And Now His Watch Is Ended

Do you remember that Game of Thrones episode where the Night King kills Viserion, one of Daenerys Targaryen’s dragons, thereby removing a major obstacle to his plans to conquer the Seven Kingdoms? Without the dragon, the army of men has significantly less protection and the Dead have much more freedom in their operations. However, the Night King does not stop there. He resurrects the dragon and deploys it against the people he wishes to conquer and destroy.

I recall this story because it appears to me that something very similar happens when an authoritarian government captures a constitutional court, as happened in Poland six years ago. While Jarosław Kaczyński has none of the charisma of the long-haired, slim Night King, his game plan is strikingly similar. First, he paralyzed and then silenced the Constitutional Tribunal, effectively killing that crucial institution and giving him and his party a free hand to wage all-out war on the rule of law in Poland.

Unfortunately, the parallel does not end there. Constitutional courts are one of the most powerful beasts in contemporary democracies. They can strike down legislation enacted by Parliaments which have full democratic legitimacy, despite not being regularly accountable to the voters themselves. The Polish Constitutional Tribunal additionally impacts the way other courts apply the law by issuing interpretative rulings, that is, it examines the constitutionality of the manner in which a provision is interpreted and applied and rules accordingly, but the letter of the provision is left intact.

These powers are obviously a godsend to any party able to (ab)use a constitutional court for its own purposes. By packing the Polish Constitutional Tribunal with loyal, but mediocre, appointments, the ruling party, whose name (“Law and Justice”) now carries an irony of Orwellian proportions, has brought the institution back to “life” as a mindless automaton under its control. Like the resurrected dragon in the Game of Thrones, the new zombie-Tribunal looks shabby and is even crumbling in places, but it still has its superpowers, and these are being summoned to trample hard won legal and constitutional rights. These powers were recently invoked to remove a particularly annoying irritant: the Polish Citizens’ Rights Ombudsman, Dr. Adam Bodnar.

The Dragon and The Wolf – Encircling the Ombudsman at every institutional layer

Last week, the zombie-Tribunal struck down the law that had allowed Dr. Bodnar to continue performing his duties (pending the selection of a replacement) after his 5-year term of office had elapsed. That law had been part of the Polish legal system for more than 30 years. It ensured that there would be a Citizens’ Rights Ombudsman in the event that the Parliament could not agree on a successor. The current deadlock was entirely predictable as the government does not have a majority in the upper chamber (Senat). Similar solutions are stipulated by other Polish statutes, for example, for the interim functioning of the head of the Central Bank, and nobody has ever questioned their constitutionality or rationality until now.

The motion challenging the constitutionality of the statute was filed by MPs of the ruling Law and Justice (PiS) party, which has been the main litigant in the Constitutional Tribunal over the past five years. Marek Ast, a PiS MP and an attorney at law, who represented the group before the Tribunal, openly stated that it was the political situation that had induced him and his colleagues to bring the case. His words were addressed to a panel of five PiS appointees, with Stanisław Piotrowicz, a former communist prosecutor and later PiS MP, as Judge Rapporteur. Other PiS appointees involved in the decision included Justyn Piskorski, illegally appointed to the Tribunal in 2017 instead of one of three judges appointed by the previous Parliament.

Dark Wings, Dark Words – Reasoning favoured by authoritarian constitutional hackers

The motion claimed that the Ombudsman’s interim functioning did not comply with the Constitutional provision that stipulated a five-year term of office. This reasoning tacitly assumes that the Constitution has to explicitly allow the Ombudsman to function beyond his/her term of office. In other words, unless an extension is specifically provided for in the Constitution, it is unconstitutional.

This line of reasoning may have unintended and adverse consequences. For one, not all the institutions that figure in the Polish legal system are specifically provided for in the Constitution. Nevertheless, they are necessary to realize important purposes laid down by the Constitution. Hospitals, for example, are not mentioned in the Constitution at all. Following this precedent would compel the absurd conclusion that public hospitals represent an unconstitutional misappropriation of public funds. However, they are necessary to realize the constitutional right to healthcare. Similarly, the interim functioning of the Citizens’ Rights Ombudsman is necessary to protect constitutional rights and two important constitutional values – the continuity and efficiency of public institutions.

