01 Januar 2016

Polish Constitutional crisis goes to Europe – or does it?

The latest move by the Polish government in its attempt to disembowel the Constitutional Court looks, on first sight, like a conciliatory gesture: The Minister of Foreign Affairs has submitted two proposals amending the Act on the Constitutional Court to examination by the Venice Commission, the expert body on constitutional issues of the Council of Europe. Does this turn to Europe signal a change of heart in the revolutionary zeal on the part of the Polish government? Not so fast. On closer inspection, the request appears conspicuously ambiguous. The motion does not even specify in sufficient detail what text(s) the Venice Commission is to provide its opinion on.

According to the information on the website of the Venice Commission, the Polish government has asked for the Commission’s opinion on

„the constitutional issues addressed in the two proposals for the legislation amending the Act on the Constitutional Court of 25 June 2015. Both instruments were introduced into the agenda by the Polish Parliament by two groups of MPs, respectively on 2nd and 15th December 2015 (Parliamentary Text Nos. 129 and 122).“

If one takes into account all information available on the Ministry’s and on the Venice Commission’s websites, it would appear that the texts submitted to the Venice Commission by the Ministry of Foreign Affairs are the first drafts of proposals put before the Polish Parliament (Sejm) on 2nd and 15th December 2015 respectively, rather than the text which was substantially amended during the draft’s second reading at the Parliament. The latter is the text under Sejm’s No 144, much more radical in “the court packing” than the original proposal contained in text No 122, and which culminated in the Law adopted by the Sejm on 22nd of December, approved by the Senate on 23rd of December 2015 and just now signed by the President.

It is too early to judge the true intentions or construe the motives behind the seizure of the Venice Commission. Taking into account though the ambiguity pointed above on the scope of issues submitted (or not) for consultation by the Venice Commission, a few words of caution are in order.

First, the Venice Commission should beware of the danger of being manipulated and drawn into domestic Polish politics dominated by instrumentalization of the law and the institutions. It is of paramount importance to make sure that the opinion it is asked to give will be more than just a fig leaf and will indeed deal with real constitutional issues that endanger the Polish constitutional order, rather than some randomly selected issues of fleeting importance. One of the draft laws the Ministry submitted for examination, for example, regards a completely uncontroversial matter: the selection of the constitutional judges by two-thirds rather than an absolute majority (No 129). This amendment should raise no major constitutional doubts. To the contrary, it has been called for by the Polish doctrine of constitutional law for years now!

Second, the future opinion should take into account the law at force at the moment it will be given and pay attention to the normative picture in its entirety. The opinion given by the Venice Commission on the limited issues proposed by the Ministry, would not only lack any legal significance but be hailed as a victory of the government and proof that all is well constitutionally in Poland, after all.

The stakes are very high as the Venice Commission’s prestige, authority and credibility are on the line. If it turns out that the seizure by the Foreign Ministry of the Commission is indeed as limited as suggested above on the basis of the Ministry’s press release, the government’s tactics should not stand in the Commission’s way to fully evaluate the Polish constitutional landscape. This is not the time for literal interpretation and bickering about legal subtleties, but for standing up and saying clear and loud what the constitutional fundamentals are.

Last but not least, should the Commission acquiesce in the “constitutional cherry – picking and reply to questions on out-of-date and taken-out-of-context issues, it might play (unwittingly) its own part in the narrative orchestrated by the ruling majority. Based on the Ministry of Foreign Affairs website and the press release available on the Venice Commission’s website, true constitutional concerns that brought about (emphasis and past tense used are not accidental here) the demise of the Polish Constitutional Court are nowhere to be found in the seizure of the Commission.

As a result this sudden “turn to Europe” might in the end be, mildly speaking, half-hearted. Europe should not be fooled by grand gestures and empty rhetoric. Rather it must finally get down to business with the Polish government and truly call out Poland on its fidelity to constitutional essentials like constitutional review, judicial independence and separation of powers.

