The Polish Constitutional Crisis – a Drama in Three Acts

by Malwina Wojcik

On 20 December 2017 the European Commission adopted a Reasoned Proposal for a Council Decision regarding the systematic violations of the rule of law in Poland, taking the first step to an unprecedented launch of the Art. 7 TEU procedure. In spite of numerous recommendations issued by the European Commission and the Venice Commission throughout the last two years, the constitutional landscape in Poland dangerously shifted away from the rule of law and democracy, leading to severe threat to independent judiciary and access to justice. This article will purport to trace the events which led to one of the biggest constitutional crises in the modern Europe, from the conflict over Constitutional Tribunal to the recent controversial legislation altering the organisation of the justice system.

Act one: Constitutional Tribunal

The origins of the conflict, which brought Poland under the European Rule of Law Framework, bear a striking resemblance to the factual background of Marbury v Madison, an early 19th century landmark ruling of the US Supreme Court, concerning an argument over judicial appointments in transition period (1). On 25 June 2015, shortly before the end of its 7th term, the lower house of the Polish Parliament (Sejm), passed the Law on The Constitutional Tribunal (2) containing a provision allowing the outgoing legislature, dominated by the liberal Civic Platform party, to elect the successors of all Constitutional Tribunal justices whose mandate expired in 2015, including those retiring during the new parliamentary term. Through a resolution adopted during its last session on 8 October, Sejm nominated five judges: three to replace judges outgoing on 6 November and two to replace judges whose tenure ended in December, that is in the incoming legislative term. Following the general elections of 25 October, won by Law and Justice, a conservative opposition party, the President of Poland refused to accept the oath from all elected judges. On 19th November the Law on The CT was amended again to contain, among others, a provision for reelection of three judges nominated during the term of the previous legislature. On 2 December Sejm elected five new judges who subsequently swore an oath before the President. On 3 December, adjudicating on constitutionality of the Law on The CT passed by the previous legislature (3), CT found the nomination of two judges, whose tenure started during the new legislative term, unconstitutional. However, the nominations of the remaining three judges were held constitutionally valid and the President was called to accept their oaths immediately. Nevertheless, it still did not happen, leading to continuous peculiar coexistence of two judicial threesomes: the November and December judges. On 9 December the CT examined the 19th November Law on The CT, finding certain articles, including the new nominations provision, unconstitutional (4).

On 22 December Sejm passed new, highly contested Law on The CT, which contained a controversial article allowing the Executive to institute disciplinary proceedings towards judges (5), thus opening the way to exert political pressure on the Tribunal. The new law also introduced questionable procedural requirements, including the sequence rule stating that all cases should be decided in chronological order (6), an unusually high quorum of 13 out of 15 judges for the cases encompassing the full bench (7) and a qualified majority decision on unconstitutionality of laws (8). The Venice Commission, invited by the Polish Minister of Foreign Affairs to provide an opinion on the law, found that while the first two provisions seem questionable and exceptional in comparative perspective, they are not in themselves breaching reasonable European standards. However, read together with the 2/3 majority decision requirement, they create unreasonable hurdles in the constitutional review process, considerably undermining the access to justice, through obstructing the work of the Tribunal and rendering it ineffective (9), especially during already existing constitutional crisis.

It is hard to resist an impression that the new law, as opposed to settling the enduring conflict, was designed to exploit it to push forward the Government’s objectives. The absence of vacatio legis after the promulgation of the law put the CT in an absurd situation when it was asked to review the constitutionality of the law, which in the same time was already in force, regulating the activity of the Tribunal. Moreover, due to unresolved conflict of judicial appointments, the Tribunal was unable to sit in the panel of 13 judges required by the statute, as there were only 12 judges whose mandate was unchallenged. Hence, the CT was caught between a rock and a hard place, with no unproblematic way out. If the judgement was postponed, all the decisions passed in the meantime would be decided on the basis of a constitutionally questionable legislation. If the new law was applied it would lead to an unprecedented situation when the same statute was the subject and the legal basis of the decision. If the law currently in force was not applied, a possibility to nullify the proceedings would be open. In its judgement of 9 March 2016 (10) CT decided to apply the last solution, refusing to adjudicate according to procedure set by the new law, which was found unconstitutional in its entirety. Consequently, the Prime Minister refused to publish the decision in the Official Journal, claiming that it was passed without a legal basis and is therefore void. Hence, the legal status of the judgement remained uncertain and subject to debate.

