Polish Constitutional Tribunal crisis (2015 – ongoing)

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The Polish Constitutional Court crisis of 2015 is a political conflict which began in 2015 with the appointment of five Constitutional Tribunal judges by the Civic Platform (Platforma Obywatelska, PO) party. These included replacement of two judges whose terms would not expire until after the upcoming election that the Civic Platform was predicted to lose. After the Law and Justice (Prawo i Sprawiedliwość, PiS) party won the Polish parliamentary election in 2015, it made its own appointments to the court, arguing that the previous appointments of the five judges by PO were unconstitutional. PiS also passed amendments to the organization of the Constitutional Tribunal. The appointments and amendments caused domestic protests and counter-protests in late December and early January. The political situation was criticized by some European Union representatives and certain German politicians, while the new Polish government was supported by other European politicians.

Background

On October 8, 2015 the outgoing Polish Parliament (Sejm), with the Civic Platform being the main party of the governing coalition, elected five new Constitutional Tribunal judges. 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 PO selected judges had taken their seats on the Tribunal, the result would have been 14 out of 15 Constitutional Tribunal judges having 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". 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.

Election of Constitutional Court judges

On November 19 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, preventing previously appointed five from taking office; these were sworn into office by President Duda the following day. PiS delegates argued that the previous appointments made by PO contradicted existing law and the Polish constitution.

On 3 December 2015 the Constitutional Court ruled that the October election by PO 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 judges would then be unconstitutional.

On 4 December 2015, 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 annulled a complaint by Civic Platform questioning the appointment of the five new judges by the new Parliament. Three judges from the court dissented, including Andrzej Rzepliński.

Constitutional court law changes

On 23 December 2015 the Sejm passed a law, which re-organized the Constitutional Court. The amendment introduced a two-third majority and the mandatory participation of at least 13, instead of 9, of the 15 judges. Art. 190 (5) of the Polish Constitution requires only the majority of votes.

Furthermore, pending constitutional proceedings have to wait in the docket for six months, and 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 might 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.

Domestic reaction

On December 2, Jacek Kucharczyk, the director of the Institute of Public Affairs, Poland in Warsaw was quoted as saying 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".

On 12 December 2015 protests organized by the Committee for the Defence of Democracy were joined by up to 50,000 people (17,000-20,000 according to official police report) in Warsaw. The next day some 80,000 pro-government supporters rallied in the capital (40,000-45,000 based on police report). The Supreme Court of Poland and the Polish Lawyer's 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 about 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 5 January 2016, Leszek Miller the leader of opposition left-wing party SLD and former Prime Minister of Poland criticized Western, especially German media, and other critics of PiS saying that they were "hysteric" and that there was nothing indicating 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".

Demonstrations

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On 2nd December 2015 the third session of the Polish Parliament (Sejm) appointed 5 new judges to the Constitutional Tribunal. During the session opponents and supporters of the changes to the Constitutional Tribunal demonstrated outside at Wiejska Street. On 3rd December 2015 the Committee for the Defence of Democracy (KOD) organised its first demonstration supporting the Constitutional Tribunal. On 12th December further demonstrations organised by KOD took place in many Polish cities. The demonstration in Warsaw was fronted by members of KOD and politicians from the main opposition parties and attracted thousands of people. The demonstrators expressed their opposition to the changes to the Constitutional Tribunal put forward by the Parliament and the president. The demonstration started at Aleja Szucha 12 – in front of the headquarters of the Constitutional Tribunal and continued to the headquarters of Polish Parliament ((Template:Lang-pl) and finally on to the Presidential Palace. It was estimated that between 17,000 and 50,000 people took part in the demonstrations.

On 13th December 2015 Law and Justice party (PiS) organized its 5th Freedom and Solidarity March ((Template:Lang-pl) which was to commemorate the victims of Martial law in Poland between 1981-1983. The march was also a show of support for the actions of the new PiS party majority government and the president. The PiS demonstrators gathered at Three Crosses Square and continued to the headquarters of the Constitutional Tribunal. It is estimated that between 30,000 and 80,000 people took part.