The recent letter of 23rd December 2015 by the Vicepresident of the European Commission, Frans Timmermans, to the Polish Foreign Minister might suggest a long-overdue change in tone. But the clock is ticking and, as of now, both the EU and the Council of Europe are relegated to the role of passive spectators. The time of benign neglect by “the European powers that be” of Poland must be coming to an end. The adoption on the 23rd December 2015 of the amendments to the Law on Polish Constitutional Court makes a very strong case for the Venice Commission (and EU) to step in decisively and reassert itself now, not back down.

The „European manipulation“ was on full display, when Ministry of Foreign Affairs has admitted that its initial seizure of the Venice Commission did not include the amendments to the Law on Polish Constitutional Court adopted on 23 rd of December and promised to do so soon! This only shows how the media and vigilant citizenry in Poland in 2016 must never take the words and actions of the new majority for granted. Indeed we are all in for a long season of „constitutional cherry picking“.

 


SUGGESTED CITATION  Koncewicz, Tomasz Tadeusz: Polish Constitutional crisis goes to Europe – or does it?, VerfBlog, 2016/1/01, https://verfassungsblog.de/polish-constitutional-crisis-goes-to-europe-or-does-it-2/, DOI: 10.17176/20160902-174313.

13 Comments

  1. Antoni J. Wrega Sa 2 Jan 2016 at 09:51 - Reply

    Dear Mr. Timmermans, Dear Mr. Cienski, and all concerned, Poland is not and will be not a kind of ‚bantustan‘. Poland is proud and independent Nation. Now we are in the process, a democratic process of getting rid from all kind of Communist, post-Communist and crypto-Communist ghosts of our Past. You, the West, did nothing to liberate us, quite contrary your leaders left us in Yalta in Stalin’s grip. Please, be so kind and take more and more efforts to solve, for instances migration crisis, world poverty, Syria and Ukraine crisis, and so on. Polish citizens decided in a parliamentary election what is needed for them and we simply do not need false prophets from another world. Take yours advices for yourselves and please stop meddling in Polish affairs. Otherwise, you make yourselves quite ridicule and really hypocrite.

  2. Maximilian Steinbeis Sa 2 Jan 2016 at 16:30 - Reply

    The President of the Venice Commission, Gianni Buquiccio, just tweeted: the Commission is „fully engaged, no intention to backup (sic!) down“
    https://twitter.com/giannibuquicch1/status/683253146932645888

  3. Jessica Lourdes Pearson Mo 4 Jan 2016 at 15:46 - Reply

    Dear proud and independent Mr Wrega, „getting rid“ of someone indeed sounds very „democratic“ to me.

  4. Antoni J. Wrega, historian Di 5 Jan 2016 at 08:26 - Reply

    Dear Ms. Pearson, I was jailed (without any court sentence) by Communists, my Grandpa was murdered by them, my family was „relocated“ to Siberia, my Wife’s Aunt, a Catholic nun, was murdered by Nazis in a concentration camp [of course, for you: supposedly „Polish“, because you seem to me only a kind of ignorant], and so on, and so on (as far as only a history of my family)… and believe me — your sarcasm seems to be out of my world. So we both should stay away, you with Mr. Verhofsted, Timmermans and all of this kind of „liberals“, and me — with my People.

  5. Jessica Lourdes Pearson Di 5 Jan 2016 at 09:41 - Reply

    And this, Mr. Wrega, makes you fight liberal democracy (the historic enemy of both communism and nazism) and the EU (which was founded as a stronghold against both communism and nazism)? And it makes you endorse methods that both communists and nazis used when they took over a state?

    And what, Mr. Wrega, do you mean when saying „my People“. Does that include „crypto-communists“, bikers and vegetarians?

