Poland: From Paradigm to Pariah? Polish Constitutional crisis – facts and interpretations

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Professor at the Faculty of Law and Administration at the University of Warsaw, associated with the Centre for Socio-Legal Studies…

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An outline of legal and constitututional developments in Poland under the rule of the Law and Justice Party, which include the threat of EU sanctions over reforms to the judiciary and the recently announced and highly controversial Holocaust bill



The transcript of lecture delivered by professor Marcin Matczak at Wolfson College, Oxford University, March 8, 2018. Listen to the podcast.

 

Introduction

 

I have decided to divide this lecture into two parts. The first one, entitled “Facts” presents briefly the crucial events of what I call “the Polish constitutional crisis” or “Crisis” for short, and what has been widely described as a backsliding on the part of Poland into authoritarianism.

 

The second part, entitled “Interpretations”, attempts to explain the nature and possible causes of the crisis. In that part I present three explanations of the Crisis. The first explanation is historical and looks for the possible causes of the Crisis in the unique nature of the Polish transition from Communism to democracy, in particular in the smoothness of this transition understood as the absence of vindictiveness against the previous regime.

 

The second explanation, a legal one, ascribes the crisis to the immaturity of Polish legal culture, in particular its excessive formalism. The third explanation is a sociological one. It interprets the Crisis as one of liberal values in contemporary Polish society, a society whose aspiring middle class needs to re-define itself after 30 years of making money and whose youth who do not appreciate a negative liberty (freedom from) as much as their parents did.

 

Let me preface my talk with two caveats. First, the assault on the rule of law in Poland has been multidimensional. In this speech I will limit myself to discussing the commandeering of three institutions which underpin the rule of law in Poland: the Constitutional Tribunal, the National Council of Judiciary and the Supreme Court. One should, however, bear in mind that there were several other elements of that assault. These included the government’s taking control of the national public media and undermining competencies of the authority protecting media pluralism. They also included several assaults on civic rights, including the enactment of invigilation laws, and limitations of the right to assembly and to protest. All of these diverse elements contribute to a quite grave prognosis for Polish democracy but a lack of space and time prevent me from discussing them today.

 

The second caveat is that I am by no means an independent observer of the Polish constitutional crisis. I have been involved in it first-hand from the very outset, as a critic of governmental actions undermining the rule of law, as an attorney representing NGOs against the government in constitutional cases, and as a commentator for both national and international media. In short, despite my profound respect for objectivity and my efforts to achieve it, I may be biased against the political actions I am about to describe and interpret.

 

A third prefactory comment, though not a caveat, is that during the talk I will be referring to Polish governing party Prawo I Sprawiedliwosc, which translates as Law and Justice and is commonly abbreviated to P.i.S. Therefore, when you hear me saying “Pis”, please do not be alarmed – it is not a mispronouced expression of my frustration at their actions but simply an abbreviation of their title which, in its full form, is incomprehensible to a foreign audience and in its English form, Law and Justice, is deeply misleading.

 

Facts

 

The Polish constitutional crisis started in November 2015, just after PiS won the country’s parliamentary elections. The first stage consisted in cancelling the earlier appointment of five Constitutional Tribunal judges and packing the Constitutional Tribunal with new judges, as well as in a series of attempts to commandeer the Constitutional Tribunal by enacting six bills aimed at paralysing its operations. This first stage ended in December 2016, when the new head of the Constitutional Tribunal was appointed by the President of the Republic.
The second stage of the crisis started at the beginning of 2017 and consisted in the political takeover of the National Council of Judiciary, a constitutional body responsible for protecting the independence of judges, and for their appointment and promotion, as well as in commandeering the Supreme Court.

 

The first stage

 

The first crucial event of the Crisis took place in November 2015 when the newly elected Parliament, in which PiS gained a majority, cancelled the appointment of the five Constitutional Tribunal judges made by the previous Parliament. Just after this, the new Parliament appointed five new Constitutional Tribunal judges. In fact, the previous Parliament had overstepped its constitutional rights as it only had the right to appoint three, not five judges to the Constitutional Tribunal. However, the new Parliament’s response was both premature and disproportionate, and constituted a clear example of court-packing. The response was premature because a constitutional review of the previous appointments was already underway, and it was disproportionate because three out of five of the previous appointments were absolutely compliant with the Polish constitution.

 

Some of the events that took place at the beginning of December 2015 would not seem out of place in a political thriller. In a late night sitting just before the Constitutional Tribunal was to assess their constitutionality, the lower house of parliament (the Sejm) cancelled the appointments of the judges elected by the previous parliament and appointed new 5 ones. The newly appointed judges rushed to the presidential palace to be sworn in by the President later that night, and then rushed from the palace to the Constitutional Tribunal building to take on their duties. The newly appointed judges were accompanied by the agents of the Government Protection Bureau into the Constitutional Tribunal building and given office space, despite the doubts concerning the legality of their appointments.
The following day, the Constitutional Tribunal issued its awaited verdict confirming that three out of the five previous appointments were fully constitutional. It was against such a verdict that the parliament had taken such extraordinary eleventh-hour measures. Despite the positive verdict, the President refused to swear in the previously appointed judges on the grounds that all 15 places in the Constitutional Tribunal were now already occupied, thanks to the late-night appointments. This resulted in a legal limbo: three legally appointed judges could not take their places in the Constitutional Tribunal, and meanwhile the President of the Constitutional Tribunal, Andrzej Rzeplinski, did not assign cases to the three pseudo-judges with whom PiS had packed the court.