On 26 April, the Supreme Court adopted a resolution confirming that the decision of the Constitutional Tribunal is valid. According to the First President of the Supreme Court, Ma?gorzata Gersdorf, the promulgation of the law is a purely formal act and therefore, even when not formally quashed, a statute cannot be applied when it was deemed unconstitutional by the Tribunal (11). The courts should be recognised as the first and the most important guardian of fundamental rights and freedoms, with a duty to do anything to guarantee them. This position is shared by Professor Tomasz Gizbert-Studnicki who uses the concept of necessity to defend CT’s actions (12). He claims that necessity, commonly used in Polish criminal, but also civil and administrative law, can justify a prima facie illegal action of disapplying the statute, if a higher value of protecting constitutional principles is at immediate danger, which cannot otherwise be avoided. This theory seems to be convincing, especially when read in conjunction with art. 195(1) of the Constitution, which states that “Judges of the Constitutional Tribunal, in the exercise of their office, shall be independent and subject only to the Constitution.”

Another view in support of validity of the decision is presented by Bart?omiej Swaczyna (13), who bases his opinion on a simple analysis of the Code of Civil Procedure, which defines consequences of procedural impropriety. Art. 379(4) of the Code states that if the composition of the court is contrary to the provisions of the law, the proceedings before it are deemed null. The nullity of the proceedings does not however imply nullity of the decision itself, which can be voidable, but is not void. According to art. 386(2) in the event of annulment of proceedings, the court of second instance shall quash the judgment under appeal and refer the matter back to the court of first instance. Hence, until this happens, the decision of the court of first instance remains valid. No quashing mechanism can be applied to the CT, as no appellate procedure is possible for its decisions. Art. 190(1) of the Constitution clearly states that the decision of the Tribunal shall be binding and final.

An opposing view is advocated by Professor Romuald Kmiecik who claims that the lack of publication is justified, because by refusing to follow the procedural requirements set by the statute, CT violated art. 197 of the Constitution, which explicitly leaves determination of the mode of proceedings to the primary legislation (14). The question, claims Kmiecik, shall not be if the law should be applied, but to what extent it should be applied. He argues, that CT could simply disapply articles which clearly contradict the express wording of the Constitution – for example if the new law provided for unanimity in the decision making contrary to the majoritarian rule enshrined in the Constitution. Since little of the new law’s content was in fact unconstitutional in this unambiguous sense, it should be deemed constitutional, until declared otherwise. This solution seems to be questionable insofar as it makes an artificial distinction between obvious and veiled unconstitutionality, implying that there exist different standards of constitutional review. However, it also exposes flexibility of the Polish Constitution, which can be interpreted in many different ways. It is therefore particularly important that the task of interpretation is entrusted to an independent and impartial Constitutional Tribunal.

The judgement of 9 March 2016 has not been published yet, contrary to continuous calls of domestic and international legal societies and authorities, including the Venice Commission and the European Commission. A revised version of the Law on Constitutional Tribunal was passed on 22 July 2016. In its further opinion (15) the Venice Commission concluded that although the law contained some crucial improvements, like lowering the quorum to 11 judges and introducing vote by simple majority, its main concerns about judicial independence and effectiveness of the Tribunal remained valid. Moreover, new concerns were raised regarding judicial appointments, as the law obliged the CT’s President to assign cases to the December judges.

Act two: The Law on the Organisation of Ordinary Courts

In the beginning of 2017 the Government announced the launch of a complex reform of the justice system, aiming to boost the effectiveness and accountability of the courts, remedying lengthy proceedings, corporatism and general lack of trust in the judiciary. Between May and June 2017 three drafts of legislation were passed by the Parliament: The National Council of Judiciary Bill, the Supreme Court Bill and the Organisation of Ordinary Courts Bill. The President decided to sign only the last draft, using his veto power to reject the two remaining bills, with an intent to introduce revised versions.

