Poland’s Constitutional Tribunal under PiS control descends into legal chaos

December 2016 brought some new developments in the Polish constitutional crisis. Judge Rzepliński stepped down from the court and a new set of three statutes was introduced to allow Law and Justice (Prawo i Sprawiedliwość, PiS) to take over full control over Poland’s constitutional court, the Constitutional Tribunal (CT). The statutes gave President Duda the right to appoint a Commissioner to carry out the election of the new President of the CT, bypassing the constitutionally enshrined right of the Vice-President to do so. The general public in Poland expected the "old" judges and Vice-President Biernat to strongly and publicly oppose the introduction of this Commissioner (Judge Przylebska, elected by Law and Justice) and the related usurpation of power, but were disappointed. It seems that Judge Biernat has opted for a strategy of passive resistance (more on this below).

Przylebska’s first action as Commissioner was to allow the three "anti-judges" (Cioch, Morawski and Muszynski) to assume their judicial duties and participate in the meeting to appoint a new President of the CT. Numerous controversies resulted, evidence of which can be seen in the minutes of the meeting, which were leaked to a Polish NGO.

First and foremost, it is not clear whether the decision to appoint Przylebska as Commissioner overseeing selection of the new President of the CT was countersigned by the Prime Minister, as required by law. Minutes from the meeting show that Judge Zubik requested an explanation on this issue, to which Muszynski responded that Duda’s order to appoint Przylebska was countersigned electronically. However, no proof was offered, obliging the judges to continue on the basis of this word-of-mouth assurance that the document had been signed.

The second controversy was raised by Judge Pszczółkowski ...

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