On 19th December 2015 KOD organised demonstrations in many Polish cities and outside Polish embassies abroad. The demonstrators opposed the actions of the prime minister Beata Szydlo and her government as well as the president’s actions towards the Constitutional Tribunal.

Higher Education Institutions and Polish Academy of Sciences

Many higher education institutions put forward a resolution which called on the government to refrain from actions which would lead to the weakening of the Constitutional Tribunal. The signatories of the resolution included: Faculty of Law and Administration, University of Silesia , Faculty of Law and Administration of Jagiellonian University, Faculty of Law and Administration at University of Warsaw, Faculty of Law, Administration and Economy, University of Wroclaw, The Institute of Legal Sciences and the Senate of the University of Warsaw.

As part of the same resolution, the Faculty of Law and Administration at the Jagiellonian University asked the president Andrzej Duda, a graduate of their institution, to respect the rights and freedoms of all citizens. They believe that the new legislation he signed on November 19 which amended the makeup of the Constitutional Court, cannot be reconciled with the democratic rule of law, and also violates the requirements for the proper tenure of the judiciary, in regards to its legality and non-retroactivity.

The resolution of the Faculty of Law and Administration at Jagiellonian University was taken by a majority - 55 votes in favour, 21 votes against and 6 abstentions. Six members of the Faculty issued a statement expressing opposition: to the practice of deciding on the validity of assessments, opinions and legal interpretations relating to current political developments using a voting system based on majority rule as well as the use of the Faculty Council resolutions in order to - as practice has shown - raise the profile and power of the voted views, assessments and legal interpretations.

International reaction

On December 15, 2015 Martin Schulz, 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 renounce this appraisal after protests by Beata Szydło and 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."

Anne Brasseur, President of the Parliamentary Assembly of the Council of Europe, called on Polish politicians "not to enact, precipitously, legislation relating to the Constitutional Tribunal which may seriously undermine the Rule of Law."

On 9 January Volker Kauder and Herbert Reul, both political leaders of CDU/CSU, threatened Poland with economic sanctions. On Monday January 11, the press spokesman for the German government, Steffen Seibert denied that this was the position of the German government and stated that sanctions were not in fact being considered. German European MP Hans-Olaf Henkel from the conservative Alliance for Progress and Renewal party criticized German interference in Polish internal affairs stating "Poles don't need "good advice" from Germans"(...) and that Italy, UK, France or Spain aren't that critical about Polish internal affairs. According to Henkel this is simply a case where CDU politicians belonging to the European People's Party in the EU parliament are protecting interests of fellow member, Civic Platform. Henkel accused them of hypocrisy and violating treaties and regulations themselves several times.

On 6 January 2016 Viktor Orbán the Prime Minister of Hungary met with Jarosław Kaczyński for a six-hour meeting, it is widely believed that coordination of common responses to EU was one of the topics debated.

On 8 January Victor Orban declared that Hungary will never agree to any sanctions against Poland, and veto any proposals to do so in EU. Victor Orban declared "The European Union should not think about applying any sort of sanctions against Poland because that would require full unanimity and Hungary will never support any sort of sanctions against Poland”. Under current EU law to sanction any country, all others (besides the country being sanctioned) must give their supporting vote. On the same day Hungarian EU commissioner confirmed that Hungary will block any attempts to put Poland under any EU supervision or sanctions, going against claims by German press stating that Hungary will allow sanctions to take place.

On 10 January Polish Foreign Ministry summoned the German ambassador asking him to explain "anti-Polish statements by German politicians".