Although the Law on the Organisation of Ordinary Courts provided some desirable innovations, like random distribution of cases between the judges (16), it failed to address many concerns and introduced many questionable provisions. The already broad powers of inspection and dismissal of judges and court staff held by the presidents of the courts were expanded to create a hierarchical structure, where the presidents of senior courts can control not only the heads of division of their own court, but also the presidents of the lower courts, by issuing written remarks on maladministration, resulting in financial penalty (17). In spite of the random distribution procedure, the presidents also retain a discretion in assigning the cases to judges by replacing them for the sake of efficiency of proceedings (18). The presidents are to be overseen directly by the Minister of Justice, to whom the law grants extensive powers of their promotion and dismissal. In the first six months after the adoption of the law, the Minister can single-handedly dismiss the current presidents and appoint new ones (19). The current Minister, Zbigniew Ziobro, has already used this power on several occasions, recently for dismissal of the president of the Court of Appeal in Szczecin. After the transition period specified in the act, the Minister retains a power to appoint and dismiss the presidents of the appeal, regional and district courts (20). The appointment process is completed by the Minister alone, with no relevant criteria for the selection set by the statute and no involvement from the judiciary, as widely recognised in European standards, even in countries where the role of a court president is less crucial. The veto power of the National Council of Judiciary to reject the candidate was removed by the new law. Although NCJ retains the power to check the dismissal of a president, a high majority of ? needed to block it does not seem to be a sufficient safeguard against discretionary powers of the Minister (21), especially coupled with very broad and uncertain dismissal criteria, such as “serious and continuous failure to comply with official duties”, “particular ineffectiveness” or “incompatibility with the sound dispensation of justice” (22). The new law also broadens the competence of the Minister to quasi-disciplinary proceedings towards court presidents, allowing him to issue a written notice of maladministration to the president and vice-president of the appellate courts, reducing their post allowances as a consequence (23). Fortunately, this decision is also subject to appeal to NCJ. However, the allowance reduction based on the Minister’s assessment of the annual performance report is not. Finally, the Minister also has a discretion to extend a judge’s mandate beyond the retirement age (24).

All these provisions, read together, establish a strong pattern of dominance of the Minister over the ordinary courts. While the justice system where judges regulate their own activity might be ineffective and vulnerable to corporatism, so is a system dominated by external, political power. A strong role of the Minister in administration of justice is not necessarily bad thing, but only if it is properly balanced by the judicial involvement. As underlined by the Venice Commission, the broad discretionary competences of the Minister of Justice are particularly dangerous because of the double function that he holds, being the Prosecutor General in the same time (25). This leaves him with regulatory powers over the proceedings, in which he himself has an interest, creating an incentive to influence the judgement.

Act three: The Law on the National Council of Judiciary and the Law on the Supreme Court

In September 2017 the President proposed revised bills regarding the National Council of Judiciary and the Supreme Court. The drafts, with a few amendments, were adopted by the Parliament and signed by the President on 20 December.

The composition of the NCJ is regulated by art. 187 of the Constitution. The body encompasses: the First President of the Supreme Court, the Minister of Justice, the President of the Supreme Administrative Court and an individual appointed by the President of the Republic, 15 judicial members chosen among the judges of the Supreme Court and ordinary, administrative and military courts, as well as 6 lay members: 4 chosen by the Sejm and 2 chosen by the Senate. The mode of electing the judges to the NCJ is not specified by the Constitution, with art. 187(4) providing that the the manner of choosing the members shall be specified by statute. Until adoption of the new law it was the judiciary itself who was choosing its representatives in NCJ. The presidential reform provides for the 15 members to be chosen by the Parliament, from candidates nominated by either 25 judges or 2000 citizens (26). The judges are to be elected by a qualified majority of 3/5. This is an important improvement compared to the parliamentarian draft, which required only a simple majority. Nevertheless, the new method of appointing judges to NCJ is, as the Venice Commission notes, highly unusual in the comparative perspective (27), with the judicial members of councils around Europe being usually appointed by their peers. Coupled with other reforms of the justice system, the new appointment procedure contributes to dangerous politicisation of judges. This is particularly important in the case of NCJ, which has a crucial role in judicial appointment process and holds important functions of a guardian of judicial independence and accountability. Another questionable provision is an introduction of “joint term of office” (28) of the new members, which in turn requires shortening the term of office of the current judicial representatives, causing a further decrease in internal pluralism.

While the law’s underpinning idea of strengthening the democratic mandate of the judges is beneficial, it is hardly acceptable for it to be introduced with a detriment to judicial independence. Although a desirable change is provided by the provision obliging the Parliament to take into account the need to remedy underrepresentation of courts of different levels and jurisdictions during the voting procedure (29) greater diversity among the judicial members could have been achieved in a different way, for example by introducing representative members to be chosen by each type of court, as it happens in case of the Judges’ Council in the UK. How the new appointment procedure works in practice remains to be seen in the upcoming elections. On 15 January 2018 the President of NCJ resigned from his office to express his criticism of the reform.

