Poland – Judicial independence in jeopardy? President Duda refuses appointment of ten further judges

This post first appeared on presidential-power.com on 5 July 2016

The controversy over Poland’s constitutional court triggered by president Duda’s refusal to appoint judges nominated by the outgoing Sejm and passage of legislation to legitimise his and the new government’s behaviour has so far dominated the presidency of Andrzej Duda (for a summary see Aleks Szczerbiak’s post here). Now, Duda is once again in the line of fire following his refusal to appoint ten out of thirteen judges from lower-level courts to higher positions. Thus, although the individuals put forward by the National Judiciary Council (a committee formed of 17 judges, the minister of judges and 5 political nominees) are far from uncontroversial, the relatively unchecked power of the president in the area of judicial appointments and the government’s plan to reform the judiciary continue to be the most prominent battlefields of Polish politics today.

President Duda appoints 'his' nominee Julia Przyłębska as judge of the Constitutional Tribunal on 9 December 2015| © prezydent.pl 2015

President Duda appoints ‘his’ nominee Julia Przyłębska as judge of the Constitutional Tribunal on 9 December 2015| © prezydent.pl 2015

The Polish constitution, like so many others (irrespective of this being intentional or not), remains vague on a number of presidential duties and prerogatives. Article 179 of the 1997 Constitution thus states with regard to appointments of judges that “judges are appointed by the president on the suggestion of the National Judiciary Council” but gives no further instructions on the procedures or an eventual right of the president to refuse such nominations. Constitutional scholars widely agree that presidents may refuse the nomination of any candidate for public office (irrespective of judge, professor or prime minister) on the grounds of a person’s lack of formal and legally required qualification or reasonable doubts about their loyalty to the constitution. While this generally follows from presidents’ inaugural oath to uphold and protect the constitution, the rejection of nominees for political or personal reasons arguably has no legal basis.

Duda’s refusal to appoint the judges met with particular opposition due to the lack of justification for his decision. Before being proposed candidates for judicial promotions are vetted by the National Judicial Council; if their application is denied they can appeal the decision in court. An additional vetting by the president beyond formalities thus appears not only unreasonable but also adds the complication that there is no prescribed legal way to appeal his refusal to appoint a nominee. Many conflicts over constitutional clauses along the lines of “the president appoints/signs/etc” fall into the category of conflict between two constitutional organs and can be adjudicated by the constitutional court by the ways of a standard procedure. Yet as both the National Judicial Council and the rejected nominees lack ‘organ quality’, neither of them can easily challenge the president’s decision. The latter became clear in the only other case judicial promotions at lower courts were refused by the president. In 2007 Duda’s pre-predecessor Lech Kaczynski (the deceased twin-brother of current Law and Justice party leader Jaroslaw Kaczynski), created a precedent for Duda’s actions by declining to appoint nine judges. The nominees’ constitutional complaints were eventually rejected after four years of deliberations as the justification was that the implementation of administrative law by the president does not fall within the remit of the Constitutional Court. The Supreme Administrative Court likewise rejected the complaints and subsequent further constitutional complaints were also rejected so that the case now (still) lies with the European Court of Human Rights (for a longer summary, see the report of the Helsinki foundation here).

Newspapers have speculated on the reasons which led the president to reject the nominations. In fact, some of the nominees are far from uncontroversial. One judge was prominently accused of bribery, another judge controversially dismissed a collective law suit against the financial services provider Amber Gold (which was liquidated following the discovery that is was based on a pyramid scheme), and a third was involved in the widely discussed case of restricting the “parents’ rights” of a couple accused of violence against their children. In addition, one judge was widely criticised for continuously extending the arrest of a football fan for alleged drug-dealing, yet without any verdict being issued over the course of three and a half years. Last, one of the judges whose promotion was denied judged on a case in which Law and Justice party Jaroslaw Kaczynski leader sued fellow legislator Janusz Palikot (then Civic Platform, later founder of ‘Palikot’s Movement’) for insulting him.

None of the above-mentioned controversies would generally justify denial of appointment or other presidential intervention. Thus, it is more likely that they are part of the Law and Justice government’s plan to reform and mould the judiciary in their image. Given that Duda is generally seen as little more than a vicarious agent of Law and Justice leader and Polish politics’ grey eminence (he does not hold any government office) Jaroslaw Kaczynski, it is not unreasonable to assume that the president is now helping to fulfil that plan (while at the same time extending the powers of his office). In a recent proposal made by the government (which was already widely criticised by the Human Rights Ombudsman and NGOs), the National Judiciary Council would have to propose two candidates per vacancy thus considerably increasing the president’s power over judicial nominations. This, together with the conflict over the constitutional court and the government’s decision to once again merge the position of general prosecutor with the minister of justice (the positions were separated by the predecessor government in 2008 and unsuccessfully vetoed by president Lech Kaczynski) highlights the great importance that Law and Justice attaches to judicial reform. Nevertheless, it also shows that judicial independence in Poland might increasingly come under threat – not only, but partially due to president Duda’s activism.

