by Agata Szczęśniak

The article was published in Polish at OKO.press on 17 September 2020.

PiS has started its campaign to take over the office of Ombudsman. The ruling camp’s MPs gave a negative opinion on the candidate supported by almost 700 civic organisations on Thursday, 17 September 2020, at the meeting of the parliamentary committee on justice and human rights.

On Tuesday, the organisations appealed to the MPs: ‘We hope you rise above the political rifts with regard to the election of the Ombudsman.’

And the candidate herself, Zuzanna Rudzińska-Bluszcz, said in a moving speech at the opening of the committee meeting: ‘I would like to ask you a question: what would happen if we left the building and did something together, differently? If we trusted each other? I am asking you to trust these 700 organisations, to trust me. Let’s do something together.’

PiS did not listen. It does not want to hand over the office to someone whom it would not be able to control.

The deadline for submitting candidates for the office of Ombudsman was on 10 August. Only one candidate’s name was submitted to the Sejm: Zuzanna Rudzińska-Bluszcz, a lawyer specialising in human rights, who has been working for the Ombudsman’s Office for five years. She was formally nominated by the Civic Coalition and the Left. PiS did not nominate anyone.

‘They made the decision before Rudzińska-Bluszcz had spoken’

The PiS MPs skipped their personal involvement in the committee meeting and voted remotely.

The chairman of the committee, MP Marek Ast, asked the only question from the ruling camp, concerning the Constitutional Tribunal and the rule of law (more on that below). MP Jan Kanthak (Solidarna Polska), appointed to be the rapporteur for the committee’s, entered and left the room. He did not listen to Rudzińska-Bluszcz’s speech at all.

‘PiS’ total reluctance to cooperate was evident,’ Katarzyna Lubnauer (KO) told after the committee meeting.

‘PiS did not attack her, it is difficult to attack someone who is supported by 700 organisations,’ assesses Katarzyna Piekarska (KO). She adds: ‘Rudzińska-Bluszcz makes a good impression, she was conciliatory and open.’

‘They had made their decision before Rudzińska-Bluszcz had started to speak’ they voted against, this is what they were geared up to do. They are overcomplicating things; ill will is clearly visible,’ believes Lubnauer. Krzysztof Śmiszek (Left) is of a similar opinion: ‘It was probably assumed in advance that the candidate would not gain a majority, they did not even make a fuss at the committee meeting; they did not ask her any questions.’

Rudzińska-Bluszcz was rejected by a majority of 13 to 9. The MPs from the Civic Coalition (KO), the Left (Lewica), and the Polish Peasants’ Party (PSL) voted in favour, while Law and Justice (PiS) and Konfederacja (Confederation) voted against.

However, due to technical errors, that prevented some MPs to vote, there will be a second vote (more on that below). The next sitting of Sejm is planned for 7-8 October.

Immediately after the vote, the state Polish Press Agency (PAP) announced that PiS MPs had submitted a motion to the Constitutional Tribunal to examine whether the extension of the Ombudsman’s term of office by way of a statute is in line with the Constitution.

A motion to the Constitutional Tribunal

Recently, on 16 September, Marek Ast said: ‘Nothing is happening, the duties of the Ombudsman are being performed by the current Ombudsman, Adam Bodnar, the continuity of the office will be preserved.’

However, MPs Ast and Przemysław Czarnek (known for his statements that LGBT people are not ‘equals of normal people’) issued a motion to the Constitutional Tribunal. The CT’s judgment may mean that Adam Bodnar will no longer hold the office.

Bodnar’s term of office officially expired on 9 September 2020. However, Article 3, para. 6 of the Act on the Ombudsman entails that ‘the Ombudsman to date holds his office until the new Ombudsman takes office.’ Such a situation has already taken place. Prof. Andrzej Zoll held the office of Ombudsman after his term of office ended until Dr. Janusz Kochanowski was elected in 2006.

If a majority in Sejm and Senate could not be achieved for the new ombudsman, Bodnar could remain in office indefinitely. PiS clearly does not want this.

‘I suspect that the Constitutional Tribunal will sooner or later find that the provision does not conform to the Constitution’ – explains MP Krzysztof Śmiszek. ‘This opens the path for not filling the office for many months, or perhaps years. If the provision is no longer in force, there are no grounds for extending Adam Bodnar’s mandate.’

‘Acting’ Ombudsman

PiS could introduce the function of an ‘acting’ Ombudsman in a statue. The Constitution does not provide for such a function.

PiS did it in the past. A function of an ‘acting’ President of the Constitutional Tribunal and an ‘acting’ First President of the Supreme Court were introduced, respectively.

‘Either PiS wants to destroy the Ombudsman’s office or will work intensively so Senate accepts PiS’ candidate. Recall the petition was submitted to the Constitutional Tribunal several minutes after the end of the committee meeting. This is an obvious attack on the office of the Ombudsman,’ believes MP Krzysztof Śmiszek.

The person taking over the office of the Ombudsman must have the support of both houses of parliament. This poses a problem for PiS. Because the Senate, where the opposition has a small majority, will not vote for a PiS political nominee. And PiS does not want someone whom it has no control over.

