EUobserver opinion: Moment of truth for Poland in constitutional dispute

The ruling Law and Justice (PiS) party in Poland suffered two major setbacks this week.

On Wednesday (9 March), the nation’s Constitutional Tribunal declared a sweeping amendment limiting the tribunal’s powers to be unconstitutional.

On Friday, the Venice Commission, an advisory body to the Council of Europe in Strasbourg, issued a powerful concurrence. Like the Polish court, it did not find a single major provision of the amendment, passed by PiS last December, consistent with European principles of democracy and the rule of law.

The twin decisions bring about a moment of truth for PiS. The party can either retreat from its overreach and try to implement its reform agenda within the current constitutional framework or set Poland on the path to authoritarianism.

Warsaw’s international partners should strongly support the moderate course without risking their own “liberal overreach”.

In a general election last October, PiS and its anti-establishment allies failed to gain the 2/3 majority required to amend the constitution. Because of that, the party initiated a concerted effort to take control of the country’s Constitutional Tribunal.

If successful, PiS would be able to ignore constitutional constraints without formally changing the basic law.

PiS strategy has been twofold. Firstly, they tried to stuff the court with a compliant majority by annulling the election of five judges chosen by the previous, centrist parliament.

'Combined effect'

In a decision in early December, the court held that this attempt was illegal as far as three judges were concerned. In its Friday opinion, the Venice Commission agreed.

In light of both decisions, Poland’s president Andrzej Duda, should promptly swear in the duly elected judges.

Secondly, PiS instituted procedural reforms aimed at stripping the court of much of its real power. Under the December amendment, most cases would need to wait at least six months before being decided.

The cases would need to be reviewed, without exception, in an order of filing. Even after the waiting period, a law could be declared unconstitutional only by a two-thirds majority of the full court.

The Venice Commission found that the “combined effect” of all these measures would make the tribunal utterly “ineffective as a guarantor of the constitution.”

In its Wednesday ruling, the tribunal itself reached the same conclusion. Taken together, these reforms amounted to an attempt to change the country’s constitutional system by in effect eliminating the tribunal as a meaningful check on the legislative and executive powers.

As the events of the last few months unfolded, PiS faced a barrage of negative press in international media. But commentators often failed to notice that PiS is far from consistent in its strategy towards the court.

Cooler heads

At times, the party’s leaders seem determined to defy Western pressure and complete the evisceration of the court at any cost. The latest example of this approach is prime minister Beata Szydlo's refusal to publish Wednesday’s decision of the tribunal in the official gazette.

At other times, however, there are signs that cooler heads may prevail. The opinion of the Venice Commission was issued on the request of PiS’ own foreign affairs minister, Witold Waszczykowski. Right-wing media harshly criticised Waszczykowski for making the request, but PiS leader Jaroslaw Kaczynski made it clear that the minister would keep his position.

A few days ago, another senior PiS politician openly suggested a compromise, which would include swearing in all the three judges elected by the previous parliament.

Even the current calls for ignoring the legal duty to publish the tribunal’s ruling resemble similar statements made by PiS in December after two other unfavourable decisions. In each case, however, the government ultimately relented and complied with the law.

The moderate course appears even more feasible if we consider the longer-term interests and aspirations of PiS leaders.

Just a few weeks ago, Mateusz Morawiecki, the powerful deputy prime minister leading the government’s economic team, unveiled an ambitious plan for closing the gap separating Poland from the West by investing in home-grown innovation and selected competitive strengths.

More than half of the projected €200 billion to be spent on the Morawiecki Plan will have to come from EU funds.

President Duda, likewise, counts on the West to deliver the likely highlight of his presidency - the Nato summit to take place in Warsaw this July.

During this extraordinary meeting, Duda plans to lean heavily on Poland’s closest allies, the United States and Britain, to secure the creation of permanent Nato bases in Poland.

It is difficult to imagine how PiS leaders can achieve their economic and security priorities without compromising on the Constitutional Tribunal. The European Commission has already opened an investigation on whether PiS’ actions represent a breach of EU democratic principles.

Meeting his Polish counterpart Waszczykowski in February, US secretary of state John Kerry underlines his expectation that Warsaw would treat the recommendations of the Venice Commission seriously.

Even Syed Kamall, a British conservative MEP who defended PiS during a debate in the European Parliament in January, urged the Polish government “to work constructively” with the commission.

Path between two extremes

After the Venice Commission’s unambiguous verdict, PiS can no longer equivocate and play for time. Poland’s Western partners should seize on this moment to strongly back the moderate elements in Poland’s ruling party.

At the same time, the West should avoid humiliating PiS, especially by overreaching with its own demands.

In international commentary, a number of issues are commingled into one anti-PiS narrative. The issues include PiS’ takeover of public media and state prosecutors’ service, expanded domestic surveillance, and incendiary statements by governmental officials on immigration or social issues.

Yet these issues are qualitatively different from the assault on the Constitutional Tribunal. With its independence ensured, and its decisions respected, the tribunal would be able to deal with real threats to human rights or democratic values posed by PiS legislation.

At the same time, it would be much better positioned than Western governments and commentators to separate serious constitutional problems from ordinary, even if ill-advised, policy choices or rhetoric.

The West should find a path between two extremes: declaring any involvement in Poland’s internal affairs unfeasible and trying to convert PiS into a liberal mascot.

Last October, Poles set a right-wing, anti-establishment course for their country. This choice should be respected but it should also not infringe on the country’s constitutional and international obligations.

Maciej Kisilowski is assistant professor of law and public management at Central European University in Budapest