Polish Constitutional Crisis – FAQ

1. What’s going on with the Polish Constitutional Court?
2. Why should I care what happens to the Constitutional Court?
3. If the previous Parliament had the authority to appoint 3 CC judges, why won’t the President accept their oaths, and why did PiS appoint 3 new judges to replace them?
4. What does PiS want to achieve?
5. How many judges are there in the Court right now? What’s their status?
6. Did the previous Parliament appoint CC judges in gross violation of procedure?
7. Why does PiS say the previous Parliament appointed CC judges partly based on the CC Act, and partly based on the Regulations?
8. Even if we assume that the previous judges were appointed incorrectly, can the current Parliament hold their appointment as void?
9. If the President hasn’t sworn in the judges appointed by the previous Parliament, doesn’t it mean they never became judges and can be replaced?
10. The President says he cannot swear in the three judges appointed in October, because the CC already has a full complement of 15 judges. Is he right?
11. Was the appointment of 3 judges “at the last minute” by the previous Parliament undemocratic?
12. Is the current Constitutional Court a servant of PiS’s political opponents?
13. Where did PiS politicians break the law?
14. Can the President delay accepting the oath from the 3 judges properly appointed by the previous Parliament (Hauser, Jakubecki and Ślebzak)?
15. If the President is breaking the law, what can we do?
16. Are PiS’s actions with respect to the Constitutional Court worse than the actions of their predecessors?
17. Previous governments have broken the law, too, so what’s the fuss?
18. Can the Prime Minister not publish a verdict of the CC in the Official Journal?
19. How does PiS justify not publishing the CC verdict on the so-called “repair” bill?
20. If Parliament appoints CC judges, why can’t it dismiss them?
21. But PiS did win the election. Can’t they appoint a new Constitutional Court when they come to power?
22. What are the key points of the new Constitutional Court Act passed by PiS on December 24?
23. What’s in the Venice Commission’s opinion on the so-called repair bill?
24. What is the status of a CC verdict that hasn’t been published?
25. Could the CC disregard the repair bill when ruling on the repair bill?
26. The CC ignored the parliamentary resolution declaring the appointment of 3 judges invalid, because it considered it nonexistent. Why can’t the Prime Minister treat the CC verdict in the same way?
27. What’s in the the second “repair bill” of 22 July 2016?

What’s going on with the Polish Constitutional Court? 

In Poland, the Constitutional Court (CC), also known as the Constitutional Tribunal, is a court which checks whether laws passed by Parliament are consistent with the rules set forth in the Polish Constitution, such as the principle of freedom and human rights, the principle of democratic rule of law, the principle of economic freedom, etc. The Court can strike down laws if it decides they conflict with the Constitution. The CC is made up of 15 judges appointed for 9-year terms; the judges cannot be removed from office (why not?). Before taking office, they have to take an oath before the President of Poland. The Polish Constitutional Court is similar to constitutional courts in other countries, such as the German Federal Constitutional Court or the Supreme Court of the United States.

When the term of a CC judge is coming to an end, Parliament** votes in their replacement. In October 2015, the previous Parliament voted in 3 judges that it had the authority to appoint*, and an extra 2 judges that it did not have the authority to appoint because they should have been appointed by the new Parliament after the parliamentary election. In trying to appoint two judges ahead of time, the previous Parliament violated the Constitution.†

The new President of Poland, elected in April 2015 as a candidate of the PiS party††, has refused to accept the oath not just from the 2 improperly appointed judges, but also from the 3 properly appointed ones. After the parliamentary election, the new Parliament (now controlled by PiS) passed resolutions appointing 5 new judges in their place. (what’s the justification?)

The Chairman of the Constitutional Court has not recognized the 3 judges appointed by PiS in place of the 3 judges properly appointed by the previous Parliament, and has not allowed them to hear cases. As a result, the 15-member Court currently has only 12 active judges. In response, Parliament has passed a bill which effectively incapacitates the CC. It forbids the CC from ruling‡ without at least 13 judges, and mandates an extremely inefficient system for processing cases. (what does the bill say?)

Why should I care what happens to the Constitutional Court? 

If the ruling majority stacks the Constitutional Court with judges it controls, or passes laws that paralyze it, Poland will lose an important control mechanism. The CC is not just 15 judges, but also a team of lawyers who check if the laws that come out of Parliament violate constitutional principles, including basic freedoms and civil rights.

The Constitutional Court gave us:

• an increase in tax-free income (the principle that people who earn less than subsistence income should not pay income tax)
• a ban on changing tax law during the year (tax raises can be introduced only on January 1, and the relevant regulations must be published at least 30 days before they come into force)
• a ban on making significant changes to election laws less than 6 months before the next election
• the right to establish trade unions for people on contracts
• the rule that if an employee’s “free day” (for most employees this is Saturday) falls on an official holiday, the employer has to give the employee an extra free day to compensate
• the ability to get a dual degree in college without paying tuition

Considering that a significant proportion of the legislation coming out of the Polish Parliament is of poor quality, crippling the CC or taking control of it may lead to dire consequences.

If the CC were disabled, constitutional review would be left to general courts. While it is conceivable that a court, when hearing a case, might declare a particular law unconstitutional and ignore it when passing judgment, it is likely that courts would be reluctant to do so, for two reasons: First, they have only done so in exceptional cases. Second, deciding if a law is consistent with hazy constitutional principles like “rule of law” or “social justice” is time-consuming and requires a great deal of subtlety. From the point of view of a court, it is far easier to simply apply specific legislation without checking it against the Constitution. Furthermore, even if a court found a particular law unconstitutional, the decision would only be applicable to the specific case being heard – other courts would not be bound by it (Poland has a continental legal system, in which precedents do not have as much weight as in case law systems).

