Poland’s Constitutional Tribunal under Siege

A constitutional crisis? A coup d’état? Whatever it is Poland is going through right now, the constitutional situation is far from normal. After a fierce political brawl about the election of five new judges to the Constitutional Tribunal, that same Tribunal declared yesterday the legal basis upon which three of them were elected unconstitutional.

The situation in Poland after the recent national elections brings up memories of a dark chapter in the history of Austria. In 1929 a constitutional amendment shifted the power to appoint the judges of the Verfassungsgerichtshof from the Bundestag to the Bundespräsident. In 1934 the Verfassungsgerichtshof was abolished entirely. Note that the Austrian Constitutional Court was paralyzed in 1933 due to the lack of capacity to adjudicate. Certainly the scenario of paralyzing, or changing the competences of the Constitutional Tribunal, and the Constitution is a very tempting strategy if one thinks about elimination of all internal control mechanisms against tyranny of the majority.

For the moment the analogy between Poland and pre-war Austria ends here because the President of the Republic in Poland acted not upon a formal constitutional amendment, but a series of legal pronouncements that have dubious constitutional underpinnings. They include resolutions of the Sejm adopted at night of 26 and 27 November 2015 which aim to annul the election of 5 judges by the former Sejm, and the amendment of the Constitutional Tribunal Act of 19 November 2015 which has not yet came into force but already served as a basis of the appointment of 5 judges by the present Sejm. Their nomination and election took place on 2 December 2015 ...

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