Comment by Gwypaas | Hacker News Reader

Comment by Gwypaas | Hacker News Reader

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Regarding the majority party of the coalition which he is governing with.

The party has caused what constitutional law scholar Wojciech Sadurski termed a "constitutional breakdown"[58] by packing the Constitutional Court with its supporters, undermining parliamentary procedure, and reducing the president's and prime minister's offices in favor of power being wielded extra-constitutionally by party leader Jarosław Kaczyński.[46] After eliminating constitutional checks, the government then moved to curtail the activities of NGOs and independent media, restrict freedom of speech and assembly, and reduce the qualifications required for civil service jobs in order to fill these positions with party loyalists.[46][59] The media law was changed to give the governing party control of the state media, which was turned into a partisan outlet, with dissenting journalists fired from their jobs.[46][60] Due to these political changes, Poland has been termed an "illiberal democracy",[61][62] "plebiscitarian authoritarianism",[63] or "velvet dictatorship with a façade of democracy".[64]

https://en.wikipedia.org/wiki/Law_and_Justice#In_majority_go...

Yep the government has for a while been dismantling any opposition by stacking the courts, replacing critical state media, attacking journalists and so on. The support for this kind of law is actually just consequent because social media is the platform that lends itself most to riling up a mob.

It's simple majoritarianism, rallying a hyper-loyal voter-base and disadvantaging scholars, intellectuals, scientists and so on.

A similar stupid law was proposed by a Romanian minister some years ago but with the goal of stopping you calling people (basically ministers) idiots on website comments.

They eventually realized it's not enforceable and it just created some fuss.

The reason that died as it started is because there's no way how such a thing ever work or be enforced.

Does it not matter where I host my site?

What can Poland do about my website hosted in UK (or any other country)?

At worst this just destroys any hosting services that operate in that country.

This comment misrepresents the situation by failing to indicate that the 'Constitutional Crisis' started before the current Law and Justice government took power by the previous governments anti-constitutional actions of trying to appoint Constitutional Court judges ahead of the end of their terms.

For a summary of events: [1]

Imagine if Barack Obama / George Bush decided to go ahead and punt some SCOTUS members ahead of the end of their terms, because they were afraid they were going to lose his upcoming elections? Imagine what what the consequences would be.

'Law and Justice' , after having won elections came in and did some nasty things (which you point out) and were sanctioned by the EU for it, however, it's hypocritical that the group that initially broke the law on a very fundamental issue were not also sanctioned.

I don't remotely support any of this, but it's important to consider that this didn't just happen out of thin air.

This 'free speech' bill is an interesting political issue, I wonder how much of this is pointed at the local population, or how much of it is trying to obtain some populist goodwill in other EU nations ... or if it's trying to gain some kind of 'moral high ground' leverage in their current 'issues' with the EU.

[1] https://en.wikipedia.org/wiki/2015_Polish_Constitutional_Cou...

> This comment misrepresents the situation by failing to indicate that the 'Constitutional Crisis' started before the current Law and Justice government took power by the previous governments flagrant anti-constitutional actions of trying to appoint Supreme Court Judges ahead of the end of their terms.

It was the Constitutional Court, not Supreme Court. Also, no, not really - that didn't start the crisis in any reasonable meaning of that word. In a correctly functioning democracy that would simply be blocked by Constitutional Court, and that's in fact exactly what happened. The problem started when currently ruling party replaced not only the extraneous judges, but also those judges who were lawfully supposed to be appointed by previous government. Of course the Constitutional Court deemed that unconstitutional, but that didn't stop the ruling party at all, and the rest is history.

"Also, no, not really - that didn't start the crisis in any reasonable meaning of that word."

The entire world disagrees with this.

The issue, in public, is very clear - actions by the the previous government in the summer of 2015 were declared anti-constitutional, and later actions highly undemocratic.

There is no doubt that this was the 'start of the crisis' by any objective measure.

It doesn't matter how much we may not like certain 'current authorities' - History is History - people should stop trying to rewrite it to suit their narrative. Suppressing these unfortunate events is not going to help anyone's cause in the long run.

> ruling party replaced not only the extraneous judges, but also those judges who were lawfully supposed to be appointed by previous government

The problem is that previous government broke the law in more than one way:

1. They appointed more judges that they were allowed to.

2. They did appoint all those judges by means of single parliamentary resolution, despite the fact that Polish Constitution clearly requires voting for each judge separately.

Given those two points NONE of the judges was appointed lawfully, and there was no other way forward than repeal the whole resolution, therefore removing all 5 unlawfully appointed judges.

> and there was no other way forward than repeal the whole resolution

That's not what happened though. The Constitutional Court ruling[1] deemed the appointment of three judges constitutional, and two of them unconstitutional - and, according to the Constitution, those rulings are final, immutable and to be immediately published. However, president Duda didn't swear any of the new judges, despite of being legally obliged to (the president doesn't have the right to decide whether the judges were appointed legally or not, it's the Constitutional Court's job) and once PiS appointed five new judges (instead of two they were legally able to) the president swore them all.

