Monday

19th Feb 2018

Opinion

Moment of truth in Polish constitutional dispute

  • Even Kaczynski, the powerful PiS party leader, has showed signs he's willing to back down (Photo: marcin ejsmont)

The ruling Law and Justice (PiS) party in Poland suffered two major setbacks this week.

On Wednesday (9 March), the nation’s Constitutional Tribunal declared a sweeping amendment limiting the tribunal’s powers to be unconstitutional.

Thank you for reading EUobserver!

Subscribe now for a 30 day free trial.

  1. €150 per year
  2. or €15 per month
  3. Cancel anytime

EUobserver is an independent, not-for-profit news organization that publishes daily news reports, analysis, and investigations from Brussels and the EU member states. We are an indispensable news source for anyone who wants to know what is going on in the EU.

We are mainly funded by advertising and subscription revenues. As advertising revenues are falling fast, we depend on subscription revenues to support our journalism.

For group, corporate or student subscriptions, please contact us. See also our full Terms of Use.

If you already have an account click here to login.

On Friday, the Venice Commission, an advisory body to the Council of Europe in Strasbourg, issued a powerful concurrence. Like the Polish court, it did not find a single major provision of the amendment, passed by PiS last December, consistent with European principles of democracy and the rule of law.

The twin decisions bring about a moment of truth for PiS. The party can either retreat from its overreach and try to implement its reform agenda within the current constitutional framework or set Poland on the path to authoritarianism.

Warsaw’s international partners should strongly support the moderate course without risking their own “liberal overreach”.

In a general election last October, PiS and its anti-establishment allies failed to gain the 2/3 majority required to amend the constitution. Because of that, the party initiated a concerted effort to take control of the country’s Constitutional Tribunal.

If successful, PiS would be able to ignore constitutional constraints without formally changing the basic law.

PiS strategy has been twofold. Firstly, they tried to stuff the court with a compliant majority by annulling the election of five judges chosen by the previous, centrist parliament.

'Combined effect'

In a decision in early December, the court held that this attempt was illegal as far as three judges were concerned. In its Friday opinion, the Venice Commission agreed.

In light of both decisions, Poland’s president Andrzej Duda, should promptly swear in the duly elected judges.

Secondly, PiS instituted procedural reforms aimed at stripping the court of much of its real power. Under the December amendment, most cases would need to wait at least six months before being decided.

The cases would need to be reviewed, without exception, in an order of filing. Even after the waiting period, a law could be declared unconstitutional only by a two-thirds majority of the full court.

The Venice Commission found that the “combined effect” of all these measures would make the tribunal utterly “ineffective as a guarantor of the constitution.”

In its Wednesday ruling, the tribunal itself reached the same conclusion. Taken together, these reforms amounted to an attempt to change the country’s constitutional system by in effect eliminating the tribunal as a meaningful check on the legislative and executive powers.

As the events of the last few months unfolded, PiS faced a barrage of negative press in international media. But commentators often failed to notice that PiS is far from consistent in its strategy towards the court.

Cooler heads

At times, the party’s leaders seem determined to defy Western pressure and complete the evisceration of the court at any cost. The latest example of this approach is prime minister Beata Szydlo's refusal to publish Wednesday’s decision of the tribunal in the official gazette.

At other times, however, there are signs that cooler heads may prevail. The opinion of the Venice Commission was issued on the request of PiS’ own foreign affairs minister, Witold Waszczykowski. Right-wing media harshly criticised Waszczykowski for making the request, but PiS leader Jaroslaw Kaczynski made it clear that the minister would keep his position.

A few days ago, another senior PiS politician openly suggested a compromise, which would include swearing in all the three judges elected by the previous parliament.

Even the current calls for ignoring the legal duty to publish the tribunal’s ruling resemble similar statements made by PiS in December after two other unfavourable decisions. In each case, however, the government ultimately relented and complied with the law.

The moderate course appears even more feasible if we consider the longer-term interests and aspirations of PiS leaders.

Just a few weeks ago, Mateusz Morawiecki, the powerful deputy prime minister leading the government’s economic team, unveiled an ambitious plan for closing the gap separating Poland from the West by investing in home-grown innovation and selected competitive strengths.

More than half of the projected €200 billion to be spent on the Morawiecki Plan will have to come from EU funds.

President Duda, likewise, counts on the West to deliver the likely highlight of his presidency - the Nato summit to take place in Warsaw this July.

During this extraordinary meeting, Duda plans to lean heavily on Poland’s closest allies, the United States and Britain, to secure the creation of permanent Nato bases in Poland.

It is difficult to imagine how PiS leaders can achieve their economic and security priorities without compromising on the Constitutional Tribunal. The European Commission has already opened an investigation on whether PiS’ actions represent a breach of EU democratic principles.

Meeting his Polish counterpart Waszczykowski in February, US secretary of state John Kerry underlines his expectation that Warsaw would treat the recommendations of the Venice Commission seriously.

Even Syed Kamall, a British conservative MEP who defended PiS during a debate in the European Parliament in January, urged the Polish government “to work constructively” with the commission.

Path between two extremes

After the Venice Commission’s unambiguous verdict, PiS can no longer equivocate and play for time. Poland’s Western partners should seize on this moment to strongly back the moderate elements in Poland’s ruling party.

At the same time, the West should avoid humiliating PiS, especially by overreaching with its own demands.

In international commentary, a number of issues are commingled into one anti-PiS narrative. The issues include PiS’ takeover of public media and state prosecutors’ service, expanded domestic surveillance, and incendiary statements by governmental officials on immigration or social issues.

