The election of judges of the Constitutional Tribunal (CT) in Poland in December 2015 was practically the first legal election in the entire history of this body.
Origins of the CT
The dispute over the CT in Poland has been going on since 2015. The central issue is the legality of the election of the judges of the CT in 2015. Some of the critics of the CT are former judges of the Tribunal.
There is an old Polish proverb that says “a guilty conscience needs no accuser” (Polish: “na złodzieju czapka gore”). We can observe this phenomenon in this case as well. After all, the greatest doubts about the legality of the election of CT judges can be raised with regard to judges elected between 1997 and 2015. Especially those who are so eager to criticise.
The current form and position of the CT were determined by the Constitution of the Republic of Poland of 1997. This act transformed the CT, which had been established in 1982 under the communist Polish Constitution as a specific body of legal control, into an organ of judicial power. The differences between the CT as it existed after the entry into force of the Polish Constitution concerned not only its position in the system of organs of power, but also its number of members and competences.
Most importantly, in the previous legal state of law, the Sejm could overrule the CT’s rulings on laws, whereas now, in accordance with Article 190(1) of the Polish Constitution, these rulings are final and universally binding. Or at least they were until the last parliamentary elections, after which the new government composed of the Citizen Coalition, Third Way coalition and the Left party, illegally refused to promulgate the CT’s judgments.
Therefore, after the entry into force of the Constitution of the Republic of Poland of 1997, the creation of a new CT should have taken place through the individual election of new persons to its composition. However, politicians did otherwise. It was decided that members of the communist CT would continue their open terms as judges of the new CT. This transfer was confirmed at the statutory level.
Birth-sin
However, this change created a problem. Article 194 (1) of the Polish Constitution provided that the CT should consist of 15 judges. There were only 12 old members of the communist CT, transformed into democratic judges. Therefore, three new judges had to be elected.
And at this point, the birth-sin appeared. Until then, the members of the CT had been elected (and, incidentally, dismissed) by the Sejm. The election was conducted jointly. A single ballot paper with the names of all candidates was prepared and a cross was put next to the selected candidates. After the election, a single resolution was issued with the names of the selected persons.
Article 194 (1) of the Constitution of the RP of 1997 changed this. It introduced the requirement of an “individual” election. Since 17 October 1997, each candidate should be elected separately, i.e. in a separate procedure resulting in the adoption of an individual resolution of the Sejm, because it concerns only this person. For this purpose, the provisions at the level of the Rules of the Procedure of the Sejm were also changed.
But the law is one thing and the Sejm is another. The deputies acted in accordance with the practice that had been established for years, due to the force of organizational inertia. As a result, on 5 November 1997, a supplementary election of judges of the CT was held in the old way, i.e. without meeting the constitutional requirement of an individual election. Evidence of this can be found in the Sejm protocols, as well as in the content of a single, collective resolution on the election of judges of the CT. In the top three, next to Teresa Dębowska-Romanowska and Marek Henryk Zdyb, there was none other than Marek Henryk Safjan. This is Marek Safjan who in 2009 became a judge of the CJEU and criticized Poland and Hungary for allegedly violating the rule of law with the pomposity of a medieval saint. He kept silent on the subject of his unconstitutional electoral procedure for the CT, because from this perspective it is clear that he sat there illegally.
The extra time and judge’s vows
This sin of collectively staffing the CT has followed the CT until 2015. Over the years, whenever the Sejm elected CT judges for more than one vacant seat, the deputies made a joint choice. This collective dimension can be seen in the voting method, in the joint determination of the term of office of the elected judges, and finally in the act of election itself, which was a joint resolution for all those elected.
And so, the Sejm also elected the next three judges of the CT by a joint resolution of 19 November 1997. They were: Wiesław Johann, Biruta Lewaszkiewicz-Petrykowska and Andrzej Mączyński. The next four were elected by a single resolution of 13 November 2001. They were: Marian Grzybowski, Marek Mazurkiewicz, Mirosław Wyrzykowski and Bohdan Zdziennicki. A joint resolution of 27 October 2006 referred to the next three judges. In this group, we find: Wojciech Hermeliński, Marek Kotlinowski and Maria Gintowt-Jankowicz. The last joint election by a single resolution took place on 26 November 2010. At that time, the Sejm elected the following judges of the CT: Stanisław Rymar, Piotr Tuleja and Marek Tadeusz Zubik. All these cases were described in detail in the justification of the decision of the CT of 12 March 2020 (ref. no. U 1/17), to which I refer interested readers.
That was not the end of the lawlessness in the CT. The joint election does not exhaust the catalogue of sins from those times. Other illegal proceedings are cases of electing judges, when the election procedure was launched without a legal basis. Namely, according to the then Rules of the Procedure of the Sejm, its Speaker, within 30 days before the end of the term of office of the resigning judge, applied to the parliamentary clubs to nominate candidates for judges of the CT. Sometimes, however, after the procedure was launched and candidates were nominated, the election could not be made, because the required number of votes (absolute majority) was not achieved in the vote on the candidacy.
