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Throwing away the constitution in Poland?


Grzegorz_ 51 | 6,163
4 Dec 2015 #61
A foul-mouthed racist criminal.

According to who ? The sidelocks club ?
Harry
4 Dec 2015 #62
what their obsession is with former Party men in general.

Former Party men have shown that they will do what they are told rather than what is right (as long of course as doing what they are told is personally beneficial for them).

"better the devil that used to come to your house for dinner".

Not forgetting how that house was obtained.
Legal Eagle
4 Dec 2015 #63
Is there an option for asking the court for a re-hearing? If so, one third of its judges are in dispute, and waiting until after the terms of PO appointees expired, and at least two new PiS appointees join the court might change the result. Really, a constitutional court with judges dependent on politicians to keep their jobs is a bad idea for impartiality.
delphiandomine 85 | 18,266
4 Dec 2015 #64
Is there an option for asking the court for a re-hearing?

No. Once they hear the complaint and deliver a judgement, that's it. The Constitution is crystal clear on this.

If so, one third of its judges are in dispute

There's no dispute. Legally, three judges must be sworn into office "without delay" by the President, while the other two appointed by PiS are awaiting the decision of the TK on the 9th December.

and waiting until after the terms of PO appointees expired, and at least two new PiS appointees join the court might change the result.

There's no possibility of "changing results". The decision of the Constitutional Tribunal is final and must be respected. Duda is obliged to follow the Constitution, and his failure to do so means that he's now in breach of the Constitution.

Really, a constitutional court with judges dependent on politicians to keep their jobs is a bad idea for impartiality.

Alas, that was a consequence of compromise. However, an impartial court would have probably come to the same judgement.
Legal Eagle
4 Dec 2015 #65
If a similar issue goes back to the court after its balance of power changes, a different result is very possible. This is not a common law court, and its judgement is likely restricted to the actual issue adjudicated. Duda's responsibility to swear in the three PO judges may be a separate case, decided by the new judges, with a different result. He doesn't appear to be very worried about it, and he had a clear right to have sworn in two new judges to decide the issue.
Ironside 49 | 10,282
4 Dec 2015 #66
According to who ? The sidelocks club ?

Nay, according to the wonderful trio of jesters.

The decision of the Constitutional Tribunal is final and must be respected.

No it is not. There too many shady deals and BS on part of the TK to let them get away with that this time. After all judges are nominated and Seym is elected.
delphiandomine 85 | 18,266
4 Dec 2015 #67
If a similar issue goes back to the court after its balance of power changes, a different result is very possible.

If the judges that should be sworn in by Duda are sworn in, then the balance of power remains the same until the 2019 election. This is exactly why Duda won't do it - it's the last obstacle between PiS and absolute power.

Duda's responsibility to swear in the three PO judges may be a separate case, decided by the new judges, with a different result.

Incorrect. The case has already been decided upon by the Constitutional Tribunal, and Duda has an immediate obligation to swear in the new judges.There is no possibility of obtaining a different result - the decision has been made and is legally binding.

He doesn't appear to be very worried about it, and he had a clear right to have sworn in two new judges to decide the issue.

He certainly is worried, given that he completely failed to address the issue.

As for the two new judges, the TK will rule on the 9th as to whether he was legally allowed to do so. It's quite likely that they will agree that he could, but they won't change the balance of power. It's also highly likely that they will rule that the decision of PiS to try and appoint 3 other judges is unconstitutional.

There too many shady deals and BS on part of the TK to let them get away with that this time.

Ironside, what part of the Constitution would you like sent to you?

It doesn't matter what you think the TK was doing, the Constitution makes it clear that the judgements must be respected.

If you don't respect that, you should give up your Polish citizenship because you're obviously the worst sort of traitor.
Legal Eagle
4 Dec 2015 #68
There is no possibility of obtaining a different result - the decision has been made and is legally binding.

That is a decision to be made by the new judges on the court now.

If the judges that should be sworn in by Duda are sworn in, then the balance of power remains the same until the 2019 election.

Which means that the balance of power on the present court has changed, and only Duda can swear in new judges. Only new elections can change the status quo then.
delphiandomine 85 | 18,266
4 Dec 2015 #69
That is a decision to be made by the new judges on the court now.