The Law on the Supreme Court, involving far reaching changes in the court’s structure and organisation, was introduced under the cover of expelling the old communist elite, which remained in the court due to inadequate lustration process, and giving the court a fresh, democratic start. Its most important provision is introduction of two new chambers, enjoying special status within the SC. The Disciplinary Chamber was created to deal with disciplinary cases regarding judges from other chambers and handle cases of delays in proceedings in the SC (30). The Extraordinary Control and Public Affairs Chamber will adjudicate on particularly sensitive cases, such as electoral disputes or disputes between the citizen and the State (31). Moreover, it will have a special power to review all the final decisions of the other chambers and ordinary courts. The extraordinary procedure will allow many cases decided in the last 20 years to be reopened on the grounds of violation of rights and freedoms enshrined in the Constitution, breach of law through misinterpretation or misapplication, or a striking contradiction between the evidence and the court’s findings (32). Introduction of such an extensive instrument of extraordinary appeal might serve to remedy judicial errors, however, it will also considerably undermine the legal certainty and, most probably, paralyse the SC with an enormous amount of appeals.
Another controversial feature of the law is appointment of lay judges by the Senate of the Republic, to sit alongside the ordinary justices in some of the cases handled by special chambers (33). This idea, introduced on the highest level of judicial hierarchy, seems particularly controversial as it poses a clear risk of diminishing the quality of judgements by introducing an unnecessary disruption in determination of complex questions of law. On contrary, the role of lay judges, already present in the first instance courts, could be extended to adjudicating on simple offences, to relieve the workload of ordinary judges. Regrettably, such solution was not proposed in the extensive legislation on ordinary courts.

The heads of the new chambers will be appointed directly by the President of Poland, giving them legitimacy comparable to the First President of the SC. During the transition period the President of Poland will be able to freely decide on the organisation of the new chambers (34). Thus, it will be technically open for him to fill the chambers with newly appointed judges. Taking into account the influence that the ruling party secured in NCJ, it is perfectly possible that the new justices of the Extraordinary Chamber, whose judgments need to be particularly impartial, will in fact be under severe political pressure. Exerting even more political influence on SC would be possible thanks to reducing the retirement age of judges from 70 to 65 years (35). As the provision applies ex tunc, many of the justices, including the First President, will be forced to retire before the end of their tenure.This will not only undermine the independence and dignity of the SC judges, who are mostly in the last phase of their careers, but also violate the Constitution, which in art. 183(3) fixes the length of the term in office of the First President as 6 years and provides for general irremovability of judges (art. 180(1)). The new law provides for a possible extension of tenure upon request to the President of the Republic, who however retains complete discretion in taking the decision (36). This might turn out to be particularly problematic in the light of the ruling of ECtHR in Baka v Hungary (37), where it was held that the President of Hungarian Supreme Court must be provided with an opportunity to challenge his dismissal. The uncertainty of the term in office undoubtedly violates the legitimate expectations of judges, while lack of a appeal procedure to challenge the decision is against the due process of law. Read in conjunction with the legislation regarding NCJ, the Law on the SC constitutes an obvious threat to the impartiality of judges.

To be continued: towards legal constitutionalism?

The Polish Parliament keeps usurping the powers of constitutional interpretation which it does not have, acting contrary to the separation of powers, rule of law and principles of democracy. The unresolved conflict around the Constitutional Tribunal opens the way for escalation of constitutional crisis, evidenced in the new complex legislation, which makes judges increasingly vulnerable to political pressure. The Government seems to conflate holding judges democratically accountable with suppressing their independence though wide discretionary powers granted to political figures. While the Law and Justice Government receives a well-deserved criticism for disrespecting the rule of law, it is crucial to realize that the current constitutional crisis is not solely a result of the ruling party’s lust for power, as often portrayed by the public opinion. Unfortunately, attempts to influence the judges seem to be a common practice in the Polish political landscape. It is worth reminding that it was the Civic Platform Government who started the constitutional crisis by attempting to appoint CT judges whose mandate began after parliamentary elections. It is regrettable that the National Council of Judiciary, the General Prosecution Office, as well as the current and former judges of the CT, who took part in the scrutiny of the initial amendment of the law on CT bill, failed to effectively question the controversial transitional provision, allowing it it spark a constitutional conflict.

