Law and Justice party is trying to destroy system of checks on government power, says head of highest constitutional court

The outgoing president of Poland’s highest constitutional court has accused the ruling rightwing Law and Justice party (PiS) of a systematic attempt to destroy oversight of government activity, describing the country as “on the road to autocracy”.

The departure of Prof Andrzej Rzepliński, whose term expires on Monday, is expected to pave the way for PiS appointees to assume control of Poland’s most important institutional check on executive power.



The expiration of Rzepliński’s term comes amid signs of the most serious political crisis in Poland since PiS won presidential and parliamentary elections in 2015.

Protesters on Friday night attempted to barricade MPs in the parliament building after the government sought to restrict media access to parliamentary proceedings. Opposition MPs accuse PiS deputies of holding illegal votes outside the parliamentary chamber after an opposition MP was expelled for protesting against the media restrictions and opposition leaders occupied the parliamentary podium in protest. Protests continued in Warsaw and other cities over the weekend.

Speaking to the Guardian, Rzepliński defended his attempts to uphold the independence of the tribunal, which rules on the constitutionality of legislation and decisions taken by state authorities.



He said the government’s refusal to recognise the legitimacy of a number of the court’s rulings threatened to “create a double legal system, with some courts upholding our rulings, and others not. Judges really don’t know what is the law, and without that, in a continental system, courts cannot operate.”



PiS has been engaged in a stand-off with the constitutional tribunal ever since Andrzej Duda, the country’s PiS-aligned president, refused last year to swear in a number of judges appointed by the previous government and appointed five new judges of his own. Three were ruled unconstitutional.

The PiS-controlled parliament has also passed eight separate pieces of legislation regarding the role and functioning of the constitutional tribunal, the majority of which, critics argue, appear designed to minimise the ability of the court to hold the government to account, and to maximise the influence of the government’s own appointees.

“The aim of the legislation is to destroy the court, to disintegrate it, to create a kind of private council for our ‘beloved leader’,” said Rzepliński, a reference to Jarosław Kaczyński, the leader of PiS.

At a gathering of supporters earlier this year Kaczyński, who portrays the constitutional tribunal as in hoc with the liberal opposition, and has described the court as “the bastion of everything in Poland that is bad”, argued that the will of the nation, as embodied by the ruling party, trumped the rule of law.

“In a democracy, the sovereign is the people, their representative parliament and, in the Polish case, the elected president,” said Kaczyński. “If we are to have a democratic state of law, no state authority, including the constitutional tribunal, can disregard legislation.”



The stand-off has prompted the European commission to consider sanctions for what it has described as a “systemic threat to the rule of law in Poland”. Over the weekend Donald Tusk, European council president and a former prime minister of Poland, called on the Polish authorities to respect the constitution.



“Citizens, law and morality place limits on government, not vice versa. As we know from our own experience, a democracy without respect for morals, culture and conventions quickly degenerates into the opposite,” Tusk told a news conference in Poland’s western city of Wrocław.



Kaczyński’s attitude towards the constitutional tribunal may be rooted in his experience as prime minister in the mid-2000s, when the court inflicted a series of defeats on a short-lived PiS-led coalition government.



“It is important to remember that it is the constitutional tribunal that humiliated Kaczyński last time Law and Justice were in power, between 2006 and 2007,” said Jacek Kucharczyk, president of Poland’s Institute of Public Affairs. “It stands to reason that this time around, he would attempt to take it on right from the beginning.”



In Poland, the constitutional court’s rulings are not considered to have legal effect until they are printed in an official journal, which is produced by a printing press controlled by the government.



In March, the tribunal ruled unconstitutional a reform to the court that would have given more power to PiS appointees and forced the court to consider cases in chronological order, hampering its ability to scrutinise government activity. But the prime minister, Beata Szydło, has since refused to print the ruling, arguing that the decision had not been made in accordance with the new legislation.



“When a judgment is not published, you disintegrate the legal system,” said Rzepliński. The government has since refused to print numerous rulings issued by the court.



When earlier this month the court’s judges gathered to vote on Rzepliński’s replacement, three judges appointed by the present government called in sick on the same day, denying the gathering of a quorum. The government responded by passing legislation allowing the president and prime minister to appoint the court’s new president on a temporary basis.



Julia Przyłębska, one of the judges who called in sick, is tipped by some observers to be appointed as Rzepliński’s successor.