 

The months that followed were marked by a permanent conflict between the Parliament and the PiS government on the one side and the Constitutional Tribunal on the other. The government refused to publish the critical Constitutional Tribunal verdict and neglected others. They also made six attempts to paralyse the operation of the Constitutional Tribunal by legislative enactments. These included:

 

  • increasing the majority of Constitutional Tribunal’s judges required to strike down legislation
  • forcing a delay in deciding a constitutional case (by imposing a minimum of 6 months)
  • giving the minority of judges and the Ministry of Justice a right to impede the operation of the Constitutional Tribunal
  • introducing amendments with immediate effect (without a vacatio legis) to force the Constitutional Tribunal to operate according to a set of rules whose constitutionality they were simultaneously assessing

 

The government’s legislative offensive against the Constitutional Tribunal was accompanied by public harassment of its judges. That harassment included attributing political motives to the Chief Justice Rzeplinski, attempts to move the Constitutional Tribunal’s seat from Warsaw to a remote town in Eastern Poland, rejection of the Constitutional Tribunal’s annual budget, public accusations of laziness by the Minister of Justice.

 

The key moment of the Crisis took place in March 2016, when the Constitutional Tribunal heard the case concerning the constitutional review of the PiS government’s amendment to the Constitutional Tribunal law. The Constitutional Tribunal operated without the three pseudo-judges in the panel and refused to base their operations on the procedure stipulated by the new law while assessing it. Instead, the Constitutional Tribunal based its proceedings directly on the Polish constitution. The Constitutional Tribunal’s objective was to avoid a Catch 22 situation: if it were to base its proceedings on the new rules and then find them unconstitutional, the legal validity of that very verdict would be undermined.

 

The Constitutional Tribunal’s verdict was to strike down the amendments proposed by the government. However, its decision not to apply the new law when simultaneously assessing it provided the Prime Minister, who claimed that the verdict was procedurally flawed, with a justification for not publishing it. This claim was made with little regard for the fact that the verdicts of the Polish Constitutional Tribunal are final and irreversible by any authority, including a hostile head of government.

 

Andrzej Rzepliński, the Head of the Polish Constitutional Tribunal played a crucial role during this first year of the crisis. Not only did he bar the pseudo-judges from sitting on the Constitutional Tribunal panels, he also strongly criticised the PiS government for undermining the rule of law. Rzeplinski’s term of office ended in December 2016, and with it ended the first stage of the Crisis.

 

The second stage

 

The next stage of the Crisis, comprising the commandeering the National Council of the Judiciary and the Supreme Court, started in January 2017. After Rzeplinski’s retirement, the Constitutional Tribunal was fully taken over by PiS with their appointment of a new head, Julia Przylebska, and deputy head, who was one of the pseudo-judges. This raised significant constitutional doubts, not least because Rzepliński’s Deputy, Judge Biernat, should have replaced him after his retirement.

 

Predictably, the first decision of the new head of the Constitutional Tribunal was to allow the three pseudo-judges to sit on its panels. Somewhat less predictably, several weeks later, the new head suspended three judges appointed in 2010 in response to the Minister of Justice questioning the legality of their appointment. In a further move to clear the decks, Ms. Przylebska forced Judge Biernat to take leave from his duties.

 

The result of these three actions was that the Constitutional Tribunal operated with eleven judges, six of whom were appointed by the PiS government. Such a configuration allowed for setting up new panels or changing the previously set panels (the latter with no legal basis) in a way which ensured a majority of the judges elected by PiS on each one.

 

Commandeering of the Constitutional Tribunal allowed the PiS government not only to remove an obstacle to promoting their often-unconstitutional policies, but to actively use the Constitutional Tribunal for political ends. Following its executive takeover of the Constitutional Tribunal, the government started using it in a way akin to a thief who regularly requests a court to confirm that he has still not stolen anything: the applications filed with the Constitutional Tribunal in the first six months of 2017 by the Minister of Justice and PiS MPs were not aimed at assessing constitutionality, but were simply tools in a political battle. Some applications were requests for the Constitutional Tribunal to legitimise constitutionally doubtful measures, some were clear attacks on government opponents.
A particularly shocking example of using the Constitutional Tribunal for political purposes – and the next step in undermining the rule of law – took place on 20 June 2017, when the Tribunal heard a case concerning the election of the National Council of the Judiciary of Poland. This constitutionally enshrined body is responsible for preserving the autonomy of Poland’s courts and the independence of its judiciary; its main power is to appoint new judges and make decisions regarding the promotion of currently serving ones. The National Council of the Judiciary is composed in a manner intended to ensure cooperation between the legislative, executive, and judicial branches, in line with the principle of checks and balances provided for in the Constitution.

