Head of Polish constitutional court steps down as fears of authoritarianism grow

Head of Polish constitutional court steps down as fears of authoritarianism grow
Police forced protesters to make way for PiS officials, including smiling chairman Jaroslaw Kaczynsk.i
By Wojciech Kosc in Warsaw December 19, 2016

Poland’s ruling Law and Justice party (PiS) took full control of the country’s Constitutional Tribunal (TK) on December 19 when Andrzej Rzeplinski, the head of the tribunal and a prominent PiS opponent, stepped down. 

Under Rzeplinski – a social conservative but a firm defender of the court – the tribunal had represented the last remaining check and balance on the PiS' domination of Poland's political scene. The end of his term means the new PiS-appointed chairman will be able to assign PiS-friendly judges to nobble any constitutional challenges to the ruling party, which already controls parliament and the presidency, and has made a clean sweep of the leadership of state-owned media, enterprises and agencies.

Rzeplinski’s successor will be picked by PiS-friendly President Andrzej Duda. Very few in Poland think Duda can act independently of the party that elevated a rather obscure MEP to the position of the head of state in May last year. Until the president chooses the new head, the TK will be managed by acting head, Julia Przylebska, a PiS loyalist.

TK has been deadlocked in any case because of the war PiS waged on the tribunal to replace judges nominated by the previous Civic Platform government. PiS has also refused to publish TK rulings whenever they ran counter to what PiS wanted  - such as when the tribunal struck down its laws changing the organisation of the TK’s work in order to render the tribunal completely ineffective.

Rzeplinski's replacement will also have greater powers than his predecessor. PiS has recently pushed through the parliament a series of laws on how the TK will function. Once the president signs them, they will give the new head of the TK a lot more power than Rzeplinski had.

Because of the standoff over the TK, Poland has been subject to a probe from the European Commission regarding Warsaw’s adherence to the rule of law. The Commission has said a number of times now that Poland has ignored its recommendations on the TK, but it seems unlikely Brussels would like to go as far as to push for stripping Poland of its voting rights in the bloc. This would mean adding a very big new problem to the organisation already struggling with Brexit, rising populism, Greece, and the refugee crisis.

The silencing of the constitutional tribunal comes as relations between the government and opposition are more fraught than ever before. On December 16 relations reached rock bottom during a sitting of the parliament, the Sejm, which was supposed to pass the budget bill.

The sitting descended into chaos after one opposition MP tried to publicise a controversial proposal by PiS to limit access to the parliament by the media. The virtually unrestricted access of journalists to MPs across the entire premises of the Sejm, while indeed unruly, had become symbolically important,  as memories of communist censorship are still vivid.

PiS’ Speaker of the Sejm Marek Kuchcinski excluded the opposition MP from proceedings, provoking the fury of the opposition, which blocked the rostrum. The PiS reacted by moving the sitting to a different room where - with no opposition and media barred from coverage - voting on the budget and other bills continued. 

Outrage over the high handed reaction quickly spread via social media and soon there was a big protest in front of the parliament. It only ended after several hours at 3am, when police forced protesters to make way for PiS officials, including smiling chairman Jaroslaw Kaczynski.

It is not clear at all why PiS would go for such confrontation over a petty matter other than simply because it could show the opposition its strength.  State television TVP, which has now become a PiS propaganda outlet, called the weekend events an attempt by opposition to “destabilise the state,” while some more radical pro-PiS media literally accused the opposition of getting ready to take down the PiS government by force.

In a statement that the opposition took as harbinger of an authoritarian turn, Kaczynski had told state radio Programme 3 the previous week that his party will try to “put the activity of the opposition into some sort of order”. The words came on the 35th anniversary of the communist crackdown on the Solidarity movement in 1981.

The opposition hopes that videos of police removing protesters so that Kaczynski’s car could drive through will work to their advantage. Tabloid daily Fakt reported earlier in the week that inside PiS there is a growing concern over Kaczynski’s confrontational style. The party's position is quite fragile, the newspaper claimed - citing anonymous PiS MPs - as the party’s majority in the Sejm is just four MPs. “I don’t understand at all why we’re warring with everybody,” one PiS MP told Fakt.

The opposition has pledged it will continue to protest until the media can cover the parliament as they have and the opposition deputy's suspension is lifted. While those demands could be fulfilled by PiS if it shows some good will, the opposition’s other demand – to repeat the vote on next year’s budget  – is very unlikely to be met by the ruling party. That could lead to further street protests, although their intensity may be much smaller because of the coming Christmas season.