Weekly Briefing, Vol. 33, No. 3 (PL), October 2020
Election of a new ombudsman
On September 9, 2020, the term of office of Polish Ombudsman, Professor Adam Bodnar, has ended. Yet, his service to citizens, which lasted for 5 years, did not end with that day – Bodnar continues his function until the election of his successor. Discussions on who could become the new Commissioner for Human Rights have been going on since August and have so far been unsuccessful. What are the tasks of Ombudsman in Polish social and political system? And who can become the new person in office?
Role of Ombudsman in Polish system
The Ombudsman is a body established pursuant to the Constitution of the Republic of Poland and the Act of July 15, 1987, on the Commissioner for Human Rights. According to the letter of the law, a person to be appointed as the Ombudsman should be a Polish citizen, distinguished by legal knowledge and professional experience, as well as high authority due to his/her oral qualities and social sensitivity. The person cannot belong to any political party, trade union or perform public activity incompatible with the dignity of the office. The Ombudsman is appointed by the Sejm with the consent of the Senate at the request of either the Marshal of the Sejm or a group of 35 deputies.
From a legal point of view, the procedure for electing a new Ombudsman introduces the obligation to adopt a relevant resolution by the lower house of the Polish parliament (Sejm), which the Speaker of the Sejm then immediately sends to the Speaker of the Senate (upper house). The Senate has one month to adopt a resolution to express or not its consent to the appointment of a given person as the Commissioner for Human Rights. If it does not adopt a resolution within that time, the Senate shall be deemed to have given its consent. However, if the Senate does not consent, the Sejm appoints another person to the position of the Commissioner.
As a rule, the term of office of the Ombudsman is 5 years, still, in exceptional cases, he/she may resign or be dismissed before the end of term of office. The same person may not be a Commissioner for more than two terms of office, however, it has become customary that after the end of the first term of office a person holding this position does not apply again. The Ombudsman performs the duties until the successor takes up his position. The auxiliary unit of the Ombudsman is the Office of the Commissioner for Human Rights, which in total employs over 300 people; there are also field helpers working in individual regions.
The Ombudsman, assisted by his deputies and the Office of the Commissioner for Human Rights, upholds human and civil rights and freedoms as defined in the Constitution and other normative acts. He/She controls and takes appropriate actions if finds that due to deliberate action or omission by a body, organizations or institutions obliged to respect and implement human and civil freedom, there has been a violation of the law and the principles of coexistence and social justice. The Polish Constitution guarantees that every citizen has the right to apply to the Ombudsman for help in protecting their freedoms or rights infringed by public authorities. Pursuant to the Act from 1987, the Commissioner for Human Rights takes actions at the request of: citizens or their organizations; on his/her own initiative; local government bodies; Ombudsman for Children; or Spokesman for Small and Medium Enterprises.
Election or continuation?
The first person to take up the position of Ombudsman was Professor Ewa Łętowska, elected in November 1987. As she wrote about the beginnings of this office: “The Ombudsman was invented as a decoration rather than a serious state body. (…) considered an ornament“. However, the Ombudsman quickly began to play a significant role as a result of democratic changes. Łętowska herself admitted after many years, what was the most important for her as the Commissioner for Human Rights at the time: “a need to think about the law in such a way that allows us to look at regulations through the prism of human rights and freedoms”. The next persons acting as the Commissioner were: Professor Tadeusz Zieliński (1992-1996), Professor Adam Zieliński (1996 – 2000), Professor Andrzej Zoll (2000 – 2006), Dr. Janusz Kochanowski (2006 – 2010), Professor Irena Lipowicz (2010-2015), and most recently Professor Adam Bodnar (2015-present). Though, his term of office ended on September 9. It was therefore necessary to choose his successor.
