Sunday

7th Jun 2020

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.

Read and decide

Join EUobserver today

Support quality EU news

Get instant access to all articles — and 20 years of archives. 14-day free trial.

... or subscribe as a group

  • 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

Disclaimer

The views expressed in this opinion piece are the author's, not those of EUobserver.

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.

News in Brief

  1. Poland accused of 'blatant violation' of EU court injunction
  2. EU concerned by US approach to Kosovo and Serbia
  3. City morgues cast doubt on Putin's virus data
  4. ECB increases pandemic stimulus to €1.35 trillion
  5. New EU cloud computing platform 'moonshot'
  6. City of Berlin passes anti-discrimination law
  7. Iran hits record corona cases in second wave
  8. EU job losses tell tale of pandemic damage

Column

Hawks to doves? Germany's new generation of economists

For many Europeans, Angela Merkel's change looked sudden. But the groundwork started two years ago. Germany slowly ripened for the Merkel-Macron plan. This explains why it didn't meet massive public resistance in Germany.

Stakeholders' Highlights

  1. UNESDAHow reducing sugar and calories in soft drinks makes the healthier choice the easy choice
  2. Nordic Council of MinistersGreen energy to power Nordic start after Covid-19
  3. European Sustainable Energy WeekThis year’s EU Sustainable Energy Week (EUSEW) will be held digitally!
  4. Nordic Council of MinistersNordic states are fighting to protect gender equality during corona crisis
  5. UNESDACircularity works, let’s all give it a chance
  6. Nordic Council of MinistersNordic ministers call for post-corona synergies between economic recovery and green transition

Latest News

  1. EU warns UK to abide by Brexit political declaration
  2. Internal EU borders open by 15 June - bar V4, Portugal, Spain
  3. CAP 'failed to halt biodiversity loss', auditors find
  4. After Covid-19, deserted Venice struggles to survive
  5. Commission plans strategy to 'maximise' vaccine access
  6. How spies use women to steal EU secrets
  7. Hong Kong - when the Chinese Dream became a nightmare
  8. Right of reply: Letter from the Hungarian government

Join EUobserver

Support quality EU news

Join us