It is not only mutual military support and the common market that unites EU and NATO Members States. Our cooperation is and has to be based on common values – democracy and the rule of law. Barack Obama very clearly made Polish politicians aware of this fact during the press conference at the NATO summit. The US president not only expressed concern about the impasse around the Polish Constitutional Court, but also underlined that what makes us democracies are “not just by the words written in constitutions, or in the fact that we vote in elections – but the institutions we depend upon every day, such as rule of law, independent judiciaries, and a free press”.
Before coming to Warsaw, President Obama was certainly well informed about the situation in Poland. Undoubtedly, last week’s rushed discussions in the Parliament regarding the new act on the Constitutional Court affected the message of the American President, because both the new proposal of the Law on the Constitutional Court, as well as the way it was proceeded, stand in opposition to the fundamental values binding the transatlantic community.
Parliamentary work on the Constitutional Court Act – precisely the fourth version of it in the recent months – violated a number of democratic debate’s principles. The meeting of the Parliamentary Committee on Justice and Human Rights was held overnight (a new norm in the Polish Parliament) and MPs could make statements only of two minutes long, despite the complicated legal nature of the act. During the second reading in the plenary session, MPs could not ask any questions. These measures in practice hampered a substantial debate on the act, which has far-reaching consequences for the country’s political system. Further, the Committee’s chairmen made an unprecedented attempt to force the journalist to leave the meeting room and the reporting members from the governing party refused to address several legal issues and comments raised by the opposition. This way of working violates the rule of three readings before adoption of a legal act and in more general terms marks an end of the parliamentary debate in Poland.
The true aim of the legal and organisational confusion – brought forward when Poles were busy rather with holidays and football than with politics – was the wish of the governing party tried to hide the actual consequences of the new law. In the meantime Law and Justice indeed stepped down from a handful of clauses, yet still the act ultimately voted in the Parliament will paralyze the activities of the Court and threaten the constitutional principle of separation of powers. Four (out of fifteen) judges will be able to postpone a ruling of the Court, if they do not agree with its version supported by other judges. This regulation will impact the citizens` right to the court and in particular to the right of a legal case being reconciled without undue delay.
As regards the separation of powers, President Andrzej Duda will become a de facto supervisor, authorized to interfere in the organization of the Court. According to the bill the President will have a direct impact on the order of proceeding of the cases by the Court. According to the act, the President is also empowered to verify decisions of the disciplinary court of the judges of the Constitutional Tribunal. This President will decide who cannot be a judge and who can, even against a judgement of the disciplinary court. Worth noticing is also that the new act – in line with previous versions proposed by Law and Justice – requires the Court to deal with cases in the order of receipt and proceed the cases in the full composition of the court (as standard rule). Both clauses were kept, although the Constitutional Court and the Venice Commission provided their negative opinion on them.
The Law and Justice leaders failed to mislead President Barack Obama not only on the direction of current changes in Poland. American partners neither believed in the alternative history of Poland’s NATO membership, as presented by the government. The official exhibition on Poland’s way to NATO accompanying the summit failed to feature Professor Bronislaw Geremek – a former foreign minister, signatory of the Accession Treaty and a truly key figure in the process. This omission was filled by Madeleine Albright, who reminded of Geremek’s contribution with a great respect, while talking the Warsaw Summit Expert Forum. M. Albright also quoted one of his famous sentences : “The job of defending freedom is never done”. In Poland, the message comes quite timely.