An even worse scenario would be one in which the CC came under direct control of the parliamentary majority. A subservient CC might rubberstamp all the legislation passed by Parliament, and these judgments would be binding for general courts.

If the previous Parliament had the authority to appoint 3 CC judges, why won’t the President accept their oaths, and why did PiS appoint 3 new judges to replace them? 

To answer this question, we must separate the official (legal and political) justifications given by PiS politicians and the actual motives for their actions.

Legal justifications. Officially, PiS and the President claim that the three judges voted in by the previous Parliament are not in fact CC judges, because they were appointed improperly. The arguments take three forms:

1. These 3 people are not judges because they were appointed in gross violation of procedure.* (see below)
2. These 3 people are not judges because they were not sworn in by the President before the end of the previous parliamentary term, which makes their appointment void.** (see below)
3. These 3 people are not judges because their appointment was based on unconstitutional regulations.† Ever since the CC clearly ruled that the regulations in question were unconstitutional only with respect to the premature appointment of 2 judges, PiS stopped using this argument.

The alleged invalidity of these three judges forms the basis of the latest argument from the President:

1. These 3 judges cannot be sworn in because the Court is already fully staffed.†† (see below)

Political justifications. PiS and the President also bring up political arguments, which are independent of the issue of legality:

1. The appointment of 3 judges right before the end of the parliamentary term was undemocratic.‡ (see below)
2. The Court must be changed, because it is partisan and will stand in the way of much needed reforms.‡‡ (see below)

Actual motives. See next question: “What does PiS want to achieve?”

What does PiS want to achieve? 

At the start of the crisis, PiS’s actions seemed to be aimed at packing the Constitutional Court with judges of their choosing by refusing to swear in the judges appointed by the previous Parliament and attempting to nominate their own candidates to replace them. At the end of 2015, the 15-member Court has 3 judges appointed with the unanimous support of PiS MPs.^# Taking into account the dates when the next seats get vacated, PiS-backed judges will have an 8:7 majority in the CC as late as December 2019. If PiS managed to install three extra judges, it would have 6 judges today, and would achieve an 8:7 majority in June 2017. With a majority of supportive judges in the Court, PiS could count on favorable treatment of new legislation introduced by the party.

In December 2015, it appears that PiS’s aims have changed: the goal is no longer to gain a majority in the CC, but rather to disable it altogether. The party has passed a bill which prevents the Court from ruling with the currently available number of judges, and radically slows it down by introducing a highly ineffective first-come-first-serve system for processing cases. (more about the bill)

How many judges are there in the Court right now? What’s their status? 

As of 15 August 2016, the Constitutional Court has 18 judges (not counting retired judges), 12 of which are “in office” (able to hear cases).

Did the previous Parliament appoint CC judges in gross violation of procedure? 

One of the arguments made by PiS and the President is as follows: When appointing the three “legal” judges of the CC, the previous Parliament used regulations that were constitutional (which was confirmed by the CC on Dec 13), but it misapplied these regulations. The CC cannot review whether the regulations were adhered to, because the CC is only allowed to review laws, not their application in particular cases. Therefore – say PiS and the President – the only institution which can perform that review is Parliament itself. The new Parliament did just that, and determined that the previous Parliament failed to follow regulations when passing the resolutions appointing CC judges. Consequently, none of the people named in these resolutions are legally appointed judges.

What were those “gross violations of procedure” committed by the previous Parliament? So far PiS and the President have made one specific charge. Article 19 of the Constitutional Court Act says:

The authority to submit candidates for judges of the Court rests with the Presidium of the Sejm* and a group of at least 50 MPs.

According to PiS, this means that the candidate must be submitted jointly by the Presidium of the Sejm together with a group of 50 MPs. But the judges appointed in October were submitted only by the Presidium.**

This argument was demolished by Judge Sławomira Wronkowska-Jaśkiewicz during the December 3 hearing at the CC, who pointed out that if we were to interpret the conjunction and so rigidly, we would have to conclude that Article 118 of the Polish Constitution (“The right of legislative initiative rests with MPs, the Senate, the President of the Republic and the Council of Ministers”) means that the right to propose new legislation lies with all these bodies together, rather than each of these bodies separately. The CC also rejected this interpretation in the reasons for the judgment in case U 8/15.**

Of course, among the possible meanings of the sentence “the authority to submit candidates rests with the Presidium and a group of MPs” is that in which the Presidium and a group of MPs act together (just like the sentence “The order to abandon ship may be given by the Captain and the First Mate” can – but doesn’t have to – imply the requirement for both officers to give the order together). However, that would be a fairly unusual reading – as demonstrated not only by the abovementioned Article 118 of the Constitution, but also by many similarly worded articles in the Polish legal system:

In my search for similar regulations*, I failed to find a single example where the word and would indicate the requirement for the listed persons to take joint action. This implies that usually (if not always) this type of structure simply lists the persons or institutions authorized to take some action, without specifying whether they should act together or separately. A lawmaker who wanted to mandate joint action would most likely use a phrase like together with, jointly, in conjunction with, etc.

B. Banaszak, whose expert opinion is frequently cited by PiS, makes an additional historical argument. He points out that in the previous version of the Constitutional Court Act (in effect until Aug 2015), the equivalent section had the conjunction or. If the lawmakers changed or to and, then – according to Banaszak – we must conclude that the goal was to mandate joint action by the Presidium and a group of 50 MPs. However, Banaszak fails to mention that what changed was not just the conjunction, but the whole wording of the article in question:

In a sentence which specifies who has a particular authority, the conjunction and takes on a completely different quality, and it is not at all obvious that the framers of these regulations actually intended to change the way candidates are put forward. Hence, Banaszak’s historical argument cannot have any bearing on our reading of the article in question.

