President Duda refers government’s constitutional court overhaul to constitutional court

President Andrzej Duda has refused to sign into law two bills passed by the government’s majority in parliament that would overhaul the Constitutional Tribunal (TK) with the aim of undoing the politicisation of the court by the former Law and Justice (PiS) administration.

Duda, who is a PiS ally, has instead referred the bills to the TK itself – a body stacked with PiS appointees, including former MPs from the party – for assessment because he says he has doubts about their constitutionality.

Previously, the speaker of parliament – who is a member of the governing coalition – and 30 NGOs, including Amnesty International, had appealed to Duda to sign the bills. However, few expected him to do so.

“Everything indicates that the Constitutional Tribunal Act contains elements that are inconsistent with the constitution,” the president told broadcaster Polsat last month. “This is a very serious problem that blocks the possibility of signing it.”

The legislation was part of a package of reforms unveiled by the government in March intended to “heal” the TK after eight years of PiS rule, during which time the court had come to be seen as being under the influence of the former ruling party.

Under one of the two bills approved by parliament, three TK judges who were illegitimately appointed under PiS would be removed from duty and all previous rulings made with their participation would be invalidated. There are almost 100 such rulings, including the one that introduced a near-total ban on abortion.

That aspect of the proposed laws has proved particularly controversial, with Poland’s human rights commissioner and parliament’s legislative bureau warning that it may be unconstitutional, reports the Gazeta Wyborcza daily. Under article 190 of the constitution, TK rulings are “universally binding and final”.

However, proponents of the bill argue that the rulings in question were issued illegitimately because of the involvement of people who were not lawfully appointed as judges. Therefore they are not valid TK rulings covered by constitutional protection.

In his justification for sending the bills to the TK for assessment, Duda’s chancellery pointed to his doubts about this aspect. “Undermining the status of some judges of the Constitutional Tribunal…is inconsistent with…the constitution,” they wrote.

They also warned that overturning some TK rulings would be an “unprecedented event” that could “lead to systemic chaos” and “undermine the legal security…of citizens” by “depriving [them] of many rights acquired as a result of the tribunal’s case law”. This “violates the foundations of the constitutional legal order in Poland”.

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Additionally, Duda expressed doubts about a stipulation in the legislation that would bar anyone who has been an active politician in the last four years from becoming a TK judge. That is intended to stop situations such as the one in 2019, when PiS appointed two of its recent MPs to the court.

Duda says he believes that former presidents should not be included in this ban, as they currently are.

He also questioned the constitutionality of a requirement for the president to take the oath of TK judges within 14 days of them being nominated by parliament. If that deadline is missed, the judges would instead be able to take their oath with a notary.

That element of the legislation is intended to avoid a repeat of the situation in 2015 when Duda refused to swear in three judges nominated by parliament. Instead, he later swore in three judges in their place who had been nominated after PiS took control of parliament.

Duda’s decision to refer the two bills to the TK was widely criticised by figures from the ruling camp as well as many legal experts.

“This is bad news for ordinary people. Citizens need a Constitutional Tribunal that will carry out the tasks specified in the constitution,” wrote Przemysław Rosati, president of the Supreme Bar Council. “We need a constitutional court that will be a real barrier, protecting against the actions of public authorities.”

“Who, according to Andrzej Duda, will best assess the state of the rule of law in the Constitutional Tribunal? Of course, the Constitutional Tribunal itself,” sarcastically wrote Zbigniew Konwiński, head of the parliamentary caucus of Civic Coalition (KO), the main ruling group. “Andrzej Duda is ridiculing his office.”

Whatever decision is ultimately issued by the TK on the bills, it is almost certain to be ignored by the government, which does not recognise the legitimacy of the court due to the presence there of illegitimately appointed judges.

The deadlock may only be broken after Duda’s term ends next year, though much will depend on who is elected to replace him and the extent to which they are aligned with the government.

Since the current ruling coalition replaced PiS in office last December, it has been in regular conflict with the president, who has vetoed a number of bills.

Main image credit: Marek Borawski/KPRP

Daniel Tilles

Daniel Tilles is editor-in-chief of Notes from Poland. He has written on Polish affairs for a wide range of publications, including Foreign Policy, POLITICO Europe, EUobserver and Dziennik Gazeta Prawna.