WARSAW — Changes to Poland’s constitutional court pushed through by its new conservative government “endanger not only the rule of law, but also the functioning of the democratic system,” according to a draft report from a European legal advisory body.
The Venice Commission, part of the Council of Europe, was invited to examine the state of the Constitutional Tribunal by Poland’s foreign minister in December after a constitutional crisis was set off by disputes over which judges should sit on the Tribunal and the Law and Justice party government’s subsequent legal changes to the court’s functioning. The situation is also being examined by the EU, which in January launched an unprecedented “rule of law” probe into the Polish government’s actions.
Poland’s government has insisted that its changes are well within European constitutional norms, and that they have simply served to make the court reflect a fairer balance between the government and the opposition and that the changes to its operations make it more effective.
However, the Venice Commission’s draft report found little or no merit in any of the government’s steps.
“As long as the situation of constitutional crisis related to the Constitutional Tribunal remains unsettled and as long as the Constitutional Tribunal cannot carry out its work in an efficient manner, not only is the rule of law in danger, but so is democracy and human rights,” said the draft.
Polish President Andrzej Duda | Janek Skarzynski/AFP/Getty Images
The first crisis related to the composition of the court. The former Civic Platform government, in power since 2007, named five new judges to the 15-member court just before parliamentary elections on October 25. But two of those nominations were questionable, as they replaced judges whose terms expired only in December. However, the government acted with opinion polls showing Civic Platform very likely to lose the elections to Law and Justice.
The new parliament, in which Law and Justice has an absolute majority, scrapped the election of all five judges, and elected five of its own, all of whom were rapidly sworn in by President Andrzej Duda.
The Tribunal later found that Civic Platform’s gambit was unconstitutional and that the two questionable judges were improperly chosen, but that the election of the first three judges was valid. However, the government has ignored that verdict.
The government then adopted deep structural changes to the way the court works. The new law insists that the Tribunal take cases sequentially, sets a quorum of 13 out of 15 judges, and says that constitutional verdicts have to be decided by a two-thirds majority.
“While each of the procedural changes examined above is problematic on its own, their combined effect would seriously hamper the effectiveness of the Constitutional Tribunal by rendering decision-making extremely difficult … This will make the Tribunal ineffective as a guarantor of the Constitution,” said the Venice Commission’s draft.
Prime Minister Beata Szydło stressed in a television interview Saturday that the draft was not the Commission’s final verdict. That is supposed to be handed down by March 12.
The Commission’s verdict is not binding, but it does carry enormous weight. If the final conclusion is similar to the draft, it risks setting off another round in Poland’s constitutional crisis.
In addition to the fight over the Tribunal, the government has taken control of the public media, made the civil service more political, replaced the top management at most state controlled companies, expanded police surveillance powers and given the justice minister power over prosecutors.
The resulting worry over the possible erosion of democratic standards sparked large street protests, concern from European politicians, and prompted the European Commission to launch the unprecedented “rule of law” probe.
As many as 80,000 anti-government demonstrators took to the streets of Warsaw on Saturday afternoon, waving Polish and EU flags, and holding signs warning of Law and Justice’s intentions.
“I want a return to normalcy. There is an attack on the rule of law in Poland,” said Beata, a Warsaw translator. “I see the attack on the Constitutional Tribunal as an attack on the state.”
Despite the name, the Council of Europe is not an EU institution but rather an organization that aims to promote human rights, democracy and the rule of law in its 47 member states. While it has no real legislative or executive power, it is the guardian of the European Convention on Human Rights, a treaty on protecting human rights and fundamental freedoms to which all EU members are signatories.