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Polish Constitutional Tribunal Under PiS: From an Activist Court, to a Paralysed Tribunal, to a Governmental Enabler

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Abstract

After the electoral victories of 2015, PiS transformed the CT from an effective, counter-majoritarian device to scrutinise laws for their unconstitutionality, into a powerless institution paralysed by consecutive bills rendering it unable to review new PiS laws, and then into a positive supporter of the enhanced majoritarian powers. In a fundamental reversal of the traditional role of a constitutional court, it is now being used to protect the government from laws enacted long before PiS rule. Whatever else constitutional courts around the world are expected to do, there is no doubt that their first and primary function is to ensure adherence to a constitution and its protection against legislative majorities. In Poland, the Tribunal became a defender and protector of the legislative majority. This changed role, combined with general distrust of the CT and concerns about legitimacy of its judgments, explains also the extraordinary drop in the number of its judgments. For all practical purposes, the CT as a mechanism of constitutional review has ceased to exist: a reliable aide of the government and parliamentary majority has been born.

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Notes

  1. Koncewicz (2017).

  2. See e.g. Sadurski (2014) at 188–93 (criticising a string of CT judgments concerning state-Church relationship); at 178–79 (criticising a landmark CT decision on abortion); at 239–40 (criticising a CT decision upholding a broadcasting law which required broadcasters to respect Christian values); at 243–44 (criticising CT decisions regarding the law of defamation); at 318–20 (criticising a CT interpretive decision on the official language); Sadurski (2012) at 120–126 (criticising the language and conceptual framework, though not the outcome, of the CT decision on EU accession); Gliszczyńska-Grabias and Sadurski (2015) (criticising a CT judgment allowing ritual slaughter).

  3. See inter alia the Constitutional Tribunal judgments of 19 July 2011, K 11/10 (on the unconstitutionality of a Penal Code provision that had extended criminal liability for producing, recording or importing, purchasing, storing, possessing, presenting, transporting or sending—for the purpose of dissemination—printed materials, recordings or other objects being carriers of fascist, communist or other totalitarian symbols); 30 September 2008, K 44/07 (on the unconstitutionality of a provision of the Aviation Law that gave the authorities the right to permit shooting down a passenger aircraft in the event of special risk for national security); 15 July 2008, P 15/08 (on the constitutional status of spontaneous assemblies).

  4. See inter alia the Constitutional Tribunal judgments of: 26 June 2013, K 33/12 (Fiscal Pact); 24 November 2010, K 32/09 (Treaty of Lisbon); 18 May 2005, K 18/04 (Accession Treaty); 27 April 2005, P 1/05 (European Arrest Warrant).

  5. See e.g. judgment K 8/99 of 14 April 1999 (clarifying relationships between the legislative and executive branches; elucidating the notion of the autonomy of the parliament, and the controlling functions of the parliament); K 3/99 of 28 April 1999 (limiting the role of Prime Minister in determining the composition of the Council of Civil Service, against a general discussion of the principle of separation of powers); W. 14/95 of 24 April 1996 (determining when courts may refuse to register a political party); etc.

  6. See Ginsburg (2003) at 22–33.

  7. In its judgment of 3 December 2015, K 34/15, the CT found the law of 25 June 2015 amending the statute on the CT constitutional, except for the proviso which allowed the Sejm of 7th term to elect two “extra” judges to replace those whose terms of office expired already after the forming of the new parliament. The Tribunal pointed out that the newly-elected parliament had no power to invalidate the elections of previous Justices and was not authorised to elect Justices for the already occupied seats. The provision allowing the election of three judges to replace those whose terms expired in the 7th term was found constitutional.

  8. The CT considered constitutionality of this resolution, and in its decision U 8/15 of 7 January 2016 decided to terminate the proceedings asserting, controversially, that it is not a normative act, and thus not within the cognisance of the Tribunal. For criticism, see Mirosław Wyrzykowski, “Antigone in Warsaw”, in Zubik (2017) at 376–77.

  9. Judgment K 34/15. In the same judgment, the CT held also that the President of Poland was under the obligation to accept their oath.

  10. Judgment K 35/15. In the same judgment, the CT also held that the period of 30 days set for the President to take the oath from the judges was unconstitutional; that the introduction of a 3-years tenure for the President and Vice-President of the Tribunal was constitutional but the possibility of their re-election was unconstitutional; and that the early termination by the statute of 19 November 2015 of the term of office of President and Vice-President of the CT was unconstitutional.

