23 Dezember 2015

Chess-boxing around the Rule of Law: Polish Constitutionalism at Trial

I.              Intro

It was a chilly Sunday, earlier this Autumn, when I lined up in a lengthy queue in front of the Museum of the Warsaw Uprising in the Polish capital. I was in the company of my old friend and academic master Professor Hans-Bernd Schäfer, who was visiting Poland those days. We spent roughly one hour moving slowly towards the Museum’s admission. This reminded my companion of a story he shared with me while we awaited our turn. The story was about a similar experience Hans-Bernd Schäfer had years earlier in Washington, where he once spent even a longer time amidst American people lining up to pay a last tribute to the late William Rehnquist, Chief Justice of the US Supreme Court, who passed away a few days earlier. A phenomenon unthinkable to this scale in Poland and Germany alike, where citizens wouldn’t care to show up in crowds when a chief justice dies. But what if the whole constitutional court would be to pass away?

II.            Background: State of the Republic AD2015

The recent tumult around the Constitutional Tribunal (Pol. Trybunał Konstytucyjny) in Poland involved two major parties taking an unconcealed partisan stance and indulging into political rent-seeking, though with varying revolutionary zeal, as this article seeks to evidence. But it wasn’t until the aftermath of the last election with the power shift from the Civic Platform (Platforma Obywatelska – PO) to the Law & Justice party (Prawo i Sprawiedliwość – PiS) that the wrestling around the seats in the Tribunal arose to such a level as to make headlines in Polish and international media. The alert has soon turned into a public outcry and SOS for democracy in the heart of Europe.

Before getting down to the facts let’s have a brief disclaimer: freedom and democracy are so precious, in this part of Europe, maybe more than elsewhere in the modern world, that one should never take them for granted. But resorting to a narrative by which there allegedly was a downfall of democracy in Poland would go way too far. As long as there is a freedom of assembly where people can gather and protest, express their views in the most articulate way, what many actually do these days across the country, as long as the mainstream media remain for the most part highly critical about the PiS orchestrated developments, as long as political parties can turn the current crunch into their future electoral victories or suffer defeats for how they spark or handle the constitutional crisis today – as long as all this is in place, any claim of a sunset of democracy in Poland is not sufficiently substantiated and plainly exaggerated. And even worse, as it causes an inflation of words and weakens the credibility of any future alerts should they ever become necessary. This also propels symmetrical counter-narratives leaning towards various conspiracy theories to justify the hard stance of the newly elected parliamentary majority vis-à-vis the Constitutional Tribunal as an alleged redoubt of the corrupted and indolent ancient regime embodied by the former ruling party PO – a storyline many supporters of PiS want to accept.

Having said this, I do not want to downplay the gravity of the situation by any means. Quite the opposite: it all may well be just a prelude to more serious inroads into the sacred sphere of civil liberties. All the aforesaid pillars of democracy are to some extent contingent upon their legal underpinning in the form of constitutional guarantees. Getting the Constitutional Tribunal out of the way may well be about the pursuance by PiS of salami-slice strategy with further cuts ahead. So let the irregularities be called by their names and put in a proper chronological order and the right political context.

