Poland’s Constitutional Problem is About to Become a Human Rights Problem

Poland’s Constitutional Problem is About to Become a Human Rights Problem

by Peter Kobak
A demonstration takes place in Poland over new changes in the Constitutional Tribunal. Photo Credit : LukaszKatlewa

Poland is going through what domestic and international observers alike are calling a constitutional crisis. For the first time since democracy returned to the country in 1989, a single party holds the majority of seats in parliament, and with their concentrated power, is carrying out a series of wide-ranging and controversial reforms. The criticisms levied on the government by international organizations suggest human rights protections are being destroyed by the country’s new administration.

The situation has its origins around the parliamentary elections at the end of 2015 in which The Law and Justice Party (PiS) swept the majority of Poland’s 560 parliamentary seats. Before the 2015 election, the ruling liberal-centrist administration saw their popularity declining and foresaw an imminent defeat. Hastily, the party filled three vacant appointments in the country’s Constitutional Tribunal- the Polish equivalent of the US Supreme Court- made up of fifteen judges. Then, two more judges were added to the Tribunal in an attempt to fill seats whose terms had not yet expired. Following its victory, PiS immediately rejected all of the outgoing party’s appointments and swore in its own judges.

Amidst the confusing mix of old and new judges, PiS has taken on an aggressive campaign to implement changes to the country’s highest court. In December, the newly PiS-controlled parliament passed legislation dubbed the “Repair Bill” that altered the Tribunal’s procedures and enlarged the powers of the executive branch vis-à- vis the Tribunal. The bill increased the number of judges that needed to be present for a Tribunal decision (from nine to thirteen); required decisions to be reached by a two-thirds majority (previously only a simple majority was required); required the Tribunal to hear cases in the order that they were submitted (rather than by the priority or importance of the case in question); shortened the terms of the president and vice-president of the Tribunal; and allowed the executive branch to bring forth disciplinary proceedings against a judge, among other changes.

Soon after the bill breezed through the parliament, the Constitutional Tribunal made a ruling declaring the entire document unconstitutional. In response, the PiS administration, led by its new Prime Minister Beata Szydło, proclaimed it would not publish the Tribunal’s ruling- a necessary step for the decision to become binding under Polish law.

European organizations are especially concerned with the crisis that’s occurring in their backyard- with a country that has been a success story of European integration. The Council of Europe and the European Union have both either issued statements or begun an investigation into PiS’ recent actions.

This past March, an independent body of the Council of Europe known as the Venice Commission conducted a series of visits to Poland and offered a damning opinion of the Polish situation. It concluded that the Repair Bill would endanger “not only the rule of law, but also the functioning of the democratic system,” which in turn would undermine the country’s ability to safeguard human rights.

The European Union has also issued a condemnation of the country’s reforms. This assessment could lead to what some call the “nuclear option”: the suspension of Poland’s voting privileges in the organization. A non-binding resolution passed by the European Parliament, the EU’s legislative body, emphasized its concern for rule of law, democracy, and human rights in Poland, and encouraged proceedings that could lead to sanctions on Poland.

The gravity of Poland’s constitutional crisis is concentrated in the relationship between rule of law and human rights. Rule of law is predicated upon judicial review, meaning the protection of rights in the court system. The current Polish Constitution is arguably the most important human rights document for the country. It- along with numerous international treaties- enshrines the many human rights that all branches of the Polish government are bound to “respect, protect, and fulfill,” a responsibility states share as a cornerstone of international human rights law. If the Constitutional Tribunal is unable to come to a decision on a matter relating to the human rights listed in the Constitution because it is paralyzed by PiS’ legislative amendments, those rights are left unprotected.

Soon after passing the Repair Bill, PiS also passed the “Act on Public Media” that crippled the ability of public Polish media to remain independent by allowing the government’s executive branch to directly appoint public media directors. Leading Polish human rights NGOs, decried the Act, saying it will “stifle critical voices at a time when it is essential that public broadcasters can speak out.” The net result of the Act on Public Media is not unlike the Repair Bill, insofar as it concentrates more power in Poland’s executive branch, giving PiS a tighter grip on the narrative in which it carries out its reforms. The series of actions taken by PiS since coming to power have destroyed one bulwark of human rights after another.

And the march of PiS has gone on. The administration merged the once-separate offices of the Minister of Justice and the Prosecutor General, whose previously separate positions allowed the country’s top prosecuting attorney more autonomy. The government also expanded the surveillance capabilities of the police in a move that grants them power to request data on an individual from digital service providers in Poland, without approval from a court.

When the Roman Catholic Church- a Polish political heavyweight- began a campaign for a complete ban on abortions, Prime Minister Szydło and President Duda- both members of PiS- offered their support to the cause. The proposed ban would be the most restrictive law on abortion in the EU and has brought hundreds of thousands of opponents onto the streets of Poland in protest. Would the law pass, Poland may find itself before the European Court of Human Rights defending their decisions regarding reproductive rights for the umpteenth time. Most recently, the PiS administration scrapped a governmental council that was tasked with research and policies aimed at preventing racist and xenophobic discrimination in the country, largely inexplicable given the recent growth of racism and xenophobia in Poland.

Soon after the parliamentary elections, a Polish parliamentarian gave a short speech in front of his new colleagues. In it, he unapologetically declared that the “good of the nation is above the law.” The parliamentary chamber, whose seats were largely filled with newly minted PiS politicians, responded with a standing ovation.