Either there is a problem with the unanimity of the judges, while the Constitutional Tribunal prefers to speak as one in political matters, or the leaders of the party and the government stopped the consideration of the case, fearing a suspected Polexit, argues Ewa Siedlecka. 

From PiS’ point of view, the lawfulness of the appointment of the KRS is not a necessity. The Council’s objective is to appoint the right judges. Meanwhile, the members of the KRS may feel discomfort from other judges constantly questioning their legal status, e.g. in multiple resolutions of assemblies refusing to cooperate with KRS on opinions regarding candidates for court vacancies. Their position is also questioned by judicial organisations and the European Network of Councils for the Judiciary, which resolved to suspend  the Polish KRS’ membership.

A cancelled hearing

The Constitutional Tribunal’s (CT) hearing of the petition from the new National Council of the Judiciary (KRS) to recognise the KRS as having been illegally elected was cancelled. 

The KRS itself petitioned the Tribunal to rule that it is unconstitutional so that the Tribunal would rule the opposite, certifying that it is legal and capable of continuing to exist.

The hearing was planned for 3 January 2019. It had to be cancelled by the chairperson of the hearing, the CT President Julia Przyłębska herself. The outcome was a certainty. The hearing was planned with five judges, three of whom had ruled a year earlier that the KRS can be elected by members of parliament.

What happened? Nobody knows. The Sejm and the Attorney General expressed their opinions, but, in contrast with previous practice, the Tribunal did not publish those opinions on its website. The Sejm’s opinion is available on the Sejm’s website, although it was not submitted to the Constitutional Tribunal, but, according to ‘Gazeta Wyborcza’, this cannot serve as the formal grounds for postponing the hearing.

The parliamentary majority (Law and Justice, PiS) claims the election of the judges to the KRS by MPs is in line with the Constitution, whereas the regulations on the right of a participant of the respective contest to appeal against a decision of the KRS are in breach of the Constitution. 

If they nevertheless appeal, the court considering such an appeal is not allowed to suspend the other stages of the process, i.e. the President’s appointment of nominees elected by the KRS to the office of judges. This was done by the Supreme Administrative Court when the Court was considering appeals of several candidates to the Supreme Court, but the President ignored this ruling and appointed the nominees elected by KRS. The Sejm suggests discontinuation of the other parts of the complaint. The spokesperson of the State Attorney’s Office, Ewa Bialik, confirmed that the opinion of the Attorney General had been prepared, but she believes it can only be disclosed by the Constitutional Tribunal. And this did not happen.

Is this a unanimity issue or a signal from the party leaders?

We can only try to guess the reasons for cancelling the hearing on the basis of the previous activity of the Tribunal after the ‘good change’ (dobra zmiana): 

either this is an issue of unanimity of the judges (the petition by the KRS applies to several provisions), and the Tribunal likes to speak as one in political matters, or the leaders of the party and the government indicated to the Tribunal that it should freeze the consideration of this case.

The KRS itself petitioned the Tribunal to rule that it is unconstitutional so that the Tribunal would rule the opposite, certifying that it is legal and capable of continuing to exist. 

Why would PiS waive this blessing, after it had taken over the Constitutional Tribunal to ensure that it certifies any doubtful or unconstitutional ideas? 

Why not use the Tribunal’s services in this case? PiS does not want to, as we can see, even by the fact that the petition to the Tribunal came from the KRS itself and not from PiS MPs. Even so, this is bizarre – an institution questioning its own legal status! Perhaps the KRS, despite being related to PiS itself, acted too quickly and prepared the petition without consulting the party? 

More space for the government

From PiS’ point of view, the lawfulness of the appointment of the KRS is not a necessity. The Council’s objective is to appoint the right judges. Meanwhile, the members of the KRS may feel discomfort from other judges constantly questioning their legal status, e.g. in multiple resolutions of assemblies refusing to cooperate with KRS on opinions regarding candidates for court vacancies. Their position is also questioned by judicial organisations and the European Network of Councils for the Judiciary, which resolved to suspend  the Polish KRS’ membership.

Perhaps the hearing at the Constitutional Tribunal was cancelled because PiS is anxious not to be accused of initiating a Polexit before the elections. It should be reiterated that the European Court of Justice will rule in March/April on the lawfulness of the appointment of the KRS (while considering the requests of the Supreme Court and Supreme Administrative Court for preliminary rulings). If the Polish Constitutional Tribunal were to rule that the establishment of the KRS was not in breach of the Polish Constitution, whereas the Court of Justice were to rule that it was in breach of the Treaty on the European Union, the PiS government would face a real dilemma: whether to recognise the supremacy of the Polish Constitution by withdrawing from the Treaty or to accept the Court’s ruling, which would look as if it was depreciating the Polish Constitution. Perhaps this is why the ‘good-change’ Tribunal resolved not to rule on the case too early, leaving the government with greater freedom to act.

KRS operates as if nothing happened

 Regardless of the reasons for cancelling the hearing planned for Thursday, the KRS, which questioned its own legal status, should not hold any further contests for positions of judges and should refrain from all activities whatsoever. This was exactly why the Constitutional Tribunal set the date of the hearing particularly quickly: a month after the petition was filed. Meanwhile, no hearing will now be held and the KRS should not take any action either.

Even so, the KRS is still working: it issued the notorious „pants resolution” as an interpretation of the code of ethics forbidding judges from using symbols related to social movements. The resolution was approved after KRS’ petition questioning its own right to act as the National Council of the Judiciary was filed. And it is still working undisturbed: issuing opinions on legal acts and organising contests for judges. Judges who take part in such contests are also aware that they are taking part in a procedure that is being held by an institution that considers itself illegal. This is a sign of extreme contempt for the rule-of-law.

Translated by Małgorzata Madej. Read also the version in Polish.

Ewa Siedlecka is a leading journalist and commentator on legal affairs in Poland, a columnist for Polityka weekly. Her latest book ‘Sędziowie mówią. Zamach PiS na wymiar sprawiedliwości’ discusses the Law and Justice’s coup against the judiciary.