The KOD, the Tribunal, constitution, democracy — everything you want to know but are afraid to ask
Q: Why did the KOD emerge?
A: The KOD (Komitet Obrony Demokracji, Committee for the Defence of Democracy) emerged in opposition to the President’s and the parliamentary majority’s breaking the law, and in particular — violating the Constitution of the Republic. Some actions undertaken by the authorities undermine the foundations of democracy. The KOD is not associated with any political party. It remains open to tactical alliances with anyone who wants to defend democracy.
Q: Yet both the president and the Sejm (the lower chamber of the parliament) are democratically elected authorities. Does the KOD object to that?
A: No, we are not questioning the results of democratic elections. What we do is emphasise that all authorities are obliged to obey the law, and first and foremost the Constitution. We don’t intend to deny the parliamentary majority the right to change the law, as long as that happens in compliance with the Constitution.
Q: But the majority of Poles wanted precisely this party to rule.
A: No, that was not the majority. The ruling party gained 37.58 per cent of the votes, with voter turnout at 50.92 per cent. In other words: the Law and Justice party (PiS) was elected by 18.65 per cent of all eligible voters, that is less than one fifth. According to Polish law, PiS was thus able to take more than a half of the seats in the Sejm. Yet the same law does not allow the majority to change, much less to violate, the Constitution (and generally any law in force). An electoral victory doesn’t mean “do whatever you want”. It can at most mean: “do whatever you want within the boundaries of the law”. Because this law protects everyone, including those who disagree with you.
Q: Does such a good result of PiS (in fact of the United Right) not prove that this party has gained extraordinary support in society?
A: No, that is not the case. It happened three times in the past that the winning party gained a higher percentage of the votes than PiS in 2015. The Democratic Left Alliance (SLD) won 41.04 per cent of the votes in 2001 and the Civic Platform (PO) gained 41.51 per cent in 2007 and 39.18 per cent in 2011. It is true that no single party (or in fact a coalition of parties) has ever gained an outright majority before. Still, PiS won more than a half of the seats in the Sejm thanks to the poor results of other parties (e.g. the United Left and the KORWiN failed to pass the election threshold by inches only).
Q: The PO had the right to choose its “own” Constitutional Tribunal judges. Why couldn’t PiS do the same?
A: It has to be emphasised that these are not the PO’s judges. True, according to the Constitution it is the majority in the Sejm who appoints the Tribunal judges. Yet the very same Constitution includes provisions sharply restricting the possibilities to influence an appointed judge. A judge is virtually not removable, but neither may he or she be appointed for a second term of office. Therefore a judge has no one to fear and no one to curry favour with. At the moment of his or her appointment, a judge ceases to depend on politicians — he or she cannot gain anything by doing their bidding or acting against any political party. On the contrary, a judge may lose face and respect if he or she sympathises with one of the parties. That is a crucial deterrent for prominent lawyers (and it is such people who, according to the Constitution, ought to form the Tribunal). It should be noted that the judges appointed to the Constitutional Tribunal during the Sejm’s two previous terms are indeed unquestionable legal authorities. They are widely respected lawyers, many are professors of law.
Q: Then why has the Tribunal always protected the interests of the Civic Platform and the Polish People’s Party (PSL)?
A: That is not true. In the course of the past years, the Constitutional Tribunal has frequently objected to the PO’s and the PSL’s ideas and it annulled key statutes prepared by the government and passed by the majority coalition.
http://edu-kodmazowsze.blogspot.com/2015/12/po-co-nam-trybuna-konstytucyjny.html (in Polish)
http://edu-kodmazowsze.blogspot.com/2015/12/co-dla-nas-zrobi-tk-vol-2.html (in Polish)
Q: But why may PiS not appoint judges according to its wish?
A: It may, but in due time. The Sejm, where PiS has the majority, may appoint the first two judges of the Tribunal right away. It will successively appoint next judges in the following years, when their individual terms expire. That will be the case for four judges over the course of the next four years. Thus the current Sejm will have the right to fill as many as six seats in the Tribunal. But not all at once.
Q: So why could the PO appoint five judges at once, and PiS has to wait four long years to appoint six?
A: Now that’s a good question! The PO did not have the right to appoint five judges. That is what the Constitutional Tribunal adjudicated. On 3rd December 2015, at a sitting regarding the amendment to the Act on the Constitutional Tribunal, the judges examined the appointment of five new members of the Tribunal by the previous Sejm. They found that the appointment of three judges had been lawful while that of two others had violated the Constitution. This means that the president should accept the oaths of the three judges who were lawfully appointed, and the new Sejm should appoint next two judges. As the KOD, we do not believe that the five judges appointed by the PO should become members of the Tribunal. What we demand is that the judgements of the Constitutional Tribunal be respected.
Q: Right, about the last judgement of the Tribunal: it decided that two judges had been appointed unlawfully. Does that mean that the previous Sejm (and, to be more precise, the ruling coalition) violated the Constitution?