Struggles in the Senate and the coalition camp

Moreover, the struggle for influence in the Senate and the coalition negotiations within the ruling camp continue. The opposition-controlled Senate stands in the way of PiS’ legislative machine. PiS wants to ‘regain’ the upper house and is courting senators, notably from the Polish Peasant’s Party (PSL). PiS could draw out the election of the Ombudsman until it pulls some senators over to its side.

Crucially, coalition negotiations continue and PiS is deciding a strategy for the future. The Minister of Justice/Prosecutor General and the leader of PiS coalition partner Solidarna Polska Zbigniew Ziobro is waging war with the PM Mateusz Morawiecki.

It may seem that the Ombudsman is a politically insignificant office. However, during Adam Bodnar’s term, he was a thorn in the side of the authorities. The state media were constantly attacking him. Rumors kept appearing that PiS wants to get rid of Bodnar.

The Ombudsman can be troublesome for the authorities. Recently, the Voivodship Administrative Court ruled that the PM Mateusz Morawiecki grossly violated the law, including the Constitution. The Ombudsman issued the petition regarding ordering the April elections, to which the verdict applies.

The Ombudsman is also an institution that is closely monitored by international organisations.

‘Let’s do something together in no man’s land’

Rudzińska-Bluszcz and the organisations supporting her ran a campaign to show that the office of the Ombudsman was a ‘no man’s land’. Not subject to political influence, focused on working for the citizens, a ‘super chancellery’ that defends them against the state. The candidate spoke about education, smog and protection of the elderly and the disabled.

She also tried not to give a reason for PiS to reject her candidacy. This was evident in how she answered the question posed by Marek Ast. The only question from the ruling party regarding systemic matters. Ast wanted to know if she agrees with the opposition, which questions the status of the current Constitutional Tribunal, and what is her attitude to the reform of the justice system, including the instance of the extraordinary appeal.

This was a trick question, which had the objective of placing Rudzińska-Bluszcz unambiguously on the side of the opposition.

In her response, she referred to the civic point of view: ‘I am far from speaking journalistically or politically. I am not interested in that, I am a lawyer. I understand that one of the basic tools in the hands of the Ombudsman is the submission of complaints to the Constitutional Tribunal and appearing before courts. I look at these matters from the point of view of the citizens. It is sad that there are such constitutional doubts about some judges of the Constitutional Tribunal regarding the procedure of their appointment and the Act on the National Council of the Judiciary.

You asked me a very specific question, about whether I, as the Ombudsman, would submit petitions to the Constitutional Tribunal. Yes, I think I would submit such petitions. Because I think it is most important for citizens to defend their rights.

However, I think that the security of legal transactions is also very important for the defence of their rights. Because a citizen must be certain that judgment passed in his case is a valid judgment, it is issued by judges and not by people who are not authorised to adjudicate. And I would also have to take these issues into account responsibly.’

‘I see people who came to politics because they want change’

Rudzińska-Bluszcz’s speech made a tremendous impression on the opposition MPs. She first delivered her own speech in which she made the assurance that she did not want to be the ombudsman for one side. She referred to meetings with politicians:

‘Now, speaking to you, I do not see right or left sides. I do not see the government and the opposition. I see people who came to politics because they want change. Over the past two months, we have sat at the table numerous times; we have drunk tea and talked about what is most important for this change in Poland. Perhaps you will be surprised by this assessment; as people, we were much closer to each other rather than further from each other.’

Later, she answered questions in length and exhaustively, including about psychiatric care for children, perinatal care, prenatal tests, seniors, and security in the web.

‘She was very well prepared, the answers were very substantive and very moderate, she has a chance of becoming a civic spokesperson above the political rifts,’ says Katarzyna Lubnauer.

‘Some sort of breakthrough is taking place in social awareness; citizens are taking matters into their own hands and are coming to parliament, demanding support for the candidate,’ said Krzysztof Śmiszek (Left), presenting Rudzińska-Bluszcz as a candidate. ‘A person who enjoys public trust should be appointed to this office and this condition is indisputably satisfied. The second condition is knowledge about matters, the office and institutions,’ argued the MP from the Left.

Rudzińska-Bluszcz has been working for the Ombudsman’s Office for five years, where she coordinates so-called strategic proceedings. Robert Kropiwnicki, who presented the candidacy, explained what this is about: ‘These proceedings can affect adjudicating practice. A case can grow from small matters, which will change the way the State functions.’

‘When we see so many organisations, the role of the MPs should be limited to thanking these organisations,’ said Barbara Nowacka (KO).

Why did three opposition MPs not vote?

A surprising situation took place during the voting. Although the Civic Coalition and the Left supported the candidate, three MPs who were present at the session did not vote. They were Arkadiusz Myrcha (KO), Katarzyna Piekarska (KO) and Anna Maria Żukowska (Left). Their votes would not have changed the outcome, but the candidacy would have been symbolically rejected with just one vote.

‘There has been a problem with voting in committee meetings for two days. Votes may be cast with a card in the room. However votes can only be cast with a tablet at committee meetings. In the past, votes could be cast on a mobile telephone, but not now,’ Katarzyna Lubnauer explained.

Some MPs who are physically present in committee rooms do not have their tablets with them. There is also another problem: a tablet did not permit voting if it had not been updated earlier. Katarzyna Piekarska had such a problem. She first tried to vote by raising her hand, then by tablet, but the tablet had not been updated.

Translated by Roman Wojtasz