No, it isn't. There is no provision in law for a different decision to be made by different judges. Article 190 of the Constitution makes it clear that judgements of the TK are final.

Which means that the balance of power on the present court has changed, and only Duda can swear in new judges.

The TK's ruling yesterday is binding on Duda - he is obliged to swear in the judges immediately.

Duda refusing to swear in the judges is extraordinary and without precedent.

Either way, the decision is final - he cannot ignore what the TK says.
OP mafketis 23 | 8,360
4 Dec 2015 #70
he cannot ignore what the TK says.

He is ignoring it, I wouldn't be surprised if regrets doing so sooner or later. The more integrity he has the more he will regret it.
Ironside 49 | 10,282
4 Dec 2015 #71
Ironside, what part of the Constitution would you like sent to you?

Supreme power belongs to the people, who are acting through their representatives and TK cannot rule in its own case. If there is a doubt as to competency or other functions of the TK it is up to the Parliament to solve it, not TK. It is easy enough to understand.

If you don't respect that, you should give up your Polish citizenship because you're obviously the worst sort of traitor.

I can life with that. :)
I'm curse though do you understand issues involved and stakes at play or you just meddling for a share hell of it?
delphiandomine 85 | 18,266
4 Dec 2015 #72
If there are argument as to competency or other functions of the TK it is up to the Parliament to solve it, not TK.

I think you're really struggling with the Constitution. It's nothing unusual, given that your President is also struggling with it - but the facts are very clear. The TK exists to settle disputes, and it is empowered to rule as to whether the actions of the Sejm were legal.

I'm curse though do you understand issues involved and stakes at play or you just meddling for a share hell of it?

I understand exactly the issue involved. PiS are desperate for absolute power (as they've made very clear), and the only block on that power is the TK. So they need to control it too in order to exercise absolute power over Poland. If they fail, then PiS will have a TK made up of a majority of opposition-appointed judges which will put the brakes on any attempt to institute unconstitutional measures. If they succeed now, then from June 2017, they will have a majority on the TK and will be able to do what they want without regards to what the Constitution says.
Polonius3 1,000 | 12,448
4 Dec 2015 #73
a member of the PZPR

...as was Kuroń,Balcerowicz, PO co-founder Olechowski, Tusk's justice min. Ćwiąkalski, science min. Kudrycka, prominent PO MP Iwona Śledzińska-Katarasińska and TK head Rzepliński to mention but a few.

The Foreign Expat Legion of Blowhards somehow never mention that. Better to sweep it under the carpet, innit? Pot calling the kettle.....?
delphiandomine 85 | 18,266
4 Dec 2015 #74
Rather we're just amused that PiS are appointing members of the PZPR to the highest court in the land.

As I said, child learns at dinner parties with father and comrades.
Legal Eagle
5 Dec 2015 #75
If there is a doubt as to competency or other functions of the TK it is up to the Parliament to solve it, not TK.

The constitutional doctrine of balance of powers means that any two branches of government can choose to check excesses of the third. To quote a famous U.S. President, "[The Chief Justice] has made his decision; now let him enforce it!" Ultimately, it is a political question to be resolved by Polish voters, and not disgruntled expats in Poland who don't vote in national elections. In fairness to PiS, they didn't start this row by attempting to pack the court. That was a midnight power play that has blown up in the faces of PO. (I should also note that the U.S. has its own history of The Midnight Judges Act by John Adams and the Federalists creating new judges when they were voted out of power, and a new president, Thomas Jefferson, refusing to deliver a commission which went to the U.S. Supreme court in Mayberry v. Madison, and another scandal when Franklin Roosevelt proposed packing the U.S. Supreme Court with favorable justices.)
Polonius3 1,000 | 12,448
5 Dec 2015 #76
just amused t

Were you equally amused when former PZPR activists Kuroń, Balcerowicz, Geremek, PO co-founder Olechowski, Tusk's justice min. Ćwiąkalski, science min. Kudrycka, prominent PO MP Iwona Śledzińska-Katarasińska, PO MEP Rosatki, TK head Rzepliński and many, many more were being promoted to positions of authority and basked in prestige and prominence under the PO regime. If so, somehow you never seemed to mention it. Similarly, no-one ever recalls you pointing out that aside from SLD, your beloved PO had the highest precentage of ex-reds in their membership of any current poltical party. Only the Michnikite UW and UD had more red slime in their ranks edited
Harry
5 Dec 2015 #77
That was a midnight power play that has blown up in the faces of PO.

