“Poland’s ‘Russian roulette’ with the EU”, “Warsaw must face costs of its transgressions”, “Why is Poland Fighting the Supremacy of European Union Courts?”. These
are only a few titles of the world leading journals trying to explain the conflict between
Warsaw and Brussels. The conflict gained its full momentum after the Polish Constitutional Court ruled on October 7 about the supremacy of the Polish Constitution over European Treaties
The ruling came after Mateusz Morawiecki, Polish Prime Minister, asked whether EU institutions can prevent Poland from restructuring the judiciary system and after
the European Court of Justice ordered Poland to suspend new regulations for appointing Supreme Court justices. From the perspective of the EU-Polish relations, this is
the farthest reaching step in the conflict since the right-wing government took power in 2015. It gains international attention not only because of the arising concerns that
Poland might be the next country to leave the EU, but also because it creates a dangerous precedent which undermines fundamental EU legal order. This article looks
closer at the Polish Constitutional Court, the institution that put Poland on the front pages of most reputable journals and examines how the current Polish government took
over and instrumentalized it after gaining power in 2015.
One Prime Minister, Two Messages
During the European Parliament’s plenary session in October, the Polish PM arrived in Strasburg where he participated in the debate that sparked after the Court’s ruling. For someone who does not follow politics closely, his 30-minute speech (although he was allocated 5 minutes)could have sounded like just another speech of a European leader about common EU challenges, opportunities and values. Mr Morawiecki based his speech on generalized statements about EU values that were stark in high contrast with everything that the right-wing government has done to the Polish judiciary system. Giving voice to the Prime Minister:
“[…] Most of us will agree that there can be no talk of the rule of law without several conditions. Without the principle of separation of powers, without independent courts, without respecting the principle that each power has limited competences, and without respecting the hierarchy of sources of law.”
A different message was coined for the internal use of Polish politics. Speaking in the Polish Parliament on October 14, Mr Morawiecki said:
“If the EU is to remain democratic, the peoples must decide, not the judges. Not the judges of the CJEU [Court of Justice of the European Union], but the people!”
Which message of Mr. Morawiecki should be taken as the official position of the Polish government? Given these circumstances, rather than analysing assurances and statements on EU values, it is more beneficial to take a closer look at the anatomy of appropriation of public institutions by the Polish government on the example of the Constitutional Court. Let it be a warning against people who perceive democracy as an obstacle, not as an opportunity. Let it be the warning against populists who break democratic fuses if these are not strong enough and are not perceived as a common good. Finally, let it be the warning against disinformation used as a political tool which leads to erosion of trust in public institutions – whether this is trust in the EU, civil society or judiciary.
The Case Of the Constitutional Court
To understand the process of hijacking the Court we have to go back to 2015 – a few months before PiS (Law and Justice) won the parliamentary elections and was able to single-handedly form a majority government. The Parliament of the 7th parliamentary term (2011-2015) worked on the reform of the Constitutional Court. It started as early as 2013. However, a few months before elections in October 2015, the Parliament, using PO-PSL votes (Civic Platform and Polish People’s Party), decided to add a transitional provision to the legislative act which stated that the 7th Parliamentary Term will not only appoint three new judges of the Constitutional Court whose term expires before elections – that is in October 2015, but also two new judges, whose term expires after parliamentary elections – in December 2015. Officially, this was motivated by willingness to maintain continuity of the Court when the potential new government would still be forming after elections. Unofficially, many speculated that after PiS nominee Andrzej Duda won presidential elections, the government sensed the upcoming loss in the parliamentary elections and wanted to prevent the future government from appointing judges.
As soon as PiS won elections, it invalidated the previous legislative act and decided to choose all five judges. This created a precedent as never before, the Parliament passed a resolution that overturned a resolution adopted by the Parliament of the former term. Although the Constitutional Court later ruled that the previous transitional provision was unconstitutional and ordered three judges elected by the previous parliaments to stay and two new judges to be elected by the present Parliament, the new Prime Minister Ms Beata Szydło (now MEP in the European Conservatives and Reformists group) decided to not publish the ruling in the official state journal.
At the same time, the government and the parliamentary majority started to implement a series of legislative amendments that were subjecting the Court to the executive power. The legislative path in the most striking cases took 7 days from the first reading in the Parliament to the President’s signature. MPs were unable to not only consult propositions with specialists, but were not given enough time to properly read documents.
Amendments proposed destructive changes such as the introduction of terms on the position of the President of The Constitutional Court with no vacation legis period and the growing power of the Minister of Justice. All this happened within a month after the 8th Parliament was assembled for the first time after elections.
After two months, the government had already amended legislation regarding state owned media and in the same manner was able to appoint new and politically loyal management. Moreover, it amended legislation regarding civil servants by dropping requirements for open competitions for top positions and conditions for the Head of the Civil Service to be apolitical.
In December 2016, the mandate of the President of the Constitutional Court expired. President Duda appointed to this position Ms Julia Przyłębska whose loyalty to the ruling party was widely known. This date marks the total subjection of the Constitutional Tribular to the ruling majority. In 2019, Jarosław Kaczyński, the chairman of PiS and de facto person leading the country described Ms Julia Przyłębska as his “recent social discovery”.
In May 2021 the European Court of Human Rights in Strasbourg ruled out in the case of the XERO FLOR company against Poland, that because of three judges that were illegally appointed by the PiS government in December 2015, the composition of the Court is illegitimate and that is not a court established by law. The ECHR stated that Poland breached art. 6 of the European Convention of Human Rights which guarantees the right to a fair trial.
In October 2020, the Constitutional Court ruled out that allowing abortion in the case of a high probability of severe and irreversible fetal disability is unconstitutional. The ruling caused mass protests across Poland with the largest taking place in Warsaw that gathered around 100,000protesters.
In October 2021, the Constitutional Court ruled that the Court of Justice of the European Union has no power to interfere with Polish changes to the judiciary.