The NATO Summit and Obama’s Much Ado Over a Polish Court

It is too bad President Obama apparently skipped his constitutional law classes while at Harvard. Firm grounding in the American constitutional tradition would help him understand the complexities of Poland’s struggle against the poisonous legacy of totalitarianism in its court system.

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By Marek Jan Chodakiewicz | July 12, 2016

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At the NATO summit in Warsaw President Barack Obama berated his Polish hosts about their commitment to democracy and the rule of law.

In particular, he defended self-righteously an “independent judiciary,” which the Polish government had allegedly undermined. That’s rich coming from America’s chief executive who has routinely ignored the U.S. Constitution, packed the courts, and ruled by presidential fiat. Obama’s criticism was as misplaced as that of his party comrade, Bill Clinton, who levied similarly baseless accusations at Warsaw, charging it with the alleged “Putinization” of its democratic system.

At the heart of it all is Poland’s current political crisis regarding the so-called “Constitutional Tribunal.” It has produced a legal and political stalemate in Warsaw, hectoring editorials in the West, and demonstrations and panel discussions in and out of Poland.

What’s the fuss all about?

We are told that the new Law and Justice Party’s (whose Polish abbreviation is PiS) government is threatening the tri-division of power, impinging upon the independent judiciary as allegedly embodied in Poland’s Constitutional Tribunal (CT).

Yet, others, including outside observers like Walter Laqueur note that the avalanche of commentary critical of the new, center-right Polish government is rather the result of Polish liberal-leftists influencing their friends in the Western media. Those who share that view maintain that the newly elected Parliament is simply attempting to deal with the contradictions and legacies of the Communist era which have remained unattended for 25 years for reasons of political convenience. The Parliament’s initiative enjoys the backing of the President, Andrzej Duda.

The crisis stems not from a legal issue but a political one.

If one peels away the layers, the threat is not to an independent judiciary but rather to a highly partisan, patronage-based judicial system that has nothing in common with a U.S.-style independent judiciary. It is a threat to the longtime interests of former Communists and their allies on the left who have benefited from the institutional arrangements they cobbled together in 1989.

Origins and Continuity

First, a clarification: the Polish Constitutional Tribunal is not identical to the U.S. Supreme Court. The former was established by the Communist dictator Wojciech Jaruzelski during Martial Law in 1982 as a rubber stamp judicial contraption. It was officially made operational three years later and, at the time, it was considered a legal farce staffed by stooges of the regime that had crushed “Solidarity.” When the compromise Round Table agreement resulted in an unfree election in June 1989 failing to bring about de-Communization most of the institutions and personnel of the Polish People’s Republic were permitted to continue in the ostensibly new Poland. This included the Constitutional Tribunal and its “post-Communist” complement of court functionaries who aspired to be the Constitutional supremes.

Over the past quarter century, the CT has enhanced its position, inter alia by absorbing the prerogatives of the now abolished Communist Council of State. The members of the Tribunal reinvented themselves as arbiters of democratic legal norms and overseers of parliamentary legislation (as well as – to an extent – some international law provisions), while keeping the old regime connections and customs as intact as possible. In other words, the Constitutional Tribunal transformed itself along with the rest of the system without losing its fundamentally socialist pedigree. That was hardly a way to legitimize oneself in the eyes of the anti-Communist public but it was perfect for Poland’s post-Communist apparatchiks and good enough for her left elites, not to mention the Western media and the U.S. government, whose mantra in the old Soviet zone has always been “stability”.

Aside from the historical reasons, it is mischievous from institutional, legal, and political perspectives to consider the Constitutional Tribunal on a par with the U.S. Supreme Court’s relationship to the centers of power. The U.S. court consists of independent judges appointed for life. The former contains 15 elected jurors who enjoy a tenure of nine years each. They are selected and appointed by a Parliamentary committee and then the Sejm (Parliament) votes to approve their nomination.

In contrast to the judicial nominating process in the United States, which involves selecting judges on the basis of their legal qualifications and judicial temperament, the process in Poland has been an overtly partisan one. Since the prospective members of the CT are selected by political parties, its composition reflects electoral politics with the winning party and its allies picking and voting for its partisan supporters. This is a typical political patronage arrangement that serves to maintain party loyalty by the distribution of offices.