  11. See also Śledzińska-Simon (2018).

  12. Case no. K 1/17.

  13. “The Constitutional Tribunal shall be composed of 15 judges chosen individually by the Sejm for a term of office of 9 years from amongst persons distinguished by their knowledge of the law. No person may be chosen for more than one term of office”. Note that the Constitution does not say anything about the oath before the President; it was a statutory addition.

  14. The Tribunal refused the Ombudsman’s request to exclude Henryk Cioch and Mariusz Muszyński (two “duplicate” judges) from the Tribunal’s consideration of the case.

  15. A term used in Polish journalistic language (by those who believe that the election of the three “judges” to the already filled places was improper) is “dubler” (which corresponds, roughly, to a “double”, as in “body double” in a film, or to an understudy in a theatre production). I will be using here the words “quasi-judges”.

  16. Judgment K 34/15.

  17. For more about the two-stage proceeding in accordance with the Art. 194(2) of the Constitution, see judgment of 7 November 2016, K 44/16 (unpublished in the Journal of Laws). It had been originally published in the Constitutional Tribunal Official Journal, but then K 44/16 judgment was removed from the journal and also from the CT official databases after Julia Przyłębska’s election. It may be assumed that the real reason for that removal was motivated by an intention to avoid a charge of violating a constitutional provision by Przyłębska during the “General Assembly” on the 20 December 2016. The main thrust of the K 44/16 judgment was about the General Assembly’s obligation to take two votes and two resolutions in order to submit candidates for the President of the Tribunal position.

  18. Decision [Postanowienie] of Court of Appeal in Warsaw of 8 February 2017, I ACz 52/17.

  19. See Małgorzata Kryszkiewicz, “Administracyjne sądy chowają głowę w piasek”, [Administrative courts bury their heads in the sand], Dziennik Gazeta Prawna 1 February 2018 at 5.

  20. Judges Kieres, Pyziak-Szafnicka and Wronkowska-Jaśkiewicz.

  21. Para 54 of the Constitutional Tribunal Internal Rules, Annex to the Resolution of the General Assembly of Judges of the Constitutional Tribunal of 27 July 2017. It is not clear how particular judges voted in respect of the Internal Rules as the only person who signed is Julia Przyłębska.

  22. Judge Pszczółkowski. The reasons for his “defection” are unclear, and a hypothesis of personal integrity cannot be rejected outright.

  23. Since taking her office, Judge Przyłębska took 98 decisions on composition of panels in pending cases. An analysis indicates that as a result of these changes: (a) quasi-judges have been included in numerous panels; (b) the panels are composed so as not to have them dominated by “older” judges; (c) many changes include also the judges-rapporteurs.

  24. The saga of subsequent new laws on the CT in fact began in 2015, with the statute of 19 November 2015 amending the statute on the Constitutional Tribunal, which referred mainly to the terms of office of the President and Vice-President of the CT, and to the commencement of terms of office of judges of the CT (invalidated partly by the CT on 9 December 2015, K 35/15), and the statute of 22 December 2015 amending the Constitutional Tribunal statute, which contained many of the provisions to be repeated in the statutes in 2016 that implemented legal rules very similar to the provisions that have been assessed as unconstitutional in the earlier Tribunal case law or based on the reasons that have been recognised unconstitutional in the cases no. K 34/15, K 35/15 and K 47/15.

  25. Article 1(10) of the statute of 22 December 2015 (found unconstitutional as a whole by the CT on 9 March 2016, K 47/15); Article 38 (3-6) of the statute on the CT of 22 July 2016 (found partly unconstitutional on 11 August 2016, K 39/16).

  26. Art 1 (12) (A) of the statute of 22 December 2015.

  27. Article 68 (5-7) of the statute on the CT of 22 July 2016.

  28. Article 66 (6) of the statute on the CT of 22 July 2016.

  29. Article 1(3) of the statute of 22 December 2015. Note that the Constitution provides that the CT takes decisions “by a majority of votes”, Art 190(5), which was always understood to mean a simple majority; whenever a special majority is required, the Constitution (and not a statute) says so explicitly.

  30. Article 1(9) of the statute of 22 December 2015.

  31. Article 2 of the statute of 22 December 2015.

  32. Article 26 (1) (1) (l) of the statute on the CT of 22 July 2016.

  33. Article 1(5) of the statute of 22 December 2015.

  34. Article 31 (3) of the statute of 22 December 2015.

  35. Article 16 of the statute of 22 July 2016.

  36. Article 80 of the statute of 22 July 2016.

  37. See more: Radziewicz (2017), http://www.kul.pl/files/35/rcl_1_2017/02_radziewicz.pdf (last accessed 10 January 2018).

