The Cable

Polish Ruling Party Passed Unconstitutional Laws, Now Controls Constitutional Tribunal

An Eastern European example of what happens when the institutions meant to stop unchecked power are taken over by it.

law-and-justice

On Monday, Poland’s populist, nationalist ruling party effectively took control of the constitutional tribunal, the last bastion meant to check unconstitutional action by whatever party is in power. It is a frightening test case for what happens to a country when the institutions meant to safeguard the separation of powers and check potential tyranny are all squeezed by the same small fist.

The resignation Monday of Andrzej Rzepliński, who was, until Monday, president of the constitutional tribunal who’d fought a rearguard action against the Law and Justice Party’s allegedly unconstitutional moves, opens the door to a government-friendly replacement. Julia Przyłębska, the wife of Poland’s current ambassador to Germany, and by most accounts, a friend of the ruling party, will oversee the selection of a new president and vice-president for the tribunal.

The government’s court-packing scheme began, by some accounts, last November, and by other accounts, more than a decade ago. In 2005, the then-ruling party (Law and Justice) tried to promote legislation that would open government records to reveal who had what dealings with the communist-era security services. The constitutional tribunal struck down that legislation — planting the seed of vengeance that would sprout more than ten years later.

“We all believe that Law and Justice has this trauma,” said Martin Matczak, a partner at an independent Warsaw law firm. He notes that the constitutional tribunal was Law and Justice’s first target for revenge when it returned to power in 2015.

The way it took its revenge was this: In November 2015, there were five open positions on the constitutional tribunal. Three were to have been filled by the previous government, and the other two by the incoming Law and Justice Party. But, in a move that U.S. Supreme Court appointee Merrick Garland might appreciate, Law and Justice decided that it would appoint all five, and refused to seat the three judges named by the outgoing government.

At the same time, the Law and Justice-controlled parliament passed a series of statutes to weaken the constitutional tribunal. The court ruled against those statutes. The government elected neither to publish nor to follow the verdicts. Europe started to weigh in, with numerous

European Commission debates. But Poland got an assist from Hungary, which said it would block any measures taken against Poland for its illiberal actions. European officials said that they knew that it was a matter of time before Law and Justice really did control both law and justice in Poland.

That day has arrived. It was preceded by new laws restricting protests and rallies, especially (in effect) those that are critical of the government. Monday marked the fourth straight day of mass Polish protests, brought on by laws restricting media access to Parliament.

Opposition parliamentarians blocked the lectern on Friday, but lawmakers from the ruling party simply went into a separate room. There, by their lonesomes and without a pesky opposition, they voted on the 2017 budget, the most important bill parliament can pass.

That “practically means we have become a dictatorship,” Mateo Mazzini, a graduate student in Warsaw, told FP.

Though thousands have taken to the streets, and the police have gotten involved, Prime Minister Beata Szydlo played up child-support programs, instead. That gets a receptive audience from cash-strapped parents, Poles say.

“They do not care about the tribunal and freedom of speech, the rights of minorities, they want bread” said Karolina Gorecka, who recently immigrated from Poland to New York City.

There could be a silver lining, Matczak suggested. Now that the constitutional tribunal is a rubber stamp for the ruling party, cases challenging the constitutionality of laws may go to Poland’s other courts. That would create a more decentralized judicial system. But that risks making Poland’s other courts, and not only its constitutional tribunal, Law and Justice’s next target.

Photo credit: WOJTEK RADWANSKI/AFP/Getty Images

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