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Prof Ryszard Legutko & Tomasz Poręba: Comments on Frans Timmermans’ Article on Poland

13.12.2016.

In his article published on 7 December Frans Timmermans repeats false arguments raised in connection with the Polish dispute regarding the Constitutional Tribunal.

Not supported by credible or substantive arguments, he provides a diagnosis that the rule of law in Poland is allegedly under threat. Before we point out the elementary mistakes in the reasoning of Commissioner Timmermans, we feel compelled to express our basic doubt about his legitimization to call on the government of another country to take action which falls under the exclusive competence of the state. Mr. Frans Timmermans has called on the Sejm not to pass laws on the Constitutional Tribunal, suggesting that they should be reviewed prior to their entry into force, and has demanded that the President of Poland undertake concrete actions regarding the taking of the oath of office from specifically identified persons. Such actions have no basis in European treaties and do not fall under the competence of the European Commission.

The following questions in turn raise substantial reservations:

1. The false assumption that legislative provisions allow to swear a Constitutional Tribunal judge into office before the end of the term of office of his/her predecessor

The term of office of the Sejm and of three Constitutional Tribunal judges expired in autumn of 2015. The ruling PO-PSL coalition, wanting to avoid a situation that would give the new Sejm (in which it would probably not have a majority) the option to determine the composition of the Constitutional Tribunal, decided in June 2015 to push a law through parliament that would make it possible to elect new judges before the term of office of their predecessors expired. But the new law did not set any concrete time limit for the election of new judges, and legal provisions are very clear about this – judges may assume office once they take the oath of office, which may not be administered before the term of office of the outgoing judge of the Constitutional Tribunal expires.

Frans Timmermans had no grounds to state that the three judges of the Constitutional Tribunal should have been elected by the previous Sejm.

2. The false assertion that the Constitutional Tribunal was empowered to rule on the validity of the election of Constitutional Tribunal judges

Timmermans repeats the incorrect view expressed by the opposition, the Venice Commission and the President of the Constitutional Tribunal that the Constitutional Tribunal in its judgement of 3 December 2015 ruled that the election of the three judges which was held in October 2015 was legal, while the election of the other two judges was invalid. As it has been said many times during public debate, the Polish Constitutional Tribunal does not have the competency to review the validity of the election of the judges of the Constitutional Tribunal. The Tribunal did not more than to review the compliance of the provisions of the Act on the Constitutional Tribunal of 2015 with the Constitution. Hence it reviewed the contents of the norm, and not whether it was enforced.

However, Frans Timmermans obstinately argues that “The decision to elect three new judges was abrogated by the Constitutional Tribunal in its ruling of 9 December 2015, which said that under the Constitution, the President of the Republic of Poland should take an oath from three judges, who were lawfully elected by the previous Sejm. Unfortunately, the Polish authorities did not comply with those rulings. So far, the three judges who were lawfully elected by the previous Sejm have not been sworn in by the President.”

By adhering to this argument, Timmermans shows that he knows neither the chronology of events relating to the Tribunal which occurred in autumn of 2015 nor their legal substance. And so:

  • First, on 25 November 2015, the 8th Sejm found the resolutions appointing Constitutional Tribunal judges of October 2015 to have no legal force. This action was autonomous of the Constitutional Tribunal's judgment of 3 December 2015.
  • Second, on 9 December 2015, the Tribunal did not quash the election of the three judges of the Constitutional Tribunal who had been appointed on 2 December 2015 and were sworn into office by the President of the Republic. As previously noted the Tribunal does not have the competency to review the validity or legality of the election of the judges as reaffirmed by the court in its decision of 7 January 2016 to discontinue proceedings in this case. It should also be noted that the Tribunal in its judgment of 9 December 2015 reviewed provisions that did not constitute grounds on which the judges were elected on 2 December 2015. The legislative provisions reviewed by the Tribunal entered into force three days after the Constitutional Tribunal judges had been elected and sworn into office by the President.
  • Third, the Constitutional Tribunal’s judgement on the review of the constitutionality of the provisions of the Act on the Constitutional Tribunal cannot bind an organ of public authority to act in a certain way in a concrete situation. So the Tribunal could not have obligated the President of the Republic of Poland to take the oath of office from a person identified by name. A judgement such as this one can only serve as an impulse to amend a statute.

So the assertion that Polish authorities have failed to adhere to the judgement of the Constitutional Tribunal is manipulative.

3. False assertions about the government’s attitude towards judgements made by the Constitutional Tribunal

Frans Timmermans has again criticised the Government of the Republic of Poland for not recognising the Tribunal’s judgement of 9 March 2016 and for refusing to publish it. He went as far as to stress that from that moment the Polish government has stopped recognising the rulings and judgements issued by the Constitutional Tribunal.

