Constitutionalism in times of extraordinary developments: Resolving the Polish constitutional crisis

Poland is reeling under a serious constitutional crisis threatening its democracy. Beyond the short-term political posturing, the preclusion of similar sagas requires the adoption of broad-based constitutional reforms to depoliticize the judicial appointment process and to constrain the influence of any transient majorities – writes Dr Starski.

The coming into power of the conservative PiS (Law and Justice Party), following its electoral victory in October 2015, has precipitated a constitutional crisis involving the Polish Constitutional Tribunal. Beyond criticisms of PiS’s move against the Tribunal, it is essential to focus prospectively on ways to resolve the ongoing crisis. Various proposals have been made to bring the constitutional drama to an end ‒ not in all cases necessarily to a happy one. The challenge is to find a way through the storm that is pragmatic but leaves core constitutional values intact.

A resolution of the crisis within the limits of the law seems highly unlikely. The persisting “constitutional emergency” may call for steps entailing ‒ to the least ‒ unorthodox readings of constitutional principles. The crucial question seems to be how much “transitional unconstitutionality” is tolerable to ultimately restore the rule of law. In this context, it is important to distinguish between short-term schemes to the stalemate between the Tribunal and the PiS government, and long-term solutions to deal with fundamental questions concerning the composition and mandate of the Tribunal.

Background

The previous session of the Polish Sejm (parliament), under the then ruling Civic Platform, nominated five judges to the Constitutional Tribunal in October 2015 (“October” judges) to replace those whose terms were ending, including two whose term would prospectively expire in December 2015 following parliamentary elections. President Andrzej Duda refused to swear in all five judges claiming their nomination by the former Sejm contravened the constitution. He argued that the “old parliament” should have restrained itself and not decided right before the constitution of the new parliament, which was projected to be ruled by a new majority. In November 2015, the Sejm ‒ now under the control of the PiS majority ‒ adopted five separate resolutions annulling the elections of the October judges and nominated five different judges (“November” judges), who were subsequently sworn in by the President. The Constitutional Tribunal found that the former Sejm had the authority to fill in the three positions that became vacant during its term, but not the two positions that became vacant only after the expiry of its parliamentary term. Despite the ruling, President Duda still refuses to swear in the three judges validly selected by the former Sejm.  

Consequently, the President of the Constitutional Tribunal only admitted two of the November judges to the Tribunal. On 22 December 2015, the Sejm passed an amendment to the Statute on the Constitutional Tribunal requiring, among others, that cases should generally be decided by a full bench, with at least 13 of the 15 judges present – four more than the nine judge requirement prior to the amendment. It also imposed a new decision rule – 2/3 majority, while a simple majority used to be sufficient, effectively paralyzing the Tribunal (see here, here and here). The Tribunal invalidated the amendments on 9 March 2016. On 11 March, the Venice Commission found that the amendments are incompatible with European standards. Still, the government refuses to publish the judgment as required in the Constitution on the ground that the Tribunal was not properly constituted under the new procedural rules in the Amendment Act, whose constitutionality was under review, thereby rendering the decision non-binding.

This constitutional drama displays in various respects a situation of “firsts”: for the first time, the Sejm annulled a valid election of judges; for the first time, the Polish government has openly ignored a clear command of the Tribunal (judgment 3^rd/9^th December); for the first time, the government has called a binding Tribunal judgment a mere communiqué (judgment of 9^th March); and for the first time since its accession to the EU in 2004, Poland has become the subject of the EU Rule of Law Framework and possibly sanctions under the Treaty of the European Union. 

How might the drama end?

The ongoing constitutional crisis has triggered debates on how effectively to resolve the problem without undermining the rule of law and constitutionalism in Poland. 

Option 1: Best case scenario

President Andrzej Duda swears in the three October judges, giving effect to the Tribunal’s December 2015 judgment, and Prime Minister Beata Szydło accepts and publishes the judgment of March 2016. Whilst this would bring Poland back on the track of the rule of law, the government would have to perform a U-turn in its position, potentially losing credibility. This option is highly unlikely but most welcome from the perspective of reinstating the rule of law and constitutional supremacy. 

Option 2: The PiS government weathers the storm

The storm calms down and the PiS government prevails. The government appears to be employing delaying tactics by signaling its willingness to talk to both European authorities and the opposition but refraining from taking actual steps that would resolve the crisis. However, time is ticking. The term of one further sitting  judge expires in April 2016, while the term of the current President of the Tribunal, Andrzej Rzepliński, who has proved to be a strong personality in the ongoing constitutional battle, ends in December 2016. In the absence of timely solutions, the delay will allow the PiS majority in the Sejm to nominate “obedient” replacements. President Duda would choose the new Tribunal President from among two nominees proposed by the judges of the Tribunal. The departure of Rzepliński may weaken the Tribunal.

