The political background of the rule of law crisis in Poland
The formal start of the crisis surrounding the Constitutional Tribunal was the adoption in June 2015 of a new act on the Constitutional Tribunal (the Act of 25 June 2015), which was to replace the 1997 act in force.
Although the assumptions of the draft act were developed by a team that included, among others, retired Constitutional Tribunal judges,[342] and the draft itself was primarily aimed at streamlining the proceedings by the Constitutional Tribunal, while the draft bill was being processed by the Sejm, one MP from the then ruling coalition (Civic Platform-Polish People’s Party) submitted a draft of an unconstitutional transitional provision establishing a 30-day deadline for submitting candidates for Constitutional Tribunal judges. This provision was to apply to candidates chosen to replace five judges of the Tribunal whose terms of office expired in November and December 2015. The official justification for its introduction was the desire to avoid a situation in which the work of the Constitutional Tribunal would be blocked due to a failure to promptly fill the 5 judicial vacancies in relation to the upcoming parliamentary elections and the possibility that a situation may arise whereby the new Sejm would not fill the vacancies in time. However, this was in fact a question of the then ruling coalition filling the five judges’ posts, since they were afraid of defeat in the upcoming parliamentary elections.The controversial provision, despite numerous critical voices, was included in the final version of the adopted act of law, which entered into force on 30 August 2015. According to the adopted transitional provision, 5 new Constitutional Tribunal judges were chosen by the previous Sejm during its final session, i.e. 8-9 October 2015 (the so-called October judges). In response, a group of MPs from the then opposition (including, in particular, Law and Justice MPs) submitted a request to the constitutional court to review the constitutionality of the provisions of the Act of 25 June 2015.
At the same time, President Andrzej Duda (who had held the office of the head of state since August 2015, and previously a European parliamentarian elected from the Law and Justice list) did not take the oath from the so-called October judges.[343] It is worth adding that until 2015 the President had never delayed taking the oath from the Constitutional Tribunal judges appointed by Sejm. Nevertheless, the President of Poland, Andrzej Duda, uplifted a mere formality to a codetermination mechanism without any constitutional basis therefore and refused to take the oath of office from all the five ‘October judges’. As a consequence, three seats in the Constitutional Tribunal remained vacant. The newly selected judges became trapped in a procedural deadlock, and the pending replacement process was frozen.[344]In the parliamentary elections on 25 October 2015, Law and Justice (previously in opposition) won 37.5 per cent of the votes and obtained 235 seats in the Sejm. This result made it possible to form a government on its own - for the first time since the 1989 elections.[345] However, Law and Justice’s victory meant that the earlier motion to the Constitutional Tribunal to examine the constitutionality of the controversial transitional provision of the new act on the Constitutional Tribunal was withdrawn (which meant that the proceedings in this case were discontinued). [346] It is worth adding that after Law and Justice withdrew the motion, the opposition submitted a motion to the Constitutional Tribunal that duplicated Law and Justice’s previous allegations, including the unconstitutionality of the controversial transitional provision of the act.[347] Obviously, this move was of a pragmatic nature - to give the Constitutional Tribunal a chance to resolve the constitutional problem which had been, in a constitutionally questionable manner, resolved by the Sejm at the statutory level. The fact that Law and Justice withdrew its motion to the Constitutional Tribunal after winning the parliamentary elections sheds a slightly different light on the causes of the crisis surrounding the Constitutional Tribunal in Poland.
This proves the ill will of Law and Justice. The controversial transitional provision introduced into the Act of 2015 was only a convenient pretext to start the implementation of the long-planned deep system changes, carried out via acts that ignored the Constitution of 1997.In order to fully explain the genesis of the rule of law crisis in Poland that began in 2015, a slightly broader political and social context should be outlined. Law and Justice had already been a member of a ruling coalition in 2005-2007. The parliamentary crisis in 2007, however, led to an early parliamentary election in 2007, won by Civic Platform [Pol: Platforma Obywatelska] - the second largest party on the Polish political scene. For two terms of the Sejm, Civic Platform formed a ruling coalition with the Polish People’s Party [Pol: Polskie Stronnictwo Ludowe] until their defeat in the parliamentary elections. Back in 2005-2007, Law and Justice had already used the political slogan that they would build a ‘Fourth Republic’, postulating the need to make fundamental changes in the Polish political system and criticising the constitutional foundations of the Third Republic (this is how the Polish state was defined in the Constitution of 1997). The postulates of Law and Justice assumed, among others, a moral revival in public life, based on national and democratic traditions, the necessity to re-create many laws and institutions, social solidarity (in opposition to economic neoliberalism) and the primacy of Polish constitutional law over international law. One of the main elements of the political programme of the Law and Justice Party was the reforming of the judiciary, justified not only by the prolonged duration of court proceedings, but also by the communist past of some Polish judges.
After winning the parliamentary elections in 2015, Law and Justice resumed the implementation of its political postulates. Nevertheless, in accordance with the rule of law, a political plan to build a state based on such a thoroughly modified constitutional axiology and based on a significantly modified political system requires a formal constitutional amendment.
Law and Justice, although it won the parliamentary elections in 2015 and 2019, did not obtain the majority necessary in Poland to amend the constitution (two-thirds in the Sejm and an absolute majority in the Senate).[348] [349] All system reforms were introduced through statute law.A broader time perspective (taking into account the years 2015-2020) enables one to form the thesis that the introduction of a controversial transitional provision to the final version of the Constitutional Tribunal Act of 2015 was the formal beginning of the constitutional crisis surrounding the Constitutional Tribunal, but the deeper causes of the ongoing crisis of the rule of law in Poland lie elsewhere and are related to Law and Justice’s efforts to implement - at all costs - its own political vision of the state, even in violation of the constitutional norms. The transitional provision in the 2015 Constitutional Tribunal Act, which allowed the Sejm to elect five judges of the Constitutional Tribunal with pro futuro effect, was an obvious and cardinal error of the then ruling coalition, and its real goal was to stop (in a manner violating the Constitution) the forthcoming political tsunami.[350]
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