Andrzej Rzeplinski is a lawyer specializing in criminal law, a constitutional judge and President of the Constitutional Tribunal of Poland since the 3rd of December 2010. He welcomes me in his office in Warsaw, just a week before the expiration of his 6-year term, 19th December 2016.
Last 24 October in an interview with Le Monde you said that Poland is going through a very difficult phase because the ruling party, Law and Justice (PiS – Prawo i Sprawiedliwość) is “determined to put the Constitutional Court under political control”. Is this crisis caused by the controversial appointment of several members of the Court?
Yes. The Constitution establishes that the Constitutional Tribunal (TC) is composed of 15 judges, but today we have 18. This is a problem and it is the reason of the conflict. The point is that the ruling party not only wants to control the TC, it wantsto turn in into a sort of Privy Council, a body with no prerogatives, no independence, no real strength; an advisory body for the “leader”.
Is there a risk that the separation of powers might be compromised and that Poland will no longer be a country sub legem but sub hominem?
Yes, absolutely. But there’s more: today the majority leader, Jarosław Kaczyński, said he wants to improve the quality of parliamentary opposition! The situation is getting out of control. It makes me think of Kazakhstan: I do not know the standards of that country, which is beautiful, but with a rather strange political system. It seems to me that we are moving in that direction.
Is there a measure that the Government has taken or is determined to take in the near future that you find particularly worrisome?
The government want to create the new Constitutional Court as soon as possible, by December or end of January 2017 the latest, to permanently solve the ongoing conflict with this Court. For the rest, they want what Vaclav Havel of Czechoslovakia called “deadly silence”. This does not mean the death of anyone, but that everything is correct, the opposition will improve, everyone will love it and there will be a single center, a single political decision-making centre. This is the manifesto of the party in Government, which basically means no separation of powers, no checks and balances, and so on and so forth. None of these stupid things that make every decision impossible. No wonder that the leader officially uses the term “impossibilism”. When I say “leader” I mean leader Kaczynski, our former Prime Minister in 2007. He is not in office today, he is not the President, he is not a Minister, he is not the Attorney General, he is not a judge, he is not even a member of the Government. He works behind the courtains, he acts in his capacity as president of his party. The official name of this institution is the Centre for Political Decision (CPD), inspired by Carl Schmitt, the great jurist who focused on the functioning and organization of the State. The CPD must be independent from Government, as well as from the President and the judiciary. It may be composed by a group of people, but one person only can be enough because he knows what is best for the people and no one can object to decisions, because the center is the center and it cannot be wrong.
Did you also criticize President Andrzej Duda?
No. Mr Duda is the President elected by more than 18 million people and I respect the results of parliamentary and presidential elections. Not only because I am a constitutional judge, but because I respect democracy. I work hard because I want Poland to be a democratic state, a state observing the law, the Rechtsstaat, a state that imposes nothing upon its citizens who are free because they have rights and not because they are given something special by the government.
Recently you attended a session of parliament from the stands and you were openly booed by the deputies of the majority party. What happened? Were you invited to attend that session?
I think it is a question of constitutional practice. In the tribunes, there is a place reserved to the President of the Constitutional Court and he or she can attend whenever they want. Both the government and the majority party never invited me to attend any session. That day I decided to attend and twenty minutes into the debate the former Minister of Justice, Mr Budka, took the floor to announce my presence and to condemn the fact that the President of Parliament had ignored me.
What do you think of the initiative by the European Commission and the recommendations that Brussels has sent to Warsaw last summer on the respect of the Rule of Law?
The European Commission finds itslef in a very difficult position because from its viewpoint the complicated Polish situation is not the main issue. There are more important crises in North Africa, the Middle East, Russia, Ukraine, the Balkans. For me, this “happy Europe” is history. If I were in Juncker’s or Timmermans’ shoes I would be careful, because what the Commission has done for the Constitutional Court was very important. We are part of the European system, but our local official propaganda depicts Europe as the stranger, the alien, as the enemy who has no idea of what is really going on in Poland. This is a problem and a contradiction because year after year Poland contributes more and more to the European budget. In 1989-1990 we were in a worse position than it was Greece two years ago. We received financial aid, including investments, expertise, banks from both Europe and the US, and this has generated profits that have allowed this country to grow.
Last October, the European Parliament passed a resolution calling for the creation of a mechanism to monitor and review the rule of law and fundamental rights in the EU. Do you think this is a useful tool?
Individually, Member States have tools to monitor the respect of the rule of law. But if we want all States to enforce the principles set out in Article 2 of the Treaty of Lisbon – which means equal laws and rights for all – it is right to put in place an independent body composed of the best experts of the Member States that operate upon request or ex officio.
People took the streets to show support to you and to the Constitutional Tribunal. It has a message for those manifested? He believes that the media are informing people properly?
I use public transportation. I haven’t got a driver’s license and I find it ok to take the bus. For me the road is a friendly environment. I’m not seeking the support of the public because I am not a politician. I do what I do because it’s what I have to do. But I’m not naive either. I know there are people out there who want me dead. There are at least two investigations under way, arising from direct and real threats addressed to me via Twitter. If I were afraid I should resign. In respect of the media, the public broacasting is a problem. But no one is obliged to watch it.
Do you have a bodyguard?
No. I think I’m the only president of the Constitutional Court in Eastern Europe without security.
No security? That’s courageous.
No, it’s not my style. I know that you can pay a very high price, take Olof Palme. But this can happen even if you are surrounded by the best secret service. I do not want to compare myself to Palme or Kennedy because they had different a different role, and however the police informed me that I have a form of protection, not visible.
Your term expires on December 19. What do you think will happen after you have left?
As I said earlier, the goal of PiS is to turn the Constitutional Tribunal into a sort of privy council. Private, but still paid for with taxpayers’ money. A body reporting to the man in charge and that might be called “National Constitutional Council” or something similar. De Gaulle, for example, wanted the Constitutional Council instead of the Constitutional Court because the first one would have helped him monitor the Senate and block, when deemed appropriate, unwelcome legislation. As time went by, the French Council has increasingly assumed the traits of a typical Constitutional Court. In Kazakhstan, President Nazaerbayev reformed the Constitutional Court to replace it with a Constitutional Council. He removed the members of the Court, thus obtaining a brand-new institution. The same occurred in Belarus with Lukashenko, who has changed the denomination, composition and function of the court, reducing it to a mere advisory body. I do not think the same will happen in Poland, because the countries I referred to are authoritarian regimes, yet I am still very worried.
Do you have plans for 20 December?
I will return to teach law at university, if the Attorney General does not show particular interest in me as soon I will not be President! I have excellent colleagues who I am very glad to go work with, plus I just finished a unique research in Europe on the institution of life imprisonmente. Among other things, I remember when I spent some time in Italy in the late 80s at the Court of Cassation in Piazza Cavour, Rome. There was a referendum on the civil liability of judges and the result was obvious: more than 80% in favor.
In conclusion, do you think that there is an erosion of the Rule of Law?
Yes, we went too far in the wrong direction and it is now time to correct something, otherwise authoritarian regimes will rise again. I agree with Churchill when he said that “any democratic deficit can be overcome with more democracy”.