 

The Constitutional Tribunal decided that certain provisions of the Act governing the National Council of the Judiciary were unconstitutional. By doing so, the Tribunal conceded to the motion of the Minister of Justice, who had questioned those provisions in the course of work on reform of the Council. The motion to the Constitutional Tribunal was a smokescreen to confuse the public and allow the government to take control of the courts at a lower political cost.  Its trivial challenges against the Act were either doubtful or contrived.  Yet, with the help of the Constitutional Tribunal, the Minister created an impression that the unconstitutional procedure of electing the members of the National Council of the Judiciary requires a decisive and broad intervention from the Parliament, even if this intervention is totally disproportionate to the unconstitutionality it ostensibly addresses. And so, with the help of the recently subjugated Constitutional Tribunal, the Minister received a carte blanche to demolish the body constitutionally responsible for the protection of the independent judiciary.

 

As a consequence of the Tribunal’s verdict, the Parliament was able to pass a bill which gave politicians full control over the appointment and promotion of judges. Parliament also passed a bill of amendment to the Courts Act which gave the Minister of Justice huge influence over the presidents heading the work of the courts.

 

As if this were not enough, soon another bill on the judiciary was passed to the Sejm which supplements the above steps in PiS’s plans for unitary state power. The party’s executive takeover of the National Council of the Judiciary would be of little use if there were no vacancies that board could fill. The aim of the latest bill targeting the Supreme Court was to create vacancies at the very top of the judicial hierarchy. Almost overnight, all Supreme Court judges, except those chosen by the Minister for Justice, were to be sent into retirement.

 

This flagrantly unconstitutional onslaught on the independence of the judiciary showed how far PiS’s multi-stage process of violating the Polish Constitution had progressed. The process, which started with an attack on the Constitutional Tribunal, was obliged by PiS’ political programme of changing the state system without officially amending the Constitution. The PiS government did not have a sufficient parliamentary majority for such an amendment, but once the Constitutional Tribunal was fully under its control, the Constitution became something of a dead letter.

 

The government’s attack on the separation of powers was objected to in almost all legal environments: advocate and attorney-at-law councils and even prosecutors’ associations. The changes were condemned by the parliamentary opposition, which has called for mass protests. Strong criticism has also come from abroad. As if in sardonic response to the outcry against the government, the Polish Foreign Ministry sent a declaration of friendship to Turkey and President Erdogan on the anniversary of the failed coup of 2016. That gesture was a signal to some of the Poles that the Turkish president, who had no hesitation in throwing hundreds of judges into prison, may well serve as a role-model for the increasingly autocratic PiS government.

 

In 2017 I was sent a paraphrase of provisions of the Constitution that summarized the situation well. The author wrote that after control has been taken of the National Council of Judiciary and the Supreme Court, article 10(2) of the Polish Constitution on the separation of powers will read as follows. “Legislative power is exercised by PiS, executive power is exercised by PiS, and judicial power is exercised by PiS.”

 

Following huge street protests in the summer 2017 against the legislative changes, President Duda vetoed the draft legislation that would have allowed PiS to commandeer the NJC and Supreme Court. That glimmer of hope for those increasingly disillusioned with the President’s distance from his own political stable was in fact an ignis fatuus, a will-o’-the-wisp.

 

President Duda’s veto of the legislation did not signal a refusal to sign it in on the grounds of merit: in fact, he did not present any criticism of the draft law, and his silence on this matter showing his acceptance of the principle (promoted by PiS in their draft legislation) that members of the Council should in future be appointed by politicians rather than by judges, as had previously been the practice. Rather, Duda’s objection was a means to his own political ends: he chose to propose his own bills for taking political control over the judiciary, thus wresting control over the Supreme Court from the Minister of Justice, under whose power the legislation he vetoed would have placed it.

 

Ultimately, the President proposed new bills on the National Council of Judiciary and the Supreme Court in September 2017, and after several weeks of private consultations between him and the leader of PiS – who does not even hold any public office – became law. The outcome of these entirely opaque negotiations came in the final set of presidential proposals, namely:

 

  • the removal of 40% of judges from the Supreme Court, including its President, thereby shortening her constitutionally enshrined term of office
  • the establishment of a new Supreme Court Chamber which will be responsible for assessing the validity of elections
  • the appointment of a new National Council of Judiciary whose judicial members will be, contrary to the Polish Constitution, elected by Parliament

 

This last appointment will result in shortening the constitutionally enshrined terms of office of the National Council of Judiciary’s incumbent members. The newly appointed, politically controlled National Council of Judiciary members will be responsible for filling the vacancies created in the Supreme Court by the removal of 40% of its judges and the establishment of a new Chamber.