Quite the reverse: PO set a trap that PIS have walked right into. The two judges whose terms hadn't ended are legally debatable but the other three are beyond doubt. However, PO knew that the PISites wouldn't be able to contain themselves and thus would cause a fully fledged constitutional crisis and drive away almost all of their newly acquired supporters, which is exactly what had happened!
delphiandomine 85 | 18,266
5 Dec 2015 #78
The constitutional doctrine of balance of powers means that any two branches of government can choose to check excesses of the third.

That concept doesn't exist in Polish constitutional theory, as it's an American concept. The Constitutional Tribunal exists to protect the Constitution, not to act in any way as a branch of government. This is enshrined in law.

To quote a famous U.S. President, "[The Chief Justice] has made his decision; now let him enforce it!"

That simply doesn't apply here. For a start, the United States Constitution doesn't have anything about decisions being final, whereas the Polish Constitution does. It is simply not possible under the law of Poland to disobey the orders of the Constitutional Tribunal, for a start - hence why the Council of Europe are now getting involved.

Ultimately, it is a political question to be resolved by Polish voters, and not disgruntled expats in Poland who don't vote in national elections.

Nice personal attack, but as far as the law is concerned, the President is now in breach of the Constitution. Voters have nothing to do with it.

In fairness to PiS, they didn't start this row by attempting to pack the court.

They certainly did start it. All they had to do was to leave the case to the TK, who in accordance with the law, threw out two of the appointed judges and confirmed the appointment of the three by the previous Sejm. PiS would then have been free to appoint two judges as they were entitled, and we would've avoided a serious constitutional crisis.

Now, do try and avoid applying American concepts to Polish constitutional theory.

However, PO knew that the PISites wouldn't be able to contain themselves and thus would cause a fully fledged constitutional crisis and drive away almost all of their newly acquired supporters, which is exactly what had happened!

Indeed, the latest polls show that PiS are down to 32% already - so they've lost nearly 6% of the vote in just a month.
OP mafketis 23 | 8,360
5 Dec 2015 #79
That simply doesn't apply here. For a start, the United States Constitution doesn't have anything about decisions being final,

Well there's no appealing a Supreme Court decision so in that way, yeah, it's rulings are final (though they have no enforcement power). Sometimes a sitting court will agree to hear a case that is similar to a previous one and may come to a different decision but that's not tremendously common. the basic job of the Supreme Court is to make judgements on whether particular laws or lower court decisions violate the federal constitution or not. Since the constitution is written in unclear, ambiguous language a lot of the time (probably on purpose) there's no shortage of disagreements on how to interpret it.

To quote a famous U.S. President, "[The Chief Justice] has made his decision; now let him enforce it!"

You really don't want to be quoting Andrew (most genocidal US President ever) Jackson. (plus, he probably never said it).

another scandal when Franklin Roosevelt proposed packing the U.S. Supreme Court with favorable justices.)

That's what the the current case reminds me of. In America, people love(d) to complain about Supreme Court decisions but reacted very stronly to attempts to maniupulate it by stacking the deck. Now stacking the court is the open goal of both sides in the US.

the President is now in breach of the Constitution

If the Polish public decides it doesn't like this I wonder what will happen to Duda. In some ways the US politician JK reminds me most of is Karl Rove one of the masterminds behind George W Bush. Any politicians that openly cooperated with W lived to regret it (Tony Blair and Colin Powell for starters).
delphiandomine 85 | 18,266
5 Dec 2015 #80
Since the constitution is written in unclear, ambiguous language a lot of the time (probably on purpose) there's no shortage of disagreements on how to interpret it.

Yes, this is one of the huge differences between American and Polish constitutional theory. The American one was (from memory - I studied this!) written deliberately like that so that the individual states would agree to it, as otherwise it was likely that it would be rejected by the more confederal-minded states. But the Polish one learnt from that mistake and so many things are very clear and unambiguous. It's also a matter of the American one evolving from common law while the Polish one evolved from civil law.

