A Brief on the constitutional crisis 2015-16

(CC BY 4.0) fot. by Dafne Cholet

As you may have heard on the news, Polish democracy is in jeopardy. We hope that you are as concerned and shocked as we are by the recent events in Poland. To help you better understand the reasons behind the current developments and encourage you to support our pro-democracy action, here is a timeline of what has happened in recent months:

August 2015

  • Andrzej Duda, a former MEP of the leading opposition party, Law and Justice (PiS), was sworn in as the president of the Republic of Poland. In his inauguration speech, he promised to be “the president of all Polish people”, “reuniting the nation instead of dividing it”.
  • In the first months of his presidency, Andrzej Duda refused to meet then Prime Minister Ewa Kopacz, an indication of his unwillingness to co-operate with the incumbent government.
  • He appealed to Civic Platform (PO), the ruling party, to refrain from passing new bills prior to the upcoming general election.

October 2015

  • President Andrzej Duda failed to appoint five Constitutional Tribunal judges elected by the PO-led government by refusing to schedule a swearing-in ceremony.
  • In the general election, PiS won the majority of seats in both chambers of Poland’s legislature: the Parliament (37.5% share of the vote) and the Senate. The party gained an overall majority, but not the constitutional majority required to change the Polish Constitution through an act of parliament. With a turnout of 50.9%, 18% of the Polish population actively voted in favour of the current government.

November 2015

  • New MPs were sworn in on 12 November.
  • On 17 November, President Duda pardoned Mr Mariusz Kamiński, former chief of the Central Anti-Corruption Bureau under PiS government of 2005-2007, despite the verdict being reviewed in the Court of Appeal and therefore not legally binding (this is the first time such a pardon was granted in Poland since 1989). According to several legal experts, this decision was President Duda’s first violation of the Constitution. The pardon followed Kamiński’s appointment as the Head of Secret Service just a day earlier, on 16 November, which took place despite the ongoing case against him.
  • Three other employees of the Bureau were also pardoned.

December 2015

  • On 2 December, the new government passed legislation to ‘correct’ the appointment of the five Constitutional Judges voted in by the previous government and appointed five new ones, who were selected by PiS’s newly-elected MPs.
  • President Duda accepted the oath from the newly elected judges at 1:30am, a few hours after the act was validated and five days after the vote took place.