As discussed above, the way similar phrases with the word and are used in other laws supports the interpretation that the Presidium and a group of MPs are to be treated as independent entities. But the final nail in the coffin for PiS’s arguments is provided by what the continental legal tradition calls “systematic interpretation”. According to the rules of statutory interpretation, when a law can be understood in more than one way on the language level, we should choose the meaning which is the most consistent with the whole legal system – that is, the Constitution and other statutes. Article 30 of the Sejm Regulations reads: “Motions pertaining to the election or appointment of individual persons by the Sejm for (...) the office of a judge of the Constitutional Court [can be put forward] by the Presidium of the Sejm or at least 50 MPs”. Therefore, out of the possible meanings of the sentence “the authority to submit candidates rests with the Presidium and a group of MPs”, we should choose the one which is consistent with Article 30 of the Sejm Regulations.

Choosing the interpretation supported by PiS would mean that we’re not only 1 reading the phrase with the conjunction and in an unusual way, different from how similar structures are understood in other statutes, but also 2 out of the possible meanings we’re choosing the one that conflicts with other laws. No wonder then that this view is shared by neither the CC nor by any constitutional lawyer except Banaszak himself.

Why does PiS say the previous Parliament appointed CC judges partly based on the CC Act, and partly based on the Regulations? 

This assertion follows from PiS’s view that the Constitutional Court Act mandates that candidates for CC judges must be submitted by the Presidium of the Sejm together with a group of 50 MPs (this view is incorrect – see the previous answer). If, in the previous Parliament, the candidates were submitted just by the Presidium, that means the legal basis for the submission could not have been Constitutional Court Act – it had to be the Sejm Regulations, which permit candidates to be submitted by the Presidium alone. B. Banaszak’s legal opinion, which is often cited by PiS, says:

The Sejm did not employ the mechanism defined in Article 19, paragraph 1 of the [Constitutional Court Act], but rather the procedure from the Sejm Regulations – and consequently, the candidates were submitted just by the the Presidium of the Sejm. On the other hand, however, the Sejm applied the [Constitutional Court Act] with respect to the time when the motion pertaining to the submission of a candidate for a CC judge was made, and with respect to the appointment of judges.

According to Banaszak, the Sejm applied the Constitutional Court Act to some aspects of the appointment procedure, and the Sejm Regulations to others. (PiS politicians – although not Banaszak himself – have used this claim to draw the convenient conclusion that this duality made the whole procedure void.*) While I understand why Banaszak concluded that the previous Sejm must have applied the Sejm Regulations and not the CC Act when submitting candidates (he came to this conclusion because he misinterpreted Article 19 of the CC Act – see previous question), I am not sure why he claims that the Sejm applied the CC Act with respect to the time of submission and with respect to the “appointment of judges” (whatever that means). He does not substantiate this opinion. Regarding the time when candidates are submitted, the Sejm Regulations mandate that it must be done no later than 30 days before the end of a judge’s term. The previous Sejm did it on September 29 (example submission document), and the terms of the judges being replaced ended on Nov 6, Dec 2 and Dec 8 – so the 30-day requirement was met.

Regardless of these fine points, however, Banaszak’s reasoning has no merit because it rests upon a misguided understanding of the CC Act. The act does not in fact mandate that CC candidates be submitted jointly by the Presidium of the Sejm and a group of 50 MPs – so one cannot claim that the previous Sejm submitted the candidates on the basis of the Sejm Regulations.

Even if we assume that the previous judges were appointed incorrectly, can the current Parliament hold their appointment as void? 

Jurisprudence says that a legal act can be void in two different ways:

1. Void as a result of nullification
2. Void from the beginning (nonexistent)

The appointments made by the previous Parliament cannot be void as a result of nullification. To nullify an action, there must be a legally prescribed procedure for nullification, such as the so-called “supervisory proceedings” defined in the Administrative Proceedings Code. In the case of a parliamentary resolution appointing a CC judge, there is no such procedure. There is no law that would allow the current parliament to review resolutions made by the previous Parliament and pronounce them to be void. Although Parliament has passed resolutions that nominally “nullify” the previous appointments, these resolutions had no legal force, as they were made without a legal basis, as established by the CC in the reasons for the Dec 3 verdict.*

Note that parliamentary resolutions appointing CC judges cannot be reviewed by the Constitutional Court, either. According to the Constitution, the CC’s jurisdiction extends only to “laws”, and a resolution appointing a person to an office does not establish a law, but rather applies the law to a specific case. (see e.g. the reasons for the CC judgment in case U 8/15). Who can review an appointment resolution, then? The answer is: no one. This is a blind spot in the Polish legal system.

The fact that a resolution appointing a CC judge cannot be nullified does not mean we have to accept any resolution of this kind regardless of its legal defects. This is because a legal act can also be void from the very beginning. For instance, if John Doe writes the contents of a decision on a piece of paper and signs it “Internal Revenue Service”, such an act is void from the moment of its creation, and there is no need for a formal procedure to determine that. Acts that are void from the very beginning are often called “nonexistent” to separate them from acts that have been nullified as a result of a procedure.**

It seems that the Constitutional Court applied the concept of nonexistence to the 2 “extra” judges appointed by the previous parliament – B. Sitek and A. Sokala. Recall that these judges had been appointed by resolutions which had a legal basis (Article 137 of the CC Act of June 2015), except that this basis was interpreted too broadly by Parliament (Parliament wrongly decided that it had the right to fill not just the seats that were to be vacated during its term, but also the seats which were to be vacated during the term of the next parliament). The appointments of B. Sitek and A. Sokala were never nullified by any procedure; still, the Court accepted the judges (J. Przyłębska and P. Pszczółkowski) appointed in place of Sitek and Sokala. The only logical conclusion is that the CC decided – though it has never made any official statement to that effect – that the wrongly interpreted legal basis for the appointments of Sitek and Sokala rendered the appointments void (nonexistent) from the very beginning.

