Broken Law and Battered Justice – A Constitutional Review of 2016 in Poland

Article 8: “The constitution shall be the supreme law of the Republic of Poland”.

Article 235: “A bill to amend the constitution shall be adopted by the sejm by a majority of at least two-thirds of votes in the presence of at least half of the statutory number of deputies, and by the senat by an absolute majority of votes in the presence of at least half of the statutory number of senators”.

poland_news_constitutionPoland’s constitution leaves plenty of room for interpretation, but the two points cited above do not: if it goes against the constitution, it’s not legal, and if the constitution is to be changed, there’s only one way to do it.

So, with Poland’s Law and Justice (PiS) government in power for just over a year, we present a review of exactly where there have been causes for concern in 2016.

Separation of powers

Article 10

“The system of government of the Republic of Poland shall be based on the separation of and balance between the legislative, executive and judicial powers”.

With President Andrzej Duda being a former member of PiS, and as he has shown no inclination to question any of the government’s moves, there is clearly no separation of or balance between the powers of the legislative (sejm and senat) and executive (president). This is nothing new – after all, President Bronisław Komorowski was closely linked to the previous Civic Platform (PO) government, and Jarosław Kaczyński was prime minister when his own twin brother Lech Kaczyński was president. Far more worrying right now is that Zbigniew Ziobro combines the roles of minister for justice and chief prosecutor. In other words, a member of cabinet is in charge of Poland’s prosecution services.

Zbigniew Ziobro

Article 103

No judge, public prosecutor, officer of the civil service, soldier on active military service or functionary of the police or of the services of state protection shall exercise the mandate of a deputy”.

Here, there appears to be a clear breach of the constitution. He is an MP, minister of justice, and the country’s chief prosecutor.

The Constitutional Tribunal

Article 188

“The Constitutional Tribunal shall adjudicate regarding the following matters: the conformity of statutes and international agreements to the constitution…”

The Tribunal did indeed adjudicate, to the effect that the new law on its operations was not in conformity with the constitution.

Article 190

“Judgments of the Constitutional Tribunal shall be of universally binding application and shall be final”.

“Judgments of the Constitutional Tribunal… shall be required to be immediately published in the official publication in which the original normative act was promulgated”.

“Judgments of the Constitutional Tribunal shall be made by a majority of votes”.

Prime minister Beata Szydło said she considered the verdict to be unconstitutional (thus negating the Tribunal’s position as final arbiter), and refused to publish it. The new PiS law required a two-thirds majority, rather than the constitutionally enshrined majority. Despite the very clear points made in the constitution, Mr Kaczyński has described the Tribunal as “a political body whose function is undefined“.

Article 194

“The president and vice-president of the Constitutional Tribunal shall be appointed by the President of the Republic from amongst candidates proposed by the general assembly of the judges of the Constitutional Tribunal”.

The office of the President did receive a resolution from the general assembly, naming Julia Przyłębska (now in charge of the court) and Mariusz Muszyński – another government-backed judge – as preferred candidates. However, Stanisław Biernat, vice-president of the Tribunal, said that only six judges took part in the recommendation vote. Mr Biernat would in ordinary circumstances have succeeded Mr Rzepliński as president of the court.

Article 196

“A judge of the Constitutional Tribunal shall not be held criminally responsible or deprived of liberty without prior consent granted by the Constitutional Tribunal”.

If the rules are adhered to here, threats against former Tribunal boss Andrzej Rzepliński and judges who don’t fall into line should be considered empty.

The media

Article 14

“The Republic of Poland shall ensure freedom of the press and other means of social communication”.

PiS were quick to pass new laws giving the government control of state TV, radio and the Polish Press Agency. Not unsurprising, as the previous government had their own people in the top offices too. What’s more worrying is the notion that state media should present a PiS-inspired vision of Poland. Curiously, Poland’s broadcasting council found that state-run TVP was the amongst the least biased before the last election, yet even so PiS saw a need to reform it.

Justice – part 1

Article 21

“Expropriation may be allowed solely for public purposes and for just compensation”.

This summer, when everyone was focused on World Youth Day and the Olypmics, Zbigniew Ziobro suggested that suspected criminals should be deprived of assets before trial. That included ALL assets, even those not suspected of or proven to have been obtained through criminal activity.

Justice – part 2

Article 32

All persons shall be equal before the law. All persons shall have the right to equal treatment by public authorities”.

“No one shall be discriminated against in political, social or economic life for any reason whatsoever”.

Article 42

Everyone shall be presumed innocent of a charge until his guilt is determined by the final judgment of a court”. is not about to suggest mercy for any who took part in the suppression of Poles during nearly half a century of communist rule. But neither can we accept a blanket punishment for all without trial. Yet this is just what PiS suggests – cutting the pensions of all who served the state in a policing role before 1989. According to the constitution, each individual should first face trial; if they are found to have broken the law, they may then be punished. And that’s not all… if we are to have a law indiscriminately punishing those of the former regime, how can former Communist Party members hold key positions in public life under the blessing of PiS today?


Article 48

“Parents shall have the right to rear their children in accordance with their own convictions. Such upbringing shall respect the degree of maturity of a child as well as his freedom of conscience and belief and also his convictions”.

Not government-related, but alarming all the same. In October, we reported on a nursery school that was forcing the children of non-religious parents to pray before meals. Why? Because the majority of parents said all should do this. The majority have absolute power? Well, that fits with the PiS version of democracy…


Article 56

“Foreigners shall have a right of asylum in the Republic of Poland in accordance with principles specified by statute”.

Not  part of the constitution that Jarosław Kaczyński agrees with. We will not take refugees, he said in May.


Article 73

“The freedom of artistic creation and scientific research as well as dissemination of the fruits thereof, the freedom to teach and to enjoy the products of culture, shall be ensured to everyone”.

Everyone, it seems, except the historian Jan Gross. Mr Gross can sometimes appears to put his foot in it, but in general his work is received as authoritative (he wouldn’t be a Princeton professor otherwise). Since PiS came to power, he has been investigated under new and entirely useless laws on defaming Poland.

Jarosław Kaczyński

Article 148

“The prime minister shall: represent the council of ministers; manage the work of the council of ministers; issue regulations; ensure the implementation of the policies adopted by the council of ministers and specify the manner of their implementation; coordinate and control the work of members of the council of ministers; exercise, within the limits and by the means specified in the constitution and statute, supervision of local government; be the official superior of employees of the government administration”.

Beata Szydło is prime minister. Although head of Law and Justice, the party in power in Poland, Mr Kaczyński is no more than an ordinary MP. As such, he has no formal role in government, and (rather cleverly, on his part) is not accountable for the actions of those he guides. And make no mistake, despite the black and white constitutional requirement that the prime minister is in charge and answerable, it is Mr Kaczyński who is pulling the strings. He himself left this beyond any doubt in the spring of 2016.

All citations from the Constitution of the Republic of Poland refer to the official text of this document as published in English. You can read it in full here.

Image: Jan Matejko – King Stanisław Augustus and the adoption of the May 3 constitution.