Until 2017, the system functioned similarly to other democratic countries. The Supreme Court was the Supreme Court, the National Election Commission consisted of politically independent judges – the problems that will be discussed in the following points simply did not exist until the PiS takeover.
In 2017, PiS, the ruling party, decided to take over the courts. Without further ado, in the spring of 2018 the situation began to look like this: the National Council of the Judiciary was replaced by the neo-NCJ, which was created in violation of the law, including the law that PiS had hastily written at the time. The neo-NCJ began to appoint so-called neo-judges. In addition, two new chambers were created in the Supreme Court, both composed entirely of neo-judges.
In the following years, a number of courts, both Polish and European, stated unequivocally that the new judges were not properly appointed and therefore could not be treated as judges. If this is the case, then the panels on which they sit cannot be considered proper either. And it follows that their rulings are not rulings. If anyone wants to read about this in detail, there is even an extensive article on Wikipedia, full of links, entitled "The Crisis Surrounding the Supreme Court in Poland". Yes, thanks to the collective wisdom of the party we have come up with something like this. As an antidote, I recommend an equally comprehensive text entitled "The Crisis Surrounding the Constitutional Tribunal in Poland".
A legal mess has been created. On the one hand, we have a series of rulings that say which judges and which rulings are wrong. On the other hand, it is well known that this opens the way for all rulings to be freely disregarded all the time. When PiS is in power, this does not matter so much, because the neo-judges issue rulings according to the government's wishes.
In the so-called meantime, PiS decided to politicise the National Election Commission. In December 2017, it "suddenly emerged" that the regulations had to be changed and the term of the National Electoral Commission would end after the 2019 parliamentary elections. From that moment on (December 2019), up to seven of the nine members of the Commission were to be appointed by the Sejm. Previously they were simply delegated by the Constitutional Tribunal, the Supreme Court and the Supreme Administrative Court, but from 2019 they will simply be appointed by the ruling majority. Several requirements for non-political status have also been abolished. As a result, members of the National Electoral Commission appointed by the PiS majority also worked in state-owned companies staffed by the PiS government. Best of all, PiS members explained this with the need to ensure greater, yes, independence.
In the so-called meantime, in 2018, PiS also changed the electoral code. Specifically, it removed a comma in Article 106.1. The sentence "Every voter may conduct election campaigning on behalf of candidates, including collecting signatures in support of candidates' applications, after obtaining the written consent of the electoral commissioner" was replaced by "Every voter may conduct election campaigning on behalf of candidates, including collecting signatures in support of candidates' applications after obtaining the written consent of the electoral commissioner". So from now on the written consent of the electoral commissioner was only required for collecting signatures, not for campaigning. So anyone can campaign. It goes without saying that this opened the door to serious abuses.
What exactly happened? In 2023, PiS used public funds to help itself in the election campaign. They did the same in 2019 and 2020. I'm sorry, but that's what happened. Saying this is not a political statement, it is just a statement of fact. Everyone saw that the TVP was promoting PiS (in 2020 even the OSCE observer mission said so), everyone saw that party events were financed by state companies, that the Justice Fund was used to help Sovereign Poland candidates, that the Research and Academic Computer Network was being used for the campaign, etc., etc. That's how it was.
In October 2023, PiS loses the parliamentary elections. From now on, the legal mess will fall on the head of the new government, which will face a real dilemma. If it accepts the illegal rulings of the neo-judges, it will be acting against the rulings of the EU courts and against its own assurances from the time in opposition. If it rejects or ignores them, it will be widely criticised (both by PiS supporters and both-sideists) for acting in an authoritarian manner, using PiS methods with white gloves, and so on. It is also known that if PiS returns to power, it will use this fact as an excuse to completely disregard the law. Thirdly, the government has no way of fixing this mess, because president Duda has repeatedly said that he will not sign such a bill.
In fact, what is law in Poland is determined by who trusts which rulings. This is precisely the destruction of the state that has been talked about since the very beginning of the PiS' destruction of the judiciary. These are precisely the effects of this "erosion of the rule of law" and "violation of the constitution" that were so ridiculed. Today, exactly what was predicted in 2015 or 2018 is happening.
In December 2023, the new parliamentary majority appointed new members of the National Electoral Commission. In accordance with the PiS law of 2019. Although PiS was allowed to appoint two people, the remaining five were chosen by the new majority.
In August 2024, the National Election Commission found that PiS had illegally financed its 2023 campaign. PiS appealed the decision to the Supreme Court. And this is where the trouble begins. The appeal does not simply go to the Supreme Court, but to a PiS-created chamber. This is a body that is not a court. Instead, it is filled with neo-judges.
This chamber, as expected, accepts the PiS appeal. In other words, it orders the National Election Commission to release the money.
But everyone knows that the chamber is illegal. The difference is that so far it has had no impact on a matter as important and news-worthy as a multimillion-zloty subsidy to a major political party a few months before the presidential elections. So the National Electoral Commission should not recognise the decision and… it is not known what to do. Maybe wait for a joint decision of the whole Supreme Court? But the whole Supreme Court is full of neo-judges. Put together a panel of only duly appointed judges? Imagine the political reactions, especially if such a panel rejected the PiS appeal. On the other hand, it could be risky to undermine the decision of this chamber, since it is the one that will certify the result of the presidential election. This is the argument that the chairman of the National Electoral Commission, Sylwester Marciniak, a PiS nominee, used against his colleagues on the National Electoral Commission.
