Monday

18th Jan 2021

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

Become an expert on Europe

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.

EU name change masks new restrictions in development sector

This week the European Commission's Directorate for Cooperation and Development changes its name to the Directorate-General for International Partnerships - in a symbol of how early-industrialised countries seem to be losing influence to the benefit of some emerging countries.

News in Brief

  1. Navalny arrest prompts calls for EU sanctions
  2. Portugal's EU celebration caused corona risk
  3. Women's rights protesters 'evil', Poland's Kaczyński says
  4. Eurostar says government help needed for survival
  5. German party elects Armin Laschet to continue Merkel's line
  6. Vaccine-apartheid on show in EU neighbourhood
  7. Hacked EU files show pressure for quick vaccine approval
  8. EU court and Irish dog make history

Column

BioNTech: Stop talking about their 'migration background'

I understand that the German-Turkish community - often subjected to condescension in Germany - celebrated the story. Uğur Şahin and Özlem Türecki represent scientific excellence and business success at the highest level.

Italy's return to statism spells trouble for the eurozone

There are profound questions about whether the windfall of cash from the EU coronavirus recovery fund will truly help Italy recover or whether it will cause more problems than it solves, for Rome and the rest of the eurozone.

Stakeholders' Highlights

  1. UNESDAEU Code of Conduct can showcase PPPs delivering healthier more sustainable society
  2. CESIKlaus Heeger and Romain Wolff re-elected Secretary General and President of independent trade unions in Europe (CESI)
  3. Nordic Council of MinistersWomen benefit in the digitalised labour market
  4. Nordic Council of MinistersReport: The prevalence of men who use internet forums characterised by misogyny
  5. Nordic Council of MinistersJoin the Nordic climate debate on 17 November!
  6. UNESDAMaking healthier diets the easy choice

Latest News

  1. How one man and his dog made a mark on EU history
  2. Frontex spent €94,000 on a dinner in Warsaw
  3. EU's AI military strategy poses 'threat to Europeans'
  4. EU leaders seek to speed up vaccinations This WEEK
  5. EU name change masks new restrictions in development sector
  6. Frontex and Europol pledge greater access to documents
  7. Dutch government resigns two months before election
  8. The battle for Germany's ruling party that will change Europe

Join EUobserver

Support quality EU news

Join us