Here’s a great pub quiz question: which European country had the first written constitution? The answer is Poland, 225 years ago. Four years after the US founding fathers, King Stanislaw August Poniatowski backed a ground-breaking document that curtailed aristocratic privileges and extended greater rights to ordinary citizens.
Two centuries and several constitutions later, Poland’s conservative government has marked the anniversary of the 1791 document by suggesting the time has come to mothball the current 1997 one.
Jaroslaw Kaczynski, head of the ruling Law and Justice (PiS) party and Poland’s de facto leader, noted how the original constitution from 1791 envisaged an examination after 20 years. Given the current document is 19 years old, he has asked parliament: “Is that not a good moment to begin work on a new constitution?”
Though his PiS government does not have the necessary two-thirds majority to change the constitution, Kaczynski’s remark has set alarm bells ringing among his opponents.
Since taking office last year, the Polish government has pursued a rapid reform programme, targeting state media, drafting new security laws and, most controversially, challenging the constitutional tribunal.
For months the tribunal, Poland’s final word on legal matters, has itself been in legal limbo.
Judicial appointments
The standoff arose when the new government refused to recognise judges appointed by the departing one. The court ruled some of these judicial appointments illegal but others legal, a ruling the government has yet to publish. In a second clash in March, the court refused to recognise a new law reforming how the tribunal works.
PiS accusations that the tribunal is acting outside the law and the will of parliament has alarmed the Polish opposition and European human rights experts. With PiS already controlling parliament and the presidential palace, they argue that Kaczynski’s party is deliberately undermining the only legal body it does not control and, with it, a system of checks and balances established in the post-communist era.
The Venice Commission, a European human rights watchdog, has urged the new government to publish all rulings of the constitutional court, making them legally binding. So far the government has refused and Kaczynski has warned that Poland is heading for “anarchy”.
At present Poland is heading down a road of parallel legal systems: in one, the country is governed by laws passed by the parliament; in the other, the laws reflect tribunal rulings.
As Poland’s lower courts, police and civil servants wonder which legal line to follow, the supreme court has backed its constitutional colleagues.
Legal rulings
“When the constitutional tribunal rules that a law contradicts the constitution, then the regular courts should take note of this,” said Dariusz Swiecki, spokesman for the supreme court.
“When they are making their legal rulings, they should thus note that laws dismissed by the constitutional court may not be considered constitutional.”
That prompted a cool response from PiS, similar to its response to the constitutional court rulings it disagreed with. The supreme court ruling was not valid as it was “merely a meeting of a group of cronies to defend the status quo of the previous government”.
“They want to make it impossible to govern, something we cannot accept,” said PiS parliamentary speaker Beata Mazurek.
There is no end in sight to the constitutional crisis. PiS has published amendments to its original constitutional tribunal Bill it says reflect concerns of the Venice Commission. However, opposition parties refuse to debate the Bill until outstanding tribunal rulings are published.
As for a new constitution? Opposition parties say PiS should respect the old one first.