Poland. Origin and development of the dispute over the Constitutional Tribunal

In the year of the thirtieth anniversary from the starting of its activity, the Polish Constitutional Tribunal is involved in a deep constitutional crisis, seriously impairing its possibility to operate. The Constitutional Tribunal was introduced during the Communist period and it represented one of the major actors in the Polish transition to democracy, culminated with the adoption of the 1997 Constitution. In 2015, following the entry into force of a new Law on the Constitutional Tribunal, which provided the legal basis for a political dispute over the election of five judges of the Constitutional Tribunal, an harsh constitutional crisis has erupted. In the aftermath of Parliamentary Elections, 2015, a new parliamentary majority, led by the Law and Justice Party - after eight years of Civic Platform Government - tried to take advantage of a landslide victory in the elections to prevail in the political dispute over the Tribunal. In fact, the Law and Justice Government rapidly amended the Law on the CT and elected five new judges to the Tribunal. The political confrontation evolved as an institutional conflict between the executive power, i.e. the President of the Republic and the Government, on one side, and the Constitutional Tribunal itself on the other. The Constitutional Tribunal, for its part, condemned the attempts of both the previous and the present Government to elect all the five judges whose mandate was due to expire in 2015 and considered the amendments to the Law on the CT as non-compliant to the Constitution. However, the Prime Minister refused to publish the last Judgement of the Constitutional Tribunal, thus preventing it from becoming universally binding. In my presentation, I intend to propose an in-depth analysis of the evolution of the legal framework governing the Constitutional Tribunal and of the jurisprudence of the Constitutional Tribunal, developed in the context of the constitutional crisis. After a short historical premise, I will consider the Law on the Constitutional Tribunal adopted on June 25, 2015 as a starting point for the analysis, to be followed by some considerations on the amendments approved by the Law and Justice Government and on the Judgements of the CT (declaring wide sections of them as non-compliant to the Constitution). I therefore intend to provide an interpretative framework in order to understand the current situation in Poland, through a systemic view of the rapid sequence of events, which led to the actual paralysis in the activity of the Tribunal. To conclude, I will consider possible solutions to the ongoing constitutional crisis, the new proposals to amend the Law on the Constitutional Tribunal and their potential impact on the overall constitutional system.