Is Poland’s constitutional tribunal crisis over?

Posted on January 19, 2017 by The Constitution Unit

With one of the judges elected by the current parliament taking over as its new president, and the opposition losing interest in the issue, the political conflict surrounding Poland’s constitutional tribunal is moving into a new phase, writes Aleks Szczerbiak. Although the European Commission is very unlikely to secure support for EU sanctions against Poland, some tribunal members appointed by previous parliaments could boycott cases involving contested judges elected by the new one.

The bitter conflict over the membership and functioning of the constitutional tribunal, a powerful body that rules on the constitutionality of Polish laws, has dominated the political scene since the right-wing Law and Justice (PiS) party came to office following its victory in the October 2015 parliamentary election. The most serious constitutional crisis to affect the country since the collapse of communism in 1989 began almost immediately after Law and Justice took office in November. The new government decided to annul the appointment of five judges to the 15-member body by the previous parliament – dominated by the centrist Civic Platform (PO), the former ruling party – who were to replace those whose terms of office expired that month and in December. Earlier these judges were unable to assume their posts because Law and Justice-backed President Andrzej Duda, who questioned the legality of their appointment, did not accept their oaths of office.

However, the tribunal itself ruled that while the appointment of the two judges replacing those whose terms expired in December was unconstitutional the other three were nominated legally. The government, in turn, argued that the tribunal did not have the right to make judgments about the constitutionality of parliamentary appointments, and Mr Duda swore in five judges elected by the new parliament instead. Tribunal president Andrzej Rzepliński responded by only allowing those two filling the December vacancies to assume their duties.

Law and Justice tried to break this impasse by amending the constitutional tribunal law to increase the number of judges required to make rulings in the most important cases from nine to thirteen; thereby hoping to oblige Mr Rzepliński to recognise all of those appointed by the new parliament. The so-called ‘repair law’ also increased the threshold for tribunal rulings to a two-thirds majority, making the votes of these new appointees more significant. However, in March 2016 the tribunal decided that it was empowered by the Constitution to ignore these amendments and declared the ‘repair law’ unconstitutional. The government, in turn, said that the tribunal had no power to review the law (as the Constitution stipulates its rules are regulated by parliamentary statute), which had come into effect as soon as it was passed, and refused to publish the judgement in the official journal, a necessary step for tribunal rulings to become legally binding.

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Is there an end in sight to Poland’s constitutional crisis?

Posted on August 8, 2016 by The Constitution Unit

Poland’s constitutional tribunal crisis escalated last month when the European Commission initiated the next stage of its rule of law procedure calling upon the country’s government to take action or face possible sanctions. But while the crisis is forcing the ruling party to expend political capital defending its position, it does not show any signs of backing down. Aleks Szczerbiak provides an update.

An escalating crisis

The row over Poland’s constitutional tribunal, a powerful body that rules on the constitutionality of laws, is the most serious constitutional crisis to affect the country since the collapse of communism in 1989. It began when, immediately following its victory in last October’s parliamentary election, the new government led by the right-wing Law and Justice (PiS) party annulled the appointment of five judges elected by the previous parliament to the 15-member tribunal. Earlier these judges were unable to assume their posts because Law and Justice-backed President Andrzej Duda did not accept their oaths of office. The move met with widespread criticism from most of the opposition and legal establishment who accused the government of violating judicial independence. The government’s supporters, however, placed the blame for the crisis squarely on the outgoing administration, led by the centrist Civic Platform (PO) party, which they argued tried to appoint five judges illegally just before the election to pack the tribunal with Law and Justice opponents.

However, the tribunal itself ruled that while the appointment of the two judges replacing those whose terms of office expired in December was unconstitutional the other three were nominated legally. Government supporters, in turn, argued that the tribunal did not have the right to make judgements about the constitutionality of parliamentary appointments, and Mr Duda swore in five judges nominated by the new parliament instead. Tribunal president Andrzej Rzepliński responded by declaring that the five would not participate in its work, although he subsequently allowed two of them to do so.

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Poland’s constitutional crisis has no end in sight

Posted on March 31, 2016 by The Constitution Unit

Last November a constitutional crisis was triggered in Poland after the new government led by the right-wing Law and Justice party annulled five appointments to the country’s powerful constitutional tribunal made by the previous government. Aleks Szczerbiak provides an update on recent developments and suggests that, with neither the government or its opponents showing any sign of backing down, a solution is unlikely to be imminent.

Poland’s constitutional crisis began last November when, immediately after taking office, the new government led by the right-wing Law and Justice (PiS) party decided to annul the appointment of five judges elected by the previous parliament to Poland’s 15-member constitutional tribunal to replace those whose terms of office were due to expire that month and in December. The tribunal is a powerful body that rules on the constitutionality of laws. Earlier these new judges were unable to assume their posts because Law and Justice-backed President Andrzej Duda did not accept their oaths of office. The move met with widespread criticism from most of the opposition and legal establishment, who accused the government of violating judicial independence. The tribunal’s critics, however, see it as a highly politicised body that struck down key elements of the previous Law and Justice-led government’s legislative programme. They placed the blame for the crisis squarely on the outgoing government, led by the centrist Civic Platform (PO) party which, they argued, tried to appoint five judges illegally just before the October parliamentary election to pack the tribunal with opponents of Law and Justice.

However, the tribunal itself ruled that while the appointment of the two judges replacing those whose terms of office expired in December was unconstitutional the other three were nominated legally. Government supporters, in turn, argued that the tribunal did not have the right to make judgments about the constitutionality of parliamentary appointments, and Mr Duda swore in five judges nominated by the new parliament instead. Tribunal president Andrzej Rzepliński responded by declaring that the five would not participate in its work, although he subsequently allowed two of them to assume their duties.

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