[1] https://trybunal.gov.pl/postepowanie-i-orzeczenia/wyroki/art...

Uh, whose interpretation is that? Constitutional tribunal ruled itself that three judges were correctly appointed by previous parliament. (case K34/15)

So in keeping with the law at the time (well the law they passed), they elected 5 justices to replace up coming vacancies. Later it was ruled that 2 of those nominations were unconstitutional (I think because they were for justices who's terms expired after the new legislature was seated), but the newly elected Law and Justice government refused to seat any of them and elected their own slate of 5 justices. When the constitutional tribunal refused to include those 5 justices until the dispute was resolved, rather than back down the new government raised the threshold to conduct business so that the new justices would have to be included and even worse chose to interpret a clause requiring a majority to mean a supper majority and gave themselves the power to remove justices.

The constitutional tribunal ruled this new law unconstitutional, but because that ruling was not made under the new rules introduced by the again according to them unconstitutional law the new government ignored it.

It's one thing to pass unconstitutional laws and quite another to pass unconstitutional laws and refuse to listen to listen when you're called out on them

This is all fine and good - but the previous governments 'changing of the law' governing Judicial appointments, and then controversially 'stacking the court' to 14 out of 15 appointments in their favour, is clearly the first salvo in a constitutional war.

There is no doubt.

It doesn't matter that 'we don't like the jerks in charge' or that 'they've done bad stuff' - the fact is the crisis was obviously initiated before they came to power.

Much like pretty much everyone here hates Trump (I certainly do), but he was unfairly castigated in the press with the 'Mueller investigations' which de-facto absolved him of any Russian shenanigans. It doesn't matter that he lies about election results - he was not colluding with Russians.

If either side in in the US tried to pull what the previous Polish government did - it would set off major events, possibly conflict, worse than what we're seeing today for sure.

The previous government action was unconstitutional, but it was hardly a crisis. We had all the tools needed to handle such case and those tools got used as they should. Only after later actions of the current government those tools became inadequate to handle the situation, causing the crisis.

We don't call every unconstitutional bill "a crisis" and I'm pretty sure of that as there were quite a lot of them already.

Also, I'm by no means a supporter of the previous government, so you can stop building your strawmans.

BTW:

> 'stacking the court' to 14 out of 15 appointments in their favour

Most of them were appointed with votes from both previous and current ruling parties. Just sayin'.

> which de-facto absolved him of any Russian shenanigans. It doesn't matter that he lies about election results - he was not colluding with Russians.

This is quite literally the opposite of the stated conclusion of the Muller investigation. It's not clear to me how you get "absolved him from any Russia shenanigans". There were clear links between the campaign and Russia (up to and including Trump Jr. meeting with a Russian Lawyer for "dirt" on the Clinton campaign), likely in return for changes to the Magnitsky act. That's all plainly stated in the muller report.

He ultimately didn't charge them because while there may have been intent to collude, it didn't pan out.

Well Obama did ask Bader-Ginsburg to step down when democrats had control of the senate (I think she’d only had cancer once at the time), but I guess you’re referring to something stronger than just asking judges to step down.

I feel like the US Supreme Court nomination system only works through a combination of frequent changes of power and most judges believing in the system and following the unwritten part of the constitution, and that the US example isn’t really a good one to copy in other democracies.

What happened is roughly this: in Poland's Constitutional Tribunal (which is as close of an equivalent of US Supreme Court as you can get in a country with a civil law system), the judges are not elected for life, but only for fixed term. As the term of the elected government was coming to an end, so were the terms of 5 of the justices in the Tribunal. However, two of these terms ended within the elected government's term, and three after it ended. As a result, the ruling party (PO) had a clear right to nominate 2 justices, and hardly any right to nominate the other three. It decided to nominate all 5 nevertheless.

The party that won the subsequent election, PiS, refused to recognize any of the 5 justices nominated by PO, and nominated 5 of their own. What happened afterwards you can read in the Wikipedia article.

Did both of those things happen through some loophole? Or is the elected party just able to kind of do whatever they want unstopped?

As far as I can tell, neither of these actions was based on any “loophole”. However, the nature of the rule of law is that it only works as long as everyone plays by the rules. When the government decides it does no longer has to play by the rules, there isn’t much that can be done to oppose them, as they still hold all the power, and are presumed to hold political authority.

> Imagine if Barack Obama decided to go ahead and punt some SCOTUS members ahead of the end of their terms, because he was afraid he was going to lose his upcoming elections?

Imagine if Barack Obama had Supreme Court appointments blocked by Republicans on constitutionally flimsy grounds that were immediately ignored when the Trump administration was in identical situations.

Would any "nasty things" done by a future Democrat administration then be laid at the feet of this original malfeasance, forevermore, or would it be misrepresentation not to mention it?

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