Politicisation of judiciary is particularly detrimental because it undermines the public confidence in independent judges, portraying them as representants of the opposing political parties. Unfortunately, the constitutional spirit of the rule of law is largely absent from the debate, which remains dominated by political voices. It is well evidenced in the controversial speech of Professor Lech Morawski, a judge of CT appointed by the Sejm of 8th term, who started his talk in Oxford with the infamous declaration of “representing the views of so criticised Polish Government” (38), thus revealing his political involvement. Morawski recognised the conflict over CT to be of a generally political, not legal nature, with two opposing visions of the Tribunal represented by Civic Platform and Law and Justice. He underlined that it is the current government which enjoys support of common citizens, while the previous is widely associated with corruption. The biggest danger of this argument is that it gives the Constitution an overly political, or even populist character, leading to a risky conclusion that the right political aim justifies the means, so the law can be freely adapted to accommodate it. Morawski was undoubtedly right in defining the Polish constitutionalism as historically based on conservative values, dominance of political parties and strong leadership. Nevertheless, what was desirable in the era of reconstructing the state after partitions, might not be adequate in the modern Poland, leading to erosion of the rule of law. Perhaps the only way out of the constitutional crisis is a decisive shift from a political to legal constitutionalism. This however, will not be possible without a change in political culture, opening a way to dialogue and cooperation, as opposed to struggle to control the Constitution. The supreme law is not to be owned by either the conservative or liberal parties. It is rather a common good of all citizens and as such, it must be a compromise. Resolving the crisis requires both the Executive, the Legislative and the Judiciary to work closely in order to bring the legal culture closer to the people, because the change, if it is to be successful, needs to start in the minds of ordinary citizens.

1 Marbury v Madison 5 U.S. 137 (1803). In 1801, upon lost presidential elections, John Adams amended the Judiciary Act, increasing the number of judicial positions available and nominated new judges on the last day of his presidency, with an intent to keep a Federalist majority in the judiciary. After taking his office, Thomas Jefferson instructed his Secretary General, James Madison, not to send formal nominations to the so called ‘Midnight Judges’. Subsequently, the Judiciary Act 1801 was repealed, allowing Jefferson to appoint new judges according to his will.
2 The Law on The Constitutional Tribunal of 25 June 2015, art. 137.
3 Case K 34/15.
4 Case K 35/15.
5 The Law on The Constitutional Tribunal of 22 December 2015, art. 28(a).
6 ibid, art. 80(2).
7 ibid, art. 10(1).
8 ibid, art. 99(1).
9 The Venice Commission, Opinion on Amendments to the Act of 25 June 2015 on The Constitutional Tribunal of Poland (Opinion no 833/2015, 11 March 2016) para 88.
10 Case K 47/15.
11 Speech during the General Assembly of Judges of the Constitutional Tribunal (Warsaw, 1 April 2016)
12 Speech during the The Polish Constitutional Crisis and Institutional Self-defence Conference (Oxford, 9 May 2017).
13 Bartłomiej Swaczyna, ‘Wyrok TK z 9 marca 2016 r. powinien być opublikowany’ Rzeczpospolita (9 April 2016).
14 Romuald Kmiecik, ‘Błąd Trybunału Konstytucyjnego’ Rzeczpospolita (26 March 2016).
15 The Venice Commission, Poland. Opinion on the Act on The Constitutional Tribunal (Opinion no 860/2015,15 October 2016).
16 The Law on the Organisation of Ordinary Courts of 25 July 2017, art. 47a (1).
17 ibid, art. 37e (1).
18 ibid, art. 45.
19 ibid, art. 17.
20 ibid, art. 23-25, 27.
21 ibid, art. 27(4).
22 ibid, art. 27(1).
23 ibid, art. 37ga.
24 ibid, art. 69(1)b.
25 The Venice Commission, Opinion on The Draft Act Amending The Act on The National Council of The Judiciary, On The Draft Act Amending the Act on The Supreme Court, Proposed by the President of Poland, and on The Act on Organisation of The Ordinary Courts (Opinion No. 904 / 2017, 11 December 2017) para 99.
26 The Law on the National Council of Judiciary of 8 December 2017, art. 9a(1), 11a(2).
27 The Venice Commission Opinion (no. 25) para 24.
28 The Law on the National Council of Judiciary of 8 December 2017, art. 9a(1).
29 ibid art. 9a(2).
30 The Law on The Supreme Court of 8 December 2017, art. 27.
31 ibid art. 26.
32 ibid art 89(1).
33 ibid art. 59(1), 61(2).
34 ibid art. 4.
35 ibid art. 37(1).
36 ibid.
37 ECtHR [GC], no. 20261/12, 2016.
38 Speech during the The Polish Constitutional Crisis and Institutional Self-defence Conference (Oxford, 9 May 2017).

Malwina Wojcik was born in Warsaw, she is a third year English and European Law student at Queen Mary, University of London, spending her year abroad at the University of Bologna and doing an internship at the CCSDD. Her academic interests encompass international and comparative public, criminal and family law. She has gained practical legal experience of both common and civil law jurisdictions, interning in various legal advice centres in London, as well as in the Family Division of the Warsaw District Court and the Criminal Chamber of the Supreme Court of Poland. Her biggest non-academic interest is history of art.