A: No, it does not. It’s normal that every now and then the Parliament passes a law which is entirely or partly unconstitutional. That’s what the Constitutional Tribunal is for: to spot such unconstitutional provisions. The relevant statute is not the first one the Tribunal has annulled — that happened during all terms of the parliament, including the years 2007–2005, when PiS ruled in coalition with the League of Polish Families and the Self-Defence party.
Q: Then what is the problem? Why is KOD protesting now when it failed to protest when the previous Sejm passed unconstitutional laws?
A: Some of us did protest. Dissent was voiced in numerous newspapers and magazines, including those perceived as well disposed towards the PO. If those actions didn’t raise such common outrage as today, it was because no one doubted the indisputable position of the Constitutional Tribunal. The law was referred for decision to the Tribunal, which was supposed to adjudicate on the act’s constitutionality in due time (and it did — on 3rd December 2015). What is happening now is of a completely different nature altogether. Now, both the president and the representatives of the parliamentary majority (including the speaker of the Sejm and the chair of the PiS parliamentary group) are ignoring the Constitutional Tribunal’s judgement or manifesting their open disdain towards it. And, according to the Constitution, Article 190 (1), “Judgements of the Constitutional Tribunal shall be of universally binding application and shall be final.” A situation like that has never taken place before and is tantamount to violating the Constitution.
Q: But how come PiS violates the Constitution by appointing five judges while the Civic Platform did not?
A: The previous ruling coalition prepared a partly unconstitutional statute and, on that basis, appointed five members of the Constitutional Tribunal. But the Tribunal (of course without the participation of those appointees) adjudicated that the Sejm had had the right to appoint only three. So “restoring order” should have involved accepting the oath of the three lawfully appointed judges and appointing two further judges anew. Yet the incumbent president and the parliament are pretending not to know that. The previous authorities did not ignore the Tribunal’s decisions, and precisely that would have meant violating the Constitution.
Q: Exactly, it is said that the previously ruling PO–PSL coalition failed to execute as many as 48 judgements of the Constitutional Tribunal! Why now make a big fuss over one or two matters?
A: Speaking of 48 Tribunal decisions not executed by the previous government is twisting the facts to fit your needs. In reality only such decisions were not executed that it made no sense or was not possible to execute, because the law which these decisions concerned had changed or ceased to exist.
The Constitutional Tribunal examines every matter referred to it. In some cases this entails examining provisions which have just been amended. In truth, the PO–PSl government failed to execute only two judgements — in both cases solely because it didn’t manage to do that before the Sejm’s term of office expired. It should be mentioned here that upon assuming its office in 2007, the ruling PO–PSL coalition found as many as 150 decisions of the Tribunal that hadn’t been executed in the previous years, i.e. during PiS’s rule. So the new coalition immediately set about executing them, starting with the oldest ones.
Q: There! So the judgement of 3rd December 2015 doesn’t matter, because PiS amended the law before the decision was made! It passed its own Act on the Constitutional Tribunal and appointed new judges under this new law, and then the president accepted their oaths.
A: That’s not true. Three of the five judges appointed under the act passed in June had been appointed lawfully. That was confirmed by the Tribunal in its judgement of 3rd December 2015. The president was (and in fact still is) obliged to accept the oaths of those three appointees. Had he done that in compliance with the Constitution, PiS would not have been able to appoint five judges, but only two. The argument about the merely historic value of the Tribunal’s judgement could be raised only because the president violated the Constitution in the first place. First he avoided accepting the oaths from the lawfully appointed judges, although it was his duty. Next, he accepted the oaths from people who had been appointed to fill already occupied seats, and now he is pretending that the Tribunal didn’t deem this course of action unconstitutional.
Q: But it seems that the judgement of the Constitutional Tribunal of 3rd December could be invalid, right? That’s what the head of the Prime Minister’s Chancellery, Beata Kempa, claimed when she refused to publish the judgement in the Official Gazette of the Republic of Poland, Monitor Polski, which is necessary for the judgement to become final and binding.
A: According to Article 190 (1) of the Constitution of the Republic, “Judgements of the Constitutional Tribunal shall be of universally binding application and shall be final.” No article or point of the Constitution provides for an appeal against the Tribunal’s judgement. Of course, each of us may disagree with that or another decision of the Tribunal, or any other court. Nonetheless, no one has the right to question these judgements and to refuse to execute them. Beata Kempa is obliged to comply with the judgement and to publish it in Monitor Polski without delay. Her notable function in our state notwithstanding, in this case Mrs Kempa serves the role of a printer only. Assuming the right to assess the judgement equals violating the Constitution.
Q: But every official is obliged to ensure that the law is observed. The Tribunal clearly made a mistake by changing the formation from the full composition to five judges. First it decided that the matter had to be adjudicated by at least nine judges, then it changed its mind and — for its own benefit — had it heard by five members. Wasn’t Beata Kempa right, then?