 

This flagrant upsetting of the balance of power between the judiciary and the legislature, where PiS have a majority, led judicial associations and the political opposition to call for a boycott of appointments to the new National Council of Judiciary.

 

The call was a success: out of 10 000 Polish judges, only eighteen agreed to stand for appointment to the new KRS. An overwhelming majority of them have links to the Minister for Justice and their candidacies are questionable to say the least. After it has been appointed, the National Council of Judiciary will be completely dependent upon politicians, allowing them to influence the process of appointment of all Polish judges. This influence will extend to those who take up seats in the new chambers of the Supreme Court. The official line of argument given by the government to support the proposal of these 18 politically vetted candidates is that every judge represents judges, irrespective of who appoints them and whether they are independent of the appointing person – an argument that does not hold water.

 

To conclude, the commandeering of the Constitutional Trubunal and the National Council of the Judiciary displays two characteristics familiar to those who study authoritarian systems. First, it displays a preference for mediocre appointments, the choice of second-rate actors to play starring roles. Second, the appointments represent a phenomenon known as “the hollowing out “of institutions responsible for protecting the rule of law. When the core of those institutions, which is independence, is removed, they become useful props for the ruling powers to move about the stage in a purely theatrical show of legitimacy.

 

Interpretations

 

Now that we have abstracted to a more general level, let me move on to the interpretations of the Crisis which will be the subject of the second part of this speech. The three interpretations I propose to help you understand the causes of the backsliding of Poland into authoritarianism comprise a historical, a legal and a sociological one.

 

The historical explanation

 

In order to understand the current Crisis, one needs to go back to the beginning of the Polish transformation, namely to the year 1989. That was the year of hope for everyone who had suffered under Communism. Both the key players in the PiS government and their supporters believed that the collapse of Communism would bring to justice all the servants of that regime. Yet the Polish transformation went in another direction – a direction marked out by the “thick line”, announced by the first post-communist Prime Minister Tadeusz Mazowiecki. This thick line was to be drawn between the present and the past; the consequence was that no revenge was taken and that a smooth transition ensued.

 

For those who support PiS, such an approach was tantamount to a treason. At the time, they perceived the round table talks between the pre- and post-Communist regimes as collaboration. That perception never abandoned them, and their desire for vengeance went unfulfilled. The realization of their desire came close to fulfilment in 1992, when Antoni Macierewicz, then Minister of Internal Affairs, attempted to reveal the list of those who had collaborated with the Communist secret service. What followed, however, was not revenge, but the deposition of revenge-seeking parties from power. What was even worse for those people who sought retribution, the new Polish parliament, elected in 1993, enacted the first post-Communist constitution, in 1997, without the involvement of those parties.

 

It is for these historical reasons that both PiS and their supporters perceive the current Polish Constitution as illegitimate. From their point of view, the Constitution (enacted in 1997) promotes leftist and liberal values, including the protection of acquired rights and the safeguards of procedural justice. They believe the constitution was enacted in bad faith: they believe its real purpose to protect the beneficiaries of Communism and to secure the status quo. By way of illustration, last year an NGO organising pro bono lessons on the constitution in Polish schools turned to the Ministry of Education for support. The unofficial answer it is reliably reported to have received from PiS’s Minister was: “That is not our constitution”.

 

PiS’s suspicions concerning the legitimacy of the Constitution found confirmation (at least in their eyes) after the party gained power as the dominant partner in a coalition government in 2005. One of their crucial political projects was so called the “Lustracja” bill: a piece of legislation aimed at revealing the co-operation of Polish citizens with the Communist secret service. This legislation was struck down by the Constitutional Tribunal in 2006 on the grounds of non-compliance with Article 2 of the Constitution – the principle of the rule of law. The Constitutional Tribunal found the “Lustracja” bill’s definition of co-operation with the secret service to be too vague: a charge perceived by PiS as a pretext for not bringing the collaborators to justice.

 

Shortly after this decision by the Constitutional Tribunal, the leader of PiS, Jarosław Kaczyński, coined the term “legal impossibilism” to refer to the situation as he saw it: namely, that the principles of procedural justice make it impossible to bring about real, material justice. In this view, the Constitution is an implement whose purpose is to protect post-communist elites and to block the rescindment of their rights, the revocation of their benefits and the redistribution of their ill-gotten gains.
However surprising it may sound, PiS’s legal and constitutional doctrine bears a great resemblance to postmodernist claims concerning meta-narratives – that they are publicly disseminated stories whose purpose is to mislead the people and to subdue them to the oppression of those in power. Thus, in the same way that “patriotism” was a meta-narrative for the pacifists opposing the Vietnam war because it masked the oppression of a US government willing to force people to give their life for the country, so the rule of law in Poland became a smokescreen for shady interests rather than the disinterested expression of an ideal.