III.         Setting the stage

Same as in a Shakespearean tragedy, the whole story to be told about the constitutional crisis in Poland, is divided into acts. But unlike in a typical drama, where you usually have an evil character, a noble character, and a tragic figure, and you may intuitively yet misleadingly be inclined to cast the government, the opposition, and the court in the respective roles, the constitutional crisis in Poland does deviate from this classic scheme. It is rather based on a plot where everyone involved is to blame at least for a part of the calamity, and this includes the Constitutional Tribunal itself. At least two of the acts of the constitutional drama were played before the Law & Justice party took over. First, it is hard to deny the subtle impropriety of the involvement of three of the incumbent justices in the drafting process of the new Act on Constitutional Tribunal and this well beyond a mere substantive input – the records of the responsible parliamentary committee since 2013 onwards reveal that they were actively pursuing the case down the entire road of the legislative process[1]. As valuable as the insiders’ insight may be for working-out an efficient design of a legal framework under which the Constitutional Tribunal operates, it is still difficult to reconcile the involvement of the incumbent justices with principles of Montesquieu’s division of powers. It is not only about mixing the roles of the legislature and the judiciary, but also potentially by the Constitutional Tribunal’s placing itself into a position of iudex in causa sua, if the Tribunal was ever to adjudicate on the constitutionality of this new Act – a prospect that soon turned into a nagging reality. The incriminated modus operandi also blurred borders between the judiciary and the executive. Here it must be recalled the close cooperation of the Tribunal’s leadership with the then serving President of the Republic Bronisław Komorowski, who formally launched the legislative process by submitting the draft Act to the parliament. What makes the picture look even worse is the fact that the degree to which the justices’ determined the draft Act had long remained shrouded by secrecy. The Tribunal’s Chief Justice proved reluctant to reveal to the public the proposal for a draft Act and accompanying materials and it wasn’t until an NGO – a civil society transparency organisation[2] forced this disclosure by defeating the Constitutional Tribunal before the Supreme Administrative Court[3]. And this happened not to be an isolated incident, as shortly thereafter resorting to strategic litigation has again proved necessary for civic activists to obtain information on service contracts concluded by the Tribunal with various experts and on cash-flows resulting thereof[4]. A Constitutional Tribunal found being in breach of public law[5] and neglecting civic rights, to which protection it is bound, is a notable development in itself signalling both the good and the bad. The bad is obvious, the good is the ultimate prevalence of the rule of law over the sense of solidarity among the judiciary. This is just a part of the background story, by no means an excuse to how the situation around the Tribunal recently tapered. But still it can be seen as an alibi for the new ruling party to step in. And in fact, not the only pretext for the current backlash. A much stronger alibi was recklessly delivered by the former ruling party Platforma and their allied former President Komorowski. The trigger of the crisis and in fact the prelude to future tragedy started in 2013 and peaked in the summer of 2015.

IV.          Prelude

In 2013 the former President of Poland Bronisław Komorowski put forward the aforementioned draft Act, produced in close cooperation with the justices of the Constitutional Tribunal, if not solely by the latter. To give credit to their job one must acknowledge that the draft contained important improvements with regard to the selection procedure of future justices intended to raise the quality of the panel and weakening the political influence of the Courts’ makeup. The proposed enhancements included a revolving-door sort of limitations to be imposed on politicians craving to switch seats and don a robe. It also contained provisions designed to empower the peer-review of potential justices by extending the nomination right to the academia and legal profession with a view of further decoupling the Tribunal from the realm of political greed. However, most of the proposed improvements have been eventually dropped along the legislative path in the PO-controlled Sejm. Instead, towards the end of the term in office of the former parliament, a new, controversial provision suddenly popped up. The new provision, technically a transitional one, entitled the departing majority to a last-minute appointment of up to five replacement judges including two seats that were to become vacant long after the newly elected parliament was to assume its duty. The official rationale behind the advancement of the appointments as chronicled in the parliamentary records invoke an unfortunate coincidence of the successions to take place around the same time both in the parliament and in the Constitutional Court[6]. But concerns about the constitutionality of the “transitional” Article 137 of the new Act became apparent ever since the cunning idea of appropriating the power to select beyond the parliaments’ term in office germinated[7]. Notwithstanding the objections by the then opposition party Law & Justice (PiS)[8], the reigning coalition of the Civic Platform (PO) and the Polish People’s Party (PSL) backed by the post-communist Democratic Left Alliance (SLD) pushed the law through, in a procedure that seemed hasty by yesterday’s standards but has soon turned to appear sluggish by the standards of today as infamously set by the new majority party PiS. The outgoing President Komorowski signed the controversial Act on July 21st, 2015 – one of his last days in office. Soon thereafter it became binding law (promulgated on July 30th, 2015 and entered in force 30 days later). To give an accurate account of the facts, it needs to be emphasised that the said Article 137 was not a part of the initial draft as worked out at the Constitutional Tribunal and it was crafted by politicians only at the final stage of the legislative process. The judges participating in the legislative process never supported this provision but there is no evidence of their opposition thereto either, in spite of their attendance of parliamentary committee’s sittings[9].

