Polish crisis and people’s protests: Will the Executive succeed in suppressing Judiciary and Democratic Convention
The Polish crisis is brewing since 2015 and it got momentum as authoritarian politics became a global trend in the following years. Poland, an erstwhile communist country, is relatively new entrant in the European Union and in the list of democratic regimes. The present political crisis is a battle for appointing the judges in the Constitutional Tribunal of the country. Government did not follow the norms in appointing judges to the tribunal. According to polish law, judges of Constitutional Tribunal should be elected by parliament, which is governing when terms of previous judges expire. This convention was violated by the ruling party Platforma Obywatelska (PO). In October 2015 PO appointed five Constitutional Tribunal judges. These appointments included replacement of three judges whose terms were not due to expire until after first possible date of meeting of new parliament and two judges whose terms were not due to expire until after last possible date of meeting of new parliament.
Civic Platform was predicted to lose the upcoming elections. After the Law and Justice (Prawo i Sprawiedliwość, PiS) party won the parliamentary election, it made its own appointments to the court, arguing that the previous appointments of the five judges by PO were unconstitutional. In December, PiS changed the court’s decision-making power by prescribing a two-thirds majority vote and mandatory participation of at least 13 of the 15 judges on the Constitutional Tribunal.
The appointments and amendments caused domestic protests and counter-protests in late December 2015 and early January 2016; one of the most significant outcome was the creation of the Committee for the Defence of Democracy protest movement. The law changes were criticized by the European Union representatives as threatening the rule of law and the human rights of Polish citizens.
First the ruling Civic Platform Party violated the convention for appointment of judges
On October 8, 2015 the outgoing Polish Parliament (Sejm), led by Civic Platform (PO) as the main party of the governing coalition, elected five new Constitutional Tribunal judges. The judges were chosen on the basis of a law passed earlier in the summer, by the PO-controlled Sejm. At the time of the judges’ election, opinion polls had shown that the Civic Platform was likely to lose the upcoming Polish parliamentary election on October 25. If the judges appointed by PO had taken their seats on the Tribunal, the result would have been that 14 out of 15 Constitutional Tribunal judges would have been selected by the Civic Platform. However, the President of Poland, Andrzej Duda, refused to swear in these judges stating that they had been chosen “in contravention of democratic principles”.
After Law and Justice won absolute majority in the Polish parliamentary election
On October 25, the Law and Justice (Prawo i Sprawiedliwość, PiS) party won an unprecedented absolute majority of seats in the Polish parliamentary election. On November 16, new Prime Minister Beata Szydło and her Cabinet took power. On November 19, 2015 the new Sejm passed an amendment to the existing law, and mandated the appointment of five new judges, set term limits for the president and vice president of the court, and stipulated term limits for two sitting judges. The president, Andrzej Duda, signed the amendment on November 20, but the law was challenged at the Constitutional Tribunal. On December 2, the Sejm elected five new judges to the 15-member tribunal, claiming it would prevent the previously appointed five from taking office; these were sworn into office by President Duda in a closed ceremony held after midnight. PiS delegates argued that the previous appointments made by PO contradicted existing law and the Polish constitution.
Constitutional Court ruling
On 3 December 2015 the Constitutional Court ruled that out of the five judges elected by PO, the election of three judges was valid, while the appointment of the other two breached the law. Again, President Duda refused to swear any of these judges into office. According to his spokesman, Duda refused to swear these three judges into office, because the number of Constitutional Court judges would then be unconstitutional.On 4 December, Law and Justice leader Jaroslaw Kaczyński, who had called the Constitutional Court “the bastion of everything in Poland that is bad” questioned the legitimacy of the Court’s decision, because it was supposedly made by fewer judges than required by law. Kaczyński announced changes in the law regarding the Constitutional Court, but gave no details. On 11 January 2016, the Constitutional Court rejected a complaint by Civic Platform questioning the appointment of the five new judges by the new Parliament. Three of the Court’s judges dissented, including Andrzej Rzepliński.
The problem saturated due to change of law
Although Art. 190 (5) of the Polish Constitution requires only the majority of votes for selection of judges. On 22 December 2015 the Sejm passed a law which reorganised the Constitutional Court. The new law introduced a two-thirds majority and the mandatory participation of at least 13, instead of 9, of the 15 judges.
Furthermore, pending constitutional proceedings had previously to wait in the docket for six months, or under exceptional circumstances for three months. The Court is now bound to handle the cases according to the date of receipt. Judges of the Constitutional Court can be dismissed on request of the Sejm, the President or the Department of Justice.
The bill was approved by the Polish Senate on 24 December 2015 after an overnight session, and signed by President Duda on 28 December 2015. It has been said that as a result, the decision-making capacity of the court has been “paralysed”.
On 9 March 2016 the Constitutional Court ruled the amendments non-compliant with the Polish constitution. The Polish government regards this verdict as not binding, as it was not based on the rules introduced by the amendment, and refused to publish the verdict, a binding condition for its legal validity.
Reactions on law changes and public protests
Reactions were mostly expressed against the government for diluting the power of Constitutional Tribune and its judges and giving more powers to government in this regard. Jacek Kucharczyk, the director of the Institute of Public Affairs, Poland in Warsaw said that the constitutional court “was the one branch of government that they (PiS) theoretically couldn’t touch and which curbed its power 10 years ago”. People came out in streets to protest against this authoritative undemocratic act of the government. The Supreme Court of Poland and the Polish Lawyers Association view the amendment as a breach of Article 190 and as unconstitutional. Lech Wałęsa, former President of Poland and leader of the Solidarity movement in the 1980s, stated that the current situation might lead to a civil war and that the way in which PiS was proceeding did not amount to an “open and democratic” reform process. Wałęsa called for a referendum on the latest changes of law. “This government acts against Poland, against our achievements, freedom, democracy, not to mention the fact that it ridicules us in the world…I’m ashamed to travel abroad.”
