See posts from other guest contributors for The Priori here.
by Professor Aleks Szczerbiak
Poland’s constitutional tribunal crisis escalated last month when the European Commission initiated the next stage of its rule of law procedure calling upon the country’s government to take action or face possible sanctions. But while the crisis is forcing the ruling party to expend political capital defending its position, it does not show any signs of backing down.
An escalating crisis
The row over the tribunal, a powerful body that rules on the constitutionality of Polish laws, is the most serious constitutional crisis to affect the country since the collapse of communism in 1989. It began when, immediately following its victory in last October’s parliamentary election, the new government led by the right-wing Law and Justice (PiS) party annulled the appointment of five judges elected by the previous parliament to the 15-member tribunal. Earlier these judges were unable to assume their posts because Law and Justice-backed President Andrzej Duda did not accept their oaths of office. The move met with widespread criticism from most of the opposition and legal establishment who accused the government of violating judicial independence. The government’s supporters, however, placed the blame for the crisis squarely on the outgoing administration, led by the centrist Civic Platform (PO) party, which they argued tried to appoint five judges illegally just before the election to pack the tribunal with Law and Justice opponents.
However, the tribunal itself ruled that while the appointment of the two judges replacing those whose terms of office expired in December was unconstitutional the other three were nominated legally. Government supporters, in turn, argued that the tribunal did not have the right to make judgements about the constitutionality of parliamentary appointments, and Mr. Duda swore in five judges nominated by the new parliament instead. Tribunal president Andrzej Rzepliński responded by declaring that the five would not participate in its work, although he subsequently allowed two of them to do so.
Law and Justice tried to break this impasse in December by amending the constitutional tribunal law to increase the number of judges required to make rulings in the most important cases from nine to thirteen; thereby hoping to oblige Mr. Rzepliński to accept the judges appointed by the new parliament. The so-called ‘repair law’ also increased the threshold for tribunal rulings to a two-thirds majority, making the votes of these new appointees more significant, and stipulated that cases would be considered in the order they were received rather than at the tribunal’s discretion.
The government’s opponents claimed that these changes would paralyse the tribunal and accused Law and Justice of undermining the fundamentals of democracy and the rule of law. As a consequence, thousands of Poles participated in demonstrations organised by the Committee for the Defence of Democracy (KOD), a new anti-government civic movement. The government’s supporters, however, defended its actions as necessary to restore pluralism and balance to the tribunal, which they said had been expropriated by supporters of the previous governing party. More broadly, they claimed that opposition to the government was being orchestrated by well-entrenched, and often deeply corrupt, post-communist elites.
In March, the crisis escalated when the tribunal decided that it was empowered by the Constitution to ignore the changes introduced in the ‘repair law’ and rule on its legality under the old procedural rules, and declared the December amendments unconstitutional. At the same time, the Venice Commission, an advisory body to the Council of Europe human rights watchdog, issued a critical report which said that the December amendments were a threat to the rule of law, democracy, and human rights. For its part, the government played down the report’s significance, argued that the tribunal had no power to review the ‘repair law’ (as the Constitution stipulates that its rules are regulated by parliamentary statute), and refused to publish the judgement in the official gazette, a necessary step for tribunal rulings to become legally binding.
Compromise or cosmetic changes?
The opposition’s narrative was picked up by the EU political establishment and Western opinion-forming media, many of whom share their dislike of Law and Justice. In January, the European Commission decided to undertake an unprecedented investigation of Poland under the EU’s rule of law monitoring mechanism. The Union adopted the instrument to complement the so-called ‘nuclear option’ provision in Article 7 of the EU treaties that allows the European Council to impose sanctions on countries found to be in serious and persistent breach of fundamental EU values; in the worst-case scenario suspending their voting rights. The Commission agreed to the first step under the framework: undertaking a preliminary investigation of whether there were clear indications of a ‘systemic threat to the rule of law’ and initiating a dialogue with the member state concerned.
In response, the Law and Justice government strongly opposed Commission interference in what it insisted was an internal matter of a political rather than legal nature. However, it also tried to de-escalate the dispute by saying that it was open to dialogue with the Commission and consultations with opposition leaders to find a compromise solution. As a consequence, another constitutional tribunal bill was introduced in June and signed into law at the end of July. This removed the two-thirds majority threshold and lowered the quorum for tribunal rulings in the most important cases from thirteen to eleven. It also allowed the tribunal president to determine the order in which cases were considered if this was necessary to defend civic rights and freedoms, state security or the constitutional order.
