“The grounds for concern are clear. PiS [Law and Justice] was quick to overhaul the constitutional tribunal, stacking it with cronies.... More recently, it has targeted judges, whom it regards as a spoilt ‘caste.’”
- A.C., “Why the dispute between Poland and the EU matters,” The Economist, January 22, 2018.
“Since assuming power in 2015, Poland’s ruling Law and Justice party has undertaken a campaign to dismantle the country's Constitutional Tribunal.... The Polish government's actions are part of a wave of anti-democratic activity in Eastern and Central Europe that is both fueling and being powered by rising xenophobia and ultra-nationalism.”
- “Tillerson Urged to Raise Threats to Rule of Law on Poland Trip,” Human Rights First, January 25, 2018.
“[Polish President] Duda says the government isn’t impeding the rule of law, even though he has failed to swear in three Constitutional Court justices legally picked by his political opponents and the cabinet has refused to publish, and hence make binding, tribunal rulings it disagrees with.”
- Wojciech Moskwa, “Poland’s President Thanks Trump for Battling ‘Fake News,’” Bloomberg Politics, January 18, 2018.
The current government is attempting to counteract what anti-Law and Justice Constitutional Tribunal judges privately admitted was a “cynical ploy” by the previous Civic Platform government to pack the court and block Law and Justice reforms.
The Constitutional Tribunal, like the Tribunal of State, was established on March 26, 1982 (during martial law).
The establishment of a Constitutional Tribunal was a demand made by Solidarity in 1981.
Its initial prerogatives were limited. The Sejm could override an unfavorable Constitutional Tribunal opinion by a two-thirds majority vote.
The implosion of communism in 1989-1990 strengthened the position of the Constitutional Tribunal and bolstered its independence. Nevertheless, a two-thirds majority vote in the Sejm could still overturn a Constitutional Tribunal verdict.
The Constitution of 1997 introduced several changes further increasing the power of the tribunal. (E.g., the Sejm can no longer override a Constitutional Tribunal verdict.)
What the Constitution Says
The judges are to be “chosen individually by the Sejm for a term of office of 9 years from amongst persons The Constitutional Tribunal issues final legal opinions on the constitutionality of legislation and international agreements (Article 188).
The Constitutional Tribunal rules on the basis of a majority vote (Art. 190, Par. 5).
The Constitutional Tribunal is to be comprised of fifteen judges. (Art. 194, Par. 1).
The judges are to be “chosen individually by the Sejm for a term of office of 9 years from amongst persons distinguished by their knowledge of the law.” (Art. 194, Par. 1)
“No person may be chosen for more than one term of office” (Art. 194, Par. 1).
The Constitution says nothing about the timing of the appointments.
The President of Poland appoints the President and Vice-President of the Constitutional Tribunal “from amongst candidates proposed by the General Assembly of the Judges of the Constitutional Tribunal” (Art. 194, Par. 2).
Article 195 states that “judges of the Constitutional Tribunal, in the exercise of their office, shall be independent and subject only to the Constitution” (Par. 1).
At the same time, the article demands that “during their term of office, [judges] shall not belong to a political party, a trade union or perform public activities incompatible with the principles of the independence of the courts and judges” (Par. 3).
The Constitution also makes clear that “the organization of the Constitutional Tribunal, as well as the mode of proceedings before it, shall be specified by statute [emphasis added]” (Art. 197).
Recent Events (2015 – Present)
The Civic Platform/Polish Peasant Party (PO-PSL) government passed the Act of June 25, 2015, a last-minute attempt to pack the Constitutional Tribunal with its own appointees.
The legislation was passed by shortly before the coalition lost the parliamentary
election of October 25, 2015 to the Law and Justice party.
Article 137 (Chapter 13: “Adjustments and Temporary Laws”) – dealing with Constitutional Tribunal judges whose terms expire in 2015 – stipulates that the deadline for putting forth a new candidate/replacement is 30 days from the day the act becomes law.
In effect, the timing allowed President Komorowski to sign the law before the swearing in of President-Elect Andrzej Duda (on August 6, 2015) and for the Civic-Platform dominated Seventh Sejm to select five new Constitutional Tribunal judges during the term’s final session (on October 8, 2015). The post-communist SLD party also voted for these nominees.
This occurred two and half weeks before the parliamentary election of October 25. It is also noteworthy that the Sejm resolutions selecting new judges on October 8 did not mention Article 137 as their basis.
The terms of the five judges being replaced were due to expire after the election and the last session of the Seventh Sejm (three in November and two in December).
The official reason given by the Civic Platform was that the next session of the Sejm might not have sufficient time to nominate new Constitutional Tribunal judges before their terms expire.
Email correspondence between Constitutional Tribunal judges (who later attacked Law and Justice reforms as “unconstitutional”) showed that the judges privately viewed the Act of June 25 and subsequent judicial nominations as a “cynical ploy” and a case of “government rot” [psucie państwa].
After the Law and Justice victory, the new Sejm invalidated the previous Sejm’s nominations and nominated its own five candidates. President Duda also refused to confirm the Civic Platform nominees.
In early December 2015, the Constitutional Tribunal ruled that the appointment of three new judges by the Civic Platform (to replace those with terms expiring in November) was constitutional, but the appointment of the two remaining ones (to replace those with terms expiring in December) violated the Constitution.