Based on the controversial transitional provision – Article 137 of the new Act, an advance selection of all five replacement judges, one-third of the total makeup of the Tribunal, took place on October 8th, 2015 during the very last sitting of the outgoing Sejm. In fact all five retiring judges were to step down after the scheduled election date (October 25th, 2015), so if the first sitting of the new parliament had been summoned just a few days earlier, immediately after the promulgation of the election results, all the five appointments[10] would have become effective outside of the former Sejm’s term of office[11]. Eventually, with the first sitting on November 12th, 2015, it ended up with two (out of five) new justices scheduled to commence their terms already well after the new Sejm took over. However, Andrzej Duda, a former PiS member and Komorowski’s successor in the presidential office, took a less nuanced stance and delayed taking the oath from all five judges selected on October 8th, 2015. Admittedly, Article 194 sec. 1 of the Polish Constitution vests with the Sejm the sole power to select judges of the Constitutional Tribunal, yet it is the president’s role to swear in the newly selected judges. President Duda turned to procrastination, thereby deliberately uplifting a mere formality to a co-determination mechanism without any constitutional basis therefor. The newly selected judges got trapped in the procedural deadlock and the pending replacement process got frozen.

V.            Arsonists’ qui pro quo

On October 23rd, 2015, just two days before the elections, PiS referred the Act to the Constitutional Tribunal invoking its unconstitutionality on several counts. In particular it challenged the “transitional” Article 137. On November 10th, shortly after victorious elections, PiS withdrew its own motion, hence the proceeding before the Tribunal had to be discontinued. The idea behind soon became apparent: instead of resorting to a judicial remedy, the now majority party decided to remould the law to their own needs by the tools they now have had at hand: the legislative process. One week later, Platforma, who now switched sides with PiS and moved to the opposition bench, put forward a motion to the Constitutional Tribunal to scrutinise the constitutionality of the Act, before PiS would have a chance to change it. A genuine qui pro quo if you consider that the now opposition party Platforma challenged the law pushed through by… the then ruling party Platforma. Political schizophrenia? More likely, it was rather an opportunistically-driven U-turn resulting from PO’s change of perspective. What makes the story even more of a tragi-farce is that the motion by PO was identical with the previous motion that PiS first submitted (as the then opposition party) and subsequently withdrew (after becoming the majority party in the newly elected Sejm).

VI.          Trading Shakespeare for Hitchcock

Right after the victorious election, PiS decided – through a coordinated action – to make a thinly veiled attempt to subdue the Constitutional Tribunal. With the blatant support from Andrzej Duda, a former member of the PiS and Komorowski’s successor in the presidential office, the new incumbents traded Shakespeare for Hitchcock by starting with an earthquake followed by rising tension. The developments took a sharp and rapid turn. PiS withdrew their motion for review of the constitutionality of the Act passed by the old Sejm. Not that they would suddenly change their minds with regard to the substance. But the circumstances changed and so did the interests. In the disguise of a guardian of the Constitution, PiS pre-empted the ruling by the Tribunal and decided to push forward the amendments to the Act not via the constitutional review by the Tribunal but rather via legislative process controlled by themselves. The reason for which PiS wouldn’t now want to see a judgement on (un)constitutionality of the “transitional” Article. 137 of the Act was straightforward: the draft law to amend the Act was already being elaborated with a twin Article 137a. On November 13th, 2015 the new draft law amending the controversial Act saw the light of day. The pertinent Article 137 was to be replaced by a mirror Article 137a. The later provision was designed with a view to reopening the selection process and refilling the five seats in the Tribunal, disregarding earlier selection by the old Sejm. The new law was adopted by the Sejm on November 19th, 2015, signed by President Duda on the following day (20.11.2015) and promulgated forthwith. Just to remind: the same Duda hasn’t proved equally quick-reacting with taking oaths from the justices selected by the old parliament, even though their term in office has already started to run. President Duda kept playing his procrastination game until he eventually explicitly refused to swear in the five judges appointed by the old Sejm. He argued that the appointment was based on an unconstitutional act – again putting himself into the shoes of the Constitutional Tribunal.