Let me add that there was no legal argument here, only a political one. Marciniak did not cite this or that rule, but the fact that the decision of the National Electoral Commission now, even if it were legal, could mean political chaos in a few months' time. Chaos that would not have existed without the "reforms" carried out since 2017.
The National Electoral Commission is dragging its feet. This alone is causing a wave of criticism and accusations of trampling on the constitution, breaking the rule of law, etc. Everyone knows that the chamber is illegal. Nevertheless, the prevailing view is that the government should ignore it. In other words, de facto condone the state of lawlessness.
Finally, on 30 December, the National Electoral Commission made a split decision. The entire resolution is barely three paragraphs long. The second paragraph contains the bizarre statement that "[the resolution] is immanently and directly linked to a decision that must come from a body that is a court in the sense of the Constitution of the Republic of Poland and the Electoral Code. The National Electoral Commission does not prejudge the fact that the Chamber of Extraordinary Control and Public Affairs is a court within the meaning of the Constitution of the Republic of Poland and does not prejudge the validity of the decision". In other words, the National Electoral Commission says that the resolution is the result of a decision that MUST come from a court, while NOT PREJUDGING that it comes from a court. Nevertheless, the third paragraph briefly states: "There is no legal remedy against this decision".
I am not a lawyer, but it seems to me that it is safe to say that the National Election Commission has simply passed the buck to someone else. This is also evidenced by Balicki's assertion that he does not decide whether the chamber is a court or whether its decision is valid. In the interview he also stated: "It's not that we have changed our minds, because we still believe that this case should be considered in a systemic way, but this decision is in the hands of politicians, not the National Electoral Commission". And, to make it even funnier, he declared that if he were Finance Minister Andrzej Domański (who physically conducts such transfers), he would not pay the money. Ryszard Kalisz, who voted against, for his part, added: "The colleagues who proposed the version of the report with the second point believe that this does not mean at all that the money should flow, because they stated there that the Chamber of Extraordinary Control is not a court. It is difficult for me to say what the application to the Minister of Finance will look like'.
Prime Minister Donald Tusk commented on X that the resolution implies that "there is no money and there will be no money". Of course, he is criticized for cutting off his biggest competitor from funds at his own discretion and without considering the law.
Andrzej Domański is only a minister and, according to what I have read, he has no prerogative to accept or reject the decisions of any chamber. On the other hand, according to the rulings of the European courts, there was no ruling because this chamber is not a court. This is an utter mess. No decision will be legal. Will the government reject the Supreme Court ruling? So any citizen can do that, yes? Will the government accept the decision of the Supreme Court? So you can create illegal kangaroo courts and the liberal mainstream will eventually accept them. Of course, a thinking person understands that there is a difference between a court and a kangaroo court that is not legally recognised as a court. But the logic of partisan warfare has long since prevailed, and such trifles as objective truth are of little interest to anyone. Everyone knows that this chamber is illegal. And yet almost everyone will slam the government if it ignores its decision. Decisions are made not on the basis of the law, but on the basis of the emotions of the pundits on cable TV.
In the background is the spectre of chaos surrounding the presidential elections. In December, the PiS media began to spin that the "globalist regime" would somehow annul the elections (as if the polls indicated Karol Nawrocki's victory). This was accompanied by fears on the anti-PiS side that the neo-judges might not confirm the elections in view of Rafał Trzaskowski's expected victory, arguing, for example, that TVP favoured the government. Or that PiS had been deprived of campaign funds. If the government recognises the Supreme Court ruling, it will have to acknowledge the potential lack of acceptance of the election result. If it ignores it and the chamber questions the elections, PiS and some of its supporters will question Trzaskowski's legitimacy. An absolute mess.
The government is now trying to prevent this by any means possible. Sejm speaker, Szymon Hołownia proposes that the elections be confirmed by the entire Supreme Court. Except that it is also full of neo-judges. Hołownia's idea sounds good, but it doesn't really solve the problem, it just (slightly) blurs the responsibility for the potential shitshow that may occur in a few months' time. Which will be the logical consequence of the shitshow that the PiS has been cultivating for the two terms of its government.
That's why courts are created that are independent of the executive and whose decisions are respected by everyone, so that such situations don't arise. In Poland it worked fine a decade ago, and then PiS came along and 'reformed' it. But remember, if you remind us of this, you are a Tusk's fanboy (who knows, maybe the KO staff just pays you, ha!) and you are taking part in partisan warfare.
Finally, let's add something very important. Contrary to what PiS and some non-PiS pundits say, Kaczyński's party is not being persecuted here for political reasons. It's just the opposite. Jarosław Kaczyński's party can avoid responsibility for political reasons. It is only for political reasons that the question of whether it will be punished for financing its campaign has been raised at all. If Smith pays for his private pleasures with the money of the homeowner association, no one doubts that Smith should stand before a court and be punished (or not) according to the verdict of that court. But when PiS does the same thing, only on a hundred times the scale, the matter becomes political. And suddenly you have to think about the presidential elections, the polling numbers, what Trump hears on Fox News, future twists and so on. PiS, like large banks, is "too big to fail". Even if the case is clear-cut, and it is, the government can deliberately let Kaczyński off the hook simply because a different decision might cause too much political uproar. So the members of Smith's HOA have gathered under the noticeboard and are debating whether a fine won't spoil the atmosphere at the next meeting of the HOA. And whether Smith won't later convince the residents that the HOA is persecuting him. Whether he won't accuse other members of stealing as well. They didn't steal anything, but who knows how effective Smith's propaganda will be. Well, that's the way it looks.
I hope I have helped.
Posted by ghhewh