This article deals with the end of term of office of Polish Ombudsman Adam Bodnar. So let’s start with stating the obvious, which, however, must be clearly formulated each time, so that the Reader has no doubts about the attitude of the author of the text to the lawlessness that has been taking place in Poland for years. Of course, no ruling of the Constitutional Tribunal was passed on the constitutionality of the ombudsman’s performance after the formal expiry of his term of office and before the election of his successor.
The group of five people, led by Julia Przyłębska, decided to share their private opinion with Polisg citizens on this subject, consisted of four judges of the Constitutional Tribunal and Mr. Justyn Piskorski, who has as much in common with being a judge of the Constitutional Tribunal as the editorial office of Liberté! with the Harlem boys’ choir.
However, since this gentleman joined the judges, wearing a toga for fun, this fact influenced the lack of a legal composition of the judges of the Constitutional Tribunal on that day and, obviously, no ruling in this case.
Legally, therefore, the performance of Adam Bodnar’s duties after the end of his term of office remains constitutional (due to the presumption of constitutionality), while in the legal fiction of the Law and Justice (PiS) party, it will probably be enforced to deprive him of the tools to perform them. Polish women and Poles will be left without an ombudsman.
When PiS lost a majority in the Senate in the 2019 elections, it became clear that it would not be able to push through a party candidate for the position of the ombudsman, who must successively obtain the support of the majority of deputies and the majority of senators. Despite this, PiS is trying, for the second time now, to place one of its active politicians in the office of the ombudsman (the second attempt is based on the candidate’s private acquaintance with one of the potentially more swayable opposition senators).
At first glance, the removal from office of Adam Bodnar, as part of the legal fiction imposed on the country, seems to be yet another element of pressuring opposition senators to accept the PiS nominee elected by the Sejm. This could supported by the argument that, otherwise, PiS will fill the office with someone holding it in charge, and finally, in cases of violations of civil rights that would be completely neutral politically or ideologically, the spokesman from PiS will also support citizens (and finally, a significant number of Polish citizens are apolitical).
However, the meaning of this move by the party in power with the use of a fake Tribunal may also be a bit more prosaic. PiS certainly cares much more about trying to stop a lawyer who is critical of the party (Adam Bodnar) than about appointing the next ombudsman. The ruling party does not need its man in the office of the ombudsman. It will be content with not filling this office at all. After all, why would we need an ombudsman representing citizens in a state created according to the logic of the Law and Justice party?
For almost six years, we have been observing the changes introduced in Poland by Jaroslaw Kaczynski’s party and it is probably clear to all of us what this vision of the state is. PiS is building a monolithic state, the party takes over literally all institutions and puts them under its control. The party becomes the state and the state becomes the party. Where in this philosophy is there be a place for the institution that defends the citizen against the party-government, and thus acts legally against the state? This would be a complete anomaly and a breach in the entire political strategy.
The appointment of the Ombudsman by PiS would mean that they would be a completely useless spokesman, non-existent in the event of the PiS state inflicting harm on a citizen. In the mindset of total party loyalty, typical of PiS, the ombudsman will be a soldier of the party-government, who cannot be expected to defend an ordinary citizen against the will of party colleagues. Likewise, people who have encountered some problems because of their political or ideological beliefs, who would be treated by PiS as hostile parties, will not have a chance for receiving any help.
On the other hand, the ombudsman would probably fight fiercely in defense of religious and conservative people who would find themselves in conflict with other citizens, organizations, or private legal persons. (S)he would certainly fight like a lion in defense of an employee who, due to posting in social media calls supporting the death of homosexuals, lost his job; a lecturer punished by a university for spreading unscientific ideological theses pleasing to the right wing; a printer refusing to print an LGBT+ organization leaflet; or a hotelier refusing to rent a room to a homosexual couple. Simply put: (s)he would deprive Ordo Iuris of bread.
It would be a waste of time, however, for students harassed by the headmaster for putting red lightning bolts (a symbol of the Women’s Strike) in the avatar on their student accounts, to to turn to such an ombudsman; or teachers disciplined by school boards for participating in the Women’s Strike; as well as teachers mobbed for taking down the cross in the teachers’ room; or people beaten with a baton by a policeman or kicked with a heavy shoe by a nationalist, humiliated at the police station, harassed in violation of the provisions by the prosecutor’s office.
When liberal democrats are in power, they understand that the ombudsman is an exceptional office. This is not such an attractive position in a state-owned company, or one of a director of a museum, agricultural modernization agency, or state forests. Such positions in Poland were treated by each political team in power as preserves for distinguished activists of the second row.
The office of an ombudsman is an inherently antithetical position towards the government. Antagonism towards other state institutions, and especially towards its apparatus of coercion, is built into its very sense of existence and pursued activities.
Yes, each political team tries to choose as a spokesperson someone with a similar ideological sensitivity to their own, because this is how (s)he will understands the priorities in the field of defending the rights of the citizen. The measure of democratism, however, is to allow for choosing a person genuinely independent of any authority.
PiS won the elections in 2015 and 2019. Although the conservative majority in Poland is slowly coming to an end, the latest election test has shown that this sensitivity is still the strongest. The new ombudsman should, therefore, be a conservative. But a conservative, frankly speaking, anti-PiS, not denying the problems for civil liberties that have been brought by the last six years (which is beyond measure).
The Law and Justice party, however, is not so much conservative as a political force outside the broad consensus of democratism. They are despots who will not take a step back. The only ombudsman that is conceivable for them is a steerable and controllable soldier who has some skeletons in the closet. Such an ombudsman is not needed by us, citizens. If the office of ombudsman becomes just that, it might as well be gone.
The article was originally published in Polish at: https://liberte.pl/rzecznik-czego/
Translated by Olga Łabendowicz
Statement by Polish Civil Society Organizations on Takeover of Ombudsman Office by Sejm Majority