In such a situation, the Speaker would restart the procedure. The problem was that this next action no longer had a legal basis, because the aforementioned deadline indicated by the applicable Sejm Rules had already expired. The repeating of the judges election was not provided for in the Sejm Rules. Hence the question about the legality of the procedure initiated in this way, and consequently the right of such elected persons to adjudicate in the CT? In this way, for example, judge Małgorzata Pyziak-Szafnicka was elected. This was related to the fact that on 2 December 2010, the 9-year term of office of four judges of the CT, Bohdan Zdziennicki, Marek Mazurkiewicz, Marian Grzybowski and Mirosław Wyrzykowski, ended. When conducting the election of new judges for the vacated positions on 26 November 2010, only three people managed to obtain the required relative majority from the group of candidates, the aforementioned Stanisław Rymar, Piotr Tuleja and Marek Tadeusz Zubik. The remaining candidates were eliminated. It was necessary to initiate a new procedure, which was launched on 29 November 2010, although the only legally defined deadline for the Speaker of the Sejm to take action had already expired on 2 November 2010.
The procedure of electing Sławomira Wronkowska-Jaśkiewicz was launched in an identical, groundless manner. She took the place of judge Janusz Niemcewicz, whose term of office ended on 2 March 2010. Thus, the deadline for submitting candidacies expired on 1 February 2010. However, when the selection of candidates submitted by the deadline failed, the Speaker of the Sejm, acting without a legal basis, ordered a new submission of candidates on 6 March 2010.
In the case of Sławomira Wronkowska-Jaśkiewicz, this is not all. She was a person elected by the Sejm, who, before taking office, took an oath before the Speaker of the Sejm instead of – as required by the Act on the CT – before the President.
Double elections of 2015
Finally, it is worth mentioning the elections of judges in 2015. They were held twice. The first time was initiated at the end of the 7th term of the Sejm by the Citizen Coalition-Polish People’s Party coalition. In order to hold them, a new Act on the CT was adopted on 25 June 2015. A provision was introduced to it that allowed for filling 5 vacancies that were to appear in the CT in November and December 2015.
The adoption of the new act was a deliberate action enabling the Citizen Coalition-Polish People’s Party coalition to do a “CT heist”. According to the previous regulations, the election of new CT judges would not have been possible, because the date of its holding coincided with the end of the election campaign and the date of the parliamentary elections. Therefore, new CT judges could only be elected on the old legal basis by the new Sejm.
The ruling coalition, aware of its impending defeat in the forthcoming parliamentary elections, amended the law. President Bronislaw Komorowski signed the act. He did so after his own defeat in the presidential elections. President-elect Andrzej Duda appealed to the outgoing President Komorowski and the outgoing Sejm to refrain from such an action. He was not listened to.
Thus, the election of 5 CT judges to fill the positions that became vacant on 8 November and 3 December 2015 was held on 8 October 2015. The parliamentary elections took place on 25 October 2015 and were won by the Law and Justice Party. And it was the new Sejm who should have chosen the new judges. In view of the blatant abuse of the law by the previous Sejm, the new Sejm decided that the resolutions of 8 October 2015 had no legal effect and held a new election of CT judges on 2 December 2015.
The bottom line is as follows. In the practice of the years 1997 - 2015, it is rare to elect a judge who was not burdened with some minor or major formal error. Paradoxically, only the election of CT judges held on 2 December 2015 was free from defects, because although 5 judges were elected, each of them was elected in accordance with the requirements of the Constitution, in an individual procedure, both in the procedural dimension (individual voting), as well as in the substantive dimension (individual term of office), and formal dimension (individual resolution on the election).
Today, old cases of lawlessness are being covered up and the election of 2 December 2015 is being criticized and called illegal. The CT’s judgments (ref. no. K 34/15 and K 35/15) are quoted, in which the CT allegedly ruled on the illegality of the election of judges on 2 December 2015. Of course, none of the critics can point to a specific provision in these judgments that allegedly decides on this illegality. The reason is simple. There is no such provision. There is no other CT’s judgment on the matter. Everything that the liberal-leftist politicians and their media formulate in public is lies and propaganda. The CT’s judgments of 2015 and 2016 directly concerned certain provisions of the Act of 25 June 2015 on the CT. And the provisions on which the CT ruled were not the legal basis for the election held on 2 December 2015. When they referred to the issue of judges, they referred to those whose term of office ended in November and December 2015, not to newly elected ones. In turn, the case of the election of judges held on 2 December 2015 was dismissed by the CT because it considered itself an incompetent body to conduct such a review.
Summary
The dispute over the CT in Poland has been going on since 2015. The central issue is the legality of the election of the judges of the CT in 2015. But after all, the greatest doubts about the legality of the election of CT judges can be raised with regard to judges elected between 1997 and 2015. There are: firstly – jointly election of judges, although since 17 October 1997, each candidate should be elected separately, i.e. in a separate procedure resulting in the adoption of an individual resolution of the Sejm. In fact almost all judges elected between 1997-2015 were elected jointly; secondly – errors in the procedure initiating the election of judges. Speaker of the Sejm initiated frequently the procedure without an appropriate legal basis; thirdly - one of the judges took the vow before the unauthorized authority. In fact, the first properly conducted elections of CT’s judges took place just in 2015.
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