WARSAW — A report on the Polish government’s profound changes to the country’s top constitutional court released Friday concludes the steps endanger “not only the rule of law, but also the functioning of the democratic system.”
The study by the Venice Commission, a body of legal experts with the Council of Europe, a human rights watchdog, comes as a blow to Poland’s right-wing Law and Justice (PiS) party government, which had been hoping to soften the language of a draft report leaked last month.
Despite lobbying efforts by the foreign ministry, the final report was scathing in the shortcomings of the government’s approach to the Constitutional Tribunal, which has set off a political and legal crisis in Poland.
The commission “repeated the reasoning of one of the sides, that’s what saddens me the most,” said Konrad Szymański, the deputy foreign minister. “We underlined that we can agree on one thing, that there are no simple solutions. However, the commission decided to choose a simple path.”
The commission was invited to Poland in December by Foreign Minister Witold Waszczykowski, after a wave of foreign and domestic criticism over the government’s actions.
Polish Foreign minister Witold Waszczykowski during a EU Foreign Affairs Council meeting at EU headquarters in Brussels on January 18, 2016. John Thys/AFP via Getty Images
What’s at stake
Part of the dispute is over who gets to be on the 15-judge court. The new government, elected in October, refused to recognize three judges elected by the previous parliament and instead elected its own judges, who have been sworn in by President Andrzej Duda but who haven’t been allowed to take seats on the tribunal.
The other dispute is over deep changes to the rules governing the functioning of the court rushed through parliament in December. Those rules make it possible to remove judges, set a minimum quorum of 13, change the definition of a majority needed for a verdict from half to two-thirds of judges and take away the tribunal’s ability to choose cases, insisting they be taken up in chronological order.
The Venice Commission warned that “crippling” the court’s effectiveness would undermine democracy and the rule of law. “Constitutional democracies require checks and balances,” it found.
Commission defends tribunal
The commission chastised the government for its refusal to publish Wednesday’s tribunal verdict, which found that the December rule changes were unconstitutional. The government argues that the tribunal should have acted according to those new rules, meaning the court, now counting only 12 judges and examining the new law out of chronological order, could not decide on the legality of the procedural rules.
Andrzej Rzepliński, the tribunal’s president, refused to accept that position and went ahead with the verdict.
The formal publication of the decision is the final step in making a tribunal decision valid. Calling the verdict only a “communiqué,” Rafał Bochenek, a government spokesman, said the tribunal “had not followed legal requirements.”
But the commission wrote that refusing to publish the judgment “would not only be contrary to the rule of law, such an unprecedented move would further deepen the constitutional crisis triggered by the election of judges in autumn 2015 and the Amendments of 22 December 2015.”
Consequences
The report will cause further problems for Warsaw because the European Commission has said it will take the Venice Commission conclusions into account when it restarts its probe into whether Poland has violated the bloc’s democratic principles after Easter.
“Current situation means these checks & balances are now in limbo. This is not acceptable in a EU based on rule of law,” tweeted Martin Schulz, president of the European Parliament.
Law and Justice has oscillated on how to deal with the blowback to its approach to the tribunal. Some ministers have denounced Brussels politicians who dared question the government, especially if they were German, like Schulz.
But Prime Minister Beata Szydło showed up in the European Parliament in January to argue her case, and got generally positive reviews.
Although the Venice Commission came at Warsaw’s invitation, Jarosław Kaczyński, the leader of PiS and Poland’s most powerful politician, later denounced its draft report as “absurd from a legal point of view.”
Szymański’s tone in reaction to the final report was cautious.
Polish Prime Minister Beata Szydlo arrives at the Council of the European Union on February 18, 2016 in Brussels, Belgium. Dan Kitwood/Getty Images
The language has been more brutal in the country. Kaczyński has attacked anti-government protesters as being unpatriotic and backed by forces that want to keep Poland a colony — a theme echoed by Duda.
The constitutional battle is only one part of a series of rapid changes by PiS. Others include a politicization of the civil service, the government taking tighter control of public radio and television, verbal attacks on allies like Germany, and the replacement of top management in most state-controlled companies.
The opposition is planning a demonstration Saturday in front of the Constitutional Tribunal, and protestors have also gathered outside the prime minister’s office. The government said it plans its own massive counter-rally in the coming weeks, pulling in as many as 200,000 people to the capital.
Foreign worries
Although the constitutional crisis has battered Poland’s international reputation, opinion polls show PiS remains by far the most popular political party, with the support of 38 percent of those polled in a recent survey.
The other impacts are harder to judge.
The government’s refusal to publish the verdict could cause legal chaos. If the tribunal rules on any of the government’s other legislation — some of which is very controversial, such as a law dramatically limiting the property rights of farmers, or one giving the police more rights to snoop on people — lower courts will be uncertain whether such a verdict is binding or not.
It is unclear what will happen in Brussels. Hungary, also under fire for bending democratic rules, has sworn to block any attempt to suspend Poland’s voting rights in the European Council. However, Poland could find itself isolated on the margins of the EU, making it difficult to strike deals on issues like gaining approval for government aid to rescue floundering coal mines.
The crisis is complicating relations with Washington, the Polish government’s main foreign ally. John Kirby, a State Department spokesman, told Poland’s Rzeczpospolita newspaper that the U.S. is “alarmed” by the state of rule of law in Poland.
Interior Minister Mariusz Błaszczak told Poland’s TVN television the U.S. position “may be a misunderstanding.”