Poland’s constitutional row takes turn for the worse

Poland’s constitutional row takes turn for the worse
The PiS government sparked a constitutional crisis almost instantly as it took power late last year.
By Wojciech Kosc in Warsaw March 9, 2016

Poland’s Constitutional Tribunal ruled on March 9 that an overhaul to the law governing its work is unconstitutional. The Law and Justice (PiS) government comfirmed earlier comments that it will not comply with the ruling, tipping the country back towards constitutional crisis.

In what was widely seen, by many in Poland as well as abroad, as part of a ruthless power grab, PiS pushed through a new law on the tribunal in December. Critics claim the legislation will effectively paralyse the court’s role in the system of democratic checks and balances.

The tribunal is the supreme court to rule on Polish constitutional matters. PiS claims it is filled with appointees from the previous Civic Platform government, and threatens its ability to govern.

“The legal effects [of the PiS amendment to the law on the constitutional court] have been cancelled,” the court said in the ruling. 

However, the sniping over the tribunal has taken on a Kafkaesque air. Anticipating the court's finding, Prime Minister Beata Szydlo said on March 8, as the tribunal convened, that the government would not publish its eventual ruling – a legal requirement for it to take effect – because the court did not gather in line with the new legislation.

“Today’s ruling has no effect and is not legally binding,” Justice Minister and Prosecutor General Zbigniew Ziobro retorted. The government's refusal to publish the ruling brings the constitutional stalemate sparked late last year back to the forefront.

View from the EU

The constitutional row has not gone unnoticed in Brussels and elsewhere in the international community. Warsaw found itself the first ever member state subject to a European Commission probe into the state of the rule of law in January. Alongside PiS' other controversial actions, such as putting state-owned media under strict government control, the EU could potentially threaten to use Article 7. Such a move, which would strip Poland of its voting rights in the bloc, is however also known as " the nuclear option," and would open a whole new can of worms in an increasingly euro-skeptic Europe.

However, the view in Brussels has been backed up by others. Warsaw's reaction to the launch of the probe was to ask the Venice Commission, an independent advisory body to the Council of Europe, to issue an opinion on the constitutional row.

That now looks to have backfired on PiS, however. A draft report from the Venice Commission, leaked on March 2 to the Polish media, turned out damning, pointing out not just the controversies around the constitutional court, but also fundamental issues concerning the rule of law, democracy, and human rights. The official opinion from the Venice Commission is due to be released on March 12.

The report, and the ruling of the constitutional court, will only heighten criticism of Poland internationally. While there has been little talk thus far around realistic and painful reactions, such as delaying EU funds for Warsaw, speculation over such measures is only likely to intensify as the constitutional crisis re-erupts. Warsaw’s confrontational stance with the EU on a range of fundamental issues, from the migrant crisis to climate change policy, will not win it many friends in Brussels.

At the same time, the euroskeptic PiS' proclaimed preference for working with US is also undergoing a test. US officials are now reportedly applying pressure on Poland to end the constitutional crisis or “face a cooler patch in relations,” the Wall Street Journal reported on March 4.

That puts the government in a difficult position ahead of a Nato summit in the summer at which Warsaw hopes to discuss a boost in the military alliance's presence in the region to defend against Russian imperial ambitions. A spate of resignations by senior Polish military commanders has not helped either, with the country due to host a large exercise featuring 15,000 US troops.

Meanwhile, pro-democracy demonstrations are being planned following the tribunal's ruling, with a protest planned in front of the prime minister’s office in Warsaw to demand publication of the ruling. Anti-PiS marches gathered tens of thousands in Warsaw and other Polish cities since the party took power in November.