Poland’s Supreme Court stands up to government in constitutional dispute

By bne IntelliNews April 27, 2016

The Supreme Court of Poland said on April 26 that courts across the country should respect the rulings of the Constitutional Tribunal (TK), even as the government refuses to publish them, a formal requirement for the rulings to become binding.

In a resolution, the General Assembly of the Supreme Court Judges, said that any laws ruled unconstitutional by the TK should be treated as such, even if they are not officially published. The ruling is an attempt to free Poland's frozen constitutional process, a situation that has provoked an inquiry into the rule of law by the EU.

The government and the TK have been at loggerheads since December, when parliament passed a new law reorganising the court and its operations. The tribunal ruled the rearrangement unconstitutional; the government responded by refusing to publish the ruling. In a Kafkaesque twist, Warsaw argues the TK’s ruling is invalid because the tribunal was not operating under the new format when it was reached.

As a result, Poland’s legal system remains deadlocked, with the only body overseeing constitutional matter blocked. The resolution of the Supreme Court attempts to address the issue by giving courts guidance the TK’s rulings should be considered valid even if not published.

The government responded to the resolution by pledging to pass an amendment to the law on the TK to end “the anarchy”. The Law & Justice (PiS) party has an outright majority in both houses of the parliament as well as a friendly president. A spokeswoman from PiS’ parliamentary grouping failed to pin point what the amendment would stipulate, however.

She also called the Supreme Court “a pack of cronies defending the previous [government]," PAP reported. PiS insisted at the start of the drama with the TK that it was merely trying to redress action by the previous Civic Platform (PO) government that had fillled the tribunal with its supporters.

The persisting constitutional crisis has caused Poland to become subject to a European Commission probe into the state of the rule of law, while Warsaw has seen a number of mass protests against PiS in recent weeks. Senior EU officials have visited Warsaw in a bid to illustrate Brussels' determination to press the point and call for the government to break the deadlock. The European Parliament also adopted a critical resolution, while a negative review of the state of Polish democracy was recently issued by Freedom House.

PiS, however, has offered no hint that it is ready to back down. In early April, Justice Minister and Prosecutor General Zbigniew Ziobro warned the TK against making any more new rulings, and threatened the judges with legal consequences. Ziobro has no little influence on careers in the judiciary, which might make judges wary of the new resolution from the Supreme Court. That would only contribute to the lack of uniformity within the judicial system that the Supreme Court is hoping to bring to an end.

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