Wednesday

21st Feb 2018

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.

Thank you for reading EUobserver!

Subscribe now for a 30 day free trial.

  1. €150 per year
  2. or €15 per month
  3. Cancel anytime

EUobserver is an independent, not-for-profit news organization that publishes daily news reports, analysis, and investigations from Brussels and the EU member states. We are an indispensable news source for anyone who wants to know what is going on in the EU.

We are mainly funded by advertising and subscription revenues. As advertising revenues are falling fast, we depend on subscription revenues to support our journalism.

For group, corporate or student subscriptions, please contact us. See also our full Terms of Use.

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.

Analysis

We are not (yet) one people

Talks on the next EU budget will start on Friday. Brussels wants to do much more than before – and needs a lot more money. But arguing about funds won't be enough.

Intellectual property protection - the cure for Europe's ills

The European Commission is considering rolling back medical research incentives, on the faulty assumption they are somehow driving higher drug prices. But not only is that premise flawed – the proposed fix will do nothing to benefit ordinary health consumers.

News in Brief

  1. Commission fines car cartels €546m
  2. Juncker: 'nothing' wrong in Katainen meeting Barroso
  3. Juncker appoints new head of cabinet
  4. MEPs decide not to veto fossil fuel projects list
  5. Factory relocation risks drawing Vestager into Italian election
  6. Irregular migration into EU drops to four-year low, says Frontex
  7. Macron's new migrant law faces opposition in parliament
  8. MEPs approve anti-smuggling bill on tobacco

Stakeholders' Highlights

  1. Macedonian Human Rights Movement Int.European Free Alliance Joins MHRMI to End the Anti-Macedonian Name Negotiations
  2. International Climate ShowSupporting Start-Ups & SMEs in the Energy Transition. 21 February in Brussels
  3. Mission of China to the EUChina-EU Tourism Year to Promote Business and Mutual Ties
  4. European Jewish CongressAt “An End to Antisemitism!” Conference, Dr. Kantor Calls for Ambitious Solutions
  5. UNESDAA Year Ago UNESDA Members Pledged to Reduce Added Sugars in Soft Drinks by 10%
  6. International Partnership for Human RightsUzbekistan: Investigate Torture of Journalist
  7. EPSUMovie Premiere: 'Up to The Last Drop' - 22 February, Brussels
  8. CESICESI@Noon on ‘Digitalisation & Future of Work: Social Protection For All?’ - March 7
  9. UNICEFExecutive Director's Committment to Tackling Sexual Exploitation and Abuse of Children
  10. Nordic Council of MinistersState of the Nordic Region 2018: Facts, Figures and Rankings of the 74 Regions
  11. Mission of China to the EUDigital Economy Shaping China's Future, Over 30% of GDP
  12. Macedonian Human Rights Movement Int.Suing the Governments of Macedonia and Greece for Changing Macedonia's Name

Latest News

  1. Bank of Latvia sends deputy to ECB amid bribery probe
  2. We are not (yet) one people
  3. Intellectual property protection - the cure for Europe's ills
  4. Eastern states push back at rule of law conditions on funds
  5. Katainen explains: My friend Barroso did not lobby me
  6. A European budget: securing a prosperous future for Europe
  7. Poland wrong to log in ancient forest, says EU lawyer
  8. EU taxpayers risk bailing out MEP pension scheme

Stakeholders' Highlights

  1. Dialogue PlatformBeyond the Errors in the War on Terror: How to Fight Global Militarism - 22 February
  2. Swedish EnterprisesHarnessing Globalization- at What Cost? Keynote Speaker Commissioner Malmström
  3. European Friends of ArmeniaSave The Date 28/02: “Nagorno-Karabakh & the EU: 1988-2018”
  4. European Heart NetworkSmart CAP is Triple Win for Economy, Environment and Health
  5. European Free AlllianceEFA Joined the Protest in Aiacciu to Solicit a Dialogue After the Elections
  6. EPSUDrinking Water Directive Step Forward but Human Right to Water Not Recognized
  7. European Gaming & Betting AssociationGambling Operators File Data Protection Complaint Against Payment Block in Norway
  8. European Jewish CongressEJC Expresses Deep Concern Over Proposed Holocaust Law in Poland
  9. CECEConstruction Industry Gets Together to Discuss the Digital Revolution @ the EU Industry Days
  10. Mission of China to the EUChina-EU Relations in the New Era
  11. European Free AlllianceEnd Discrimination of European Minorities - Sign the Minority Safepack Initiative
  12. Centre Maurits Coppieters“Diversity Shouldn’t Be Only a Slogan” Lorant Vincze (Fuen) Warns European Commission