  6. Christian Boulanger Di 5 Jan 2016 at 12:02 - Reply

    A parliamentary majority has no right to speak for the „People“. A nation consists of citizens supporting the government, citizens supporting the opposition and every other citizen. We see the same phenomenon as in Hungary – a government claiming to speak for a nation, when in fact the government probably wouldn’t have been elected in the first place if they had announced previously what they were going to do after the election. We will have to wait and see if the Polish people will vote them out of office at the very next occasion. Until then, the Polish government will have to have to face criticism of its actions just like any other government. Deal with it and provide arguments. Historical narratives are useless because they convince only the already converted.

  7. Christian Boulanger Di 5 Jan 2016 at 12:17 - Reply

    A parliamentary majority, by definition, does not have the right to speak for the „People“. A nation consists of citizens supporting the government, citizens supporting the opposition and every other citizen. We see the same phenomenon as in Hungary – a government claiming to speak for a nation, when in fact the government probably wouldn’t have been elected in the first place if they had announced previously what they were going to do after the election. We will have to wait and see if the Polish people will vote them out of office at the very next occasion. Until then, the Polish government will have to have to face criticism of its actions just like any other government. Deal with it and provide arguments. Historical narratives are useless because they convince only the already converted.

  8. Amelie Buhl Di 5 Jan 2016 at 14:17 - Reply

    Convincing distinction between people and parliament by Christian Boulanger. Especially with regard to a constitution`s role see the comment by a former judge of the German constitutional court:
    http://www.faz.net/aktuell/feuilleton/debatten/dieter-grimm-ueber-das-verfassungsgericht-in-polen-13995517-p3.html

  9. Antoni J. Wrega, historian So 10 Jan 2016 at 19:47 - Reply

    Last local election brought approxiamately 20% of invalid votes in many areas of Poland (especially in rural Masovia). Does it tell you something?

  10. Antoni J. Wrega, historian So 10 Jan 2016 at 21:38 - Reply

    WHAT READERS SHOULD LEARN ABOUT POLAND. For instance the article by T. G. Ash in The Guardian is FULL OF INACCURACIES. Polish citizens decided in a parliamentary election what is needed for them. Take yours advices for yourselves and please stop meddling in Polish affairs. Otherwise, you make yourselves quite ridicule and really hypocrite. ‚Polish daily‘ Gazeta Wyborcza was made by grandchildren of Stalinist dignitaries from the Communist times. It does not represent a Polish public opinion. So its so-called reports have zero value for an average reader. Please do not cite pure nonsense from disgraced the Gazeta Wyborcza and/or corrupted politicians like former Foreign Minister Radek Sikorski. I have made many comments like this. In a meantime I have got an opinion concerning present Polish matters from a friend of mine, from the U.S. The Author – Tadeusz Witkowski, Ph.D, from Ann Arbor has written the following [here, in extenso]: I fully agree with Toni Wrega. During the so-called Communist era, Moscow-puppets government in Poland controlled all of the most important areas of power, including means of production, military and law enforcement agencies, and means of dissemination of information. Post 1989, its power has been limited, but it has never given up control over mainstream media. When eight years ago, the coalition of the Civic Platform and Polish People’s Party (now opposition) took over power, it used the same Communist methods. Let me quote here some remarks of the journalist that became victim of purges conducted at that time in the public media, and may also say something about other methods practiced by the old regime.
    “It was during the rule of the Civic Platform and Polish People’s Party (PO-PSL) coalition that the standards of a democratic state were frequently violated. Here are some examples.
    – During the rule of PO-PSL coalition, independent journalists were repeatedly harassed by the security agencies. The staff of, among others, “Gazeta Polska” had their homes searched. In May 2011, at six in the morning, agents of the Internal Security Agency entered the flat of an Internet user who ran a satirical website on Bronisław Komorowski.
    – Independent journalists were dismissed from their posts as they demanded honest investigation into the Smolensk crash. Tomasz Sakiewicz and Anita Gargas, among others, lost their jobs in the public media. Cezary Gmyz was dismissed from the editorial staff of “Rzeczpospolita” for publishing information indicating that there were traces of TNT found on the wreck of the plane that crashed at Smolensk. Later, the information was confirmed by the prosecutors leading the investigation.
    – In June 2014, agents of the Internal Security Agency raided the office of a weekly “Wprost” which revealed stenographic records of conversations held by most important politicians. The agents wanted to confiscate computers and data storage discs belonging to the journalists. The so called tape scandal that erupted a few days earlier, provided evidence, among other things, that state-owned companies subsidized only the media writing in favour of the government. They ignored such indicators as reading of the press. Media houses were pressed not to place their advertisements in the independent press. For that reason a huge part of the media, Gazeta Polska included, were deprived of paid-for commercial advertisements.
    – In December 2014, two journalists (Tomasz Gzell of the Polish Press Agency and Jan Pawlicki of Telewizja Republika) were arrested. They covered the protest held at the headquarters of the National Electoral Commission. For a week or so the Commission was not able to provide the results of the local elections which agitated Poles and some decided to occupy the premises of the Commission. The journalists were arrested even though they had their identity cards. They also faced a lawsuit against them. To this very day the results of the last local elections remain highly questionable, the proof being 2 thousand protest notes lodged in local courts.
    – During the last 8 years, the previous government kept journalists and citizens under surveillance as a usual practice. Only in 2014, the secret service applied to have 2,177,000 telephone billings. In Europe we were definitely in the lead. The District Public Prosecutor’s Office in Warsaw is having an investigation into the wiretapping of independent journalists. In all likelihood, the service had no court warrant to do so.”
    Public media in today’s Poland still remain in hands of people that are responsible for those policies, and try to prevent the Polish government from introducing social reforms beneficial to the majority of Poles. That is why they misinform some politicians from Western Europe and the public in the West.
    The Polish parliament responded in an appropriate fashion. It simply passed a new (right and just) law that is to restore the sense of plurality in public media, and ensure social justice. [The end of Dr. Witkowski’s E-mail].

