Assault on Polish Constitutinal Tribunal

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The American democracy will last 

until the government discovers

that it can bribe the people

with their own money.

Alexis de Tocqueville

The golden rule featured in the abovementioned quote was internalised by Law and Justice (PiS) so strongly as by nobody else before. Relatively low income (as compared to the neighbours of Poland) of Polish citizens and their great expectations make for a good soil for a political party which included in its political program slogan of stimulating the economy by the means of internal demand. How to create this demand? It’s simple, by giving away money.

PLN 500 for a child, PLN 8000 of tax exempt amount, free medication for the elderly. Everyone gets promised something. Where to get the money from? Well, obviously from the budget. As if the budget was a mythical bottomless pit – resources from the mysterious capitalists, banks and supermarkets (especially the foreign ones). Not from the taxes, of course – which, after all, we as the clients and customers need to pay in the end. So we already have a carrot. What’s next?

First, a prologue: a victory in the presidential and parliamentary elections. As for the latter: the D’Hondt method enabled Law and Justice to gain parliamentary majority by getting 38% of the total vote. Now it’s the time to feed on the success.

Now social consent for making an assault on the system enters the picture. It’s just about how it is advertised. First, you need to promise in your campaign and exposè the mythical democratic package, cooperation with the opposition, not taking advantage of your majority to humiliate your opponents. Then you’re ready to proceed from words to deeds.

The first element of the anti-democratic package became obvious when Polish People’s Party (PSL) did not get a vice-marshal in the parliament, no representatives in the Special Services Committee (KSS) and when the rotation at the position of the chair of the Committee is withdrawn. Then, a pardon is given to the not-yet-convicted by a lawful ruling Mariusz Kamiński – a former head of the Polish Central Anti-Corruption Bureau – because apart from an average MP, who would care about it?

Then, the next steps: bills to be vote on are not available before the parliamentary sessions (so no party other than Law and Justice can read it), surprising the opposition with sudden changes in the parliamentary agenda, no acts sent to the parliamentary committees and no time to ask experts for advice on the discussed matters. Parliamentary sessions (both of the Sejm and the Senate) held at night. Extreme pace and we’ve got ourselves a new act on the Constitutional Tribunal – an act to which as a pretext served, unfortunately, the previous majority appointing five and not three Constitutional Tribunal judges.

The president (despite the end of term of the three former judges in the beginning of November) fails to swear in the new candidates put forward by the Sejm of the VII term of office. He doesn’t do it even though no regulation enabled him to veto it, despite the fact that the three abovementioned nominations are unquestioned. The pretext is the legal defect in the act.

The new act pushed by Law and Justice has actually (from the point of view of the government) two defects: first, it may prove to breach the institution itself (it shall be applied retroactively), second: it shall come into force right after the publication of the decision of the Constitutional Tribunal as regards the first act introduced by the coalition of Civic Platform (PO) and Polish People’s Party (PSL). If the decision supports the previous appointment of at least three judges, the president shall swear them in. There’s no reason for putting it off. The new act will come into force not before a few days later. Nevertheless, if you want to hit the dog, you’ll always find a stick to do so.

Yet another night session: surprising bills published right before the session, strange legal opinions of the dubious experts and there we have five new acts revoking previous acts on the appointment of the Constitutional Tribunal judges. During those night sessions, the only party that fights back is .Nowoczesna (.Modern) – which by asking questions, by putting their objcetions “out there” tries to appeal to the conscience of the Law and Justice’s MPs or maybe awaken the society. While the party of Paweł Kukiz becomes an ally of Law and Justice, Civic Platform shies away and choses press conferences on the stairs. In the sessions chamber still remains Polish People’s Party which together with .Nowoczesna tries to express their objections to such a clear violation of Polish law.

What’s the legal status of those acts? None whatsoever – but who will confirm that if no one even knows whether such an act can be scruinized by Constitutional Tribunal. The reasoning of Law and Justice is so bizarre that no one knows how to put it to a halt. Thus Poles are simply faced with it and made to deal with it.

Now, the only deadline is December 3 – a date of the first decision of the Constitutional Tribunal. Law and Justice knows it hence it announces December 1 as the day when the new cadidates for the Contitutional Tribunal judges are to be submitted, and on December 2 the Sejm is to be in session. If it yet again is forced to work in a hurry, the debate will be yet again shortened, Law and Justice will again take advantage of its majority, so before the Constitutional Tribunal announces its decision, the entire thing it’s already over. The new five judges will be chosen a day before.

All this that has already happened and that will soon follow is acknowledged only by some part of the society, “the elite” – as it contemptuously put one of the Law and Justice’s MPs – the rest still hopes for the government to fulfill its financial electoral promises. So the support for Law and Justice will not decline. The party may thus still gain more and more power.

There is however one question that undoubtedly arises: why a party which claims that has no intention of breaching or violating the constitutional acts, wants the majority in the Constitutional Tribunal? What will be the next step?

The article was originally published in Polish at liberte.pl

Translated by: Olga Łabendowicz

Katarzyna Lubnauer
Liberte