  38. Wyrzykowski, “Antigone”, at 381.

  39. Half a year after the election of Julia Przyłębska as the President of the Tribunal position, the process of creating a PiS majority on the Tribunal has been completed. The governing party elected 9 judges. Four of them were elected to properly vacant seats (Judges Zbigniew Jędrzejewski, Michał Warciński, Grzegorz Jędrejek, Andrzej Zielonacki). They replaced judges, whose terms of office finished at the end of 2016 and the first part of 2017. The other two judges were elected by the parliament in December 2015 (Judges Julia Przyłębska and Piotr Pszczółkowski). Three other persons were illegally elected by the Sejm of the 8th term to the already filled seats (Mariusz Muszyński, Lech Morawski, Henryk Cioch).

  40. The statute on the organisation of and proceedings before the CT, and the statute on the status of judges of the CT.

  41. This is an essentially transitional statute; its name is the provisions introducing the statute on the organisation of and proceedings before the CT, and the statute on the status of judges of the CT.

  42. This shift from a full panel to a 5-judges panel was necessitated by the situation created by the President and the Sejm regarding the composition of the CT. A full panel requires 9 judges, while at the time, when three judges elected by the end of 7th term were not sworn in, and three other judges had to recuse themselves because they had participated in the legislative work on the statute on the CT which was under scrutiny in that case, only 8 judges were available.

  43. Journal of Laws 2015, item 2129.

  44. Journal of Laws 2015, item 2147

  45. Judgment of 6 April 2016, P 5/14. Unpublished for 4 months (see Journal of Laws 2016, item 1232).

  46. Judgment of 6 April 2016, P 2/14. Unpublished for 4 months (see Journal of Laws 2016, item 1233).

  47. Judgment of 6 April 2016, SK 67/13. Unpublished for 4 months (see Journal of Laws 2016, item 1234).

  48. Judgment of 21 April 2016, K 2/14. Unpublished for 4 months (see Journal of Laws 2016, item 1235).

  49. Judgment of 26 April 2016, U 1/15. Unpublished for 4 months (see Journal of Laws 2016, item 1236).

  50. Judgment of 11 May 2016, U 1/15. Unpublished for 3 months (see Journal of Laws 2016, item 1237).

  51. Judgment of 17 May 2016, SK 37/14. Unpublished for 3 months (see Journal of Laws 2016, item 1238).

  52. Judgment of 7 June 2016, K 8/15. Unpublished for 2 months (see Journal of Laws 2016, item 1239).

  53. Judgment of 8 June 2016, P 62/14. Unpublished for 2 months (see Journal of Laws 2016, item 1240).

  54. Judgment of 8 June 2016, K 37/13. Unpublished for 2 months (see Journal of Laws 2016, item 1241).

  55. Judgment of 14 June 2016, SK 18/14. Unpublished for 2 months (see Journal of Laws 2016, item 1242).

  56. Judgment of 21 June 2016, SK 18/14. Unpublished for 2 months (see Journal of Laws 2016, item 1243).

  57. Judgment of 28 June 2016, SK 31/14. Unpublished for 1 month (see Journal of Laws 2016, item 1244).

  58. Judgment of 28 June 2016, K 31/15. Unpublished for 1 month (see Journal of Laws 2016, item 1245).

  59. Judgment of 29 June 2016, SK 24/15. Unpublished for 1 month (see Journal of Laws 2016, item 1246).

  60. Judgment of 5 July 2016, P 131/15. Unpublished for 1 month (see Journal of Laws 2016, item 1247).

  61. Judgment of 12 July 2016, SK 40/14. Unpublished for 1 month (see Journal of Laws 2016, item 1248).

  62. Judgment of 12 July 2016, K 28/15. Unpublished for 1 month (see Journal of Laws 2016, item 1249).

  63. Article 89 of the statute on the CT of 22 July 2016.

  64. Judgment of 11 August 2016, K 39/16.

  65. See judgments of: 27 September 2016, SK 11/14; 11 October 2016, K 24/15; 18 October 2016, P 123/15; 25 October 2016, SK 71/13; 11 October 2016, SK 28/15.