  11. Antoni J. Wrega, historian So 10 Jan 2016 at 21:41 - Reply

    Some examples of anti-democratic events during PO-PSL corrupt governance (2008-2015):
    – In December 2014, two journalists (Tomasz Gzell of the Polish Press Agency and Jan Pawlicki of Telewizja Republika) were arrested. They covered the protest held at the headquarters of the National Electoral Commission. For a week or so the Commission was not able to provide the results of the local elections which agitated Poles and some decided to occupy the premises of the Commission. The journalists were arrested even though they had their identity cards. They also faced a lawsuit against them. To this very day the results of the last local elections remain highly questionable, the proof being 2 thousand protest notes lodged in local courts.
    – During the last 8 years, the previous government kept journalists and citizens under surveillance as a usual practice. Only in 2014, the secret service applied to have 2,177,000 telephone billings. In Europe we were definitely in the lead. The District Public Prosecutor’s Office in Warsaw is having an investigation into the wiretapping of independent journalists. In all likelihood, the service had no court warrant to do so.”
    Public media in today’s Poland still remain in hands of people that are responsible for those policies, and try to prevent the Polish government from introducing social reforms beneficial to the majority of Poles. That is why they misinform some politicians from Western Europe and the public in the West.

  12. Christian Boulanger Di 12 Jan 2016 at 11:47 - Reply

    Dear Mr. Vega, would you be so kind as to explain what your last comments have to do with Mr. Koncewicz’s text or this discussion? I am afraid that simply repeating that you did not like the old government and providing anecdotal evidence for – what exactly? does not further your cause.

  13. Antoni Wręga Fr 8 Apr 2016 at 06:35 - Reply

    THank you very much would-be „liberals“ for your interest in Polish matters. You should also bow a little upon the migrant crisis all over around and over your elected leaders with enormous Panama portfolios.

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