a bitter melon

Poland: Law and Justice versus the Constitutional Tribunal

The conflict in Poland between the governing Law and Justice party (PiS) and the Constitutional Tribunal shows no signs of abating.

The Polish government in December 2015 began blocking the appointment of judges and adopting legislation to increase government control over the court, for example, by allowing the President or the Department of Justice to dismiss judges from the Tribunal. Jarosław Kaczyński, the leader of the ruling PiS party made no secret of his disdain for the court, publicly denouncing it as “the bastion of everything in Poland that is bad”.

In response the European Commission announced its decision to assess the situation under the Rule of Law Framework on January 13. As part of the Rule of Law Framework process, the Commission issued an Opinion on June 1 and subsequently a Recommendation on July 27:

European Commission -- Rule of Law: Commission issues recommendation to Poland (Jul 27, 2016)

This new step under the Rule of Law Framework follows the intensive dialogue that has been ongoing with the Polish authorities since 13 January. After the adoption of an Opinion on the situation in Poland on 1 June, the Polish Parliament adopted a new Law on the Constitutional Tribunal on 22 July. The Commission has assessed the overall situation, including in the light of the new law, and reaches the conclusion that even if certain of its concerns have been addressed by that law, important issues of concern regarding the rule of law in Poland remain. The Commission is therefore laying out concrete recommendations to the Polish authorities on how to address these concerns.

The Recommendation was welcomed by NGOs such as Human Rights Watch:

Human Rights Watch -- Dispatches: EU Pushes Poland to Keep High Court Independent (Jul 28, 2016)

The European Commission’s decision on Wednesday confirms what Polish non-governmental organizations (NGOs) have been saying: That new laws affecting the constitutional tribunal, passed earlier this month, didn’t go far enough, and do not correct the problems [...]

But the Recommendation has done little to affect the course of the Polish government. On August 10 Kaczyński dismissed the Constitutional Tribunal as a "political tool":

Radio Poland -- Constitutional Tribunal is political tool: party leader (Aug 10, 2016)

“I say this with great pain, but it must be said that today the tribunal is a political body whose constitutional function is undefined, since it is difficult to explain what it is doing in constitutional terms,” the PiS leader told a press conference on Wednesday.

A day later, on August 11 the Constitutional Tribunal declared about a dozen provisions in a government-sponsored bill to reform the Consitutional Tribunal to be unconstitutional:

The Warsaw Voice -- Part of new Constitutional Tribunal law unconstitutional (Aug 12, 2016)

Poland's Constitutional Tribunal on Thursday ruled that around a dozen of changes passed to the law on the top court by the ruling Law and Justice (PiS) party were unconstitutional.

Again, while the ruling was celebrated as a victory by the opposition:

EUobserver -- Poland's constitutional crisis looms larger (Aug 12, 2016)

Anti-government activists from the Committee for the Defence of Democracy cheered outside the court building for every provision deemed unconstitutional.

It was dismissed by the governing Law and Justice party (PiS) as a political verdict:

But Jaroslaw Kaczynski, leader of the Law and Justice party, dismissed their verdict as "political" and "an act of private nature" already in the eve of its rendering and said that the government wouldn’t respect it.


It wasn’t the first time that the court outlawed Law and Justice efforts to reform the court. A similar scenario unfolded in March, when the court outlawed a previous piece of legislation amending the regulation that is currently in force. The government has so far refused to respect that ruling.

On August 16 the government proceeded to sign the controversial bill into law anyway. The Helsinki Foundation for Human Rights warns of judicial paralysis and a backslide in the separation of powers:

Liberties.EU -- Justice Paralyzed: Polish President Signs New Constitutional Tribunal Bill (Aug 15, 2016)

After the adoption of the bill by the Sejm (the lower house of Poland's Parliament), members of the Helsinki Committee in Poland and the board of the Helsinki Foundation for Human Rights issued a statement saying that the new bill is "a backslide against the separation of powers rule and it opens the path to a dictatorship of the ruling majority that is not bound with Constitution."


The new bill on the Constitutional Tribunal introduces several regulations that can lead to a paralysis of the court's functioning.

Seemingly no longer concerned with showing even the least pretense of respect for the independence of the Constitutional Tribunal, on August 18 the government placed the head of the Constitutional Tribunal under investigation:

Radio Poland -- Constitutional Tribunal head under investigation (Aug 18, 2016)

The District Prosecutor’s Office in the southern city of Katowice is investigating the head of Poland's Constitutional Tribunal, Andrzej Rzepliński.

The investigation will look into over potential breaches of duty and/or abuse of power, Poland’s PAP news agency reported.

The probe is focusing on Rzepliński’s decision to exclude three judges voted in by the current parliament from the Tribunal’s sittings.