The current government under Donald Tusk is attempting to reverse anti-democratic "reforms" of the previous government led by Mateusz Morawiecki with the crucial support of Jarosław Kaczyński (head of the then ruling party Law and Justice) and the then justice minister Zbigniew Ziobro.
This week the constitutional crisis has returned as the government seeks to address the issue of 3000 judges nominated or advanced since 2017 when the reforms started to systematically undermine the Constitution.
According to critics of the previous government these are "neo-judges" without legitimacy. The current government has proposed to divide the "neo-judges" into three groups - those who can remain in their positions without further requirements, those who must be dismissed and those who may remain conditionally on their signing a document "czynny żal" (literally "active regret") acknowledging the lack of legitimacy of their promotion.
The problem is that even assuming the best intentions of the current government, correcting the situation of illegitimate nominations or promotions violates the independence of the judiciary, enshrined in the Constitution. Enter two widely respected experts who have opposing views here:
Antoni Dudek (Professor of History and Political Science, speaking in Super Express): opposed reforms of Law and Justice but also opposes Tusk's government's "solution"
Dudek this week condemned Tusk's government, in particular the current minister of justice Adam Bodnar:
From this moment on, I am categorically opposed to this government.
Dudek's arguments are:
- Even though Law and Justice undermined the Polish Constitution in a systematic attack on the judiciary, attempts to raise the level of democracy in Poland may not violate the Constitution. The ends do not justify the means.
- If Tusk's government violates the Constitution, they are effectively giving the green light for any future Law and Justice government to violate the independence of the judiciary by reversing any decisions concerning judges.
- The current government should in one way or another achieve a formal consensus for their "reforms to undo PiS' reforms". This could be by a. passing legal acts, which would require the agreement of President Duda (who actively participated in but also partly vetoed Law and Justice's "reforms". b. sitting down at a (neo!) Round Table with Law and Justice and agreeing a compromise concerning the constitutional bodies like the Constitutional Tribunal and the National Council of the Judiciary of Poland.
- Tusk has not made sufficient/any effort to reach a compromise with Duda.
- If Tusk and Bodnar are unable to find a way forward respecting the Constitution - they should simply wait with counter reforms until the next presidential election in 2025.
Critics of Dudek's position, defenders of the government, could respond that Dudek does not address the reality that the Constitution has been undermined. It is today "just a piece of paper", so there is an imperative to revive the authority of the Constitution and not just follow the letter of the Constitution as a document. His suggestion that Law and Justice and Civic Platform - arch enemies - could sit down, seems politically unrealistic.
Marcin Matczak (Professor of Law, interview with Wyborcza.pl): strong critic of Law and Justice, broad supporter of current government
Marcin Matczak, in previous interviews, has given clear warnings to Donald Tusk's governments to respect the independence of the judiciary, even if this means accepting the presence of manifestly politically biased judges like the current President of the Constitutional Tribunal Julia Przyłębska.
However, in an interview this week in Wyborcza.pl, Matczak has given strong, albeit qualified, support to the current government.
Matczak's arguments are:
- (Implicitly) even though Tusk's party has violated and continues to violate the Constitution, besides actions which are intended to bring the Constitution back into force, they respect the checks and balances of constitutional institutions on the executive.
- This contrasts sharply with Law and Justice, where, Matczak claims, any check on the government's power was met with an attempt to destroy that institution or bring it under strict party control.
- Matczak's main argument in the interview is a metaphor claiming there is no comparison between the scale of violations of Law and Justice and Civic Platform. Law and Justice protesting today against the current government's mistakes "is like cannibals criticising meat eaters."
Critics of Matczak's position can respond that Matczak does not explicitly take on the criticism of the current government's attempted violation of the independence of the judiciary and does not address the political-constitutional argument that Tusk could have done more to find a compromise with Duda. Matczak's arguments are more of an "apology" for the current government than a full defence.
However we evaluate the arguments, it seems the answer to our original question is clear: Yes, Poland is still in a constitutional limbo.
Sources: Super Express, Wyborcza.pl
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