Lacking a majority, PiS needs the Senate to install a new Commissioner for Human Rights

Maria Pankowska

Journalist at OKO.press.

The Senate in opposition hands means the end of Law and Justice’s dreams of subordinating the Office of the Commissioner of Human Rights. Without the consent of senators, the new Commissioner will not take up the post in 2020 after Adam Bodnar’s current term ends. If the Senate rejects the candidates put forward by PiS, Bodnar may remain in the post of Commissioner longer. And continue to point out where PiS is breaking the law.

In the recent parliamentary elections, candidates put forward by a coalition of opposition parties won a majority in the Senate, taking 51 out of 100 seats. Law and Justice no longer dominates the upper house of the Polish Parliament.

The group of new senators is comprised of 43 candidates from Civic Coalition (Koalicja Obywatelska, KO), 2 from Democratic Left Alliance (SLD), 3 from the Polish Peasants’ Party (PSL), and 3 independent candidates affiliated with centre-right Civic Platform (Platforma Obywatelska, PO) and liberal Nowoczesna.

Although the takeover of the Senate is a triumph for the united opposition, the powers of the upper house – compared to those of the Sejm – are quite restricted. Senators may slow down the Law and Justice legislative machine, but they can’t stop it.

The Senate does, however, enjoy some definite competences in another area raising a touchy issue for Jarosław Kaczyński’s party – the selection of a new Commissioner for Human Rights.

The present Commissioner, Adam Bodnar, finishes his term of office in September 2020. Without Senators’ consent no candidate submitted by the Sejm, controlled by PiS, can replace him.

Bodnar to remain?

Pursuant to Article 209(1) of the Polish constitution, the Commissioner for Human Rights is appointed by the Sejm for a five-year term, subject to the consent of the Senate. The process under which the Senate expresses its consent is specified in Article 3 of the Act on the Commissioner for Human Rights.

According to that provision, senators have one month from the day on which the Sejm forwards its resolution. If the Senate refuses, the Sejm must present a new candidate. The procedure repeats itself until the Senate gives its consent. The outgoing Commissioner remains in office until the new Commissioner takes up the post.

Adam Bodnar was appointed Commissioner for Human Rights on 9 September 2015 – just before the PO-PSL government’s term ended. He replaced Irena Lipowicz in the office. The successful candidate to replace him will have to demonstrate independence from political authorities, which the constitution requires of the Commissioner. Until the right person is found, Bodnar will continue as the acting Commissioner.

This would not be the first time the Commissioner’s term has been extended. In June 2005, Andrzej Zoll was supposed to leave the post of Commissioner, but the person chosen by the Sejm to replace him – Andrzej Rzepliński – was rejected by the Senate. Ultimately, Janusz Kochanowski, the candidate submitted by PiS MPs, took up the post, but not until February 2006.

The Sejm may attempt to amend the legislation governing the Commissioner for Human Rights. But every change that undermines the position of the Senate and its competence to give consent is a violation of the constitution. This, however, is something PiS has been quite comfortable doing in the past.

Commissioner a thorn in Kaczyński’s side

For PiS, the position of Commissioner is primarily a matter of image. During his term of office, Adam Bodnar has not hesitated to criticise the government. He has intervened in such issues as the pharmaceutical crisis, educational “reform”, pedestrian safety, temporary arrest, the reform of the criminal code being prepared by Justice Minister Zbigniew Ziobro, propaganda by state television, the Institute of National Remembrance, and access to legal abortion procedures. On multiple occasions he has also criticised the “reform” of the judicial system.

The Commissioner’s role is to work in defence of human rights, including those of the LGBT community, which has been subjected to a systematic campaign of dehumanization by Law and Justice.

He has experienced numerous problems owing to his engagement – the authorities have accused him of political bias, threatened to remove him from office, and his budget has been cut. The height of the animosity came with the annual reports given by the Commissioner in the Sejm and Senate, where he was subjected to a harsh stream of invective. State broadcaster TVP, itself under control of the ruling PiS, also engaged in a smear campaign against him.

Yet despite all the pressure, Adam Bodnar has refused to be silenced.

“My term of office will last for another 14 months. And during that time, I will not leave the authorities alone. That’s the oath I took. I plan to make the best use of every day I have left in office. Because I’m committed to solving the real problems faced by citizens,” – he said on 9 July 2019 at a session of the Senate justice committee.

Bodnar’s work as Commissioner has led to his receiving multiple prestigious international awards.

What can the Commissioner do?

The Office of Commissioner for Human Rights is established by the Polish constitution which sets out the Commissioner’s powers in Articles 208–212. The Commissioner has two modes of action:

The role of the Commissioner is to monitor whether public officials in Poland respect in their activities the human rights guaranteed under the Polish constitution and other relevant legal documents. According to the 2018 Annual Report of the Office of the Commissioner for Human Rights, a total of 57,000 submissions and complaints were reviewed. The Commissioner intervened in issues covering the following areas:

The Commissioner can intervene in such cases to state authorities and institutions, make formal complaints regarding the misapplication of the law, and point out deficiencies in the provisions of existing legislation. The Commissioner can also apply to the Constitutional Tribunal for a declaration of incompatibility of legal acts with the constitution, as well as submit questions of law and cassation filings to the Supreme Court.

[translated by Matthew La Fontaine]