The Unconstitutional Tribunal

The dispute about the Constitutional Tribunal is not so much about the Constitution as it is about the ability of the winners of the last election to exercise authority. Is this the reason why the Supreme Court is afraid of a return to normality and fears the respect of the supremacy of the constitutional standards over court rulings?

On 26 April, the General Assembly of the Supreme Court stated that the ruling of the Constitutional Tribunal is valid from the time of its announcement. This is contrary to Article 190 of the Constitution, which states that the announcement should be made at an official journal or the Monitor Polski, the Official Gazette of the Republic of Poland, that are relevant for a given normative act.

However, the Supreme Court did not address the central issue of the dispute, that is whether the Tribunal’s ruling from 3 December 2015 violated the Constitution and whether the opinion issued by the judges on 7 March 2016 carries the hallmarks of a Tribunal's judgment.

The initial cause of the constitutional conflict was the attempt to legalize the choice of the Constitutional Tribunal’s judges by the previous parliament.  The fact that the 3 December 2015 ruling goes against the Constitution is gradually starting to be understood by society. The suggestion that a Constitutional Tribunal ruling could violate the Constitution initially sounded like an oxymoron to many Poles.

Meanwhile, many lawyers, including constitutional experts, are pretending that they have not noticed that the Tribunal has crossed a thin line. Under pressure they say that even if the Constitutional Tribunal violated the Constitution then it still cannot be undermined as its rulings are final. According to them, it is not worth assessing the compliance of the Tribunal’s rulings with the Basic Law – rather, it should simply be applied. In my opinion, what is important is whether the law is in line with the Constitution because it is determined by the legal status or because it was stated by the Tribunal even if the legal status contradicts it.

Let us remember that the Sejm of the Seventh Term changed legislation regarding the Constitutional Tribunal in order to replace judges whose terms on the Tribunal were coming to a close at the end of 2015. It chose five new judges already on 8 October that year. The Tribunal deemed as unconstitutional the selection of two of these judges as the mandate of the predecessors expired during the term of the next Sejm. The three other positions were considered to be in line with the Constitution. However, the Tribunal failed to take into consideration that the mandate of the other three could also expire within the timeframe of the next Sejm. It would depend on the president, in particular when he convenes the inaugural session of the new parliament. If this had taken place before 6 November, then the legal status of the three “November” judges would be the same as that of the two “December” judges. As a result, in line with the logic presented in the ruling, their selection would have been unconstitutional. The ruling states that “Article 194 l. 1 of the Constitution calls for a Tribunal judge to be selected by the Sejm of the same term during which the Tribunal judge position was vacated”.

Recognizing the legality of the selection of the “November” judges is therefore a result of the date that the president convened the first session of parliament.  Meanwhile, the Constitution states that the Tribunal’s judges are chosen by the Sejm – leading to the understanding that this takes place without the interference of other state decision-making organs. It is therefore difficult to consider the selection of the three aforementioned judges as constitutional.

Regulations superior to the Constitution?

The legal community is showing solidarity with the controversial ruling.  For example, Prof. Mark Chmaj says that “before the 25 June 2015 law, Tribunal judges were chosen on the basis of a Sejm regulation. Then a successor was chosen 30 days before the term of the predecessor expired. So the Sejm, although its term was also ending, had a responsibility to choose a new judge before the term of the incumbent judge finishes” (“Kryzys polityczny nie konstytucyjny”, Kultura Liberalna).

However, it is difficult to agree with this logic. In the 3 December ruling, the Tribunal clearly stressed the need to abide by the constitutional rule of the Sejm’s compliance with the date of expiration of the judge’s mandate. Moreover, if one were to interpret the Sejm’s regulation literally, the “December” judges would never have been selected as the term of the new Sejm started less than 30 days before the expiration of their mandates.

Interestingly, the Tribunal has also stated that in extenuating circumstances, the Sejm should refrain from making the selection. “A situation could of course arise in which the Sejm does not manage to fill the Tribunal judge vacancy as a result of various circumstances”. The Tribunal names three examples including the lack of support for a candidate as well as insufficient time to carry out selection procedures. “In such a situation, the selection of the Tribunal judge is passed on in a natural fashion to the next Sejm,” we are told. In order to remove any doubts, the Constitutional Tribunal adds that “there are no constitutional obstacles stopping the Tribunal from – temporarily – carrying out its duties in a reduced format”.

Does it therefore not follow that the inability to determine whether the judge’s mandate expires now or in the next term is not an extenuating circumstance that should stop the Sejm from making its selection and passing on this responsibility to its successor? It remains a mystery why the Constitutional Tribunal concluded by contradicting itself in validating the selection of the three “November” judges.

