Saturday

25th Mar 2017

Opinion

Poland: A country without a constitution

  • The Palace of Culture in Warsaw, a monument of communist rule (Photo: Jorge Lascar)

With the recent appointment of a new chief judge and enactment of yet another wave of procedural constraints, Poland’s ruling PiS party has finished the takeover of the country’s constitutional court.

Since meaningful EU action based on Article 7 of the EU Treaty is highly unlikely, Poland’s international partners and foreign investors must now face a stark reality: Poland is a country without a functioning constitution.

Dear EUobserver reader

Subscribe now for unrestricted access to EUobserver.

Sign up for 30 days' free trial, no obligation. Full subscription only 15 € / month or 150 € / year.

  1. Unlimited access on desktop and mobile
  2. All premium articles, analysis, commentary and investigations
  3. EUobserver archives

EUobserver is the only independent news media covering EU affairs in Brussels and all 28 member states.

♡ We value your support.

If you already have an account click here to login.

  • Pro-democracy protest in Warsaw last year (Photo: Dariusz Kalan)

To understand the situation, we need to grasp the core legal argument on which Poland’s PiS has based its entire strategy against the court. According to the theory, their parliamentary majority - not enough to formally amend the constitution - can still neuter the country’s basic laws by crippling the court’s power to review the constitutionality of laws that PiS enacts.

Ordinarily, such procedural constraints would themselves be subject to a constitutional review. But the government claims that it can effectively prevent such a review by simply declaring new procedures to take immediate effect.

The “immediate effect” theory is ostensibly based on Article 190 of the Polish constitution, which provides for any law to remain in force until the constitutional court finds it unconstitutional. But PiS claims stretch that principle beyond recognition.

The government argues that the rule binds the Court even when it reviews laws that regulate the Court’s own operations. In short, the Court must act in accordance with any new procedural law, even when it reviews the constitutionality of that very law.

The absurdity of this reasoning was aptly highlighted in the March opinion of the Venice Commission, the constitutional watchdog of the Council of Europe in Strasbourg.

If PiS' argument was right, the commission observed, “an ordinary law, which simply states 'herewith, constitutional control is abandoned - this law enters into force immediately' could be the sad end of constitutional justice.”

The commission’s point is only slightly hyperbolic. PiS has used the “immediate effect” approach to impose a six-month waiting period for most cases reviewed by the court, or introduce unconstitutional supermajorities required to find a law unconstitutional.

Absurd new constitutional controls

Most recently, in stunning defiance of the basic law, another immediately effective law allowed a group of just three legally appointed judges, all of who happened to be PiS allies, to nominate the court’s new chief judge.

The sheer lawlessness of that nomination confounded even one judge recently picked by PiS, who refused to participate in the procedure, joining all the judges elected before 2015 by a liberal majority.

So far, PiS’ focus has chiefly been on stuffing the court with its loyalists. But in the future, the precedential effect of the pseudo-legal “immediate effect” theory may be even more devastating to Poland’s constitutional democracy.

Imagine, for instance, that PiS moves to nationalise a company it dislikes or seize assets of a political opponent. Even potential objections of PiS-appointed judges may not matter. All the government will need to do is to accompany the nationalisation law with an “immediately effective” provision that excludes the constitutional court’s jurisdiction over the law in question.

Without massive judicial protests, Poland is effectively entering a period in which the PiS majority can enact any law, regardless of constitutional norms and values.

Poland’s international partners would be wise to take notice. For the last 25 years, the country has increasingly been regarded as “more or less the West.” That assumption no longer holds.

As far as its constitutional system is concerned, Poland has come to resemble countries like Venezuela, Turkey, or the Philippines, where the will of those in power trumps legal rules and principles.

That is not to say that Poland is likely to see as drastic policy outcomes as the other countries just mentioned. PiS rule is still constrained by a myriad of non-legal forces.

Demonstrations in major cities have been effective in forcing PiS to abandon its most radical ideas.

A slowing economy may soon force the government to accept some tough bargains in exchange for Western investments and financial aid. There is also growing resentment within moderate elements in PiS itself.

Settling political conflicts on the streets, with foreign economic pressure, or through internecine feuds in the regime will almost surely end up badly for Poles and for our future.

Sadly, that pain appears now to be the only way for the country to learn the value of limited, constitutional government.

Maciej Kisilowski is associate professor of law and public management at Central European University in Budapest

Poland defies EU on rule of law

Prime minister Szydlo said the European Commission concerns over rule of law in Poland were political grudges.

Women shake Poland's pillars of power

Polish women are marching again this Sunday and Monday. They could succeed where the opposition, the European Commission and other protests failed, and redraw Poland's political map.

EU must tackle Poland's bad behaviour

Developments in Washington only serve to highlight the need for positive action in the face of an overtly nationalistic and anti-rights form of populism.

Column / Brexit Briefing

The Union under threat

The effect of Brexit will be much more profound on Northern Ireland than on Scotland. Some kind of border controls with Ireland seem inevitable.

Birthday wishes to the European Union

With the EU soon to celebrate its 60th birthday, there are still lingering questions about the bloc's future and whether there can be a change in fortune.

Stakeholders' Highlights

  1. European Gaming & Betting Association60 Years Rome Treaty – 60 Years Building an Internal Market
  2. Malta EU 2017New EU Rules to Prevent Terrorism and Give More Rights to Victims Approved
  3. European Jewish Congress"Extremists Still Have Ability and Motivation to Murder in Europe" Says EJC President
  4. European Gaming & Betting AssociationAudiovisual Media Services Directive to Exclude Minors from Gambling Ads
  5. ILGA-EuropeTime for a Reality Check on International Day for the Elimination of Racial Discrimination
  6. UNICEFHuman Cost to Refugee and Migrant Children Mounts Up One Year After EU-Turkey Deal
  7. Malta EU 2017Council Adopts New Rules to Improve Safety of Medical Devices
  8. Nordic Council of MinistersNordic Energy Research: How to Reach 100 Percent Renewable Energy
  9. Party of European SocialistsWe Must Renew Europe for All Europeans
  10. MEP Tomáš ZdechovskýThe European Commission Has Failed in Its Fight Against Food Waste
  11. ILGA-EuropeEP Recognises Discrimination Faced by Trans & Intersex People
  12. Nordic Council of Ministers25 Nordic Bioeconomy Cases for Sustainable Change

Stakeholders' Highlights

  1. European Free AllianceSupporting Artur Mas: Democracy and Freedom Cannot Be Convicted
  2. UNICEFSyria Conflict 6 Years On: Children's Suffering at Its Worst
  3. International Partnership for Human RightsDomestic Violence in Tajikistan: Time to Right the Wrongs
  4. European Trust SummitCorporate Strategy and Public Affairs in a Low-Trust World - Conference 31 May
  5. Malta EU 2017Agreement Reached to Involve Consumers in Financial Services Policymaking
  6. Nordic Council of MinistersNordic Cities Gather Against Violent Extremism & Introduce Nordic Safe Cities
  7. World VisionFears and Dreams of Syria's Children and Their Peers Around the World
  8. Malta EU 2017Maltese Presidency and EP Agree on Visa Liberalisation for Ukraine
  9. Mission of China to the EUEU Window Chinese Government Academic Scholarship 2017/18 - Apply Now
  10. Nordic Council of MinistersNordic Countries Lead the Way on Women's Economic Empowerment
  11. Center for Data InnovationBuilding Smart Cities for Tomorrow's Data Economy – 28 March - Brussels