 

Analysing the Crisis from a historical viewpoint leads us to the conclusion that the subjective experience of the rule of law in Poland – in particular the belief that the law is an obstacle on the road to justice – created in the leaders of PiS and their supporters a very peculiar understanding of the relationship between procedural justice and substantive justice.

 

As we know, procedural justice is attained through compliance with formal legal requirements and by basic procedural guarantees: the right to have a case heard by an independent court, the right to defense, the freedom from self-incrimination and the lawfulness of the evidence submitted. Meanwhile, substantive justice is achieved by giving every person what he deserves: penalizing the bad, rewarding the good, giving the innocent peace of mind.

 

Among experts, procedural justice is considered a necessary means of achieving substantive justice, but the current Polish government sees it as an obstacle to doing so. Originally expressed ten years ago, those convictions are now back in full force under an invigorated (majority) PiS government whose eagerness to pursue substantive justice has most recently imperilled the separation of powers. The perceived redundancy of procedural justice is reflected in the government’s approach to the Constitutional Tribunal and the judiciary: the independence of the Constitutional Tribunal is secondary to the need for it to be composed of people who understand the government’s sense of justice; the independence of judges in the courts is secondary to the achievement of the government’s substantive objectives.

 

These convictions are reinforced by the appointment of a reprivatization commission, which, in line with the intention of its creators, is to replace inefficient courts in restoring justice in this politically charged area. Managed by a non-lawyer and composed of politically-aligned members, the commission has judicial powers. Ultimately a kangaroo court, the commission is a manifestation of the belief that it is not institutions but individuals that ensure fair judgments. What is more, it has been hailed by PiS leader Jarosław Kaczyński as the prototype for a solution that may be used in other areas if it works in the current one, heralding the systematic waiver of the guarantees provided by procedural justice.
History teaches us that attempts to achieve substantive justice at the cost of procedural justice have always led to disaster: the Inquisition, witch-hunts, kangaroo courts such as the Volksgerichtshof and politically-motivated trials provide ample evidence that the perception of justice and justice itself are seldom aligned.

 

It is such historical experience of substantive justice that has led Western culture to have so much faith in procedural justice. Its basic elements are checks and balances: the defence attorney weighs in against the public prosecutor, the Constitutional Tribunal checks the parliament, the executive authorities are counterbalanced by independent judicial ones. This balanced structure ensures a thorough examination of facts and elimination of bias to arrive at truth and justice.

 

For historical reasons, PiS leaders and supporters have no faith either in procedural justice or in checks and balances. Their frustration concerning what others perceive as a great Polish success, namely the smooth transition from Communism to constitutional democracy, impelled them towards a massive assault at the rule of law when their time to wield power finally came. In the next part of my speech I will interpret the Crisis through the lens of legal culture, and we will see why this assault was so successful. Not wishing to give the game away, let me just say it was connected as much with the weakness of the defence as with the strength of the attack.

 

The Legal explanation

 

Those following the Polish constitutional crisis from abroad may see it as a traditional clash between law and politics. Analysed in Schmittian terms, law as a system of rules represents an obstacle to the realisation of the current political will, and as such must yield to politics. When law and politics clash, politics represents a set of values external to law; law, in turn, represents its own values, mostly formal, which cannot be reconciled with the external values of politics. Analysed in Radbruchian terms, law secures legal safety, politics promotes effectiveness. When law and politics clash, politics trumps law to change the society in accordance with the political will, even if this involves breaking the law.

 

From this perspective, the nature of the political attacks aimed at the rule of law in Poland may seem familiar: they are attacks through which political values prevail over legal values, and procedural justice yields to the promotion of material justice. The meaning of material justice is defined by those who won the elections. Such attacks recall the actions against the formal values of law undertaken by the authoritarian regimes of the 20th century, so let us call them “old-school attacks”. A typical example can be found in Lenin’s 1917 attacks against ‘formality’:

 

“We’ll tell the people that its interests are higher than the interests of democratic institutions. There’s no need to go back to the old prejudices, which subordinated the interests of the people to formal democratism”.

 

Shocking as it is, Similar statements have recently been formulated in Poland – a country deeply affected by the trauma of totalitarianism. During the debate on nullifying the appointment of five Constitutional Tribunal judges on 26.11.2015, the parliamentarian Kornel Morawiecki, said:

 

“Law is something important but it is not sacred. (…) Above law stands the good of the Nation. If law interferes with this good, we shall not treat law as something inviolable or unchangeable. What I say is this: law shall serve us! Law that does not serve the nation is lawlessness!”

 

A similar position was presented in the Report of the Team of Experts appointed by the Speaker of the Sejm (lower parliamentary chamber) to respond to the Venice Commission’s 2016 reports concerning the rule of law in Poland.

 

“In the construction of a democratic state based on the rule of law (such as Poland), the principle of democracy prevails over the abstract legal order, the latter being the quintessence of constitutional democracy”.