On 13 January 2016 the European Commission, launched a formal rule-of-law investigation based on rules set out in 2014 and according to Article 7 of the Treaty of Lisbon regarding of the amendments of the constitutional court and the public media law in Poland. The investigation could, theoretically, lead to Poland being stripped of its voting rights in the EU. Iverna McGowan, acting director of Amnesty International's European Institutes office in Brussels commented: "The willingness of the commission to use the rule-of-law framework is a positive step towards a more serious approach by the EU to speak out and hold its own member states to account on their human rights records." Hungary declared that it will oppose any sanctions against Poland.

On 15 January Standard & Poor's downgraded Poland's rating from A- to BBB+ because, according to a S&P spokesman, "the downgrades reflects our view that Poland's system of institutional checks and balances has been eroded significantly. Poland’s new government has initiated various legislative measures that we consider weaken the independence and effectiveness of key institutions, as reflected in our institutional assessment." Fitch Ratings reaffirmed Poland's A- rating, stating that Poland's outlook was stable with "strong macro performance, resilient banking system and governance indicators".

Domestic response to German and EU criticism

Prime Minister Beata Szydlo vowed not to bow to German pressure saying "these attacks are intended to weaken us, trying to show us that we should agree to everything just like our predecessors did". While German-Polish relations are important Szydlo pointed out that they must be based on "partnership, not dominance, which our neighbor sometimes tries to exert".

Bishop Wieslaw Mering called comments by Schultz a "lost chance to stay quiet"(referring to infamous speech by French President Jacques Chirac telling Poland to "stay quiet"), "I know my country more than you do, I live in my homeland since 70 years, I can assure you that elections of the president and new government, aren't evidence of lack democracy. Elections showed that our common citizens want change". Mering stated that the problem is in the fact that those who lost power are dissatisfied with the result and elections and try to use Europarliament for their own interests.

In response to German calls for sanctions on Poland, Law and Justice MP Stanislaw Pieta responded "People who elected Hitler on their own free want to teach us, who bowed before Stalin(...)" "who today can't provide safety to their own people", "can't deal with Islamic terrorism" "They want to give us lessons? Let them not be ridiculous".

On 9 January 2016 Polish Minister of Justice, Zbigniew Ziobro reacted to proposal by German politician Günther Oettinger to sanction Poland by sending a letter in which he criticized Oettinger for interfering in Polish internal matters, while at the same time tolerating censorship over mass sexual attacks in Germany committed during New Year's Eve In his reply to Frans Timmermans Ziobro asked Timmermans "to exercise more restraint in instructing and cautioning the parliament and government of a sovereign and democratic state in the future, despite ideological differences that may exist between us, with you being of a left-wing persuasion."

Replying to Jean Asselborn the Polish presidency's press office wrote that Asselborn was one of the leaders of the country when it engaged in a financial scandal involving tax avoidance schemes reaching billions of value: "If I were in place of Mr. Asselborn I would be very restrained in pointing out fingers towards any country". Polish ambassador to Luxembourg Bartosz Jałowiecki criticized Asselborn pointing out that Luxembourg is in process of liquidating its own Constitutional Court, an act that hasn't evoked any reaction or sanctions from EU or its politicians. Jalowiecki named this as hypocrisy. Adam Kwiatkowski the chief of political cabinet at President's office also pointed out liquidation of the Constitutional Court in Luxembourg and inaction of EU in this regard compared to its actions concerning Poland.

Pawel Kukiz, the leader of the opposition party Kukiz'15 and third largest party in Poland stated in reaction to words by Martin Schultz "You should pay more attention to democracy in your own ccountry. Because if-God forbid-another Hitler will appear in your country and lead with him those several millions "immigrants" that you are planning, then I suspect SS will look Salvation Army in comparison. I apologize for such brutal statement, but Nazis murdered my grandfather in Auschwitz, and I don't want their grandchildren to teach me lessons about democracy".

A special meeting of all Polish parties represented in the Parliament was arranged by Prime Minister Szydlo on 12 January, the parliamentary leader of Law and Justice Party Ryszard Terlecki declared that the meeting will be dedicated to statements by German politicians that cause outrage among Polish public, and that he hopes that all other parties will share the sentiment.