The conservative Polish government wants to liquidate judicial independence and turn the country into a dictatorship. That is basically the message that many media are launching about Poland.
However, and as it often does lately, there are many things that the media are not counting on. I indicate a few below.
A Constitutional Court created by the communist dictatorship
The current Polish Constitutional Court (TK) was created in 1982, ie during the communist dictatorship and more specifically in the period in which General Jaruzelski had martial law in force. The TK did not begin its activity until 1985 with very limited powers. It originally consisted of 12 magistrates elected by the Sejm (the Polish Parliament, then a mere extension of the single communist party). After the fall of communism, the TK reinforced its authority but basically remained the same judicial organ created by the communists.
A politically mediated judiciary since 1997
The Polish Constitution of 1997 established that the National Judiciary Council (NJC) would consist of the following members (I point out in bold the politicians):
As you can see, although this Constitution says that the Polish Justice is independent, the NJC has 8 politicians out of the executive and the legislative. Maybe then no complaints were heard about the lack of judicial independence in Poland because this system of choice is very similar to that of other European Union countries, including Spain. On the other hand, then the President of the Republic of Poland was the Socialist Aleksander Kwaśniewski of the Socjaldemokracja Rzeczypospolitej Polskiej (Social Democracy of the Polish Republic), which was adopted in 1990 by the Polish Unified Workers Party, the former single party of the communist dictatorship. The main parties of the Sejm were then Socialist Sojusz Lewicy Demokratycznej (Alliance of Democratic Left, affiliated to the European Socialist Party) and the Polish People’s Party (affiliated to the European People’s Party).
The 15 Constitutional magistrates are elected by politicians
Following the entry into force of the 1997 Constitution, the number of judges of the TK increased from 12 to 15, extending its mandate from 8 to 9 years. In addition, the TK lost the power to make a binding interpretation of the law. Likewise, a two-thirds majority of the Sejm allowed to overturn any sentence declaring the unconstitutionality of a law passed before the entry into force of the new Constitution. The 15 members of the TK are elected by the Sejm. But since the pie was cut by the popular and Social-Democrats, there were no international complaints about the court’s lack of independence. In the final analysis, other European Union countries thus designate members of their constitutional courts.
The dirty game of the previous government to control the Constitutional
The current Polish judicial conflict did not arise with the current government of the conservative party Prawo i Sprawiedliwość (Law and Justice, PiS), but with the previous government of the Obywatelska Platform (Civic Platform, PO). The PO ruled in Poland for two consecutive terms between 2007 and 2015. Legislative elections were held in October 2015. All the surveys predicted the defeat of the PO and a victory of the PiS. And it happened that five TK magistrates ended their term in November and December of that year, after the elections. In a political maneuver that provoked a great controversy in the country, the PO wanted to replace those five judges before the elections. How to do it would have been manifest illegality, to carry out this maneuver the Sejm – dominated by the PO – approved a new law for the Constitutional Court in June 2015, just four months before the elections. Finally, the five new judges were elected in the last parliamentary session before the elections, on October 8, 2015. Curiously, at the political and media level was not a controversy like the current one, perhaps because the PO is affiliated with the European People’s Party and because the president of the EU was from December 2014 Donald Tusk, Polish and member of the PO.
The first and scandalous sentence of the new magistrates
The five new judges were: Roman Hauser (proposed by the PO), Andrzej Jakubecki (PO), Krzysztof Ślebzak (PO), Bronisław Sitek (proposed by the Peasant Party, also affiliated to the European People’s Party and allied with the PO) and Andrzej Sokala (proposed by SDL, Social Democrats). The PiS denounced these appointments as an illegal maneuver planned to block the legislative projects it included in its program. The first sentence of the new judges appointed before the elections consisted in taking the law of the TK of June of 2015 that had served to carry out his appointment. It was a great scandal, but the EU did not say anything about it: after all, I insist, the EU president was from the PO.
The Constitutional Court, presided by an old communist appointed by the PO
On 7 November, the TK annulled the nominations of the two candidates not proposed by the PO: Bronisław Sitek (proposed by the Peasant Party) and Andrzej Sokala (proposed by the Social Democrats). Following the election victory of PiS in October 2015, on 2 December 2015 Sejm proposed five appointments for the TK to replace those appointed by the previous legislature, considering that the PO and its allies had violated the law and therefore The appointments they had made were invalid. The five candidates were Lech Morawski, Henryk Cioch, Mariusz Muszyński, Julia Przyłębska and Piotr Pszczółkowski. On 1 December, the Justice and Human Rights Commission had given a favorable opinion of the five candidates. On December 3, President Andrzej Duda took oath of four of the five candidates.