In fact the deadline for submitting candidates for the new Ombudsman expired on August 10, 2020. Yet, only one candidate was submitted – Zuzanna Rudzińska-Bluszcz, whose candidacy was supported at that time both by Adam Bodnar (it was in his office that Rudzińska-Bluszcz worked in recent years as his associate), and almost 340 smaller and larger non-governmental organizations in Poland. In the weeks following that date, however, it was clear that the parliament did not intend to deal with the issue of the election – the schedule of work of the parliament until the beginning of October did not include the topic of a new Ombudsman. So it was obvious that Adam Bodnar’s term of office would be extended. The only question was – until when?
Throughout Bodnar’s term – from autumn 2015, when he was elected to this function during the lasts weeks of ruling coalition of the Civic Platform and Polish People’s Party – he emphasized that he was the first spokesman put forward by NGOs. In fact, he was the first truly civic, not political, Ombudsman. Throughout his term of office, he used available resources to defend the rule of law and discriminated minorities, which were under attack by the authorities (i.e. women, children, LGBT, disabled people). In the following years, when Law and Justice Party (Prawo i Sprawiedliwość, PiS) and its coalition partners took over the power, Bodnar was even fought by the ruling party and its supporters. Taking all this into account, it was difficult to imagine that Bodnar’s close associate – Rudzińska-Bluszcz – would be elected as his successor. The currently ruling coalition of conservative parties (Law and Justice Party, Solidarity Poland, and Agreement) has repeatedly mentioned – through the heads of the parliamentary club and the party’s spokesmen – that Rudzińska-Bluszcz “does not represent the political line of the government” and therefore her candidacy will be torpedoed.
And that’s what happened in the weeks that followed. In mid-September, the members of Justice and Human Rights Committee in the parliament listened to the only candidate for the post and held discussions for several hours. Ultimately – by the votes of right-wing parties – the Committee expressed a negative opinion on the motion to appoint Zuzanna Rudzińska-Bluszcz as the Commissioner for Human Rights. No substantive reasons for the rejection of her candidacy were presented.
Nevertheless, the candidate, supported at the moment by already 700 social organizations, decided that she would try again to be elected for this post.
In spite of this, at the request of the Left and the Civic Coalition (opposition parties), her candidacy entered the Sejm. The latter, conversely, rejected her candidacy on October 22 without any discussion. MPs from the ruling camp and the right-wing Confederation voted against Rudzińska-Bluszcz. Regardless of the fact that she was the only candidate for this position (none of the coalition parties even chose its own candidate) with very broad support from non-governmental organizations and the social environment (at the day of voting over 1,100 NGOs of various types), she was not even allowed to speak. Thus, it became clear that PiS and its coalition partners did not agree to her candidacy under any circumstances. In other words, they prefer to keep Adam Bodnar in this position – despite the criticism directed at him – than to choose a new candidate who does not represent “their party’s line”.
In this situation, there are nowadays two solutions – either the government and the opposition parties come to an agreement on a compromise candidate, or PiS will amend the Act on the Commissioner of Human Rights, deleting the provision that the current Ombudsman serves until a new one is elected. And the office of the “acting” Ombudsman will be added. Such an “acting” official could remain in office for any length of time. However, this would be contrary to the Constitution, which only gives powers to a legally elected spokesman.
This situation is very puzzling for several reasons. Firstly, the function of the Ombudsman is already well-established in the Polish political and social system, and the Ombudsman’s merits are indisputable. It seems that parties that focus on the interests of their citizens and repeat the words about “law” and “justice”, should therefore be particularly involved in choosing the perfect spokesman. Secondly, it is surprising that PiS and its coalition partners – knowing when Bodnar’s term expires – have not been able to propose their own candidate for months. No other candidature has been submitted to the Sejm – does this mean that the party does not trust any of its politicians? Thirdly, it is indeed the politicization of this office – the spokesman is supposed to represent the citizens, not a specific party interest. However, the current Polish authorities see it differently.
It may seem that this supporting party interests and disregarding citizens may end bitterly for those in power.