On 15 April 2021, Poland’s politically compromised Constitutional Tribunal ruled that a law allowing Human Rights Ombudsman, Adam Bodnar, to stay in office until his replacement is appointed violates the Polish constitution. Mr Bodnar who recently blocked the takeover of news agency, Polska Press, by a state-owned oil company has ceaselessly defended the rule of law, democracy, and freedom of the press in the past. Therefore, it is not surprising the ruling party, Prawo i Sprawiedliwość (PiS), “Law and Justice”, once again turned to the Constitutional Tribunal to remove from office Mr Bodnar, who has proved to be such an inconvenience to the government.
BACKGROUND
The case concerned the constitutionality of exercising the function of the Human Rights Ombudsman after the end of the officeholder’s term. The Polish constitution states that the term of office of the ombudsman shall be five years and in the relevant provision allows the incumbent ombudsman to perform the duties after the five-year term of office has elapsed, until a successor is appointed.
Mr Bodnar’s term expired last September, however, he continued to act as Ombudsman because the Polish parliament was not able to agree a successor. To nominate a new ombudsman, a nominee must be approved by the Sejm, the lower chamber of Poland’s parliament, and the Senate, the upper chamber. The Polish parliament has tried three times to choose a successor but each time it has ended in failure. While the PiS candidates have been able to get through the PiS-controlled Sejm, they have so far been rejected by the Senate which is controlled by the opposition. Thus, the ruling party turned to the Constitutional Tribunal to circumvent parliamentary deadlock. The tribunal has previously handed down controversial judgments favourable to the PiS: in October last year the tribunal removed one of the few grounds for abortion after the PiS failed to get legislation through parliament.
JUDGMENT
In its judgment, the tribunal ruled that the continued performance of the Human Rights Ombudsman's duties by the current ombudsman, after the end of his five-year term, is incompatible with the Polish constitution. The ruling means Mr Bodnar must vacate his office within three months of the date of the judgment. The tribunal has indicated that parliament should pass an act regulating the situation if the office of ombudsman is vacant for some time after the expiry of Mr Bodnar’s term of office.
On the day of the judgment, the Sejm-approved PiS candidate Bartłomiej Wróblewski (currently PiS member of Sejm) as the new ombudsman. The judgment puts pressure on the Senate to approve Mr Wróblewski as a replacement rather than leave the office vacant. Mr Wróblewski is a politician known for his social conservatism. In 2019, he petitioned the tribunal to review Poland's abortion law, which led to the tribunal's controversial decision to limit abortion in 2020.
DOUBTS CONCERNING THE LEGITIMACY OF THE JUDGMENT
In recent years, the legitimacy and independence of the Constitutional Tribunal has been undermined by PiS, calling into question the tribunal’s judgments. The tribunal bench was composed of five members and not the full 15-member bench, as mandated by the Constitutional Tribunal Act. One judge was replaced at the last minute and the tribunal included Mr Justyn Piskorski, a "judge-doubler," elected in 2015 to one of the judicial posts already occupied by lawfully appointed judges. The tribunal was chaired by Ms Julia Przyłębska, judge who had not been appointed lege artis president of the Constitutional Tribunal. Recently appointed judge Stanisław Piotrowicz, was the tribunal reporter judge and handed down the judgment on the behalf of the tribunal. He is a former PiS MP and controversial communist-era prosecutor. Prior to the hearing, Mr Bodnar applied to the tribunal to exclude the three judges mentioned above from the case because of a lack of impartiality or authority to sit on the tribunal, however the tribunal did not grant the request.
EFFECTS OF THE JUDGMENT
The consequence of the judgment will be to destabilise and undermine the office of the Polish Human Rights Ombudsman, one of the few remaining checks on the Polish government. As Mr Bodnar explained, he no longer has the legal basis to perform his duties. Thus, the judgment limits the ability of the office of the ombudsman to protect human rights. This will prejudice every citizen counting on the intervention of the ombudsman where there has been a violation of that citizen’s human rights. This judgment paves the way for the government to diminish the status of the ombudsman’s office at a time when it is most needed. Furthermore, in light of this judgment the government has signaled that it will review other constitutional office holders whose prescribed period of tenure has expired through political stalemate in the parliamentary appointments procedure. In broader context this decision further highlights the damage done by the government’s capture of the Constitutional Tribunal.
CONCLUSION
The ruling by the Constitutional Tribunal, which has been subverted by PiS since it took power in 2015, is another example of the government’s appropriation of the state, undermining democracy and the rule of law. Yet again, the government used the Constitutional Tribunal as a procedural device to implement its policies and circumvent the Senate. The government has politicised judicial appointments, refused to implement the judgments of the European Court of Justice, and severely undermined the Constitutional Tribunal’s independence and effectiveness. The attack on Mr Bodnar, who played an important role in upholding the rule of law in Poland, defending the independence of the judiciary, and the constitutional rights of minorities, is another attempt by PiS to bring public institutions under its sway.
Given this ruling, together with the expedited proposal of Mr Wrobleski for the office of the ombudsman, it shows that the PiS will strip these offices until it gets their preferred candidate appointed, thereby eliminating few remaining mechanisms for effective checks and balances on its exercise of power. The Polish government’s apparent agenda is to subvert the independence of the judiciary to its will and thereby corrupt the internal constitutional checks and balances on their exercise of power. The fear is should this continue Poland will slide further into an autocratic regime.
Anna is focused on becoming a Barrister specialising in Public Law and to this end will be part of the second intake for the BTC at the ICCA in Jan. 2021. She holds a first class honours Bachelor of Laws degree from Middlesex University, and honours Master of Laws in US and Global Legal Studies degree with certificate in Public Law from Case Western Reserve University in Ohio, United States of America. Anna is dedicated to pursuing a legal career focused on promoting democracy, human rights and justice for all, ensuring that elected leaders, as well as all citizens, comply with and are afforded the protections guaranteed by the rule of law.