A row over Poland’s highest court that marred the early days of the country’s right-wing government threatens to erupt again this week, with neither the ruling Law and Justice party nor the judiciary willing to back down.
So emotive is the issue that a compromise aimed at ending the fight over the Constitutional Tribunal was shot down Monday by both government and opposition.
The battle started when the government refused to recognize three judges chosen by the previous government ahead of last October’s parliamentary election, instead choosing its own candidates who have been sworn in by President Andrzej Duda but haven’t been permitted by the Tribunal to take their seats.
In December, the government also dramatically revamped the way the 15-member court functions. The Tribunal is now supposed to deal with cases in chronological order, to have a quorum of 13 judges, and to make rulings by a two-thirds majority.
Those changes effectively hobble the court, the government’s critics say.
The Tribunal plans to take a look, starting Tuesday, at whether those new rules are constitutional. The court’s president, Andrzej Rzepliński, on Monday denied a request from Justice Minister Zbigniew Ziobro to postpone the hearings for two weeks.
The Tribunal holds the constitution gives it the right to examine the new law, but the government insists it can’t because the new law says cases now should be dealt with chronologically and because the court only has 12 sitting judges, not 13 — not enough for a quorum.
“What is happening … if it happens, is an absolute scandal,” Patryk Jaki, the deputy justice minister, told Poland’s Radio Zet. “Let the judges explain why they don’t want to obey the law.”
Polish Prime Minister Beata Szydło (R) attends a cabinet meeting with Interior Minister Mariusz Blaszczak (L), Defense minister Antoni Macierewicz (2-L) and Justice Deputy Minister Patryk Jaki. | Photo by Radek Pietruszka/EPA.
To break the stalemate, Kazimierz Ujazdowski, an MEP with Poland’s ruling Law and Justice party (PiS), suggested Monday that the three disputed judges elected by the current parliament be allowed to take their places on the Tribunal. As future vacancies occurred, the three judges chosen by the previous parliament would fill them.
Ujazdowski said he had run his idea past Jarosław Kaczyński, the leader of PiS and Poland’s most powerful politician. Kaczyński “is ready for a compromise and has good will,” the MEP told Poland’s TVN24 television.
But the idea came under immediate attack from both government and opposition MPs and now appears dead in the water.
“I won’t confirm that this was an idea in any way accepted by Chairman Kaczyński,” said Jacek Sasin, a PiS MP. “This is Ujazdowski’s own idea which isn’t the official position of PiS.”
The opposition Civic Platform party was no more positive. Rafał Grupiński, a senior MP, dismissed Ujazdowski’s idea, saying: “Allowing judges who were elected in violation of the constitution is not a compromise but an encouragement to break the constitution.”
The court row was a crucial determinant in the European Commission deciding to launch an unprecedented inquiry into whether the government’s actions violate the bloc’s democratic rules. They also sparked mass protests by the opposition, unable to block the changes in parliament thanks to Law and Justice’s absolute legislative majority.
The fervor of the complaints died down in recent weeks, but the temperature is rising again.
Outsiders take a look
Poland’s government has more to worry about than the Tribunal’s two days of hearings. On Tuesday, the Council of Europe, the international human rights and democracy body, holds a discussion on the state of democracy and rule of law in Poland.
Adding to the government’s problems, the Venice Commission, an expert body of the Council of Europe, is to release its report on the Constitutional Tribunal on Friday.
A 25-page draft of the report, obtained last week by POLITICO, condemned all the government’s actions, finding that “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.”
The Council of Europe refused the Polish government’s request to delay the report, provoking outrage from Kaczyński.
The draft “is legally absurd,” Kaczyński said, while attacking the Commission for “compromising” itself because of the leaked report.
He also stressed that the Commission’s ruling is purely advisory and doesn’t bind the Polish government.
“We’ll work out Polish issues and Polish problems on our own” — Jarosław Kaczyński.
“Let no one count on us retreating,” Kaczyński said in a fiery Monday night speech at a political rally. “We’ll work out Polish issues and Polish problems on our own. We’re able to do that. We want to do that, but without foreign interference.”
Costs of confrontation
Going up against the Venice Commission and the Constitutional Tribunal is risky for the government.
The European Commission has made clear that it will take the Venice report into account when it makes its own assessment of Poland’s democracy. The chances of Poland losing its EU voting rights are very slim, but Brussels seems determined to be much more proactive about Poland than it has been with another problem-child, Hungary.
The clash also risks reinvigorating PiS’ domestic opposition and spurring even larger anti-government protests.
“We’ve come to all the demonstrations and we’ll keep on coming as long as there is a danger of a real paralysis of the Constitutional Tribunal,” Michał Ziółkowski, a climbing instructor, said at a street rally in Warsaw last month.
Finally, the conflict over the Tribunal carries the danger of weakening Poland’s international standing at a time of worries over Russia’s intentions and while Warsaw is trying to beef up NATO’s troop presence in Central Europe — the main subject of NATO’s July summit in the Polish capital.
U.S. Secretary of State John Kerry (R) talks with Polish Foreign Minister Witold Waszczykowski (L), in Washington DC, February 17, 2016. | Photo by Shawn Thew/EPA.
Although PiS has traditionally been pro-American, in contrast to its skepticism about aspects of the European Union, Washington is sending Warsaw fairly clear warnings to pull back.
In a recent meeting with Foreign Minister Witold Waszczykoski, U.S. Secretary of State John Kerry reminded him of the scrutiny from the Venice Commission and the European Commission.
Three U.S. senators sent a letter last month to Prime Minister Beata Szydło, expressing “concern” that the legal changes brought in by the new government “undermine Poland’s role as a democratic model.”
“We urge you to recommit to the shared democratic values enshrined in the Helsinki Accords and the EU charter,” said the letter signed by Benjamin Cardin, Richard Durbin and John McCain.
It’s unclear whether Warsaw has received the message.
The letter was the result “of a lack of knowledge of what’s happening in Poland and was inspired by people who wish Poland ill,” Waszczykowski said in Brussels last month.