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.