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The constitutional crisis in Poland began after the recent parliamentary election in Autumn, 2015. The newly elected Sejm adopted a resolution cancelling the election of five judges of the Constitutional Tribunal elected by the former Parliament and carried out a new election. The Polish President, who comes from the party which won the election, refused to take an oath from the judges of the Tribunal elected by the former Parliament and took an oath from the judges elected by the new Parliament. The Tribunal ruled that the former Parliament elected two judges by violating the Constitution but that the election of the other three was lawful and the President should take an oath from them.
The President of the Tribunal allowed two judges elected by the new Parliament to rule and expected that, of the other three elected by the former Parliament, the Polish President would take the oath.
Next, in the Sejm the ruling party adopted amendments to the Act on the Constitutional Tribunal, which the Constitutional Tribunal ruled as unconstitutional. By a constitutional review of the last amendment the Tribunal proceeded by not applying the amendment. The Tribunal stated that the law being reviewed cannot constitute a basis for this review. As a reaction to the Tribunal proceeding without having applied the latest amendment the Polish government declared that the rulings of the Constitutional Court were nonexistent and would not be published in the official journals as required by the Constitution.
Because the Constitutional Tribunal rulings are not being published, the question arises whether they are binding. The main function of the Tribunal is to verify the constitutionality of legal acts. Legal provisions declared unconstitutional are no longer binding. One can expect a varying approach by the courts and administrative bodies when deciding whether to apply provisions declared unconstitutional by virtue of a ruling of the Constitutional Tribunal despite it not being published.
The General Meeting of Supreme Court Judges adopted a resolution stating that the ruling of the Constitutional Tribunal must be respected regardless of whether it was published. A similar resolution was adopted by the General Meeting of Supreme Administrative Court Judges as well as those from the appellate and regional courts. The majority of courts can be expected to respect the rulings of the Tribunal as binding. A less unified approach in this regard may be expected from administrative bodies.
Source: Constitution of the Republic of Poland, ruling of the Constitutional Tribunal of 9 March 2016, ref K 47/15
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