VII.       The Tribunal’s self-defense and the twofold reincarnation of midnight judges

On November 30th, 2015 the Tribunal, sitting in full court[12], by unanimous vote, issued an injunction mandating the Sejm to refrain from selecting or taking actions towards selection of any new judges until the Tribunal finally decides the case on merits. The injunction was ordered with a view to prevent any developments that would undermine the effectiveness of the pending constitutional review of the act. An unprecedented recourse to the injunction[13] was received as a means of the Tribunal’s self-defense[14], yet it encountered spilt opinions[15]. Either way, the injunction manoeuvre, as the Tribunal’s ultima ratio, has soon proved toothless. The order notwithstanding, the PiS controlled Sejm went unconcernedly on and late in the evening of December 2nd, 2015 selected five new justices – substitutes for the former replacement judges. In view of the blistering determination of the majority it may be a mere subtlety to point to the fact that the “substitute” transitional Article 137a had not yet entered into force at the time when the “substitute” replacement judges were hastily selected. For Reconquista-obsessed majority a secondary issue at best. Immediately thereafter, before dawn on December 3rd, four of the five substitute-replacement judges were sworn in by President Duda[16]. The notorious “midnight judges”, as the early 19th century eleventh hour appointments were referred to in the US[17], have in 21st century’s Poland first reincarnated as the last-minute appointees of the old Sejm[18] and then reappeared in an even more literal sense on the opposite end of the political argument as substitute-replacement judges selected after the sunset and sworn-in before dawn.

VIII.     The Tribunal’s first judgement (3.12.2015, K 34/15) and the “Printer-is-the-King”-obstruction

The following day, December 3rd, 2015, the Tribunal delivered a judgment on the constitutionality of i.a. the incriminated transitional Article 137. In this regard – quoting from the English version of the official press release: “[t]he Tribunal ruled that Article 137 of the Constitutional Tribunal Act is unconstitutional, insofar as the provision made it possible for the Sejm, during its previous parliamentary term (2011-2015), to select two judges to the Constitutional Tribunal in place of the two judges whose terms of office were to end respectively on 2 and 8 December 2015. By contrast, the provisions regulating the procedure for selecting three judges who had been chosen to assume offices after the judges whose terms of office ended on 6 November 2015 were ruled to be constitutional[19]. With regard to the President’s refusal to take an oath from the legally selected judges, the Tribunal held that the head of state was obligated to swear in the said justices forthwith. The Tribunal declared any contrary interpretation unconstitutional, as it remains outside of the President’s powers to select judges to the Constitutional Tribunal and the sole competence thereto is vested by the Constitution with the Sejm. As the judgment of December 3rd sets forth, “any potential doubts that the head of state may raise as to the constitutionality of legal provisions on the basis of which judges have been selected to the Constitutional Tribunal may only be addressed by the Constitutional Tribunal[20].