However, the main opposition parties argued that the government was simply buying time until Mr. Rzepliński’s term of office expires in December, hoping that he will be replaced as tribunal president by someone more amenable. The new law, they said, made only cosmetic changes and in some ways actually restricted the tribunal even further. Although the government agreed to publish all of the tribunal’s recent rulings, the law failed to recognise its key March judgement that invalidated the December ‘repair law’. It also required the tribunal president to allow the three un-recognised Law and Justice-nominated judges to take part in its proceedings and introduced a new veto mechanism allowing four judges to postpone a case for up to six months. Mr Rzepliński made it clear that he considered the new law unconstitutional and the tribunal could well strike it down.
According to some commentators, the law was rushed through parliament in an attempt to re-assure the US administration ahead of the NATO summit held in Warsaw at the start of July. Law and Justice are much more sensitive to pressure from the USA, which it considers Poland’s most important foreign policy ally, than EU criticisms. Although some government critics suggested that that the constitutional crisis could lead to the summit being downgraded or ending in humiliation for Poland, it proved to be a success with an agreement to strengthen NATO’s Eastern flank. However, US President Barack Obama did express concerns about the constitutional impasse arguing that ‘more work needs to be done’. Government supporters responded by saying that he also praised the parliament’s efforts to end the dispute and that these comments were marginal to the summit discussions.
EU pressure is unlikely to resolve the crisis
Law and Justice hoped that EU institutions would be so absorbed by the fallout from the June UK referendum vote to leave the Union that they would not return to the Polish crisis until the autumn. However, at its July meeting the Commission decided that Warsaw’s efforts did not go far enough and moved to the next stage of the procedure, issuing an official ‘rule of law recommendation’ urging the Polish government to: swear in the judges elected by the previous parliament; publish and fully implement all tribunal rulings; screen the latest tribunal law for compliance with the Venice Commission; and report on progress within three months. Having started the procedure it is difficult for the Commission to back down and it may be using the Polish crisis to signal that it retains a sense of purpose in spite of the Brexit imbroglio. Law and Justice responded by questioning the Commission’s sincerity and arguing that it should concentrate on dealing with the more serious problems that the EU faced rather than interfering in Poland’s internal affairs.
The constitutional crisis is forcing Law and Justice to expend valuable time and political capital responding to criticisms and defending its reputation. Its escalation could overshadow the government’s attempts to implement its flagship social spending pledges, notably the costly but extremely popular ‘500 plus’ child subsidy programme. A March-April survey for the CBOS polling agency found that 45% of respondents supported the tribunal compared with only 29% who backed the government (26% did not know). The crisis is also spilling over into other parts of the political and legal system as the tribunal rules on the basis of old procedures while the government refuses to recognise these judgements, forcing the courts and public bodies to decide whether or not to apply the challenged legislation.
However, with the stakes so high the government does not show any signs of backing down as a result of EU pressure, particularly as this would involve agreeing to actions that it had previously deemed illegal. Law and Justice are also clearly willing to pay a high political price for measures it feels are necessary to ensure that its legislative programme is not de-railed. At the same time, while many protesters and activists genuinely believe the government’s actions are undermining Polish democracy, it is clearly in the opposition’s interests not to reach a compromise and thereby keep public attention focused on a highly emotive touchstone issue around which it can mobilise both domestic and international support.
Moreover, for the moment at least the crisis and ongoing row with the Commission are too abstract for, and do not affect the day-to-day lives of, most ordinary Poles who are mainly concerned with socio-economic issues where the government is more in tune with public opinion than its liberal and centrist opposition critics. While Law and Justice has a significant number of vocal and well-organised opponents, it also retains widespread support among a large segment of the population. A June-July CBOS survey found that 37% of respondents supported the government while 30% were opposed (29% were neutral). Other surveys show that the ruling party retains a clear opinion poll lead over the divided opposition, and this support could solidify when voters start to feel the full impact of social spending programmes such as ‘500 plus’.
Indeed, the Commission’s intervention is something of a double-edged sword: while Poles support their country’s EU membership overwhelmingly, they are more divided over whether the Union should become involved in Polish domestic affairs. While a June CBOS poll found that, by 42% to 34%, respondents felt that the Commission’s criticisms of the Polish government were justified, only a small majority (41% to 39%) agreed that its actions were an acceptable form of pressure. Moreover, only 38% felt that the Commission’s actions were motivated by concern about the rule of law while 41% said that dislike of the Law and Justice government was the most significant factor.
Will there be sanctions?
If the Commission considers that its recommendations have not been implemented then it can propose a motion for sanctions under Article 7. However, as the framework only constitutes a political dialogue without any legally binding recommendations, such penalties require unanimity in the EU Council in one of the three stages of voting. The Hungarian government has already made it clear that it will veto any attempt to introduce such measures and could be joined by other countries concerned about possible Commission over-reach. Law and Justice have also questioned the legality of the Commission procedure, saying that it is based on non-treaty practices invented by officials, and could challenge it in the European Court of Justice dragging the process out even further. Poland’s constitutional crisis shows no sign of ending anytime soon.