November 2015 – March 2016

  • PiS brought before the Parliament a number of bills proposed by their MPs, which were voted on instantly. These were immediately passed through the Senate and often signed by the President within 24 hours, leaving no time for debate, public and expert consultations or for the opposition parties to propose any amendments. These acts included:
    1. Amendments to the Constitutional Tribunal Act, the so-called “Recovery Act” of 22 December – the source of the present constitutional crisis. The Recovery Act, criticised by many judiciary experts in Poland and abroad (including the National Council of the Judiciary, the Supreme Court, law faculties of the most respected Polish universities, the Venice Commission and several European experts), had introduced several provisions: a three-year tenure of office for the President of the Constitutional Tribunal, renewable once; the termination of the tenure of the incumbent President and Vice-President of the Constitutional Tribunal; a rule requiring verdicts to be reached by a two-thirds majority of the Constitutional Tribunal judges; and a requirement that motions are to be judged strictly in the sequence in which they are filed, rather than their importance.
      On 9 March 2016, the Constitutional Tribunal declared the Recovery Act unconstitutional and a report on the Rule of Law in Poland released on 11 March by the Venice Commission supported this view. The Chancellery of the Prime Minister and Prime Minister Beata Szydło, however, refused to publish the judgment. In the opinion of the Venice Commission, this “(…) would not only be contrary to the rule of law, such an unprecedented move would further deepen the constitutional crisis (…)”*
    2. Civil Service Amendment Act of 30 December. The Act removed several conditions for appointing civil servants: candidates for government agencies and administration posts are no longer required to be selected through an open competition process and to be non-partisan, which threatens the continuity and neutrality of the civil service. Since then, many of senior and middle management staff have been replaced, often by candidates without the necessary qualifications. For example, 21% of senior and middle managers at county government level as well as in the General Veterinary Inspectorate were dismissed. One of the more controversial appointments was the replacement of the directors of two world-renowned Arabian horse breeding and training centres; one of the newly appointed managers, Marek Skomorowski, openly admitting to not having any equine knowledge beyond “wanting to develop his newly found passion for horses”. Additionally, out of fifteen most strategic government-owned companies – e.g. Polish State Railways, Polish Mail, energy companies and banks – only three CEOs have not been replaced. Although such practices are not unheard of, the scale and speed with which these appointments were made is concerning.
    3. On 16 January, the Public Media Act was passed, which assigned the control and supervision of the state-owned media, previously in the remit of the National Broadcasting Council, to the Ministry of the Treasury, putting the impartiality of the public media at risk. Mr Jacek Kurski, known as the “PiS bulldog” and one of the most recognizable PiS politicians, was nominated as President of the Polish Radio and TV. Many journalists and managers, with years of service behind them, have lost their jobs since the takeover – in the public TV stations alone, 45 journalists and broadcasters have been dismissed and many more have resigned in protest. This move is partly dictated by plans to reshape Polish public media to promote traditional, national and Christian values, and to continue to implement the government’s vision of media as a vehicle for communicating the government’s agenda.  
    4. “Snoopers’ Charter” introduced on 7 February, gives the police unlimited access to citizens’ internet activities and the right to put their telephone communications under surveillance for 18 months at a time, without any authorisation from the court. There is no obligation to inform the person being investigated of this fact, following the completion of the surveillance, even when no charges are brought forward.
    5. Reorganisation of the post of the Prosecutor General: from 4 March 2016, the function of the Prosecutor General was merged with that of the Minister of Justice (making Poland the only country in the European Union without the separation of these two roles), granting unparalleled powers to require any prosecutor to adhere to the Minister’s instructions. On the basis of a decision of the Minister/Prosecutor General, the information on any investigation at any stage can be released to the media or to any third party (including individuals). The Minister/Prosecutor General can also obtain information by any means necessary, target and investigate individuals with little or no prior evidence of any suspected wrongdoing, and can move any case from one court to another. Moreover, the Minister of Justice cannot be accused of illegal actions or abusing his office if he proves his goodwill or that he was acting in the public interest.
  • On 25 March, Mr Jan Szyszko, Polish Environment Minister signed off a new plan that will dramatically increase logging operations in the Białowieża Forest, the World Heritage Site and the last primeval forest in Europe. As a rationale for this, he claims that an outbreak of a spruce bark beetle infestation needs to be curtained. In the new forest management plan, logging quotas will be increased threefold – since the reduction of the quotas in 2010 the logging industry have been lobbying for an increase. What is more, “ecological engineering” will be used, which means that only one-third of the forest will be strictly protected and the remaining area will be “managed” by logging and human intervention. Previous proposals of the plan and now its implementation, have attracted a wave of criticism from many leading environmentalists, nature groups and scientists from the Polish Academy of Science, and resulted in a huge public outcry and enquiries from the European Commission.
  • The Ministry of Agriculture and Rural Development put forward a proposal for new agricultural land-market legislation that would severely limit trade in agricultural land. Under proposed law, agricultural land can only be sold to farmers, who are defined as individuals who have the right qualifications, have been a resident of the local authority in which the land is located for five years and have been running a farm during that time. Moreover, the proposal stipulates that anyone purchasing agricultural land is obliged to farm it for at least 10 years and, during that time, is not permitted to sell or rent it. If the buyer fails to farm the land, a court, on request of the government Agricultural Market Agency can issue a compulsory purchase order. There is a concern that the bill will hugely restrict the right to own, sell and buy property.

19 January 2016

  • MEPs debated the rule of law with Prime Minister Beata Szydło in the European Parliament after the European Commission, the executive body of the European Union, opened an unprecedented inquiry into Polish compliance with the rule of law and media independence.

13 April 2016

  • The European Parliament passed a resolution calling on Polish government to respect democratic principles and rule of law, and to fully implement the Venice Commission recommendation that would end the current Constitutional Tribunal crisis.

10 – 11 June 2016

  • The Venice Commission will investigate and issue its opinion on the surveillance law passed in December 2015.

All of the above have been widely covered by the media. Here is a selection of articles to get you started:

*European Commission for Democracy Through Law (Venice Commission), Opinion on Amendments to the Act of 25 June 2015 on the Constitutional Tribunal of Poland (Opinion no. 833/2015, CDL-AD(2016)001) adopted by the Venice Commission at its 106 Plenary Session (Venice, 11-12 March 2016).

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