 

The above quotations may suggest the current attack on the rule of law in Poland resembles the old-school totalitarian attacks seen under the Weimar Republic or communist Russia. Those attacks consisted in establishing a clear and explicit hierarchy in which law is subservient to politics, and the values of the latter prevail over those of the former. However, the kind of attack on the rule of law we currently encounter in the Central and Eastern Europe is different: even if in unguarded moments politicians explicitly declare that politics should prevail over law, when they execute their policy and justify it, they rather pay lip service to the law than ignore or dismiss it completely.

 

The reason why illiberal governments in contemporary Europe do not openly proceed with illegal action is easy to identify. The rule-of-law values are well-entrenched in public life and memories of the totalitarian regimes that preceded and followed World War II have not yet faded from the public memory. Politicians who wish to achieve an unconstitutional goal, such as commandeering the judiciary, have to use a much more sophisticated technique than overtly disregarding the rule of law. To succeed, they have to convince the general public they are acting in accordance with the law, whether it takes the form of a national constitution or of EU regulations. The impression they want to produce is that politics is subservient to the law, thus allowing their actions to appear legal even if their effects are not. To do so, they draw on ostensibly legal tools to achieve illegal (unconstitutional) goals.

 

Paying lip-service to the rule of law allows Poland’s politicians to mask their attacks on the independence of the judiciary. The disguised character of their attack makes it difficult for the general public to recognise that an attack is really taking place. As a consequence, the public is not motivated to defend the judiciary or its independence, thus giving free rein to politicians. What is more, the fact that that the attack on judicial independence is carried out in a way that seems to secure its superficial compliance with the letter of the law makes it difficult for the judiciary itself to expose the real nature of the attacks.

 

Let me present two short examples of the new-kind of attack at the rule of law based on the Polish experience.

 

As we have heard, in the course of 2016, the governing majority drew on Article 197 of the Constitution to enact a total of six statutory amendments or full statutes concerning the CT, ultimately allowing them to commandeer by the end of the year. Article 197 reads:

 

“The organization of the Constitutional Tribunal, as well as the mode of proceedings before it, shall be specified by statute”.

 

This was presented as the sole basis for the parliament’s right to regulate the operations of the CT in a way the parliament finds proper. No reference was made to constitutional principles stipulating the functions of the constitutional review performed by the CT, and no reference was made to the principle of independence of the judiciary, or the separation of powers. Of course, the mere fact of a regulation imposed by Parliament on the Constitutional Tribunal being compliant with Article 197 is not sufficient to make that regulation compliant with the Constitution, especially if it hinders the Constitutional Tribunal from performing its constitutional duties.

 

The second example occurred after the government had successfully commandeered the Constitutional Tribunal, and when it set out to take over the Supreme Court. The first proposed bill Minister of Justice announced in June 2017 stipulated the instant removal of all incumbent Supreme Court judges and the appointment of new ones by him. The constitutional justification for such a brazen move was derived from Article 180 point 5 of the Polish Constitution, which reads:

 

“Where there has been a reorganization of the court system or changes to the boundaries of court districts, a judge may be allocated to another court or retired with maintenance of his full remuneration.”

 

Article 180 Point 5, allowing for the retirement of the judges, was presented to the public as an isolated basis for the removal of judges, with no reference to other constitutional regulations. e.g. Article 31 point 3, which expresses the proportionality principle and requires all the limitations of rights be proportionate to the goal of the limitation. In particular, no substantiation was provided on how the very limited reorganisation of the Supreme Court justified the removal of all judges.

 

Both of these examples show that the perpetrators of the new-school attack on the rule of law go to great pains to convince others that their actions are justified within the existing legal framework. The main argument they provide is that their actions are compliant with the letter of the law – even if the consequences of those actions cannot be reconciled with its spirit, as expressed in the Constitution.
A specific type of legal argumentation is at work here: one can call it “isolated constitutional interpretation”, which enables a misuse of powers. Isolated constitutional interpretation targets a particular constitutional provision without regard to other provisions or the constitution as a whole and its outcome is a decontextualized interpretation. The crucial feature of this type of legal argumentation is a much-vaunted compliance with individual bright-line rules of the Constitution, even if the consequences of the actions based on those rules infringe general constitutional principles, in particular the independence of the judiciary and the separation of powers. In other words, isolated constitutional interpretation allows for using lawful means to achieve unlawful ends.

 

The illegality of the new-school attacks on the independence of the judiciary can be revealed only by a non-formallistic strategy, namely by showing that those attacks infringe constitutional principles, even if they are compliant with isolated, bright-line rules, and by considering the real-life effects of the application of those bright-line rules. As several studies have shown, however, including one Denis Galligan and I published in 2005, judges in Central and Eastern Europe have been trained in the tradition of judicial formalism, according to which formal compliance of one’s actions with the law is sufficient basis for their legality. In other words, to repel the attacks, judges must go beyond the letter of the law and into the realm of its spirit. Yet, this is a step too far for formalistically trained judges

 

My thesis is that the rule-of-law crisis in Poland has not been caused so much by the strength of the political attack on the rule of law but by the weakness of the defence mechanisms that should have been triggered once that attack started. Primary among those mechanisms is the maturity of legal culture, a key feature of which is the ability to carry out complex legal reasoning when interpreting legal text and assessing the validity of legal actions. Both the phenomenon of isolated legal interpretation and the misuse of powers it enabled can be effectively refuted by judicial reasoning if that reasoning is sufficiently complex. But if a judicial culture’s preferred form of reasoning is formalistic argumentation, such a refutation is difficult, if not impossible. The legal culture in Poland, and more broadly in Central-Eastern Europe, has not developed adequate tools to defend itself against recent attacks on the rule of law.