On December 12, protests organised by the Committee for the Defence of Democracy were joined by a crowd of supporters (estimated at 50,000 by the event organisers and 17,000-20,000 according to the official police report) in Warsaw. The next day pro-government supporters rallied in the capital (estimated at 80,000 by the event organisers and 40,000-45,000 based on the official police report).
Leszek Miller the leader of opposition left-wing party SLD and former Prime Minister of Poland criticised Western, especially German, media, and other critics of PiS, saying that they were “hysterical” and that there was nothing to indicate a “coup”, as PiS was simply regaining power from the Civic Platform. Miller accused the chief judge of the Constitutional Court Andrzej Rzepliński of acting like a “politician of Civic Platform”. Lech Wałęsa, Aleksander Kwasniewski and Bronislaw Komorowski, called on the Polish public to defend democracy, and warned that “Law and Justice plans to continue their actions, which destroy the constitutional order, paralyze the proceedings of the Constitutional Tribunal and the entire judicial system.” The same week Poland’s Supreme Court announced that it regards the verdicts of the Constitutional Tribunal as binding even though these decisions were not published by the Government, as “technically” required by the Polish Constitution. In response PiS spokeswoman Beata Mazurek called the Supreme Court’s statement the result of “a meeting of a team of cronies who are defending the status quo of the previous governing camp.”
President of the European Parliament described the political situation in Poland as dramatic, with the latest actions of the Polish government having “characteristics of a coup”. Schulz explicitly refused to withdraw this appraisal after protests by the Polish Prime Minister Beata Szydło and Minister of Foreign Affairs Witold Waszczykowski. On January 10 Schulz was quoted as describing the situation in Poland as a “Putinisation” of European politics; and he was backed by Viviane Reding, who complained about attacks on the public and private media in line with “the Putin-Orbán-Kaczynski-Logic”. The European Commission Vice President Frans Timmermans wrote in a letter to Poland’s ministers of Justice and Foreign Affairs before Christmas, that the EU’s executive body “attaches great importance to preventing the emergence of situations whereby the rule of law in (a) member state could be called into question”, and that he “would expect that this law is not finally adopted or at least not put into force until all questions regarding the impact of this law on the independence and the functioning of the Constitutional Tribunal have been fully and properly assessed.”
The latest developments
Poland’s president announced in the third week of July 2017 that he would veto controversial judicial reforms that would wipe out the Supreme Court’s independence and allow the justice ministry to appoint judges. He seems to have to have bowed to the pressure of nationwide protests. Andrzej Duda’s surprise announcement was interpreted as a rare reprimand of the ruling Law and Justice party, (PiS) with whom he normally has a close relationship. Commentators were shocked at the move, interpreting it as a major setback for PiS, which has made a big issue out of controlling Poland’s independent institutions, particularly the judiciary, since it came into power in 2015, and hailing it as a victory for demonstrators. However, in his televised address (July 24) he said, “These laws must be amended.” He said his rejection of the proposed bills would be criticised “probably by both sides of the political scene”, but that they “would not strengthen the sense of justice in society”.
The president said that he would veto the proposed measures which also included one to remove all judges of the supreme court, except those chosen by the justice minister, and another under which parliament would have been given the authority to appoint members of the National Council of the Judiciary. Explaining that his decision had resulted from lengthy consultations he had held with legal and other experts over the weekend, he said: “I have decided to send back to parliament – in which case to veto – the law on the Supreme Court, as well as the law on the National Council of the Judiciary.” His declaration followed eight days of demonstrations across the country, in which hundreds of thousands of Poles have taken to the streets in the capital, Warsaw, as well as hundreds of other towns and cities, and held vigils in front of courthouses.
People of Poland went for candle vigil and street protests a day after the Polish senate had followed the lower house of parliament and voted for the reforms on July 23. Under banners emblazoned with slogans such as “Free courts” and “Freedom, equality, democracy”, demonstrators pleaded with Duda – himself a lawyer – to reject the laws, claiming they marked a shift towards authoritarian rule.
Interpretation of President’s announcement about veto and suspicion in motives
Investors’ interpretation of President Duda’s announcement as having stalled a constitutional crisis caused the Polish currency, the zloty, to rise against the euro. The proposals had also set Poland on a collision course with the European commission, which had threatened to stop Poland’s voting rights if it introduced them. Donald Tusk, the European council president and a former Polish prime minister, had warned of a “black scenario that could ultimately lead to the marginalisation of Poland in Europe”. There has also been criticism from Washington, with the US state department voicing its concerns. When President Trump visited Warsaw earlier this month he praised Poland’s leaders for their patriotism but did not mention the judicial reforms. The legal amendments had their first parliamentary hearing on 18 July and were adopted by the lower house, followed by the upper house four days later. The only procedure preventing them from entering the statute books was the presidential signature. Duda’s declaration marks the first time that he has publicly split with Jarosław Kaczyński, the head of PiS. Since his inauguration, Duda has been seen as something of a Kaczyński puppet from whom he effectively takes orders, leading to much mockery of him. Some commentators are sceptical whether his apparent assertion of his authority is authentic, or merely an attempt to take the edge off the protests.