A: Every court is entitled to choose the formation which is going to hear a particular matter and doesn’t have to explain its decision to any official. That is what the independence of the judiciary is about. The Tribunal is an independent body. If any official could challenge its decisions, on any pretext, the country would certainly plunge into chaos.
Q: But why are you so occupied with the Constitutional Tribunal of all things? Why is it so important?
A: Because the Tribunal’s role is to protect the Constitution of the Republic, and thus also our civil rights — the rights of all citizens. Perhaps some citizens, e.g. the supporters of the currently ruling party, are happy at the thought of the Constitutional Tribunal being eliminated or marginalised, so that the parliamentary majority and the government can do whatever they wish. Yet it ought to be considered whether they would be equally happy if someone they don’t appreciate governed under these circumstances. Or someone who doesn’t appreciate them. Because this is what can happen in four years’ time. Isn’t it better to have an efficient Constitutional Tribunal, which can protect EVERYONE from the authorities’ potential designs? Functioning under the rules existing until now, the Tribunal has often proven that it guarantees precisely that kind of protection.
Q: But the Constitutional Tribunal does exist and work. Thanks to the president, it is composed of fifteen judges, exactly the number provided for by the Constitution. Where is the problem?
A: The problem is that according to the Tribunal’s judgement three out of the five judges appointed in the previous Sejm’s term of office were appointed in compliance with the law. So the newly appointed judges, who were recently sworn by the president, were appointed to fill occupied seats. The current Sejm had no right to do that.
Q: Can we even call these “old” appointees judges? The president hasn’t accepted their oaths. Doesn’t that mean that they have in fact never become judges?
A: According to the Constitution, Article 194 (1), the judges of the Constitutional Tribunal are appointed by the Sejm. The requirement of taking an oath in the presence of the president follows from the Act on the Constitutional Tribunal (which is of a lower rank than the Constitution). An appointee has to meet this requirement not in order to become a judge of the Tribunal, but in order to have the right to adjudicate. Thus, according to the Constitutional Tribunal’s judgement, the three persons that were lawfully appointed by the previous Sejm are judges of the Tribunal. However, they may not adjudicate, since the president refuses to accept their oaths. He refuses to accept them although both the Constitution and additionally the Tribunal’s judgement oblige him to do that. The president is supposed to protect the Constitution. Instead, he has partaken in the escalation of the crisis. Not waiting for the judgement on whether the previous Sejm had appointed the judges lawfully, he swiftly accepted the oaths of the judges appointed later by the party he himself comes from. And after all, it is not possible to fill a seat in the Tribunal when it has already been lawfully taken.
Q: But did the Constitutional Tribunal really have the right to adjudicate this matter? An old Roman principle says that no one should be a judge in their own cause.
A: The judges of the Constitutional Tribunal did not decide in their own cause. They didn’t even decide in the cause of other judges of the Tribunal. The Tribunal doesn’t try people at all, it adjudicates on law as such. The same was true in this case. The judgement concerned the legal basis for the previous Sejm’s appointment of five judges. As the Tribunal adjudicated (and let us repeat that a judgement of the Tribunal is universally applicable and binding), three judges had been appointed on the basis of constitutional provisions and two had not.
Q: So is it all about the Constitutional Tribunal? Do your protests concern anything else?
A: It’s mostly about the Tribunal, but not only. We are also protesting against the controversial pardon of Mariusz Kamiński.
Q: But the president does have the power of pardon. Why shouldn’t he make use of it?
A: The power of pardon should apply to convicted persons only. What sense does it make to pardon the innocent? And under Polish law every person is innocent until a legally binding judgement is passed. Mariusz Kamiński had not been convicted — his trial was still pending. The president pardoned him nevertheless. That is the first such case in Polish history. The majority of experts in constitutional law believe that the pardon was in this case granted unconstitutionally (the power of pardon is provided for by Article 139 of the Constitution). But the question whether Mariusz Kamiński could at all have been pardoned before conviction is not the only problem. What makes matters worse is the justification of the pardon, according to which the proceedings were “terminated”. Now this is an obvious interference in the competence of the judiciary on the part of the president. The power of pardon does not mean that the case is dismissed or the person acquitted. It means that the penalty of a lawfully convicted person is cancelled. President Andrzej Duda is a Doctor of Laws, so it is hard to assume that the expression “termination of the proceedings” was used by mistake. It rather seemed like an attempt to assume rights which are reserved for the court only. That is bound to raise concerns and objections, particularly in the light of other events.
Q: Is that all?
A: Unfortunately not. Several other consequential issues have to be added here. We are alarmed by cases of violation the Sejm’s internal regulations (for example, there is no representative of one of the oppositional parliamentary groups among the deputy speakers, t discussions on proposed resolutions are repeatedly impeded, etc…) and displaying an awful style of governance (really, do voting, taking up posts and accepting oaths all have to take place in the middle of the night?). Moreover, the ruling party immediately took control over all the special forces, where it expediently planted its own people, announced it would take control of the public media, made moves to restore censorship etc. We are going to keep an eye on the further development of the situation.
KOD Masovia — Education Section