Government's hardline stance extends Polish constitutional crisis

Government's hardline stance extends Polish constitutional crisis
By bne IntelliNews December 10, 2015

Poland's new government signalled on December 9 that it has no intention of revising any of its actions in a bid to bring the constitutional crisis into which the country plunged in early December to an end. The hardline stance only offers credence to critics that accuse the Law & Justice (PiS) party of posing a danger to democracy, and encourages growing divisions in the country.

A tussle over the make-up of the country's top court – the Constitutional Tribunal – was sparked in late November when PiS sought to sideline five judges appointed by the previous Civic Platform (PO) government with a bill that would change the regulation of the court's functions and appointments. On December 9, the tribunal ruled for a second time within a week against the new government.

The court ruled that key provisions of the bill were in breach of the Polish constitution. In particular, it rejected a provision that would enable the government to appoint a new president to the tribunal. The president decides which judges handle which cases. It also backed up a ruling from a week previously by stating directly that PiS-appointed judges cannot serve on the 15-member tribunal because their appointment was voted through in parliament in an incorrect procedure.

However, PiS officials have been brazen in sweeping aside the rulings, while the party-affiliated President Duda swore in the last of the five PiS appointees an hour before the court verdict was issued.

“[The ruling] means the parliament needs to do some more work on the bill. As for [the PiS-appointed judges], the case is closed,” said Stanislaw Piotrowicz, head of the parliamentary justice committee, referring to the swearing in of the judges by the president.

The statement only appears to confirm that PiS and Duda will not contemplate any compromise to pull Poland out of the current mess. The country now effectively has two sets of constitutional judges, one questioning the legitimacy of the other.

A constitutional court ruling from December 3 had said the president has no choice but to swear in three of the PO-appointed judges. At the time, the court also ruled the other two candidates of the previous government ineligible. The previous government has been roundly criticised for a last minute rush this autumn to try to ensure a favourable balance on the tribunal.

PiS insists it is looking to correct those abuses. Duda has previously pledged he will not accept any of the PO judges, claiming their appointment may have been illegal.

However, PiS also admits it wants to avert any potential challenges by the tribunal to policies stemming from its flagship campaign pledges. It has submitted a bill on introducing a bank tax and said on December 9 that it plans to reverse a 2012 PO reform that raised the retirement age by the middle of 2016.

Get a grip

In other words, PiS is looking to complete its grip on power. With a majority in parliament and in control of the presidency, the constitutional court is the only remaining brake on the populist party. PiS' controversial term in office in 2005-07 was dogged by the country's top court.

The party convinced many during its recent election campaign that it would act more moderately this time around. However, it has quickly indicated that it intends to plough a similarly controversial furrow to that it followed during its previous stint in power.

It appointed a surprisingly hardline cabinet, and has already replaced the heads of the intelligence services. It is also in the midst of conducting a bloodbath at Poland's state-controlled giants in energy and finance, says it plans to scrap a pair of defence tenders won by international suppliers, and is reopening the investigation into the Smolensk plane crash. Meanwhile, it's reported that the conservative party with a statist economic stance has also taken plays off the stage and that there are moves to increase state control of the media.

The swift transformation of PiS to resemble the beast of which the liberal Civic Platform warned during the election campaign has shaken international commentators and investors. The Warsaw Stock Exchange's WIG20 blue chip index has been trading at multi-year lows for weeks, the zloty has sunk and bond yields risen, albeit amidst significant external pressures.

Analysts expect a short-term boost for the wider economy thanks to a likely return to loosening of monetary policy and raised state spending. However, the new government's plan to lift spending rules and push the deficit past the EU threshold of 3% both this year and next risks plunging the country back into Brussels' Excessive Debt Procedure just months after it finally escaped.

The re-emergence of the hardline PiS in government, and especially its aggressive and uncompromising stance on the constitutional crisis, also risks antagonizing divisions within Polish society. The constitutional court rulings have been accompanied by rival protests, with one side claiming the new government is attempting a crude power grab, while the other says it is protecting democracy.

During the election campaign, PiS skillfully tapped into the reactionary mood reaching across Europe, and the growing divide in Poland between the major cities and a conservative and strongly Catholic electorate mainly based in rural areas. The image it painted of PO as a party of elite liberals – out of touch with ordinary Poles left behind by the country's economic progress in recent years – still clearly resonates, with support for the party solid since it took power.

"One risk to watch in the coming weeks is the likely emergence of anti-government protests in reaction to the constitutional crisis and the PiS' suggestions that it would seek to assert control over media," warned Otilia Dhand at Teneo Intelligence on December 4. "At the same time, PiS's supporters may stage counter-protests, adding onto the increasing polarisation of Polish society."