The fight over the Constitutional Tribunal: 2015-2016
After victory in the 2015 parliamentary elections, the Sejm immediately began working on the amendment to the 2015 Constitutional Tribunal Act on the Constitutional Tribunal. According to the official rhetoric of the new parliamentary majority, it was supposed to remedy the constitutional flaws in this law.
The amendment to the act was rushed through on 19 November 2015 (hereinafter, the amendment of 19 November 2015), and a day later it was signed by Law and Justice-aligned President Duda. The amendment came into force after 14 days of vacatio legis. In addition to the repeal (with retroactive effect) of the controversial transitional provision, the amendment provided for, inter alia:1 the introduction of a new transitional provision, under which candidates for Constitutional Tribunal judges replacing those whose term of office expires in 2015 had to be submitted within seven days of the entry into force of the amendment,
2 expiry of the term of office of the current President and Vice-President of the Constitutional Tribunal within three months from the date of entry into force of the act and the election of a new President of the Constitutional Tribunal under new rules.[351]
On 25 November, just a few days after the adoption of the amendment of 19 November 2015, the parliament declared ‘no legal force’ regarding five previous Sejm resolutions (resolutions from 8 October) regulating the election of new judges for the Constitutional Tribunal.[352] Again, despite numerous objections, including from the Constitutional Tribunal itself,[353] the resolutions were adopted and published, regardless of the lack of legal basis for doing so.72 At the same session, the Sejm also amended the Sejm Regulations, allowing the Marshal of the Sejm to set a date for presenting candidates for judges of the Constitutional Tribunal.73 The deadline was set for 1 December 2015.
A day later, on 2 December, the Sejm elected five new judges (the so-called December judges), thus ignoring the Constitutional Tribunal’s recommendations to refrain from performing any activities until the Tribunal had issued a ruling in this case.74In the judgment of 3 December 2015 (K 34/15), the Tribunal ruled on the opposition’s motion, which repeated accusations from the previously withdrawn Law and Justice motion. The Constitutional Tribunal found that most of the provisions of the law that had previously criticised Law and Justice were consistent with the constitution. At the same time, the Constitutional Tribunal ruled that the controversial transitional provision of the 2015 Constitutional Tribunal Act was partially inconsistent with the constitution - in so far as it concerned two judges whose terms of office ended after the first session of the newly elected Sejm. The Constitutional Tribunal found that the election of three judges of the Tribunal in place of those judges whose term of office ended in November was consistent with the constitution. In justification of the Constitutional Tribunal’s judgment, it was stressed that the constitution infers the obligation of the Sejm to elect a judge of the Tribunal during the term of office during which the position of a judge of the Tribunal was vacated. The expression ‘the Constitutional Tribunal is composed of 15 judges individually elected by the Sejm’ indicates that it is not about any Sejm, but one whose temporal scope coincides with the date of expiry or expiry of the term of office of a judge of the Tribunal. Of course, it is possible that a situation may arise whereby the Sejm may not be able to fill the position of a judge of the Tribunal due to various extenuating circumstances, such as, for example, the lack of support for a candidate or short deadlines for the election procedure due to imminent parliamentary elections. In such a case, the obligation to elect a judge of the Tribunal naturally passes to the next Sejm.
A temporary vacancy in the composition of the Tribunal is also constitutionally acceptable, provided that it is the result of a combination of justified extenuating circumstances, and not a strategy or measure chosen by a state authority.75 The Constitutional Tribunal also emphasised that accepting the oath from a newly elected judge is the responsibility of the President and should be made immediately,76 and ‘upon the entry into force of this judgment, no state authority has any legal grounds to question - asCf. A. Kustra, Poland’s Constitutional Crisis, T.T. Koncewicz, T. T. Koncewicz, Bruised but not dead (yet): The Polish Constitutional Court has spoken, available at: http://verfassungsblog.de/bruised-but-not-dead-yet-the-polish-constitutional-cour thas-spoken-2/.
72 M. Szuleka, M. Wolny, M. Szwed, Kryzys konstytucyjny p. 18
73 Resolution of the Sejm of the Republic of Poland of 26 November 2015 on amendments to the Regulations of the Sejm of the Republic of Poland, M.P. 2015 item 1136.