What about the 3 judges whose appointment PiS considers invalid? If PiS were to demonstrate that the appointments of 3 CC judges by the previous Parliament were so flawed that they must be taken as nonexistent, it could simply appoint 3 new candidates in their place (even without passing any special resolutions to declare the previous appointments invalid). However, these appointments had a legal basis, the interpretation of the legal basis was constitutional with respect to the appointment of these 3 judges (see: CC verdict of Dec 3), and no significant legal requirements were violated in the whole procedure. Although PiS has argued that the correct appointment procedure was not observed, the arguments are tenuous and have found only marginal support in the legal community.

If the President hasn’t sworn in the judges appointed by the previous Parliament, doesn’t it mean they never became judges and can be replaced? 

In the reasons for the verdict of 3 December 2015, the Constitutional Court emphasized that the person elected by Parliament (specifically, its lower chamber, the Sejm) becomes a CC judge, even if they have not taken the oath before the President yet. (From the very beginning, this view was shared by nearly all constitutional lawyers*.) This follows from the fact that the Constitution clearly states that CC judges are appointed by Parliament without mentioning the President. Since judges who haven’t been sworn in are still judges, they cannot be dismissed.

Even if – contrary to the position expressed by the CC and nearly all constitutional lawyers – we accepted the interpretation** that the person elected by Parliament becomes a judge only after they have taken their oath, that wouldn’t enable the new Parliament to challenge their appointment. Even in such an interpretation, individuals properly elected by the previous Parliament are still “judges-elect” in the process of being appointed. The fact that the appointment procedure hasn’t been completed (due to the President’s refusal to accept their oaths) doesn’t imply that Parliament can ignore it and commence the appointment of new judges.*

The President says he cannot swear in the three judges appointed in October, because the CC already has a full complement of 15 judges. Is he right? 

If the President says that the CC currently (as of Dec 2015) has 15 “active” judges, that means he believes that the three people whose oaths he accepted in December (H. Cioch, L. Morawski, M. Muszyński) are legal CC judges who took the seats vacated on November 7. But the previous Parliament had already appointed 3 people for these 3 seats (R. Hauser, A. Jakubecki and K. Ślebzak) – so, for Cioch, Morawski and Muszyński to be legal judges, we would have to accept that the previous three appointees are not legal judges. But we cannot accept that because none of the attempts to challenge the previous appointments makes sense.

Was the appointment of 3 judges “at the last minute” by the previous Parliament undemocratic? 

This view was expressed on December 9 by President Duda when accepting the oath from Judge Julia Przyłębska.* One may of course claim that the previous parliamentary majority violated the spirit of democracy when it nominated 3 judges whose terms began only 5 days before the next Parliament’s first session. It is, however, unquestionable that the appointment was in accordance with the rules. What’s more, legally speaking, Parliament had a duty to appoint three new judges before 7 November 2015, the day when three outgoing judges left office. Even if the President considers these actions undemocratic, his opinion does not give him the license to refuse to accept the oath from legally appointed judges.

Is the current Constitutional Court a servant of PiS’s political opponents? 

Since the beginning of the crisis, PiS has painted the Constitutional Court as a body which is totally controlled by opposition parties, primarily the Civic Platform (PO).* There are, however, two issues with this view of the Court:

First, as of January 2016, the Court has 4 judges who were actually voted for by all or nearly all of the PiS MPs, as well as 2 judges who were voted for by about 2/3 of PiS MPs. In total, 40% of the Court was appointed with the support of the overwhelming majority of PiS MPs – that’s a lot for an institution which is supposed to be “completely one-sided”.

Second, the Constitutional Court ruled against the former PO + PSL government coalition (2007–2015) many times. Here are a few examples:

• In December 2015, it ruled that the appointment of two CC judges by PO in October was invalid.
• In 2015, despite determined efforts by the Minister of Finance, it ruled that the tax-free income limit must be radically increased.
• In 2014, contrary to the position of PO, it struck down regulations establishing tuition fees for students pursuing more than one college degree.
• In 2011, contrary to the position of PO, it objected to job cuts in public administration.

Where did PiS politicians break the law? 

1. The President did not promptly swear in the 3 judges correctly appointed by the previous Parliament. President Duda, if he is ever charged, will likely defend his actions by saying that he had doubts as to the validity of the procedure by which these judges were appointed. We can, however, expect that the court’s view will be consistent with the interpretation taken by the CC in the reasons for the Dec 3 verdict – that the President may delay swearing in a judge only in the event of an “obvious and unquestionable circumstance”, which is certainly not the case here.
2. PiS MPs nullified the appointment of 5 judges by the previous Parliament. These MPs overstepped their authority as public servants (which is potentially a felony). Parliament is not authorized to invalidate previously passed resolutions appointing CC judges or other officers. Prosecuting such an offense would be very difficult because, as a rule (Article 105 of the Constitution), Polish MPs cannot be held liable for their actions within the scope of their office, either during their term or after it.
3. As of 15 Aug 2016, Prime Minister Beata Szydło has not published the CC verdict of 9 March 2016 pronouncing the so-called “repair bill” of 22 December 2015 to be unconstitutional. Article 190 of the Constitution is quite clear that rulings of the Constitutional Court are to be published without delay. If the Prime Minister, as the head of the official journal, fails to fulfill this duty, he or she commits a felony.