The judgment, as clear as it may legitimately appear, did not in fact contribute to the settlement of the political dispute but met with further obstruction by PiS-dominated Sejm and stirred some legal procedural doubts as well. Even though the judgement shall be final, universally binding, and irrebuttable (Article 190 sec. 1 of the Constitution), it only takes effect from the day of its publication (Article 190 sec. 3 of the Constitution), and the publication shall be made forthwith (Article 190 sec. 2 of the Constitution). Since however the official gazette is administrated by the government, and the immediacy requirement, as one speciously could argue, isn’t a bright-line rule, the publication may theoretically be arbitrarily postponed. As absurd as this theoretical assumption may appear, the practice has soon validated its premises: the government dared to refuse the publication and has hence made the judgment virtually non-existent. Interestingly however, the government substantiated its refusal by pointing to a formal deficiencies of the judgement: according to the Article 44(1)(f) of the Act on Constitutional Tribunal, the Tribunal shall adjudicate in full bench if the case is of particular complexity or significance. Needless to say, at least the latter undeniably holds true for the questions at stake. And it was the Chief Justice himself that first ordained the case to be decided in full bench, as the statute prescribes. Only after it became evident that the parties to the proceedings may request the recusal of the three judges who have previously been involved in the legislative process (including Tribunal’s Chief Justice himself), the procedural order was amended so that the case would be decided by a “default” panel of 5 judges. The amendment has not been duly substantiated, yet the rationale behind it was obvious: an imminent threat of a deadlock in the Tribunal stemming from the former involvement of three judges in the legislative process. Setting aside a valid legal point, namely the question, if a pragmatic consideration (the Tribunal’s inability to adjudicate in full bench) could prevail over the statutory formalities (the full bench requirement), one thing remains obvious: the ruling majority again attempted to pre-empt the Tribunal’s exclusive power to finally resolve the pertinent constitutional issues. The government, by abusing its auxiliary competence, or in fact its duty to act as an agent for the Tribunal with regard to a purely technical matter, that being printing of the official gazette, endeavoured a superrevision of the judgment, without having any constitutional basis therefor. For a third time in just few days the same pattern repeated itself: first the president usurped the right to decide about the constitutionality of the selection by refusing to take the oath from the judges appointed by the former Sejm, second the parliament pre-empted the Tribunal by changing the law it opportunistically found unconstitutional in spite of a pending review process, and now, third, the government refused to publish the Tribunal’s judgement on the grounds of its purported procedural irregularities. A sad spot where the justices’ myopia (reckless involvement in the legislative process) meets the government’s impertinence (harsh and unrestrained backfire). Eventually the government yielded and the judgment was published on December 16th, 2015 – a long 2 weeks after the ruling. But it wasn’t until a new ace was ready to come to play – a new amending act put forward by PiS on December 15th (cf. Section X infra).

IX.          The Tribunal’s second judgement (9.12.2015, K 35/15)

On November 9th, the Tribunal ruled on the constitutionality of the amending Act of November 19th, 2015, that has been hastily pushed through by PiS and signed by the President just three weeks before. The amending Act has been literally smashed by the Tribunal. The following amendments were held unconstitutional: (i) the possibility of serving as the Tribunal’s Chief Justice and Deputy Chief Justice for two consecutive terms; (ii) the provision, whereby the newly selected justices were to be sworn in by the President within 30 days after the selection instead of being sworn in forthwith; (iii) the provision, whereby the judges’ term of office does not begin until sworn-in by the President; (iv) the reversion of the appointment of the three judges as legally selected by the former Sejm; (v) the annulment of the incumbent Tribunal’s Chief Justice and Deputy Chief Justice’ term in office, i.e. their “downgrading” to a regular justice’s position or expiry of their presiding powers. Last but not least, the Tribunal ruled unconstitutional the new substitute transitional Article 137a insofar as it concerns putting forward a candidate for a judge of the Constitutional Tribunal to assume the office after the judge whose term of office ended on 6 November 2015[21]. This confirms the legality of the appointment of the three (out of five) replacement judges selected by the old Sejm, as ruled by the Tribunal in its first judgement of December 3rd, 2015.

The judgement’s publication in the official gazette was again unduly postponed by the government and eventually printed on December 18th, 2015.


X.            Driving the final nail in the coffin?

The time bought through playing with the delay in publication (boxing) was used by PiS to develop a new manoeuvre (chess). Namely, on December 15th, 2015 a new draft amending law has been put forward by the ruling party. Ironically the draft was heralded under the working title a “Repair Act on the Constitutional Tribunal” as it was alleged to break out of the deadlock. In fact it contained a set of provisions to further entrap the Tribunal and effectively paralyse it. The draft encountered wide criticism[22] for being both unconstitutional and ill-designed. Notwithstanding the objections the majority party pushed the law through in a hasty process, curbing the discussion and ignoring almost all corrections proposed by the opposition. Eventually the “Repair Act” has been adopted by PiS in the night of December 22nd, 2015, against all other parties represented in Sejm. The key provisions of the newly adopted “Repair Act” embrace[23]:

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