Yet these issues are qualitatively different from the assault on the Constitutional Tribunal. With its independence ensured, and its decisions respected, the tribunal would be able to deal with real threats to human rights or democratic values posed by PiS legislation.

At the same time, it would be much better positioned than Western governments and commentators to separate serious constitutional problems from ordinary, even if ill-advised, policy choices or rhetoric.

The West should find a path between two extremes: declaring any involvement in Poland’s internal affairs unfeasible and trying to convert PiS into a liberal mascot.

Last October, Poles set a right-wing, anti-establishment course for their country. This choice should be respected but it should also not infringe on the country’s constitutional and international obligations.

Maciej Kisilowski is assistant professor of law and public management at Central European University in Budapest

Poland's constitutional dispute escalates

Activists have begun camping outside the prime minister's office in Warsaw after the government refused to recognise a ruling by the Constitutional Tribunal.

MEPs to warn of risk to Polish democracy

Polish authorities have put "constitutional democracy" at risk, says a draft resolution to be voted on in the EU Parliament. It calls for further action if they don't change tack.

News in Brief

  1. Report: Daimler also cheated with diesel
  2. Bulgarian government condemns far-right march in capital
  3. Latvia's central bank chief under arrest
  4. Merkel: Nord Stream 2 pipeline poses 'no danger'
  5. Spanish king in Barcelona next week
  6. Turkey jails journalists for life
  7. Make budget cuts in farm and regional funds, the Dutch say
  8. UN: Hungary's anti-migration bill is 'assault on human rights'

Stakeholders' Highlights

  1. European Jewish CongressAt “An End to Antisemitism!” Conference, Dr. Kantor Calls for Ambitious Solutions
  2. UNESDAA Year Ago UNESDA Members Pledged to Reduce Added Sugars in Soft Drinks by 10%
  3. International Partnership for Human RightsUzbekistan: Investigate Torture of Journalist
  4. EPSUMovie Premiere: 'Up to The Last Drop' - 22 February, Brussels
  5. CESICESI@Noon on ‘Digitalisation & Future of Work: Social Protection For All?’ - March 7
  6. UNICEFExecutive Director's Committment to Tackling Sexual Exploitation and Abuse of Children
  7. Nordic Council of MinistersState of the Nordic Region 2018: Facts, Figures and Rankings of the 74 Regions
  8. Mission of China to the EUDigital Economy Shaping China's Future, Over 30% of GDP
  9. Macedonian Human Rights Movement Int.Suing the Governments of Macedonia and Greece for Changing Macedonia's Name
  10. Dialogue PlatformBeyond the Errors in the War on Terror: How to Fight Global Militarism - 22 February
  11. Swedish EnterprisesHarnessing Globalization- at What Cost? Keynote Speaker Commissioner Malmström
  12. European Friends of ArmeniaSave The Date 28/02: “Nagorno-Karabakh & the EU: 1988-2018”

Latest News

  1. MPs demand Council become more transparent
  2. Eurogroup starts process to pick new ECB chiefs
  3. 'Fact of life': some EU funding in new tech will get lost
  4. EU asks charities to explain anti-abuse measures
  5. ECB, Budget, EU elections This WEEK
  6. EU states stay mute on implementation of mercury bill
  7. Baltic states demand bigger EU budget
  8. Germany raises concerns over Hungary's 'Stop Soros' bills

Stakeholders' Highlights

  1. European Heart NetworkSmart CAP is Triple Win for Economy, Environment and Health
  2. European Free AlllianceEFA Joined the Protest in Aiacciu to Solicit a Dialogue After the Elections
  3. EPSUDrinking Water Directive Step Forward but Human Right to Water Not Recognized
  4. European Gaming & Betting AssociationGambling Operators File Data Protection Complaint Against Payment Block in Norway
  5. European Jewish CongressEJC Expresses Deep Concern Over Proposed Holocaust Law in Poland
  6. CECEConstruction Industry Gets Together to Discuss the Digital Revolution @ the EU Industry Days
  7. Mission of China to the EUChina-EU Relations in the New Era
  8. European Free AlllianceEnd Discrimination of European Minorities - Sign the Minority Safepack Initiative
  9. Centre Maurits Coppieters“Diversity Shouldn’t Be Only a Slogan” Lorant Vincze (Fuen) Warns European Commission
  10. Dialogue PlatformWhat Can Christians Learn from a Global Islamic Movement?
  11. European Jewish CongressEJC President Warns Europe as Holocaust Memory Fades
  12. European Free AlllianceNo Justice From the Spanish Supreme Court Ruling

Stakeholders' Highlights

  1. Nordic Council of MinistersNordic Solutions for Sustainable Cities: New Grants Awarded for Branding Projects
  2. Mission of China to the EUTrade Between China, Belt and Road Countries up 15%
  3. Nordic Council of MinistersOresund Inspires Other EU Border Regions to Work Together to Generate Growth
  4. Mission of China to the EUTrade Between China, Belt and Road Countries up 15%
  5. AJC Transatlantic InstituteAJC Calls on EU to Sanction Iran’s Revolutionary Guards, Expel Ambassadors
  6. ILGA EuropeFreedom of Movement and Same-Sex Couples in Romania – Case Update!
  7. EU2017EEEstonia Completes First EU Presidency, Introduced New Topics to the Agenda
  8. Bio-Based IndustriesLeading the Transition Towards a Post-Petroleum Society
  9. ACCAWelcomes the Start of the New Bulgarian Presidency
  10. Mission of China to the EUPremier Li and President Tusk Stress Importance of Ties at ASEM Summit
  11. EU2017EEVAT on Electronic Commerce: New Rules Adopted
  12. European Jewish CongressChair of EU Parliament Working Group on Antisemitism Condemns Wave of Attacks