The above list does not include “minor” offenses, such as enacting unconstitutional legislation (e.g. the better part of the November 19 amendment to the Constitutional Court Act), since all previous parliaments have committed such violations.

Can the President delay accepting the oath from the 3 judges properly appointed by the previous Parliament (Hauser, Jakubecki and Ślebzak)? 

As stated by the Constitutional Court in its December 3 verdict, the section of the CC Act which requires CC judges to take an oath before the President should be understood as creating an obligation for the President to promptly accept the oath from the CC judges appointed by Parliament. This interpretation follows from the fact that the Constitution does not provide for any participation on the part of the President in the appointment of CC judges – therefore, the President’s role may only be ceremonial. The law doesn’t specify any time limit for accepting the oath, which – according to Polish jurisprudence – means that the President should do it without undue delay.

As stated in the reasons for the verdict, the President can delay accepting the oath from CC judges only if there are “obvious and unquestionable circumstances” indicating that Parliament hasn’t made a legally valid appointment or there are serious impediments related to the personal situation of the judge-elect. So far, the President and his administration have not pointed to any obvious circumstances of this nature with respect to Judges Hauser, Jakubecki and Ślebzak – we have only heard tenuous arguments about “procedural invalidity” and opinions about “undemocratic appointments”.

If the President is breaking the law, what can we do? 

According to the Constitution, the President can be prosecuted only by the State Tribunal. Charging the President before the State Tribunal requires a 2/3 majority of the National Assembly (the combined lower and upper houses of Parliament).

Are PiS’s actions with respect to the Constitutional Court worse than the actions of their predecessors? 

One can sometimes hear the opinion that the difference between the actions of PiS and the actions of the Civic Platform (the previous ruling party) was only quantitative: the Civic Platform “took” two judges, PiS “took” five. The difference is, however, qualitative:

The Civic Platform appointed two CC judges “in advance”, but these judges were to take office only when the full term of their two predecessors came to an end. The appointment of judges “ahead of time” was unconstitutional*, but the Platform never tried to remove current CC judges or pass laws to straitjacket the CC.

PiS and the President:

• gave themselves the authority to dismiss 3 legally appointed CC judges and replace them with new judges
• passed legislation which prevents the Court from operating with its current number of judges

Previous governments have broken the law, too, so what’s the fuss? 

Suppose we are playing soccer. At some point in the game, the home team players push the referee off the field. The audience is booing, the players of both teams are arguing. The home team players say: “What’s the problem? You guys have fouled us, too!”

Many previous governments have passed unconstitutional laws. It is surely not commendable behavior, but it is something like a foul in soccer because, like a foul, it is an error which is anticipated by the system. We have a referee, whose job it is to call a foul, just as we have the Constitutional Court, whose job it is to strike down an unconstitutional law. The error can be corrected and the game can go on. But what can we do if the President or members of Parliament simply ignore the law? It cannot be handled by the judiciary because the President and MPs are legally immune from prosecution. What can we do if they pass legislation that paralyzes the very institution which is supposed to monitor them?* If that happens, we’re left with no more mechanisms that can fix the situation. That’s why, in civilized countries, such actions are considered unacceptable.

Moreover, if the governing party breaks the rules and doesn’t suffer any consequences, the question arises: where will they stop? If they broke the rules once, why shouldn’t they keep breaking them? Why shouldn’t those who come after them refrain from breaking the rules as well? Poland can change from a “Western” country, in which the government obeys the rules (maybe bending them a little sometimes), to an “Eastern” country, in which those in power simply do what they wish.

Can the Prime Minister not publish a verdict of the CC in the Official Journal? 

No. Article 190 of the Constitution says that judgments of the Constitutional Court are to be promptly promulgated. “Promptly” means “without undue delay”.

How does PiS justify not publishing the CC verdict on the so-called “repair” bill? 

In December 2015, PiS voted through an amendment to the Constitutional Court Act, dubbed the “repair bill”. Contrary to its name, the bill does not actually repair anything; rather, it saddles the Court with new procedures that effectively prevent it from functioning (what does the repair bill say?). The party designed the bill to come into force immediately – the idea was to paralyze the CC before it could check the bill for constitutionality, leaving it unable to perform its duties forever, or at least for a very long time. The CC, however, decided to examine the bill in a special procedure, ignoring those articles of the new bill which would have paralyzed it or slowed it down.*

PiS claims that the verdict of the CC is void (nonexistent), as the Court had no authority to disregard the “repair” bill when hearing the case, because acts of Parliament are subject to what is called “presumption of constitutionality”. According to PiS, the Court could have examined the “repair” bill only under the procedures prescribed by the bill – that is, after deciding all the previous cases in the queue and only as a panel of 13 judges (note that, as of April 2016, only 12 judges are able to rule).

If Parliament appoints CC judges, why can’t it dismiss them? 

The Constitutional Court is designed to review the law passed by Parliament. In order to fulfill this function, it must be independent – that is, it cannot be subordinate to the entity who it is supposed to monitor. That is why, after they have been appointed by Parliament, CC judges must be completely independent of the decisions of Parliament. If Parliament gives itself the authority to remove CC judges, there can be no independent review, as Parliament will be able to simply dismiss those judges who rule against Parliament’s wishes.

But PiS did win the election. Can’t they appoint a new Constitutional Court when they come to power? 

No. The Constitution is very clear that CC judges are appointed by the Sejm (lower house of Parliament) for 9-year terms. When the current parliamentary term began, the Court was already staffed. There is no legal way to replace the members of the Court just because there has been an election – just as there is no way to replace judges in general courts.

