Living under the unconstitutional capture and hoping for the constitutional recapture

A new “unconstitutional order” takes shape in Poland. The ritual dance to placate the public and create an impression that finally the judges of the old regime have been taken care of, continues. The message is clear: The last 25 years, according to the Law and Justice Party (PIS), have been nothing but petrification of the status quo and finally things will get back to normal, we are giving you back a true court that will defend the oppressed and forgotten. This is the rhetoric in a nutshell. It has been informing every step taken by the ruling party in its quest to cripple the constitutional review and tame the constitutional court.

In the wake of December “taking over” of the Constitutional Tribunal, PIS has now 7 judges. However, with the abrupt resignation of judge Andrzej Wróbel and his decision to move back to the Supreme Court, PIS will get another opportunity to elect a judge. That will bring the total to 8 and will give the ruling party a majority on the bench (5 + 3 “fake” judges). The current Vice-President (a function that has its legal basis in the Constitution) has been marginalised when the temporary President (a function unknown to the Constitution) J. Przyłębska took over for a day and then was sworn in by the President of the Republic. Importantly, she was appointed by the 6 PIS-backed judges sitting on the General Assembly. It is to be remembered here that an uproar has been created early in December last year, when the 9 “old” judges had sent the candidates for the Presidency to the President of the Republic. This was rejected then as unconstitutional by the President of the Republic because, the argument went, it was illegal as the quorum of 10 judges has not been reached. What a difference a day makes, one might say. 9 judges were not enough yesterday, 6 judges suffice today! Double standards at their best ...

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