I wish I could understand why "Legal Eagle" is trying to apply American concepts to the Polish constitution, though.
OP mafketis 23 | 8,360
5 Dec 2015 #81
But the Polish one learnt from that mistake and so many things are very clear and unambiguous.

Another important difference is between common law (US) and civil law (Poland most European countries) where lots of things have to be spelled out in the constitution in the latter where as the former leaves them for courts to figure out.
Polonius3 1,000 | 12,448
5 Dec 2015 #82
Polish constitution

Anyone know why former Katyń conspirator, ex-commie Rzepliński was set up as the chief guardian of Poland's constitution? Yesterday he was seen in the Sejm plotting something with PO, Petru and PSL. Another nocturnal coup like that of 1992 in the offing?

telewizjarepublika.pl/arogancka-wypowiedz-prezesa-tk-quotnie-ulatwia-traktowania-go-jako-bezstronnego-straznika-konstytucjiquot,26594.html
jon357 63 | 15,214
5 Dec 2015 #83
Another important difference is between common law (US) and civil law (Poland most European countries) where lots of things have to be spelled out in the constitution in the latter where as the former leaves them for courts to figure out.

This is key to it. The English Common Law system (inherited by a few other countries) isn't perfect however the French system (inherited by Poland, Germany, Italy etc) gives much more room for infighting.
Polonius3 1,000 | 12,448
5 Dec 2015 #84
disgruntled expats

Disgruntled expats, political losers and the sensation-seeking media are all up in arms over the "constitutional crisis", but ya know what -- the average Pole doesn't really give a sh*t! When the evening news comes on and the news reader starts banging away about the TK, many viewers say to themselves: "Oh no, more political claptrap!" Some switch channels to some soap or sitcom.

If the new govt fails to come through to a reasonable degree on their campaign pledges, that might be another story. But fascination with poltical abstractions and constitutional imbroglios is the pastime of only a tiny minority.
delphiandomine 85 | 18,266
5 Dec 2015 #85
Disgruntled expats, political losers and the sensation-seeking media are all up in arms over the "conmstituonal crisis", but ya know what -- the average Pole doesn't really give a sh*t!

Not true. For instance, there's two separate protests in Poznań today, and there's a very big protest planned outside Jarosław Kaczyński's house on December 13th. I know your game - you're trying to downplay the situation, but the reality is that the numbers are growing on the street.

I would be there too, if it wasn't for the smog :(

But fascination with poltical abstracitons and constitutional imbroglios is the pastime of only a tiny minority.

It's not a "tiny minority" at all.
OP mafketis 23 | 8,360
5 Dec 2015 #86
many viewers say to themselves: "Oh no, more political claptrap!" Some switch channels to some soap or sitcom.

This is from the "not as reassuring as it's meant to be" file. You're saying that Polish people are politically passive and don't care what the government does as long as it can hand out some goodies. A very damning indictment.
Polonius3 1,000 | 12,448
5 Dec 2015 #87
two separate protests

Sure, if PO mobilise their flunkies and who knows if some "incentive" won't be provided to enlarge the crowd. Wouldn't put it past the sneaky b*stards!
delphiandomine 85 | 18,266
5 Dec 2015 #88
And for those of us that can't read Polish, Polonius is repeating the same lines found in the PiS-controlled media.

Fortunately, he's also completely wrong. There are no incentives to enlarge the crowd - the only incentive is to put a stop to PiS trying to destroy democracy.
Polonius3 1,000 | 12,448
5 Dec 2015 #89
PiS trying

PiS are trying to clean up the mess left by PO to have a solid foundation to build a democratic order on.
OP mafketis 23 | 8,360
5 Dec 2015 #90
They have to destroy the constitution to save it?

My theory: This isn't about the earlier PiS government as it's specifically about the 2006 mayoral elections where PiS tried to invalidate the results on the basis of a law which could not pass any constitutional muster (it required greater diligence on the part of the candidate's spouse than of the candidate themself). The TK declared the law in violation of the constitution and she took office. This was a vital shot in the arm for PO who went on to take the parliament.

At the time JK or LK (can't remember which) said a lot of things about respecting laws even if they're poorly written. I guess things have changed and only laws that please JK should be followed.


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