These rules were established in 1997, when the Polish Parliament enacted the Constitution, which was then approved by the nation in a referendum. If we have all agreed on certain rules of government, the fact that a party has won a parliamentary election does not give them the right to change these basic rules. Otherwise, the victorious party could pass a law instituting an absolute monarchy with its leader as king. In other words, winning a parliamentary election does not grant absolute power – it only gives such power as is defined in the Constitution. It is, of course, possible to amend the Constitution, but it takes more than just winning the election – a 2/3 majority is required.

What are the key points of the new Constitutional Court Act passed by PiS on December 24? 

Suppose you are the parliamentary majority. You would like to pass a few laws that you suspect may be judged unconstitutional. Unfortunately, you don’t have enough hands in Parliament to amend the Constitution. But here’s an idea – maybe you don’t have to change the Constitution. Maybe you just have to disable the mechanism that reviews laws for compliance with the Constitution. How to do it? The answer to this question is the law pushed through by PiS on December 24.

What are the main points of the new law?

• Judgments must be made by at least 13 judges. Recall that the President has not accepted the oaths from 3 judges who were legally appointed by the previous Parliament, so the 15-member Constitutional Court currently has only 12 “active” judges. PiS has conveniently set the new quorum at 13. This means that the Court will either be unable to operate* or it will be forced to recognize the 3 judges appointed by the new Parliament as legal and active judges (which seems impossible because it would require the CC to agree that the 3 legal appointments made by the previous Parliament were in fact illegal, a claim supported by no serious legal argument). The 13-judge quorum will also slow down the CC. Previously, the Court was able to process three cases at the same time (3 panels with 5 judges each). The new law will make it impossible.
• Cases must be heard in the order that they come in.* The Court will no longer be able to decide which cases are a priority. The official reason is that hearing cases in a fixed order will ensure equal treatment of all petitions.** This makes about as much sense as ensuring “equal access to a doctor” by operating patients in the order that they appear in the hospital. (Have a heart attack? Too bad – the liposuction patient was here before you.) Some cases are simply more urgent than others.† Sometimes a decision in one case depends on a decision in another case. Sometimes, while the CC waits for expert opinions on some complex case, it hears cases that came in later. Considering that the average time from petition to judgment is currently 18 months, a first-come-first-serve system will effectively mean that any law – no matter how unconstitutional – will be in effect for at least that period; that’s how long it will take before the Court decides all the cases waiting in line.†† If politically expedient, the 18-month turnaround time can be extended to 30 or 60 months – PiS MPs can simply start flooding the Court with petitions to review various unimportant laws. Hundreds of such petitions can be generated without too much trouble, creating a queue that will take years to clear.‡
• Judgments must be made by a 2/3 majority whenever the case is heard by a 13-judge panel. This means that even if 8 judges hold a law to be unconstitutional, and 5 think otherwise, the law will remain in force.

One more question remains: What if the CC strikes down the amendment before it comes into effect? PiS has thought about that, too. The new law says that it comes into force on the day of publication*, making it impossible for the Court to nullify it before it becomes effective. Therefore, it would seem that the Court will not be able to review it at all, since it does not presently have the required 13-person quorum; and even if that problem were somehow solved, the Court would first have to clear the whole queue of earlier cases, which would take at least 18 months.

What’s in the Venice Commission’s opinion on the so-called repair bill? 

The full text of the opinion can be read here. Here are the most important excerpts:

88. While each of the procedural changes examined above is problematic on its own, their combined effect would seriously hamper the effectiveness of the Constitutional Tribunal by rendering decision-making extremely difficult and slowing down the proceedings of the Tribunal. This will make the Tribunal ineffective as a guarantor of the Constitution. The requirement of a two-thirds majority, combined with a high quorum of presence and the sequence rule of dealing with cases, have severe consequences on the proper functioning of the Constitutional Tribunal.

137. The provisions of the Amendments of 22 December 2015, affecting the efficiency of the Constitutional Tribunal, would have endangered not only the rule of law, but also the functioning of the democratic system, as set out above. They cannot be justified as a remedial action against an absence of “pluralism” in the composition of the Tribunal. Rather than speeding up the work of the Tribunal these amendments, notably when taken together, could lead to a serious slow-down of the activity of the Tribunal and could make it ineffective as a guardian of the Constitution.

138. Crippling the Tribunal’s effectiveness will undermine all three basic principles of the Council of Europe: democracy – because of an absence of a central part of checks and balances; human rights – because the access of individuals to the Constitutional Tribunal could be slowed down to a level resulting in the denial of justice; and the rule of law – because the Constitutional Tribunal, which is a central part of the Judiciary in Poland, would become ineffective. Making a constitutional court ineffective is inadmissible and this removes a crucial mechanism which ensures that potential conflicts with European and international norms and standards can be resolved at the national level without the need to have recourse to European or other subsidiary courts, which are overburdened and less close to the realities on the ground.

143. A refusal to publish judgment 47/15 of 9 March 2016 would not only be contrary to the rule of law, such an unprecedented move would further deepen the constitutional crisis triggered by the election of judges in autumn 2015 and the Amendments of 22 December 2015. Not only the Polish Constitution but also European and international standards require that the judgments of a Constitutional Court be respected. The publication of the judgment and its respect by the authorities are a precondition for finding a way out of this constitutional crisis.

What is the status of a CC verdict that hasn’t been published? 

Article 193.3 of the Constitution says that a judgment of the Constitutional Court comes into force on the day it is published in an official journal, unless the Court sets a later date on which an unconstitutional law is to lose force. This means that if the CC holds a law to be unconstitutional, the law will be removed from the legal system no sooner than the day of the publication of the CC judgment. However, since the publication of a judgment can take up to several weeks, the following question arises: how should we treat a law which we know to be unconstitutional, because the CC pronounced it to be so in the courtroom, but the CC’s verdict has not yet been officially published? Should courts and government institutions continue to adhere to such a law, or are they free to disregard it, even though – formally speaking – it remains in force?