In December 2016, the new Constitutional Tribunal president, Julia Przyłębska (a Law and Justice nominee), seated the three judges nominated by Law and Justice in place of Civic Platform nominees with terms expiring in November 2015.
Since forming a government in the fall of 2015, a series of Law and Justice legislative amendments and acts reforming the Constitutional Tribunal have been rejected by that body as supposedly unconstitutional.
The opponents of the Law and Justice government have invoked Article 195 (Par. 1) of the constitution, stating that “judges of the Constitutional Tribunal, in the exercise their office, shall be independent and subject only to the Constitution.”
The government and its supporters, by contrast, point to Article 197: “the organization of the Constitutional Tribunal, as well as the mode of proceedings before it, shall be specified by statute.”
The pro-Law and Justice side invoked a principle of Roman law – nemo iudex in causa sua (“no one can be a judge in their own case”) – while the Constitutional Tribunal argued that, as the final court of appeals, it is the only body capable of judging the constitutionality of legislation pertaining to it.
The anti-Law-and-Justice forces – in the Constitutional Tribunal, the parliament, and the streets – have accused the conservative government of refusing to publish (or selectively publishing) Constitutional Tribunal rulings that it found objectionable.
The government’s argument was that, in its rulings, the Constitutional Tribunal had to follow not only the constitution but also the legislation. Rulings that failed to meet certain criteria spelled out in the (new Law and Justice) legislation – such as the necessary quorum of judges [skład] – were not proper Constitutional Tribunal resolutions, but merely the opinions of a group of Constitutional Tribunal judges, and therefore did not merit official publication. The government also argues that the legislation states that Constitutional Tribunal rulings on “normative acts which have lost their legally binding status” [aktów normatywnych, które utraciły moc obowiązującą] are not subject to official publication.
The Constitutional Tribunal’s argument was, in essence, that it could rule solely on the basis of the constitution since it had found the legislation unconstitutional, and, therefore, nonbinding. It also invokes Article 188 of the constitution stating that all Constitutional Tribunal decisions are final and Article 190, Paragraph 2 (“judgments of the Constitutional Tribunal regarding matters specified in Article 188, shall be required to be immediately published”).
The government eventually published the vast majority of Constitutional Tribunal rulings it initially did not publish. These dealt with issues ranging from welfare benefits through speeding and the media – everything but the alleged unconstitutionality of Law and Justice legislation on the Constitutional Tribunal.
The government also did not publish “the judgement from November 7  regarding the rules for the selection of the president and vice-president of the Constitutional Tribunal on the basis of the no-longer-binding legislation on the Constitutional Tribunal from July 22, 2016, even though the Constitutional Tribunal deemed these regulations constitutional.” (The refusal to publish a ruling that favored the government position suggests that the government was consistent in its somewhat abstruse legal reasoning.)
The current legislation regarding the Constitutional Tribunal is the Law-and-Justice-sponsored Act of 30 November 2016 and related implementing legislation, all of which were ruled constitutional by the Constitutional Tribunal on October 24, 2017.
The Constitutional Tribunal must now rule on cases in the order they are received. Prior to this change, ordinary citizens had to wait as long as two years for rulings, but the Constitutional Tribunal was capable of ruling within twenty-four hours on matters important to the judges themselves, such as the term of the court’s president. See Marosz, Resortowe togi, p. 87.
Judges sworn in by the President of Poland must be accepted by the Constitutional Tribunal. The nomination of judges by the previous Sejm was invalidated.
The age limit for Constitutional Tribunal judges was set at 70.
Asset disclosures [oświadczenia majątkowe] filed by Constitutional Tribunal judges are now public record.
The Bureau of the Tribunal was liquidated and replaced with two offices (a Chancellery and a Bureau of Legal Service).
The Privileged Few
The 15 Constitutional Tribunal judges are a rather privileged group. Some of the perks:
Very high salaries: around 20,000-23,000 PLN monthly ($6,000-7,000); the average monthly wage in Poland is 2,071 PLN ($618). They are frequently able to make much more by also teaching at universities or consulting as legal experts.
Extremely generous benefits, retirement pensions (75% of salary), and severance pay. (This package was not granted to a judge who openly criticized the Constitutional Tribunal on TV.)
Expensive events, including lavish banquets with food served on porcelain. (The Constitutional Tribunal controls its own budget).
Light workload. By contrast, the 16-member German constitutional tribunal handled over ten times as many cases in 2014 – 6,811 vs. 530 (Source: Maciej Marosz, Resortowe togi, pp. 86-88).
The crisis over the Constitutional Tribunal began when the Civic Platform-Polish People’s Party coalition nominated five judges to the court on the last day of the legislative period of the Seventh Sejm whose terms were to expire after the election of a new parliament.
While the country’s constitution neither prohibits nor allows for this, it is certainly an unorthodox violation of parliamentary precedent, one which Polish Constitutional Tribunal judges themselves privately dubbed a “cynical ploy” and a case of “government rot.”
The Polish Constitution of 1997 – sponsored and implemented by the post-communists – contains seemingly conflicting and mutually-exclusive provisions on many issues, including the Constitutional Tribunal (especially Article 195, Par. 1 versus Article 197).
The Polish government published the vast majority of Constitutional Tribunal rulings, except in cases when they did not meet certain procedural and legal criteria, such as the required quorum of judges or rulings on “normative acts which have lost their legally binding status.” In one case, it refused to publish a ruling that favored its own position for the latter reason.