Neither the constitutional nor the rational arguments convinced the panel. As rational as it might seem to compare the situation of the Citizens’ Rights Ombudsman with that of a lifeguard who cannot leave his/her post until the next shift arrives, Judge Rapporteur Piotrowicz clearly believes otherwise. In his oral substantiation of the decision, Piotrowicz stated that the Ombudsman’s continuing to perform his duties after his 5-year term of office had elapsed was actually jeopardizing the rights of the citizenry, as his mandate had been weakened. In other words, it is better not to have an Ombudsman at all, than to extend his term of office by statute when that option is not explicitly provided for in the Constitution.

Piotrowicz applied a method of interpretation favored by authoritarian constitutional hackers: a literal, but irrational and acontextual interpretation of a single constitutional provision, while refusing to accept that the Constitution is a rational whole. The same method was used when the Constitutional Tribunal was weaponized against the National Council of the Judiciary (NCJ, see Piotr Mikuli) and the Supreme Court (see Tomasz Tadeusz Koncewicz), and mobilized to undermine the independence of these institutions. In the NCJ case, a similar literal, but irrational and acontextual interpretative approach was applied towards the regulation concerning the term of office of NCJ members, and similarly greenlighted the removal of legally appointed members.

Unbowed, Unbent, Unbroken – What Poland needs in an Ombudsman, versus what it receives

The Constitutional Tribunal did not make its decision effective immediately, but gave the Parliament three months to amend the relevant statute. This means that Dr. Bodnar will remain in office until the statute is amended. As it happens, the lower chamber (Sejm) appointed a new Ombudsman the same day the Tribunal handed down its decision. This appointment is now awaiting consent from the Senat. Such consent will not likely be forthcoming, as the designated appointee, PiS MP Bartłomiej Wróblewski – who supported the abortion motion filed to the Tribunal several months ago – has not even bothered to suspend his PiS membership. Nevertheless, he declares his full independence and is at great pains to assure the public that he will staunchly defend their rights against the relentless abuses and depredations of his own party.

If the Senat refuses to confirm Wróblewski’s appointment, the deadlock will continue. Should that eventuate, it is highly likely that PiS will amend the statute concerning the Citizens’ Rights Ombudsman, so that they can appoint a “temporary” replacement. This move is bound to be justified by marshalling the very same arguments that Dr. Bodnar put forward to justify his continuing in office: the need to protect the people’s rights, and to ensure the continuity and efficiency of public institutions. This time, however, they would surely sway the Constitutional Tribunal, which might well even find these justifications explicitly stated in the Constitution. PiS will then proudly present the decision to the public. And the best qualified candidate is sure to be Bartłomiej Wróblewski, thereby proving that PiS, as usual, was correct all along.

The Constitutional Tribunal’s decision has further negative consequences for citizens’ rights. Most alarmingly, it opens the door for court interventions undertaken by the Ombudsman after his 5-year term had elapsed to be challenged for lack of standing. One of these interventions blocked the purchase of a controlling interest in a huge Polish media corporation by a state-owned oil company, a move that obviously endangers press freedom in Poland. Nobody doubts that the first decision by the new Ombudsman will be to withdraw the motion filed by Dr. Bodnar to have this transaction suspended. This will enable PiS to tighten its stranglehold over the Polish media even further.

Long Night

This piece opens with a reference to a fantasy story. The reference illustrates that when democratic institutions are captured by an authoritarian government, they not only cease to hold it accountable, or even restrain its megalomaniacal tendencies, but can be actively used to capture other democratic institutions, as the cases of the NCJ and the Citizens’ Rights Ombudsman in Poland amply illustrate. The reference might be based on a fictional story, but the consequences of weaponizing democratic institutions are very real. Winter is coming. In the middle of spring. At least as far as the constitutional rights of Polish citizens are concerned.

Titles refer to fitting Game of Thrones episodes.