A PiS friendly Tribunal President could initiate a jurisprudential U-turn, endorse the Amendment Act as constitutional, and admit the three remaining December judges to the bench. Eventually, the simple majority of PiS would have succeeded in its attempt to reconfigure and neutralize the Tribunal as an unnecessary obstacle to the adoption and implementation of its policies. Indeed, there are signs that the government is mulling such an option with the hope that the public opposition will subside. Hopefully, internal forces ‒ reinvigorated Polish civil society, opposition parties, and the remaining Tribunal judges ‒ and external (EU) pressure ‒ will prevent this scenario from happening.

Option 3: Re-electing the whole Tribunal

The government signaled that it would be willing to accept an expiration of the terms of all sitting judges and a re-election of the whole Tribunal. This solution is highly problematic for several reasons. First, in the absence of super-majority rules, the government would achieve more than what it bargained for, since it would be able to pack the Tribunal with judges sympathetic to its agenda. Secondly, the Tribunal’s binding judgments would be ignored. Thirdly, this outcome would ensure that the Tribunal’s constitutional force depends on the mercy of the government and that it has to subjugate both its composition and jurisprudence to the will of a simple parliamentary majority, thereby undermining judicial independence and the separation of powers. Fourthly, a premature termination of judicial office is incompatible with due process and judicial protection, guaranteed in the Polish Constitution and international instruments. The success of this option may therefore require the willful resignation of all the judges, which is unlikely.

Option 4: Piecemeal tactics

The Nowoczesna (Modern) Party has suggested taking advantage of the fact that the terms of three judges will finish in the ongoing parliamentary session (the last one on 26 June 2017). This could allow the accommodation of the contentious three December judges, which have not been admitted to the Court. The compromise would entail the immediate admission of the three October judges, and the nomination of the three December judges for the upcoming vacancies, or vice versa. For each selected December judge, President Duda will ‒ in exchange ‒ swear in one of the (validly elected) October judges. While this option will not lead to an instant resolution of the crisis, it leaves the regular office terms intact and respects judicial independence. Furthermore, it would allow the PiS government to maintain its reputation. Nevertheless, its viability is doubtful.

The compromise will only work if all parties represented in the Sejm back it. While the opposition may support this option, President Duda still refuses to swear in the October judges. PiS further argues that the proposal would entail a double violation of the law since it would require the publication of a non-judgment and the confirmation of invalidly elected judges. In fact, the government seems to have blocked this option. On 29 March, the government nominated its own candidate, Zbigniew Jędrzejewski, to replace a judge whose term expires in April 2016, while opposition parties have not nominated their candidates. In addition to the government’s refusal, this piecemeal tactic requires additional legitimation for the validly October judges according to the Tribunal’s ruling. It would also legitimize the refusal of the PiS government to comply with the December ruling of the Tribunal, and hence only insufficiently restores the Tribunal’s authority.

Option 5: And then there were 18

The former President of the Constitutional Tribunal, Andrzej Zoll, has proposed a constitutional amendment to increase the number of judges of the Tribunal from 15 to 18. Such an amendment could legalize the election of the three December judges and allow the validly elected October judges to take office, without undermining the reputation of the government. While innovative, such an enlargement of the Tribunal could potentially allow the government to pack the Tribunal with its judges as vacancies open up. The Fidesz majority in the Hungarian parliament employed similar strategies to pack the Constitutional Court through a constitutional amendment increasing the number of judges from 11 to 15.

Despite the possibility of court packing, Zoll’s proposition only requires a minor constitutional amendment while the Tribunal’s final composition could largely satisfy all parties. The Tribunal’s judgment concerning the October judges would become effective and the illegal nomination of the December judges would be legalized.

Option 6: Referendum

The government has considered the possibility of submitting the proposed changes concerning the Tribunal to a referendum. This could potentially strengthen its positions especially with regard to the EU. The Polish Constitution allows the holding of a nationwide referendum in respect of matters of particular public importance upon the decision of the absolute majority in the Sejm, or by the President with the support of the absolute majority in the Senate. A mere referendum is, however, not sufficient to amend the constitution. Hence, a simple nationwide referendum would not invalidate any Tribunal judgments. The Polish constitution requires a referendum only to confirm a constitutional amendment after its adoption by a 2/3 majority in both chambers. In any case, the referendum option is unlikely considering the shrinking of the approval rates of the PiS concerning matters of the Tribunal. According to a recent poll, only 25% of the Polish people support PiS in its agenda towards the Tribunal.  