74 M. Szuleka, M. Wolny, M. Szwed, Kryzys konstytucyjny.p. 19.
75 Cf. part III point 6.17 of the justification of the judgment K 34/15.
76 M. Szuleka, M. Wolny, M. Szwed, Kryzys konstytucyjny pp. 20-21. unconstitutional - these provisions regulating the element of the procedure for electing a judge of the Tribunal’.[354]
The constitutional crisis could have been resolved after judgment 34/15 of the Constitutional Tribunal. Law and Justice, however, aimed not so much at reforming the unconstitutional legal status, but at a genuine ‘hostile takeover’ of the Constitutional Tribunal. This thesis is confirmed by the proceedings of Prime Minister B. Kempa, who did not allow the judgment of the Constitutional Tribunal to be published (as is necessary for it to impart legal effects).[355] Ultimately, the judgment was published in the Journal of Laws, almost two weeks after its announcement. However, a new ace was yet to be played - a new amending act put forward by Law and Justice on 15 December 2015.[356]
After its entry into force, the amendment of 19 November 2015 was brought to the Constitutional Tribunal for appeal (joint motions of the Ombudsman, the National Council of the Judiciary, the First President of the Supreme Court and a group of opposition MPs).
The applicants questioned both the content of the provisions of the amendment of 19 November 2015 and the procedure for adopting the act. The Tribunal resolved this case in a judgment issued on 9 December 2015 (ref K 35/15). The Constitutional Tribunal found unconstitutional, inter alia, provisions on the re-election of judges, as well as on the dismissal of the function of the then President and Vice-President of the Constitutional Tribunal.[357] [358] At the same time, although it strongly criticised the legislative procedure regarding work on the act, it found that it did not infringe the provisions of the Constitution, but ‘only’ the provisions of the Sejm’s regulations.In response to the judgments of the Constitutional Tribunal in cases K 34/15 and K 35/15, Law and Justice began work on another amendment to the 2015 Act on the Constitutional Tribunal. In a controversial manner, the act was passed on 22 December 2015 (hereinafter the amendment of 22 December 2015). It entered into force on 28 December 2015 on the day of its announcement, without vacatio legis8 The act introduced new regulations concerning proceedings before the Constitutional Tribunal, which de facto resulted in freezing the judicial activity of this body. Inter alia, the act imposed the obligation to adjudicate in almost all cases with a full court and in the order in which cases were submitted (rather than their weight), increased the number of full judges from nine to 13, and introduced the requirement of a two-thirds majority to issue a final judgment in place of the simple majority.
An appeal was brought to the Constitutional Tribunal against the amendment of 22 December 2015 by a group of opposition MPs, the First President of the Supreme Court, the Ombudsman and the National Council of the Judiciary. On 9 March 2016, the Tribunal of 12 judges issued a judgment in this case (K 47/15) and ruled that the amendment of 22 December 2015 was entirely inconsistent with the constitution (both the legislative procedure and the content of the act were deemed unconstitutional).
After the ruling, Prime Minister Beata Szydlo announced that it would not be published because, in her opinion, adjudicating without the provisions of the new law was a violation of the procedure. She referred to the judgment in case K 47/15 as ‘the position of some judges of the Constitutional Tribunal’. The judgment was not published in the official journal until 5 June 2018.In response to the judgment of the Constitutional Tribunal in case K 47/15, Law and Justice began work on a completely new act on the Constitutional Tribunal in June 2016 (which was to replace the 2015 Act, which is still in force). Once again, the draft act evoked numerous reservations as to its compliance with the Constitution. It made provision for the introduction of numerous solutions subordinating the Constitutional Tribunal to the executive authority. Finally, the act was passed on 22 July 2016. In its judgment of 11 August 2016, the Tribunal found a number of key innovations in this act unconstitutional. The judgment of 11 August 2016 was also published in the official journal on 5 June 2018.[359]
The actions taken by the ruling majority in 2015-2016 can be summarised as a phase of progressive judicial paralysis for the Constitutional Tribunal.[360] Law and Justice was aware that the plan to take over the constitutional court would take time. As long as the majority of the composition were old judges, and the then President of the Constitutional Tribunal, Andrzej Rzephnski, did not allow standin judges to adjudicate, Law and Justice was unable to take full control of the Constitutional Tribunal. Therefore, at the end of 2016, with the term of office of the incumbent President of the Constitutional Tribunal drawing to a close, the choice of a new President became the key issue.
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