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See also my blog posts on similar conflicts over judicial appointment in Slovakia:
Slovakia – Continuing a legacy? President Kiska’s first 3 months in office and the battleground of judicial appointments
Slovakia – One year on, conflict over president’s refusal to appoint judges remains unsolved

Austria – Complaint against narrow runoff result might lead to partial do-over of election

This post first appeared on presidential-power.com on 16 June 2016

After Alexander Van der Bellen won the runoff with a razor-thin margin, calls for a recount and even accusations of electoral fraud from Norbert Hofer’s (FPÖ) supporters were expected. The FPÖ has now lodged a formal complaint with the Austrian Constitutional Court which could trigger a partial rerun of the second round of presidential elections. It is clear that there were some irregularities in the counting of votes and bodies on various levels failed to follow correct protocol. Unfortunately, Austria’s Ministry of Interior and the respective state electoral bodies have also not done the best job in preventing the emergence of further doubts. Given that the FPÖ has yet to make public its list of suspected violations – which is said to exceed the number of previously publicised cases – it is difficult to establish what the outcome of their complaint will be. In any case, the FPÖ has already succeeded in gnawing off some of the new president’s legitimacy before he has even taken office.

The known cases of electoral violations mainly concern the counting of postal votes, idiosyncratic decisions or errors by local officials, and turnout exceeding 100%. Some of the state-level agencies started counting postal votes (which were eventually decisive for the election) too early and some others at least opened the post vote envelopes already on Sunday instead of Monday morning. Although this was against protocol, there is not indication that there was any manipulation or interference with the ballots. In another case in the town of Helfenberg, there were three ballot papers too many in the box after the end of the day even though all voters had been registered twice before casting their vote. Eventually, the local electoral commission decided to take out three invalid votes to make numbers match – while certainly unusual, this seems like a fair decision in relation to its effect on the outcome. The problem here is that the mayor ripped up the three supernumerary ballot papers – a clear violation of federal law. There was also one case where a women was unable to cast her vote due to an error on the electoral register (where she was listed as a postal voter).

More troubling is the report of the municipality Miesenbach in Lower Austria where apparently a handful of 14 and 15 year-olds where allowed to vote – the general voting age is 16. Overall, fifteen teenagers below the voting age were listed as eligible to vote of which five eventually cast a ballot. The reason seems to be that the local electoral commission mixed up the electoral register for the presidential election with the so-called ‘Wählerevidenz’, a constantly updated list based on the local resident registration database. 380 valid ballots were cast in Miesenback, 258 for Hofer and 122 for Van der Bellen, so that it didn’t have a significant impact. Nevertheless, this is a blunder that cannot be easily justified.

For a while the official election website showed 146.9% turnout in Waidhofen/Ybbs

For a while the official election website showed 146.9% turnout in Waidhofen/Ybbs

Last but not least, an embarrassing error fuelled accusations of electoral fraud on the day after the election. The official election website on the pages of the Ministry of Interior showed an impossibly high turnout of 146.9% for the district Waidhofen in the city of Ybbs. A screenshot was widely shared across social media, particularly by supporters of Norbert Hofer. The Ministry later traced the error back to the state electoral commission. While the local district had submitted correct data, the state commission made an error during data entry and transmitted the incorrect data to the Ministry. Human error happens in every election but raises questions over the suitability of the IT systems used by Austrian authorities, e.g. why is there not automated checking of improbable values in the systems? In some other districts, turnout even exceeded 200% as a great number of people made use of proxy voters. In addition, the number of distributed ballot papers was slightly lower than votes received in a few more electoral districts. Nevertheless, while this may seem suspicious to international observers, this is simply due to the postal vote system in place in Austria (as well as in the Czech Republic, Slovakia and Germany). Postal voters receive their ballot paper by post and can either send it back by mail or go to any relevant polling station to cast their vote. The latter happens particularly often when people are on holiday and still want to cast their vote in person (in Germany this is limited to SMD districts).