The Constitutional Court has long held the view* that, although CC judgments come into force on the day they are published in an official journal, the act of announcing a verdict in the courtroom has a certain consequence. That consequence is negation of the presumption of constitutionality. This means that institutions which apply legislative acts in practice are no longer required to assume that the law in question is consistent with the Constitution – on the contrary, in their activities, they should take account of the fact that it has been ruled to be unconstitutional. In the justification for the verdict of 8 March 2016 (p. 264), the Constitutional Court further clarified the issue:

Other laws pronounced to be unconstitutional by the power of this verdict must not hereafter be applied, as the presumption of their constitutionality has been negated and their annulment has not been postponed under Article 190.3 of the Constitution. The foregoing is also applicable to the period between the oral announcement of the Court’s judgment in the courtroom and its publication in the Official Journal.

It remains to be seen, however, whether courts and government institutions will take the same view.

Could the CC disregard the repair bill when ruling on the repair bill? 

In December 2015, PiS voted through an amendment to the Constitutional Court Act, dubbed the “repair bill”. The bill saddles the Court with new procedures that effectively prevent it from functioning. The party designed the bill to come into force immediately – the idea was to paralyze the CC before it could check the bill for constitutionality, leaving it unable to hear cases forever, or at least for a very long time. The CC, however, decided to examine the bill in a special procedure, ignoring those articles of the new bill which would have paralyzed it or slowed it down.*

This was certainly a move which demanded a justification. In principle, laws are subject to the presumption of constitutionality, which means that every law passed by Parliament must be assumed to be consistent with the Constitution, until it is pronounced unconstitutional by verdict of the Constitutional Court. On what grounds, then, could the Court refuse to obey parts of the new law, even before it annulled them with its verdict?

The legal argument used by the CC starts with a comparison of two articles of the Constitution:

In the case of a regular court, Article 178 of the Constitution is understood to mean that, in adjudicating a case, a judge may refuse to apply e.g. a government order, if he or she decides that it conflicts with a higher law (an act of Parliament, Constitution) – he or she may not, however, refuse to apply a statute (act of Parliament). Such a refusal to apply a government order is a simple decision of the court, which is made before the court passes a judgement in a case. Article 195 of the Constitution defines the position of a CC judge similarly to regular judges, except that CC judges are not bound by statutes, but only by the Constitution. We can therefore conclude that the CC, in adjudicating a case, may refuse to apply not just a government order, but an act of Parliament as well, if the Court decides that it conflicts with the Constitution. Such a preliminary refusal does not mean that the legislation in question is removed from the legal system (that would require an official CC verdict) – it concerns only the basis for ruling on a particular case before the Court.

The Court’s decision to disregard certain articles of the amended Constitutional Court Act was supported by the Venice Commission, the First Chairman of the Supreme Court, the Ombudsman, and the National Judiciary Council.

The above reasoning, which is based on an analogy with regular courts, gives rise to a certain problem – in order to refuse to obey an act of Parliament, the CC must first determine that it conflicts with the Constitution. This, however, leads to a paradox: What if the CC initially decides to disregard a law on the grounds that it is unconstitutional, but then the actual proceedings conclude with the verdict that it is constitutional after all? It seems that such a situation would make it possible to challenge the whole case – if we know that the law is constitutional (and has been constitutional all along), then how can we accept proceedings that were conducted in disregard of it? Formally speaking, the proceedings would have been conducted on the basis of invalid regulations. (A similar paradox will occur in the opposite situation: if the CC decides to obey a law, but then finds it unconstitutional.)

As long as we maintain that the Constitutional Court’s ability to disregard a law hinges on the law’s constitutionality, we will run into such paradoxes. They arise from the fact that if, at the beginning of court proceedings, we make a preliminary assessment of constitutionality, and at the end we make a proper, “official” assessment, we run the risk that the two assessments will differ.

For this reason, it appears that a better way out of the trap that the Court found itself in would be the idea presented in the Venice Commission’s opinion:

41. A simple legislative act, which threatens to disable constitutional control, must itself be evaluated for constitutionality before it can be applied by the court. Otherwise, an ordinary law which simply states “herewith, constitutional control is abandoned – this law enters into force immediately” could be the sad end of constitutional justice. The very idea of the supremacy of the Constitution implies that such a law, which allegedly endangers constitutional justice, must be controlled – and if need be, annulled – by the Constitutional Tribunal before it enters into force.

The Commission’s view can be summarized as follows: the presumption of constitutionality does not apply to the Constitutional Court with respect to an act of Parliament which might threaten the operation of the Court. According to the Venice Commission, the CC could have justified its decision differently. Instead of saying: “we will ignore this act of Parliament when hearing this case, because it is unconstitutional”, which leads to the paradox described above, it could have said “we will ignore this act of Parliament when hearing this case, because we have doubts about its constitutionality, and our role as the guardian of the Constitution means we must be able to examine it before it enters into force”. The difference is that, in the latter case, the Court does not have to prejudge the issue of constitutionality already at the beginning. If the Court, having disregarded a law, should rule that it’s constitutional, and we should ask the question why the Court ignored a perfectly good law, then in the framework proposed by the CC, we could only answer: “because the Court thought it was unconstitutional” (which would be a fairly unconvincing answer), whereas if we follow the Venice Commission, we could answer: “because the law was potentially dangerous to constitutional control, so the CC was not bound by it, which is implied by the very idea of constitutional control”. The latter answer seems more satisfactory.

Fortunately, in the case of the “repair” bill, we are not facing a paradox that would undermine the Constitutional Court’s verdict, as the judgment passed by the Court was in agreement with the initial assessment of constitutionality.

