Polish constitutional court rules human rights commissioner must leave office

Poland’s Constitutional Tribunal has declared that the commissioner for human rights, Adam Bodnar, must leave office. The tribunal is widely regarded as being under the influence of the ruling party, while Bodnar has often been a thorn in the side of the government.

Bodnar, who was appointed in 2015 under the previous government, saw his five-year term expire last September. However, with a divided parliament unable to agree on a replacement, he has remained in office since then.

In the meantime, two MPs from the ruling Law and Justice (PiS) party, Marek Ast and Arkadiusz Mularczyk, filed a motion to the Constitutional Tribunal – Poland’s highest constitutional authority – to determine if the law allowing Bodnar to remain in office violated the constitution, which defines the commissioner’s term as being five years.

The tribunal – whose legitimacy is rejected by the Polish opposition and many international bodies after PiS engineered its candidates into positions on the court in 2016 – issued its ruling today. It declared that the law which allowed Bodnar to remain in office is unconstitutional.

The chief justice, Julia Przyłębska – who is a close personal associate of PiS chairman Jarosław Kaczyński and was appointed to her position in an apparent breach of procedures – announced this morning that “the law will lose force three months after the publication of this ruling”. Bodnar would then have to leave his position.

The tribunal says the three-month period will allow continuity of office by giving time for parliament to change the law regulating the way a new commissioner to replace Bodnar is appointed.

“The tribunal notes that this case…concerns neither any specific commissioner for human rights, nor the office as such,” said another of the court’s judges, Stanisław Piotrowicz, who before being appointed was a PiS MP. The commissioner’s term is defined as five years and extending it is “unacceptable”, said Piotrowicz.

Speaking in front of the tribunal this week, Bodnar had warned that such a ruling would “compromise the stability and continuity of functioning of” his office and “threaten human rights in Poland”.

“You cannot guarantee human rights if you hinder or prevent the functioning of the institution that guards them,” he said, quoted by OKO.press. “If a lifeguard finishes his shift at 12 o’clock and his colleague is late, he cannot leave; he has to make sure that no one drowns.”

Bodnar also noted that all of his predecessors served longer than their designated terms, with the exception of Janusz Kochanowski, who died in the Smolensk plane crash.

Responding to today’s ruling, Bodnar said that it would result in the appointment of “someone who will act as a [political] commissar, not a commissioner for human rights”. He “appealed to all political forces to come to an agreement on a common candidate” before the ruling comes into force.

During the proceedings, Ast admitted that previous commissioners had served longer terms. But back then “there was a different political situation”, he argued. “Now, due to the attitude of the Senate, it is impossible to choose a new commissioner, and this term can be prolonged indefinitely.”

Mularczyk warned that “citizens have no certainty whether the actions of the present commissioner are legal and binding or if they will be questioned by state institutions”.

According to the constitution, it is up to the Sejm, the lower house of parliament, to nominate a candidate for the office. The upper-house Senate must then approve this decision. Yet, with the Sejm controlled by PiS and the opposition having a majority in the Senate, this has resulted in deadlock.

The Sejm has voted against opposition candidates, while the Senate has rejected one supported by PiS and nominated by the lower house.

This week’s proceedings have drawn widespread commentary, with many figures from outside the ruling camp questioning the legitimacy of the Constitutional Tribunal and its actions during the case.

“Illegal authorities want to remove the commissioner for human rights,” tweeted former prime minister Donald Tusk. “This is not an attack on the office, it is an attack on each and every one of you.”

A conservative commentator, Łukasz Warzecha, tweeted in response to today’s ruling that he “may have fundamentally disagreed with Bodnar, but he was a kind of counterweight to the authorities”. There is “no hope that, after his removal, the office will remain independent”.

Other critics pointed to the fact that one of the tribunal’s judges questioning Bodnar this week was Piotrowicz, who served as a communist state prosecutor in the 1980s, including during the period of martial law.

“Prosecutor Piotrowicz, former PiS member, with Julia Przyłębska, a friend of Jarosław Kaczyński, will decide today if we will have a commissioner for human rights or a commissioner for PiS rights,” wrote opposition MP Monika Rosa. A commentator, Adam Traczyk, noting Piotrowicz’s past, compared the proceedings to a communist-era trial.

However, Samuel Pereira – head of state broadcaster TVP’s news website – criticised Bodnar’s “pompous rhetoric” in trying to convince the tribunal to allow him to continue in office “despite the fact that a five-year term is written into the constitution”. It is a “sad scene”, wrote Pereira.

Responding to today’s ruling, Pereira accused critics of “ignoring the constitution” and “presenting only personal and political arguments”, instead of substantive ones.

Jerzy Kwaśniewski, president of ultraconservative legal group Ordo Iuris, also welcomed the tribunal’s “very reasonable” ruling. “This is a clear admonition of the legislature,” he wrote. “A political conflict cannot be used to unconstitutionally occupy a constitutional body.”

Bodnar has repeatly clashed with the PiS government on a range of issues. It was due to his intervention that a media takeover by state oil giant Orlen was suspended this week; that anti-LGBT resolutions were overturned in court; and that some coronavirus restrictions were declared unlawful.

Bodnar has also been an opponent of the government’s judicial policies, which have been condemned for violating the rule of law by a range of international institutions.

In 2019, Bodnar received the Norwegian Rafto Foundation’s annual human rights award for his work defending minority rights and judicial independence in Poland. Yesterday, the foundation issued an appeal in support of Bodnar to the European Commission.

The director of Amnesty International Poland, Draginja Nadaždin, warned that today’s ruling means “people in Poland have been left without a strong independent [human rights commissioner’s] office”.

Main image credit: Adam Stepien / Agencja Gazeta

Agnieszka Wądołowska

Agnieszka Wądołowska is deputy editor of Notes from Poland. She has previously worked for Gazeta.pl and Tokfm.pl and contributed to Gazeta Wyborcza, Wysokie Obcasy, Duży Format, Midrasz and Kultura Liberalna