These known cases alone should not be sufficient to trigger a partial re-run of the presidential runoff in the affected districts. However, the FPÖ claims that violations were recorded in 94 of 117 postal voting districts. Given that it was the postal votes that turned the result around and Van der Bellen eventually won with only 31,000 votes (0.6%) difference, such a claim – if it proves true – would definitely require a do-over of some sort. The Federal Returning Officer, Robert Stein, has however expressed doubts that the whole second round would be repeated. In any case, the FPÖ might have found a way to once again mobilise the anti-establishment vote that Norbert Hofer received. From the point of view of a rational observer, a ‘conspiracy’ against the FPÖ by the state (including public TV stations – one of the FPÖ’s recurrent targets during the election campaign) may be out of the question. Nevertheless, it is likely to resonate with the FPÖ’s core electorate which sees the stigmatisation of the far-right party and categorical exclusion from the federal government as an injustice and plot orchestrated by SPÖ and ÖVP. Even if the complaint is entirely unsuccessful, it casts a shadow over Van der Bellen’s election and will give additional ammunition to the FPÖ in the run-up to and after the next parliamentary elections.

Slovakia – One year on, conflict over president’s refusal to appoint judges remains unsolved

This post first appeared on presidential-power.com on 30 June 2015

In a post last year I discussed Slovak president Andrej Kiska’s first three months in office and in particular his activism in the area of judicial reform. Since then, the conflict over the appointment of constitutional court judges between Kiska and the government has taken a number of unexpected turns which have opened a new chapter in the complicated relationship between presidents, governments and the judiciary in Slovakia.

The Slovak Constitutional Court | photo via www.concourt.sk

On 18 June, Andrej Kiska celebrated his first year in the presidential office. Having beaten Prime Minister Robert Fico, Kiska is the country’s first truly non-partisan president yet given his centre-right policy positions has found himself in cohabitation with the government since his inauguration. While minor conflicts over health care reform and other legislation as well as foreign policy emerged appeared throughout the first year, the most controversial issue has been Kiska’s decision from last July to only appoint one of the six candidates for constitutional court judges proposed by parliament. The Slovak Constitution stipulates that the president chooses candidates from a set proposed by parliament (which is always twice the number of open positions) but offers no guidance on how to proceed if the president fails to do so or by which criteria s/he is allowed to ask parliament for more/other nominees. Since last year, two seats of the constitutional court have thus been left vacant.

After being denied appointment, all three of the judges filed complaints against Kiska in the constitutional court, claiming that his refusal to appoint them had violated their right to take up public office under equal conditions. In March this year, the court’s third Senate ruled in favour of three of the judges, yet apart from determination of guilt and ruling on compensation, it did not issue any further guidance on how the president should proceed (or should have proceeded) – an issue of which some hoped that it would be discussed in the judgement of the other Senate dealing with the separate complaint of the two candidates. However, during the last weeks the two remaining judges have withdrawn their complaint and the court subsequently seized any proceedings in the matter.

The court’s decision in March – although making clear that the president overstepped his boundaries in rejecting five out of six candidates – has unfortunately not brought political actors closer to resolving the issue much closer than a year ago. This is mostly because Kiska and his advisors still question the legitimacy of the ruling. The third Senate includes Jana Baricová -the only judge Kiska appointed last year – who Kiska accuses of being biased as she was involved in the nomination procedure. Nevertheless, a formal complaint and request to hear Baricová as a witness (which would have disqualified her from acting as a judge on the case) was rejected. Yet, eventually a single vote made the difference in the court’s decision which Kiska and his advisors interpret as supporting their claim of bias. These arguments notwithstanding, there are also some problems with the content of the decision as it only insufficiently discusses the way in which the candidates’ rights were violated and failed to spell out criteria under which a rejection would have been lawful (although it should be added that Kiska, too, failed to spell out why exactly he only appointed Baricová). Constitutional experts are currently at a loss of what should be done and by whom. Some argue that Kiska now has to appoint two of the five rejected candidates while others assert that parliament should present four new candidates (i.e. twice the number of open positions) or would only need to present one more candidate as the three nominees from the March decision were still eligible while the remaining two had disqualified themselves by withdrawing their complaint.

The tug-of-war between president and parliament/government over constitutional court appointments is thus likely to continue. Due to the fact that the term of constitutional court judges runs for twelve years and an increasing number of political conflicts is fought in the court, both sides are engaged in a high-stakes game in which one wrong move could have long-lasting consequences. At first sight, Prime Minister Fico and his government appear to be at an advantage given the court’s ruling in March as well as their strong majority in parliament which lets them control all subsequent nominations. However, with general elections approaching (scheduled for March 2016) Fico and his SMER party will be wary to seek a legislative solution (e.g. by changing the constitution or passing a law specifying the nomination procedures to their advantage) which could backfire in the next legislature. Kiska on the other hand needs to make sure that he does not become too active on this issue, thus spoiling his chances to affect policy change in other areas. Yet as the positions of all constitutional judges are up for renewal during Kiska’s term, he may well try to hold out and wait whether parliament will eventually give in to his demands, thus creating a precedent which would significantly increase his power.