The CC ignored the parliamentary resolution declaring the appointment of 3 judges invalid, because it considered it nonexistent. Why can’t the Prime Minister treat the CC verdict in the same way? 

On November 25, 2015, Parliament passed resolutions declaring the invalidity of the appointment of 5 judges of the Constitutional Court by the previous Parliament. The Court, in its verdict in case K 34/15 (p. 51), held these resolutions to be ineffective. It did so despite the fact that the CC is not authorized to review such resolutions. It must have, therefore, held them to be nonexistent – that is, having such serious and evident flaws that there is no need to nullify them, as they were void from their inception.*

On the other hand, on 9 March 2016, the CC closed the case of the so-called repair bill. In hearing the case, the Court ignored the requirements placed upon it by the Constitutional Court Act (even though the bill was in force at the time), citing Article 195 of the Constitution. In response, PiS politicians said that the CC had broken the law, and Prime Minister Beata Szydło said that a “verdict” issued in this way was not a real verdict and would not be published in the Official Journal, which she controls.

This gives rise to the question: If the CC could treat the parliamentary resolutions as nonexistent, can’t the Prime Minister treat the CC verdict as nonexistent as well? In my opinion, the answer is no. The reason is not that, according to Article 190 of the Constitution, judgments of the Constitutional Court “are universally effective and final”. Statements like that can never be absolute, because there is always room to doubt whether a particular document issued by the Court is in fact a “judgment”, whether the institution that issued it is in fact “the Constitutional Court”, etc. If the Court passed a verdict in which it wrote, for example: “Parliament is hereby dissolved”, the only appropriate course of action would be to ignore it, regardless of Article 190 of the Constitution. It would be an obvious overstepping of the Court’s authority.

Therefore, the assessment of whether an action is legally nonexistent comes down to whether it has glaring and obvious flaws. In the case of the parliamentary resolutions of 25 November 2015, we do not have to look very hard to see such flaws. The resolutions were made by an unauthorized body, as the Constitution does not grant Parliament the authority to review the validity of appointments to the Constitutional Court. As far as I know, there is no serious legal opinion that would say that Parliament has such authority. (There have been a few opinions claiming that the appointment of judges by the previous Parliament was void due to procedural defects or the failure to take an oath before the President, but not due to the nullifying resolutions passed by Parliament.)

By contrast, in the case of the CC verdict on the so-called “repair bill”, no one is questioning the fact that the CC had the authority to issue such a verdict – its purpose is, after all, to review legislation for constitutionality. The only area which may raise doubts is the procedure that the CC followed when hearing the case – specifically, the fact that it disregarded much of the “repair” bill. However, the CC did justify the procedure it used, presenting a legal basis (Article 195 of the Constitution) and a legal argument – and its decision met with the approval of such renowned legal institutions as the Venice Commission, the National Judiciary Council and the First Chairman of the Supreme Court. Regardless of whether we agree with the Court’s reasoning, the mere fact that it exists and is shared by a number of legal experts means that we cannot speak of an obvious and glaring flaw – and only that sort of flaw would provide any basis for considering the CC judgment to be nonexistent.

What’s in the the second “repair bill” of 22 July 2016? 

Unlike its predecessor of 22 December 2015, the Constitutional Court Act of 22 July 2016 is not an amendment, but a completely new piece of legislation which replaces the existing laws on the Constitutional Court. Its text is essentially a copy of the Constitutional Court Act of 1997 modified by introducing a number of “innovations”. Here are the most important ones:

• The Attorney General must be present at all hearings conducted with a full bench of judges. His absence causes the hearing to be postponed. Since March 2016, the Minister of Justice serves as Attorney General, so in practice this would mean that the Minister of Justice could indefinitely stall a CC verdict by simply failing to turn up for hearings. Unconstitutional*
• Three CC judges may send any case to the full panel of the Court. They do not have to be the judges assigned to a given case. Unconstitutional*
• All CC proceedings which are in progress at the time the new bill comes into effect are suspended for 6 months. This applies to all proceedings initiated by petitions filed by MPs, the Ombudsman, trade unions, etc. – one example is the controversial “surveillance bill”. Unconstitutional*
• The CC Chairman is obligated to assign cases to judges who have taken their oaths before the President and have not yet taken office − that is, Cioch, Morawski and Muszyński, who were appointed by Parliament to seats that were already occupied. Unconstitutional*
• The President appoints the CC Chairman from among 3 candidates chosen by the Court (previously, the number was 2). The next appointment of a Chairman should occur in the late autumn of 2016. With the current makeup of the Court, this means that if all three judges recently appointed by PiS vote for the same person, then either that person will be among the 3 candidates (in that case, he or she will most likely be chosen by the President), or the votes of the 12 current CC judges will be evenly split among 4 candidates. The latter case will result in a stalemate, as the new bill does not specify what to do when it is impossible to select exactly three candidates with the highest number of votes.**
• Cases must be heard in the order that they come in. This does not apply to questions from courts, citizen complaints, or the Constitutional Court Act. The Chairman of the CC may, in some cases, ignore this requirement. Unconstitutional*
• During a conference of the full panel, 4 or more judges may raise an objection to the proposed ruling. This causes the conference to be postponed by 3 months. If, during the next conference, at least 4 judges raise an objection again, the conference is postponed by another 3 months. This would mean that, in the most important cases, 4 judges could stop a ruling from being issued for 6 months. Unconstitutional*
• The Chairman of the CC does not “order” the publication of a verdict anymore; he merely “applies” for publication to the Prime Minister. This would appear to allow the Prime Minister not to publish a CC verdict, thus preventing it from coming into force. Unconstitutional*