The Constitutional Lie

Accusations that Poland has violated the rule of law are based on a lie regarding the selection of judges for the Constitutional Tribunal.

On 13 September this year, the European Parliament will hold a plenary debate on the rule of law in Poland, on the basis of recommendations made by the European Commission on 27 July on the issue. However, these recommendations are based on an inaccurate factual framework. They state that "on 8 October the outgoing legislature nominated five persons to be 'appointed' as judges of the Constitutional Tribunal by the President of the Republic. Three judges would take seats vacated during the mandate of the outgoing legislature while two would take seats vacated during that of the incoming legislature which commenced on 12 November 2015". This is not true. In making their selection the members of parliament did not know that the term of the next Sejm would start on 12 November. They first needed to change the legislation, which allowed them to select the judges whose terms were finishing in 2015. The decision for the new Sejm to convene on 12 November was made by the Polish president after the members of parliament had already voted. 

The aforementioned constitutional lie is a cornerstone of the justification for Poland’s violation of the rule of law. If the European Commission had wanted to present the real course of events, it should have written: “on 8 October 2015 the Sejm chose five judges, three of whom were due to fill positions vacated on 6 November, whereby it was not at the time known whether this would take place within the current or subsequent term of the Sejm. The date of the initiation of the new parliament is set by the president, who decided that the first session of the new Sejm would be convened on 12 November 2015”.

If the Commission had used the real course of events as its point of orientation then it would not be able to defend the argument that the selection of the three November judges was done in accordance with the law. At the same time, it would have to accept that the Constitutional Tribunal violated the constitution in its judgment passed on 3 December 2015. Had this been the case it would also not have been able to formulate its main recommendation, that is to adhere to the ruling “which requires that the three judges that were lawfully nominated in October 2015 by the previous legislature can take up their function of judge in the Constitutional Tribunal”.

Faulty ruling

It is interesting that first the Venice Commission and now the European Commission have been able to impose the narrative fed by the Constitutional Tribunal about the supposed legality of the selection of the three judges in November. In light of the constitution it is obvious that in the given situation the Sejm does not have the right to select the aforementioned judges. Furthermore, they could not become judges at the time of selection, it would have been enough for the president to convene the first meeting of the Sejm a week earlier. As a result, the status of the November judges would have been the same as the status of the unconstitutional December judges. At most, it can be argued that the president ratified the selection made by the Sejm, however these individuals were not judges chosen by a decree but rather by the president. Any lawyer  will tell you that this means of selection cannot be considered as constitutional. If it had been possible then the constitutional lie would not have been necessary.

The constitutional lie first saw the light of day in the Constitutional Tribunal’s ruling on 3 December 2015. Its consolidation and dissemination within society was aided by the official authority of the Tribunal and complicated matters, making it more difficult for the issue to be understood by the wider public, plot of the majority of the legal community in the dark, amazement of sober thinking individuals and psychologically understandable rejection by society of the brutal truth that the judges called upon to defend the Constitution trampled on the Constitution.

An important role was played by the Venice Commission, some members of the European Parliament and the Western media. By signing the recommendation made by the Commission, Frans Timmermans validated the constitutional lie, which has in the meantime become regarded as the truth.

Deliberate and non-deliberate lies

There are two types of constitutional lie: the deliberate and non-deliberate. Deliberate lies serve to manipulate public opinion with the aim of making political, corporate or personal gains. Non-deliberate lies appear when making a case in the belief that it is the truth.

With that in mind, one can ask the promoters of the constitutional lie a simple question: what would have happened had the president convened the first session of the Sejm a week earlier? They will no doubt avoid answering the question until, with their backs against the wall, they will say: perhaps the selection of the judges by the previous parliament was not completely in order, but by convening the first session of the Sejm after the term of the judges had ended the president gave this decision a notion of legality.

Meanwhile, another question needs to be posed: which article of the constitution gives the president the right to influence the selection of the Tribunal’s judges and, as a result, can the selection be regarded as constitutional?

It follows that a non-deliberate constitutional lie becomes fully deliberate. People for whom ideological considerations take precedent will feed the lie in a deliberate manner, demanding for example the swearing in of the three judges in question. Slightly more astute individuals will find themselves in a cognitive dissonance and, because they wish to maintain a clean conscience, they will distance themselves from those who promote the constitutional lie and will instead take on a neutral stance – or perhaps even join those who espouse the truth.

The weakness of the Polish constitutional system is a result of faulty rules, including the election of judges by a simple majority of votes. When a party is in power for two terms, the Tribunal becomes dominated by one political force. As the length of the term of judges is longer than the term served by members of parliament, they are able to block changes introduced by the coalition emerging from the subsequent elections. Voting on issues regarding the Constitutional Tribunal indicates a very strong correlation between the position of the judge and the position of the party in power at the time they were chosen to join the Tribunal. In other words, the politicisation of judges in Poland is well grounded in empirical facts.

This is not a unique situation, as we are reminded when President Barack Obama told his senators: “Do your job!”. In saying this, the president was demanding the approval of a candidate who was meant to replace judge Scalia, who had passed away six months earlier. However, the Senate maintains the position that the president should not be able to nominate judges in his last year in office.

Can we expect a resolution by the European Parliament regarding the violation of constitutional law in the United States? Polish experts have also kept silent. Until not long ago they claimed that the previous Sejm had to select the judges in advance as otherwise the Tribunal would be incomplete for several days.

However, also important are control mechanisms. For example, in Germany there are regulations that state that the governing party and the opposition take it in turns to choose judges. Furthermore, the requirement to have a 2/3 majority of votes means that politicians in the opposition also have to approve the decision. These precedents can be helpful in reforming Poland’s constitutional system. However, based on the recommendations they have provided it would seem that the European Commission seeks to block such efforts and to keep pathologies of the current Polish constitutional system in place.

Time for the truth

Poland should demand that the European Commission’s recommendations are corrected so that they depict the facts as they really are. However, resistance to this is likely as removing the constitutional lie from the document would lead to the whole construction coming apart.

Restoring truth to the constitutional dispute in Poland would work in the European Union’s favour. Let us have no illusions however, we will hear a lot of false proclamations during the European Parliament debate. This is because the institution is full of individuals who deliberately promote the constitutional lie, as they gain from its dissemination. The objective of the debate is not to uncover the truth, but rather to humiliate Poland by forcing it to accept lies as the truth. Let us recall that one day after the recommendations were published, the German newspaper FAZ expressed its hope that the European Commission would not pull back and would punish “the Polish nationalist conservatives” as an example for others.

At this stage in the dispute, Poland should focus on explaining why the constitutional lie is based on a faulty premise, which will require a bold argumentative undertaking. Whatever happens, one cannot succumb to the narrative imposed by the institutional authorities. An important task will be to put opponents in a situation of cognitive dissonance. Living in full awareness of a lie is not a comfortable situation to be in. Let us also not forget that although it is often veiled in words about the defence of the rule of law, criticism of Poland in reality derives from shady motives.

JACEK CZAPUTOWICZ, a professor at the University of Warsaw, Head of the of Methodology of European Research Unit at the Institute of European Studies.

Do Rzeczy Source: Do Rzeczy