 

This is not to say that all attempts to exploit formalistic judicial reasoning as a basis for political attacks on the judiciary were successful. The Constitutional Tribunal, for instance, was able to defend itself against the isolated interpretation of Article 197. It did so by refusing to base the constitutional review of the new law concerning the Constitutional Tribunal’s operation, and based it directly on constitutional principles. Alas, the Constitutional Tribunal’s readiness to deploy a principle-based argumentation to protect the independence of the judiciary should be perceived as an exception rather than a rule. As a constitutional court whose source text is principle-based, the Constitutional Tribunal has a particular inclination to use principle-based reasoning, but this inclination is not an entrenched element of the Polish legal culture as a whole.

 

Notwithstanding such exceptional cases, the very fact that patently superficial formalistic argumentation was provided to justify attempts to commandeer the Polish judiciary indicates that those presenting that argumentation considered it to be legally valid. This implies that a legal culture in which such justifications can be put forth is indeed underdeveloped, and as a consequence, all but defenceless against politicians’ new-school attacks on the rule of law.

 

The sociological explanation

 

No constitutional crisis is only about the law. Even if lawyers in Poland and in the European Union have a tendency to perceive the Polish crisis as solely a legal one, it is not. The violations of the Polish constitution and obligations arising from EU law have deep sociological grounds. This needs to be be kept in mind especially by those responsible for building an argumentation that could alleviate the conflict between the Polish government and the European Commision.

 

In this, lawyers engaged in the Polish crisis may feel a little like Atticus Finch, the protagonist of Harper Lee’s “To kill a Mockingbird”, who found himself defending a black man accused of rape. In both cases, their legal arguments are strong, their words are clear and convincing, and yet they seem to lose their case. The jury they address is unimpressed. Why is it so? Ultimately, the problem Atticus Finch was facing was not a legal one; it was social and psychological, namely racism. Lawyers struggling with the assault on the rule of law in Poland also face a similarly multi-dimensional problem. A large section of Polish society has no time for the niceties of the constitutional order, they want reform to address social problems.

 

The government’s narrative presents the dismantling of the rule of law as the cure for several social ills, including historical injustice and the dangers of globalisation. With governmental propaganda presenting the assault on the rule of law as a cure for multiple ills, those opposing the treatment are at risk of losing their patient. By perceiving the dismantling of the rule of law as a purely legal problem, the defenders of the rule of law seem to be denying the very need for treatment. They might be better advised to go beyond the purely legal dimension and recognize the symptoms of the disease, namely the social dimension, and propose an alternative treatment. The failure to take into consideration the underlying social problems which have motivated this attack on the rule of law is a dangerous oversight on the part of those who wish to put Poland back on the road to recovery. That is why I would like to spend the last part of my talk elaborating a little on those underlying social symptoms.

 

A recent sociological study carried out in a medium-sized Polish town may be of some help. According to this study, the supporters of the governing party display features of a neo-authoritarianism syndrome. What is neo-authoritarianism? The prefix „neo” indicates the novelty of this kind of authoritarianism – in fact, it is deeply democratic. The Polish people are ready to provide their elected representatives with an absolute right to change the rules, including the constitutional ones, even without the formal legitimacy to do so. The abstract legal order must yield to the will of the people. In other words, the supporters of PiS do not recognise the distinction put forward by Bruce Ackermann between long-term constitutional politics and the short-term regular variety. Constitutional politics is carried out in line with the values agreed upon during a so called “constitutional moment” – a point in time when a society decides upon the fundamental values that will shape its existence. By contrast, regular politics is carried out by parties in the course of the regular electoral and representational process. Contrary to Ackermann’s distinction, both PiS and its supporters believe that winning the regular election gives them a sufficient mandate to change constitutional politics at will. And this is how democracy defeats constitutionalism.

 

As for regular authoritarianism, its main elements are:

 

  • domination over the weak and the alien, including ethnic and sexual minorities, refugees and whoever else can be perceived as an enemy,
  • a preference for a politically effective strong-hand approach to social problems;
  • belonging to a national community that provides its members with aspirations far beyond the typical needs of a middle class.

 

All those elements can be explained by Erich Fromm’s concept of “the authoritarian personality”. This concept, originally constructed by Fromm to explain the psyche of the Germans under the Weimar Republic, provides an excellent basis for a diagnosis of Poland’s reversion to authoritarianism.

