“Existential Judicial Review” in Retrospect, “Subversive Jurisprudence” in Prospect: The Polish Constitutional Court Then, Now and … Tomorrow
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The symbolic jurisprudence and the rule of law will never be wiped out entirely as long as judicial review and the Constitution will be reinforced by the ordinary courts, and as long as citizens do not forget about the institution they used to call “Polish Constitutional Court”. Once the ordinary judges fail the test, and cave in to the political pressure, and the citizens forget, subversive jurisprudence will indeed reign supreme
- Unconstitutional capture made the Polish Constitutional Court a pawn on the political chessboard, making it a part of the new authoritarian system;
- The capture has rendered the Court and its proceedings and rulings unconstitutional and “scarred”, by appointing illegal judges, themselves validating their own election, invalid election of the Court President, political selection of judges for cases and removal of past rulings from public domain;
- The resulting subversive jurisprudence by the Court serves as extension of Parliament party majority and uses judicial and constitutional review as a weapon against the opposition and instrument of institutional capture, rubber-stamping unconstitutional actions of the parliament and the executive;
- Subversive role of the captured Court manifested itself in several landmark cases such as law on assemblies, giving retroactive priority to newly defined cyclical assemblies and capture of the National Council of Judiciary, culminating in unconstitutional incitement to dismiss sitting ombudsman;
- Constitutional jurisprudence as such and resistance to captured (un)Constitutional Court, should therefore fall into the hands of ordinary courts that are in position to apply the Constitution directly;
- Constitutional jurisprudence by ordinary courts calls for judges going beyond the normative and testing their judicial ethos and conscience – and facing the consequences;
- Such legal resistance by ordinary courts will be a point of reference and mobilising force for societal resistance and source of loyalty to the constitution.
Full blog post can be found here: “Existential Judicial Review” in Retrospect, “Subversive Jurisprudence” in Prospect: The Polish Constitutional Court Then, Now and … Tomorrow”, Verfassungsblog, posted 2018/10/07.