The President acted appropriately

The President acted appropriately, both from a political and legal perspective. From a legal perspective he acted fittingly as he was not to know that the Tribunal would make such an illogical ruling. He surely did not expect that he would receive from the Constitutional Tribunal the de facto right to decide who sits on the Tribunal. Granting him this responsibility is not justified however by the Basic Law. The president’s actions were also in line with political expectations. If he had been able to foresee the nature of the ruling and had convened the parliamentary term earlier, the Constitutional Tribunal could have made a different ruling, for example by referring to the aforementioned Sejm regulation, and confirm the choice of the “December” judges as being in line with the Constitution. As the Sejm had the “responsibility” of selecting the judges 30 days before the end of their mandates, and as it was impossible for the new Sejm to meet this deadline, the Tribunal could have validated the selection made by the previous Sejm. Given the Tribunal track-record of creativity, this cannot be ruled out.

There are also opinions that state that even if the selection of the three judges violates the Basic Law, the Constitutional Tribunal’s ruling legitimized it. It follows that as the Tribunal’s rulings are final and unquestionable we need to accept them as they are and not put them to debate. This argument, however, creates two points of concern. First is the quality difference between the ruling that is rooted in the Constitution and the ruling that, although formally speaking is correct, still violates the Constitution in an obvious way. This is also the case here as the Tribunal has introduced a standard that contradicts the constitution: Sejm selects a judge, however in the situation where the end of the judge’s mandate coincides with the end of the Sejm’s term, the final decision is made by the president. The second problem is society’s acquiescence with breaking the law. Society cannot accept rulings that violate the Constitution, otherwise it will live in constant danger that the Tribunal will introduce laws that undermine democracy and the division of power. The current conflict demonstrates that this danger is very real.

International dimension

The dispute regarding the Constitutional Tribunal in Poland also has an international dimension. The Venice Commission accepted the Constitutional Tribunal’s argumentation without an explanation showing how it had reached its conclusion. The government turned to the Commission for an opinion in the hope that the constitutionality of the judges’ decision would be evaluated. This hope proved to be in vain as we were reminded that objectivity is not one of the central qualities of European institutions, in this case the Council of Europe. The Commission did not take it on to itself to consider whether the Constitutional Tribunal was capable of making rulings that were themselves at the core of the controversy.

The Venice Commission did not answer these concerns. We did not hear whether the law made on 25 June 2015 was based on constitutional foundations or what the justification was for validating the selection of judges by the last Sejm. Stating that the Tribunal is in the right, purely based on a subjective opinion rather than on the basis of the Constitution and laws in place, is like a court making a ruling on the basis of a statement made by the main suspect rather than studying his actions and their legality.

The European Commission’s decisions have also provided cause for concern, in particular giving Vice President Frans Timmermans the task of monitoring Poland’s compliance with the rule of law. Not only because the Netherlands is second, just after Germany, in terms of the number of the biggest companies with foreign capital in Poland, which could be a reason for the former foreign minister to want to prioritize the interests of Dutch capital. This would confirm the view that not only capital has a favorite home, but so does every EU commissioner.  Concerns are also raised by the fact that Frans Timmermans’ lecturing of Poland contradicts the situation in his homeland. The fact is that in this dispute with Poland, the European Commission is represented by a politician from a country that does not have a Constitutional Tribunal, but which does have a constitutional ban on court control over laws made by parliament. It is difficult to find a more blatant example of hypocrisy.

Is it possible to take seriously the opinions on the Constitutional Tribunal made by a representative of a country in which the very creation of a Constitutional Tribunal is deemed as a violation of the rules of the division of power promoted by Montesquieu. Instead, the Vice President of the Commission should convince Poles that a country without a Constitutional Tribunal can also be a fully democratic country, and those skeptical of the constitutional judiciary in his country could be an inspiration for those people in Poland who are looking for a way out of this current crisis.

Optimistic scenario

Is there, therefore, a way out of this current crisis? Despite what it might seem, with the necessary good will a solution would be pretty easy to find. The president could state that if he had known that the Constitutional Tribunal would grant him the responsibility of deciding who will sit in the Tribunal, then he would have convened parliament earlier. According to the ruling made on 3 December, the selection of the “November” judges would have been unconstitutional.

Meanwhile, given the position of President Duda, Andrzej Rzeplinski, the President of the Constitutional Tribunal, could decide that he sees no reason to not appoint the judges selected by Sejm of the Eighth Term, and confirmed by the president. This would fulfill the requirement for the necessary number of judges needed and the Tribunal would be to start making rulings in line with the law.

There is a chance that this scenario will play out, but it is unlikely. This is because the dispute is not so much about whether the Constitution is being applied or not, it is about the ability of the winners of the last election to exercise authority. It is difficult to counter the opinion that the Supreme Court prefers to maintain an emergency situation, afraid as it is of a return to normality in which the supremacy of constitutional standards over court rulings is respected.


The author​ is a political scientist, professor at the Journalism and Political Science Department at Warsaw University’s European Institute.

Source: Do Rzeczy