 

In essence, whenever social unrest occurs (the threat of terrorism, an immigration crisis, a difficult labour market) a feeling of uncertainty and danger spreads and the government deftly kindles it (Islamisation of Europe, the threat of unemployment, and fear of disease). The broader social uncertainty reinforces what Fromm identified as the social masochistic component of the authoritarian personality – the wish to dissipate in something larger than oneself: in the idea of a nation, patriotism, in some grand plan imposed by a charismatic leader. This leader’s plan brings order to the lives of those who cannot muster the strength to organise their own. By making their world more clearly defined, by making it clearer who is friend and who is foe, the leader’s plan gives such individuals the impression of being able to regain control over their fate.

 

Aggressive criticism of supporters of the leader only increases the sense of danger that has been instilled within them; in confirming the existence of enemies, such criticism enhances trust in the leader who intends to combat them. In Poland’s case, this mechanism explains the positive correlation between intervention by EU authorities into the Polish affairs and popular support for the governing party.

 

The narrative provided by the neo-authoritarian parties also appeals to our youth. Young people are a generation more interested in “freedom to” than “freedom from”, to use Isiah Berlin’s famous distinction. Unlike their parents and grandparents, they have never needed to fight for freedom from coercion, nor have they experienced oppression. Free from coercion and oppression, they have been left to organize their lives as they want. The problem is, they do not really know what to do with this excess of freedom and, returning to Fromm, they may feel an urge to escape from it. Escape routes are provided by such normative ideologies as patriotism and nationalism, which provide clear paths for thinking and acting. However anachronistic it may sound, patriotic values appeal to today’s youth, even if the patriotism peddled to them by our authoritarian-inclined leaders is one of failure, sacrifice, struggle and hate, not the patriotism of victory, tolerance, cooperation and openness.

 

A recent notorious example of the appeal to patriotic emotions was Poland’s so-called Holocaust law, a new piece of legislation which criminalised the act of accusing the Polish nation of crimes against humanity. From a practical point of view, the law didn’t make much sense: the phrase “Polish death camps” was only used sporadically before the law was enacted, and was effectively combatted by a combination of NGOs, state bodies and strategic allies. However, the law allowed PiS’ aggrieved supporters to unite in an unprecedented defence of their nation against the whole world when its narrow nationalistic agenda and ham-fisted promulgation raised eyebrows – and protests – worldwide. This feeling of unity is exactly what the authoritarian personality craves, and what the current Polish government is pleased to deliver, at whatever cost.

 

Returning to ideologies, but of the non-rule-imposing variety, liberalism joins the rule of law in being in crisis. Unlike nationism and patriotism, it is a social notion for individuals who know how to lead their lives. The rule of law and constitutionalism underpin the liberty of living ones life without the threat of coercion. However, a large number of our fellow citizens do not have a clear idea on how to lead their lives and are relieved to be provided with ready-made solutions. Liberalism has nothing to offer them. Creating plans for people’s lives would be an anomaly in the liberal DNA, as it would limit people’s freedom.

 

Thus, liberalism by definition fails in creating an attractive narrative for people who are unwilling or unable to create one for themselves. In fact, for some, the target of creating a social space free from coercion threatens them as it obliges them to take responsibility for their own lives. Liberalism thereby loses the battle to the effective narrative-generating, life-organizing machines such as nationalism supported by institutionalised religion, which are ever-ready with clear and comprehensive life plans. Such plans offer simple solutions to complex problems and allow their adherents to dissolve themselves into something greater than their individuality: the nation, a patriotic frenzy or historical pride.

 

What lessons can we derive from Poland’s predicament? In line with my interpretations of the crisis, I would propose three. First, the historical interpretation teaches us that there is no such thing as a complete and successful post-authoritarian transition. Transitional societies are like cancer survivors – even when they seem healthy, they require constant monitoring. Social frustrations need to be addressed, especially if the style of the transition did not give them room for adequate expression.

 

Second, the legal explanation I propose teaches us that to transform a legal order from a totalitarian one into one based on the rule of law requires more than the changing of the law in the books. The way the law is applied by the courts and the way the legal reasoning is carried out is of at least equal importance. The promotion of the rule of law in the post-communist countries must transform what we call the law in action by encouraging judges to embrace a more holistic, principle- and consequence-based approach to applying laws. As we have seen, a superficial understanding of the rule of law as compliance with bright-line rules only, and a lack of understanding of the role principles play in the legal system, may both contribute to backsliding into authoritarianism.

 

Third, the sociological interpretation teaches us that freedom never can be taken for granted. Even if my generation remembers a world in which, as our constitution states, “fundamental freedoms and human rights were violated in our homeland”, our children do not. To secure the freedoms of those who, for historical reasons, do not fear that they will lose it, we need to rewrite the liberal values into a new language. This is no easy task.



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Professor at the Faculty of Law and Administration at the University of Warsaw, associated with the Centre for Socio-Legal Studies…


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March 8, 2018

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