On January 7, 2016 the TK, chaired by Andrzej Rzepliński (proposed for the post by the PO) overturned the five appointments made by the new Sejm. The TK, controlled by the PO magistrates put irregularly months before, considered that these appointments were not normative acts. However, five days later and in contradiction to himself, Rzepliński admitted two of the judges proposed by the Sejm: Julia Przyłębska and Piotr Pszczółkowski, replacing the vacancies left by Bronisław Sitek and Andrzej Sokala in November. Rzepliński’s case is common in the structures of the Polish judicial system inherited from the dictatorship: he was a member of the Communist Party, his family worked in the militia and political police of the dictatorship, and often exercised more as a politician than as a judge, to disqualify before the media the legislative projects of the PiS on which soon he has to issue sentence, something improper of a supposedly independent and impartial judge.
Blockade of any attempt to reverse the irregular reform of June 2015
On December 22, 2015, the Sejm passed a new TK law, created to undo the changes made by the PO and its allies in June 2015, shortly before the elections. The Senate ratified the new law two days later. The law was signed by Polish President Andrzej Duda on December 28, 2015. As was foreseen, the TK controlled by the PO magistrates declared this law unconstitutional on March 9, 2016. The blockade that the PiS had denounced previously. Three judges appointed by this party issued private votes contrary to the judgment of unconstitutionality, some particular votes that could not have been issued without the new law of December 2015 (in Spain, for example, they do exist). On July 22, 2016 the Sejm approved a new law for the TK. On August 11, the TK also declared the new law partially unconstitutional, repealing 9 of its 10 provisions. Again there were three private votes.
The Court dispenses with the mandatory presence of all its members
During this battle between the TK and the Sejm, several judges appointed by the PiS have refused to participate in the TK sessions by holding the deliberations in the absence of the other three candidates proposed by Parliament illegal. Although the law requires the participation of the 15 magistrates in the deliberations, the TK has continued to act, which has led the government to refuse to publish their sentences while the TK does not comply with the law.
What happens in other European countries?
In the case of Spain, the election of the judges of the Constitutional Court depends on the vast majority of politicians, both the executive (2 magistrates) and the legislature (4 in Congress and 4 in the Senate). The General Council of the Judiciary can only elect two judges of the TC, but the CGPJ itself is politically mediated (8 of its 20 advisers are appointed on the proposal of the Congress and the Senate). Olivier Bault, a French journalist, commented in June last year: “Of course, Poland is no different in this matter from any other European country, such as France, where François Hollande recently appointed socialist Laurent Fabius to the presidency of the Council Constitutional. Some countries do not even have a constitutional court, such as the Netherlands, of which Frans Timmermans is a native.” Timmermans is the Vice-President of the European Commission responsible for improving legislation, interinstitutional relations, the rule of law and the Charter Of Fundamental Rights, which is now being taken over by the Polish Constitutional Court. Will he have to act against its own country for lack of a Constitutional Court?
A Polish judicial system headed by former Communist judges
An example of the situation of the Polish judicial system is the case of the Supreme Court, which oversees the judiciary, examines the resources for the elections and acts as a Court of Cassation. In 2009 an investigation was opened against some of the judges of the Supreme Court in a corruption case: favorable judgments were proposed after payment of a remuneration. The case was closed in 2012 and again in 2015 on the basis that the evidence presented by the Anti-Corruption Office (CBA) had been obtained in violation of the law. Bault recalls that “several current judges of the Supreme Court of Poland, who play the role of defender of democracy and the rule of law, began their careers under the Communist regime and condemned the political opponents of that time.“
“The reform of justice, which has never been achieved since the fall of communism,” says Olivier Bault, “promises to be the most daunting task for PiS, but it is clear to the Polish conservative right that it is the sine qua non condition for a deep consolidation and a process of democratization in Poland.“ As for the Constitutional Court, Bault states that “this is where the PiS must concentrate its efforts, not only because ‘the fish rots from the head’, But also because the Constitutional Court, in its current form, is likely to block PiS legislative initiatives for political reasons and will in practice be a ‘third chamber’ of Parliament. A chamber dominated by the liberal opposition for several of the years to come.”
(Photo: Bartosz Krupa / East News)
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