Poland: The winner takes it all?

Just a short while ago we published a post in which we predicted how Western liberal media were going to launch a campaign against the news everyone can see, this prediction is meanwhile coming true.

Not that the new Polish government is completely innocent in this – it certainly could have acted more cleverly. But to portray Poland as Europe’s new rogue state, or as a country on the brink to dictatorship, is completely beside the point – in particular when one considers how the preceding government, lead by the liberal “Civic Platform” has its own share of responsibility for the current crisis.

And of course there are some structural weaknesses in the Polish constitutional system, as in the system of many other Western democracies.

One of these weaknesses is the selection procedure for judges of the Constitutional Tribunal, which is at the heart of the dispute that is currently getting a lot of (somewhat biased) media attention. This procedure provides that judges of the Constitutional Tribunal are to be elected by the Sejm (the National Assembly) for a period of nine years. In practical terms this means that, if one party manages to maintain itself in power for two consecutive electoral periods (as the Civic Platform did from 2007 to 2015), it will have had the possibility of selecting all, or nearly all, of the Constitutional Tribunal’s judges. And given the Tribunal’s powers to stymie government policies, the temptation to fill it with politically like-minded appointees is not inconsiderable for whoever holds the majority of parliamentary seats.

It was therefore a clear abuse of power by the outgoing Sejm to select, just a few days before the elections that lead to a change of majority, not only the successors of three Constitutional judges whose 9-year  term had come to an end, but in addition two judges that would substitute judges  whose term had not yet expired. The apparent purpose of this apparently illegal action was to eternalize the Civic Platform’s control over the Tribunal.

President Andrzej Duda was thus acting within his rights when he refused to appoint the two judges that had been elected “on reserve”. What is less clear was whether he had the right to refuse the appointment also of the three judges whose election by the out-going Sejm had not been apparently illegal, waiting instead for the election of three new judges by the new Sejm. However, this decision, which re-balanced the Tribunal in favour of the conservative PiS (Prawo i Sprawiedliwość), was at least arguable, even if it could be seen as an over-reaction.

The politicization of supreme judicial institutions hardly is an exclusively Polish issue, but it is a problem in many other Western democracies – including the United States, where the Supreme Court’s ridiculous decision to impose the legalization of same-sex “marriage” on a nation that never asked for it was made possible only through President Obama’s appointment of two new judges whose moral and intellectual qualifications for the job were very much in doubt, but who were chosen precisely because the President (1) wanted them even out the gender balance and (2) knew they would be supportive of his homo-rights agenda.

There is no gold standard for the selection of judges for supreme judiciary instances in Europe or elsewhere. But there might be – and not only in Poland – an unhealthy “winner-takes-it-all” mentality, which often leads governments to over-stretch their mandates and turn the judiciary into a political fiefdom.