Not wishing to comment on the scandalous undertone of his assertions, let me just show how absurd they are on their merits. Every judgement of the Constitutional Tribunal that was issued in accordance with the law has been published in the relevant official journal. The assertion that the government has not recognised the rulings issued by the Constitutional Tribunal since 9 March is also untrue. The reason why rulings issued in accordance with the law, constitutional complaints and questions of law are not published is because the President of the Constitutional Tribunal is acting illegally by not applying provisions of the Act on the Constitutional Tribunal and by not asking the Chancellery of the Prime Minister to publish the judgements. Instead he tries to “order publications” which he is not authorised to do under the law as it stands.

4. The issue of the European Commission recommendation

Frans Timmermans recalled that the European Commission issued a recommendation to Polish authorities, concluding that there is a systemic threat to the rule of law. He claims that the situation has not changed since the recommendation was issued. The author has not responded in any way to the answer provided by the Government of the Republic of Poland to the recommendation and to the critical remarks found in that answer that addressed gross mistakes made by the European Commission in its review of the case of the rule of law in Poland.

Timmermans thinks that the Constitutional Tribunal is partially paralyzed because the three judges allegedly elected by the previous Sejm are not participating in its work. But he fails to take note of the fact that the legally elected Sejm of the Republic of Poland found the resolutions concerning the election of these persons to be invalid.

Timmermans also fails to take note of the fact that the President of the Constitutional Tribunal has breached the law by not allowing the three judges of the Constitutional Tribunal, elected on 2 December 2015 and sworn in by the President of the Republic of Poland as required by Polish law, to adjudicate.

5. The issue of legislative work on new bills on the Constitutional Tribunal

Frans Timmermans notes that three new bills on the Constitutional Tribunal are now in the process of legislation. It appears, however, that either he has not familiarised himself with them or he has failed to comprehend their meaning. He argues, for instance, that all of these bills give the President of the Republic of Poland the right to nominate a person “acting as the President of the Constitutional Tribunal.” He goes on to say that this “openly violates the Polish Constitution as far as the procedure of electing the President and Vice-President of the Tribunal are concerned.”

It’s not true. The President of the Republic of Poland will be able to appoint a person to act as the President of the Constitutional Tribunal only under the last act, which contains implementing provisions. This is an extraordinary institution; its nature is special and temporary. It should serve in a situation when the Constitutional Tribunal fails to elect or elects in breach of the law candidates for its President. Only a judge of the Constitutional Tribunal can take on the duties of an acting President of the Constitutional Tribunal. The President of the Republic of Poland, as the guardian of the Constitution, has to have instruments that would allow him to resolve constitutional problems.

Mr Frans Timmermans’ unfamiliarity with the Polish Constitution is also shown by the fact that the Constitution of the Republic of Poland does not contain a procedure for the election of the President and Vice-President of the Constitutional Tribunal. Article 194(2) of the Constitution provides solely that “The President and the Vice-President of the Constitutional Tribunal shall be appointed by the President of the Republic from amongst candidates proposed by the General Assembly of the Judges of the Constitutional Tribunal.” The legislator that is the Sejm decides about the rest. For this reason the institution of a judge acting as President of the Constitutional Tribunal cannot violate the constitutional procedure for electing the President and Vice-President.

6. The issue of the illegal composition of the Constitutional Tribunal and its independence

Timmermans expresses concern about the future, claiming that a Constitutional Tribunal whose composition is illegal and which does act as an independent organ will not be able to perform its basic function. But he expresses no reservations about the work carried out by the Constitutional Tribunal after 9 March 2015. The Constitutional Tribunal has blatantly violated the law since then by continuing to issue rulings made by judicial formations that do not conform to the Act on the Constitutional Tribunal.

In this situation, we have to acknowledge Commissioner Timmermans’ letter with sadness and concern. It shows an embarrassing ignorance about Polish law, facts and the developments connected with the conflict regarding the Constitutional Tribunal. We would expect a person in such a senior position not to engage in a smear campaign in the media, but instead to address Poland’s position regarding the European Commission’s opinion basing on its merits and not to overstep his competences.

ACRE members Prof Ryszard Legutko MEP and Tomasz Poręba MEP have kindly permitted this publication. The content of their opinion piece does not reflect the official opinion of ACRE. Responsibility for the information and views expressed in the opinion piece lies entirely with the authors. You will find the original article in Polish at Rzeczpospolita.pl.

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The ACRE is recognised and partially funded by the European Parliament. Sole liability rests with the author.and the European Parliament is not responsible for any use that may be made of the information contained therein.

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