Option 7: Emergency review as a provisional solution

Another temporary option is emergency (decentralized) constitutional review whereby regular courts will review the constitutionality of laws. Such a solution deviates from the core of the centralized judicial review system established in the Polish constitution. While this option is unorthodox and raises constitutional issues, the extraordinary situation in Poland may call for judicial “constitutional self-defense” in light of the systemic dysfunction of the Tribunal. Indeed, in a judgment on 17 March 2016, the Polish Supreme Court declared a tax law provision unconstitutional without referring the question to the Tribunal, as is normally the case. The Supreme Court, while clearly recognizing the Tribunal’s prerogative to deal with the matter, argued that the ongoing turbulence surrounding the Constitutional Tribunal could not be neglected. Nevertheless, the circumstances were unique since the Tribunal had in an earlier case invalidated a similar provision as unconstitutional. Moreover, while innovative, judgments of the Supreme Court only bind the parties to a case, unlike the Tribunal’s rulings that have general application.

The position of the Supreme Court has encouraged suggestions that it could potentially address the crisis by confirming the Tribunal’s rulings, or by directly adjudicating on the constitutionality of the government’s actions and legislative measures. For instance, Kukiz’15 proposed challenges to the amendments to the Statute on the Constitutional Tribunal in the Supreme Court. Under normal circumstances, such a shift of competence would require a constitutional amendment, which is unlikely under current circumstances. In December 2015, PiS expressed support for Kukiz’15 motion. It is, however, doubtful whether the government would obey judgments of the Supreme Court whose President – Prof. Dr. Małgorzata Gersdorf – was one of the central figures who made an application for the constitutional review of the December amendments before the Constitutional Tribunal.

Furthermore, there exists a procedure to refer the constitutional crisis to the Supreme Court. Judges whose legal status is contentious are entitled to initiate proceedings before ordinary courts ‒ with the Supreme Court as final instance ‒ in order to assert their legal position. So far, none of the affected judges has initiated such proceedings, perhaps because of the delay such process entails. Nevertheless, the option remains. 

Long-term solutions: Need for constitutional reform

The crisis presents a crucial occasion to look deep into the institutional framework of the Constitutional Tribunal to avoid a repeat of similar sagas. The Polish Constitution establishes a centralized system of constitutional review and allows the abstract review of parliamentary statutes outside the context of specific cases. The global prominence of constitutional review attests to its role in securing democratic competitiveness and in ensuring the effective protection of fundamental rights. In contrast, the PiS emphasizes the idea of parliamentary sovereignty, and rejects the power of unelected judges to invalidate statutes adopted by democratically elected entities.  

Considering the extensive powers of the Constitutional Tribunal, the process of selection of its members should require broader consensus among dominant political forces. The absence of inclusive processes could allow transient majorities to influence the composition and orientation of the Court. The institutional link between the majority in parliament and the legitimacy of judges may lead to impressions of political bias. Indeed, the current constitutional crisis is a result of action and reaction to perceived efforts of transient majorities to sway the Tribunal. Accordingly, the recommendation of the Venice Commission to raise the parliamentary quorum to select members of the Tribunal to a 2/3 majority in the Sejm should be seriously considered. A high threshold could enhance the legitimacy and pedigree of the Constitutional Tribunal and “depoliticize” the appointment process. Similar processes have been adopted iother countries, including Germany.

Kukiz’15 supports this option. The danger with higher thresholds is obviously that failure to agree on candidates could lead to delaying tactics to deprive the Court of the required quorum. The adoption of time limitations for the nomination of judges and the installing of default rules could mitigate this challenge.  

Moreover, the restriction of the power of the Tribunal to review legislation to concrete cases in relation to decisions affecting a specific individual/s could prevent it from becoming a “guillotine” for the legislative process. Although this option is not prominent in political circles, some scholars have suggested that limiting the power of the Tribunal to review laws only in the context of specific cases and disputes could depoliticize the Tribunal and its functions. Nevertheless, abstract constitutional review has been a significant instrument for the protection of minorities. The limitation of the Tribunal’s competence to concrete cases will undermine the role and influence of political minorities.  

Overall, the long-term options outlined here require constitutional amendments. The government has so far relied on its dominance in the Sejm to push through reforms with little respect for constitutional supremacy. PiS’ alleged agenda is to free Poland from communist elites but one of the characteristics of Polish socialism was exactly a conflation of the political and the legal. The changes to the Statute of the Tribunal will have the effect of achieving exactly that by allowing the PiS, and future transient majorities, to bring the Tribunal under its influence. The need to preclude similar constitutional crises requires the adoption of broad-based constitutional solutions to depoliticize the process of judicial appointment and to constrain the influence of any transient majorities.

Dr Paulina Starski is a Senior Research Fellow at the Max-Planck-Institute of Comparative Public and International Law, Heidelberg and attorney-at-law in Hamburg. She also lectures international, European, Constitutional and Administrative Law at the Bucerius Law School, University of Paderborn, University of Heidelberg, and Universidad de Chile, Santiago de Chile.