For example, the current president of the CT, Andrzej Rzepliński, had earlier run unsuccessfully for Parliament on the Civic Platform party (Polish abbreviation: PO) ticket. Since the liberal Civic Platform enjoyed a parliamentary majority between 2007 and 2015 and ruled in coalition with the post-Communist Polish Peasants Party (PSL), Rzepliński was awarded a judgeship as a consolation prize by his party. He has reciprocated the trust placed in him by the Civic Platform. Not only did Rzepliński admit to holding secret meetings with Civic Platform politicians to influence legislation, but he marched to the house of Parliament, where he instructed them, in full view of TV cameras, how to alter a bill so it would be accepted by the court. Only a science fiction writer could insinuate such conduct by, say, Ruth Bader Ginsburg.

Another departure from standard American practice is that one does not have to be a judge to serve. In fact, very few are bona fide judges with any practical experience on the bench. Most are legal theoreticians with academic experience. Occasionally, they have no legal training to speak of. For example, Leon Kieres is a historian and with expertise in the Soviet economic co-misery sphere organization, the COMECON. Another judge, Roman Hauser, is an expert in the “people’s councils of the Polish People’s Republic,” a singularly unhelpful field when it comes to running an independent judiciary in a parliamentary democracy. But at least Hauser had had bench experience prior to joining the CT.

Most judges, naturally, have roots in the former Communist regime, but only some were implicated in its operations. For example, Court president Rzepliński was a Communist Party member but, according his sometime academic mentor, the widely respected Professor Jadwiga Staniszkis, he was of the opportunist variety, always careful to lay low. Like many other Communists, Rzepliński joined the “Solidarity” union (as did almost 10 million Poles, including about 1 million Party members), which earned him certain credentials as a “freedom fighter.” After 1989 he cashed in on that, while understandably working to airbrush the origins of his career. He became a bold liberal and a champion of a positive legal school of thought.

In another, more nefarious instance, CT judge Sławomira Wronkowska-Jaśkiewicz, as a young “legal scholar” in 1974, waxed lyrical about “socialist morality” and its “ethos” as alleged “fundamentals” of law. During the period of Martial Law and later in the 1980s, she served as a legal advisor to the head of the Communist secret police, General Czesław Kiszczak, and the last Communist prime minister Mieczysław Rakowski. Today, she sits on the Constitutional Tribunal. Those who suffered under communism can be forgiven for comparing this to a former Nazi legal advisor for Adolf Hitler and Heinrich Himmler playing the violin about democracy in Germany’s constitutional court 25 years after the Second World War.

Division of Powers?

The Constitutional Tribunal is a largely reactive legal body. Its duty is to ascertain the legality of parliamentary bills. It has the authority to nullify legislation. However, in contrast to the U.S. Supreme Court, the nullification can be overturned by a 2/3 majority of the Parliament. This is in congruence with Poland’s Constitution. But the nation’s basic law is deeply flawed.

After 1989, the Poles retained the Constitution designed for them by Stalin with minor cosmetic changes. Only in 1997 was a new Constitution enacted. Alas, it was crafted largely by the post-Communists and Poland’s left wing elites, since the anti-Communist camp was splintered and powerless. Largely because of the cleverness of the post-Communists to rig the electoral system in their favor, none of the anti-Communist parties managed to enter the Sejm, thus disfranchising at least 30 percent of the electorate who lacked any representation in the Parliament for the next few years. Clearly the new Constitution was designed in part to keep the post-Communists and the left in power.

When Poland entered the European Union in 2004, the nation’s Constitution turned out to be incompatible with Brussels’ requirements. So, it had to be seriously amended. One feature, however, remained on the books. According to the Constitution, the Parliament determines the procedures of the Constitutional Tribunal. In other words, the Parliament designs generic ways in which the CT operates, including the process for the selection of judges and the proportion of their votes necessary to endorse or reject a piece of legislation, whether by absolute or simple majority. Until recently, the CT did not object to this provision, since there was no conflict of interest between the ruling political coalition and the judges appointed by it. This reflected an intertwined relationship of the beneficiaries of the post-1989 political arrangements who consisted largely as remnants of the old Communist and managerial elite and their patronage networks. Thus, for 25 years, the interests of virtually all top elites of the post-Communist system were in harmony. That concerned all the branches of the transformed government, including the CT. There was no conflict also because the partisan composition of the CT reflected the electoral results, which usually produced left and liberal coalitions, and, more broadly, preserved the mechanisms of continuity that were put in place by the post-1989 transformation. Little wonder that the court’s collaboration with the government was smooth. And, in congruence with the political patronage system, it usually, though not always, disqualified legislation that challenged the ruling party. From an American perspective, this arrangement is hardly consistent with its notions of separation of powers.