  66. Published on an “alternative” website in English at: http://citizensobservatory.pl/wp-content/uploads/2016/03/TK_wyrok_09032016_ang.pdf.

  67. Published on an “alternative” website in English at: http://niezniknelo.pl/trybunal/en/news/press-releases/after-the-hearing/art/9311-ustawa-o-trybunale-konstytucyjnym/index.html, last accessed 10 January 2018.

  68. Published on an “alternative” website in English at: http://niezniknelo.pl/trybunal/en/news/press-releases/after-the-hearing/art/9433-zasady-powolania-prezesa-i-wiceprezesa-trybunalu-konstytucyjnego/index.html, last accessed 10 January 2018.

  69. Ewa Ivanova, “Premier Szydło: Nie publikować wyroku Trybunału!” [„Prime Minister Szydło: Do not publish the judgment of the Tribunal!”], Gazeta Wyborcza 30 November 2017, online edition.

  70. Gazeta Wyborcza 20 January 2018, online edition.

  71. Martin Krygier, “Institutionalisation and Its Discontents: Constitutionalism versus (Anti-) Constitutional Populism in East Central Europe”, lecture delivered to Transnational Legal Institute, King’s College, London, Signature Lecture Series, November 17, 2017; on file with the author, at 5.

  72. K 5/17.

  73. Remarks by President Andrzej Duda in a TV interview (26 November 2017, at TVN24).

  74. Case file no. Kpt 1/17.

  75. K 3/17.

  76. Case KP 1/17.

  77. Judgment of the CT of 18 January 2006, K 21/05.

  78. See, e.g., Bączkowski and Others v. Poland, judgment of 3 May 2007, Appl. No. 1543/06.

  79. See the dissenting opinions of Judges: Leon Kieres, Małgorzata Pyziak-Szafnicka and Sławomira Wronkowska-Jaśkiewicz.

  80. See the dissenting opinions of Judge Piotr Pszczółkowski. His dissent was based, however, on the narrowest ground, namely on the absence of a means of reviewing an administrative decision about prohibition of an assembly.

  81. Oral remarks of Judges Małgorzata Pyziak-Szafnicka and Sławomira Wronkowska-Jaśkiewicz, 16 March 2017.

  82. “Julia Przyłębska: ustawy o sądach wychodzą w kierunku o którym mówi całe społeczeństwo” [“Julia Przyłębska: the statutes go in the directions about which the whole socjety talks”], Rzeczpospolita 17 July 2017, online edition, http://www.rp.pl/Sadownictwo/170729671-Julia-Przylebska-Ustawy-o-sadach-wychodza-w-kierunku-o-ktorym-mowi-cale-spoleczenstwo.html. Last accessed 7 January 2017.

  83. Id.

  84. Harding et al. (2008) at 4.

  85. In 2017, 284 motions (including constitutional complaints, concrete review initiated by courts, and abstract review) were lodged in the CT, while in 2014, 2015 and 2016, the annual numbers were, respectively, 530, 623 and 360. In 2017, the CT handed down 36 judgments while in 2014, 2015 and 2016, 71, 63 and 39, respectively. See Dominika Wielowieyska, “Układ Julii Przyłębskiej” [„The establishment of Julia Przyłębska”], Gazeta Wyborcza 14 February 2018 at 12. In other words, in 2016, the first full year of the process of capturing the Tribunal, the Tribunal received 42% fewer motions than in the previous year (2015), while in 2017, 22% fewer than in 2016 which already had noted the record decline. In comparison with 2015, the number of motions in 2017 fell by 55%.

  86. Moustafa and Ginsburg (2008) at 13.

  87. For a description and critique, see Sadurski (2014) at 40–43.

  88. See, similarly, Moustafa & Ginsburg, “Introduction” at 19.

  89. Bugaric (2017) at 17.

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Acknowledgements

I am very grateful to Dr. Michał Marek Ziólkowski for his excellent research, and to Bojan Bugaric, Adam Czarnota and Martin Krygier for their very helpful comments on the manuscript.

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  1. Challis Professor, University of Sydney School of Law, Sydney, Australia

    Wojciech Sadurski

  2. Professor in the Centre for Europe, The University of Warsaw, Warsaw, Poland

    Wojciech Sadurski

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Sadurski, W. Polish Constitutional Tribunal Under PiS: From an Activist Court, to a Paralysed Tribunal, to a Governmental Enabler. Hague J Rule Law 11, 63–84 (2019). https://doi.org/10.1007/s40803-018-0078-1

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