The Law and Justice affiliated speaker of the Senate, Stanislaw Karczewski, announced on Wednesday the need for yet another bill regulating the court - and maybe even constitutional change.

Opposition parties Civic Platform and Modern will furthermore submit another complaint regarding the unconstitutionality of the bill on Friday (12 August).

The Helsinki Foundation for Human Rights, a democracy watchdog, fears it will create legal uncertainties if the bill was applied even in its cut-down form from 16 August.

"As practically all transitional provisions were deemed unconstitutional, there may be problems with the application of the bill in the future," the foundation wrote in a statement.

EU recommendations

The European Commission, recently presented recommendations to the Polish government, saying any reform of the law on the constitutional tribunal should respect the judgements of the same court.

Poland was given until 27 October to address the threats to the rule of law, as identified by the commission. Would Warsaw fail to do so, it could face sanctions such as losing its Council voting rights.

Both Law and Justice and the EU executive insist that any solutions must stem from Poland.

Respect for the rule of law is enshrined in article 2 of the treaty on the EU and fundamental for EU cooperation to work.

EU confrontation with Poland escalates

The EU commission said there is systemic threat to rule of law in Poland and gave new ultimatum. Poland said commission is "losing its authority".

Analysis

EU still shy of 'nuclear option' on values

The EU commission has moved forward with its rule-of-law probe on Poland, but critics say that a better framework is needed to uphold values.

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