All this changed when, for the first time in Poland’s modern history, the anti-Communist forces of the Law and Justice Party swept the Parliamentary elections, achieving an uncontested majority in October 2015. That means the Law and Justice party now rules with no coalition partner. It also means that the Constitutional Tribunal is dominated by now-opposition Civic Platform Party appointees and is unwilling to continue the cozy modus vivendi of the post-1989 consensus.

Political Maneuvering

Fearing the prospect of a Law and Justice victory in the most recent national election, in July 2015, the lame duck Civic Platform’s Parliamentary contingent seized the opportunity to elect three new judges to vacancies on the Constitutional Tribunal. However, at the same time, since there were two more openings scheduled for November, the Civic Platform voted in two more politically sympathetic justices illegally. Since the lame duck cabinet was a coalition government, it had to offer something to its partners and allies. Thus, the Civic Platform persuaded the Polish Peasant Party and the post-Communist Alliance of the Democratic Left to accept two November jurors, while the Civic Platform would claim the three July judgeships. The deal was struck but the Civic Platform and its allies were trounced badly at the polls in July by the Law and Justice Party. So, the liberal-leftists failed to deliver the November vacancies to their erstwhile coalition partners. The latter angrily spilled the beans and a scandal erupted.

Of course, it was illegal to have voted in five judges: the lame duck Parliament had no right to legislate beyond the elections of October 2015. In fact, this action unequivocally violated even the post-Communist Constitution. Curiously, there was no outcry from the Western media or the EU bureaucrats.

But then came the action that has caused such a fuss in the Western media: after the Civic Platform lost the election, the new Law and Justice-dominated Sejm countered the court packing scheme by electing its own two judges to the Tribunal. The post-Communist president of the CT Rzepliński cantankerously refused to welcome them on the court. So, the Law and Justice Parliament challenged all five judgeships snatched by the previous lame duck Parliament. Then, in complete consonance with the Constitution’s provisions, it voted in a new bill stipulating that now only 2/3 of the votes of the Constitutional Tribunal can overturn any legislation, as opposed to a simple majority. Tempers flared and the partisan conflict escalated.

Catch-22

This is a Catch-22 situation. Since the Constitution dictates that the Parliament can establish the parameters for the operation of the Constitutional Tribunal, it is absolutely legal for the Sejm to pass such legislation. But at the same time, the Constitutional Tribunal can veto any bill. And most judges definitely do not like the 2/3 majority provision in the newest piece of legislation. The result is a Constitutional crisis brought about by the last election and, more deeply, by Poland’s failure to de-Communize and enact a Constitution that would be congruent with its history and character rather than serving immediate interests of the left and the post-Communists.

A Solution

The good news is that Rzepliński has backtracked a bit and agreed to accept the two new legally appointed judges. However, he wants the Parliament and the President to accept at least one “old” judge as reciprocity. Meanwhile, he has called for judicial boycott of the government at all levels. Without a compromise, where the CT begins to work with the government and the Parliament and vice versa, nothing will happen. There will be Constitutional paralysis for a while in Poland. But things may further improve because at least one judgeship expired in April 2016. Although the Parliament remains uncommitted, the President of Poland has already agreed to support an “old judge.” Further, in the fall of 2016, Rzepliński’s tenure will expire. Since a new justice will be selected and appointed by the Law and Justice-dominated Parliament, he or she is bound to be much more tractable. But all this is merely a short-term band-aid.

In a long run, the Polish Constitution’s potent flaw must be remedied. Constitutional Tribunal judgeships must become independent; they must no longer reflect the political patronage system. The Constitutional Tribunal must break with its totalitarian roots.

It is too bad President Obama apparently skipped his constitutional law classes while at Harvard. Firm grounding in the American constitutional tradition would help him understand the complexities of Poland’s struggle against the poisonous legacy of totalitarianism in its court system.


Marek Jan Chodakiewicz is a Professor of History at the Institute of World Politics, A Graduate School of National Security and International Affairs in Washington, DC, where he holds the Kościuszko Chair in Polish Studies. He is also a contributor to SFPPR News & Analysis. Dr. Chodakiewicz has just returned from Warsaw, where he helped prepare the ground for the NATO summit.

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