1. The powerlessness of the rule of law: undermining the foundation of “law over strength”

After 2015, the work being done to implement the rule of law in Poland ceased. And what had already been achieved turned out to be less durable than suspected [1]. The rule of law, in the advanced form set forth in Art. 2 TEU, was a condition of accession to the EU. It was also declared by the Polish Constitution of 1997 (Art. 2). Declarations (even the constitutional kind) are not, however, a magic formula for altering reality. In the best case, it is only an obligation to systematically implement the principles of the rule of law in order for them to impact – systematically and without exception – the actions of authorities. This is the process that ground to a halt in 2015.

The rule of law (as even Polish legal scholars tend to forget) is not achieved through the adoption of some number of Acts. Political will is key, as is continual implementation and oversight, as well as improving the legal culture, reinforcing it in the minds of judges and in their judgments, promoting it in the media. But there was not enough time and energy for the rule of law, pronounced by political elites, to be fashioned into a comprehensible and broadly-supported mass project.

After the electoral victory (which, it should be noted, was doubtlessly a democratic one) of the conservative-nationalist camp in 2015, absent any broader social resistance it was simple to alter the trajectory. This was done methodically, in installments, through a method designed to mask intentions, objectives and means: through the juggling of labels.

In consequence, we are faced today with a gap between the unaltered Constitution and statutory law, departing significantly from the standards of the rule of law. And also between the law in books and the law in action as concerns standards for the activities of public authorities. The rule of law, proclaimed by the constitution, remains unchanged at the verbal level. But its real strength is determined by the effective (not potential), concrete (not abstract), and certain (predictable, not selective) formation of the day-to-day practice of exercising authority. This is what the various bodies of the EU expect of us, and it is what they judge us on [2]. And this is where the link has been broken. The rule of law reigns, but does not necessarily govern. And reigning without ruling means powerlessness. All that remains is a misleading label, Etikettenschwindel [3].

2. Democratic roots and native historical and cultural genesis

In a country still catching up economically, and thus not an affluent one, it is easy to tempt its citizens. Direct fiscal transfers for those in need deliver a quicker electoral reward than does investment. Characterised by messianism, flattering for the weak (but dangerous for the activity and political good sense of the citizenry), it proves easy to seduce with the politics of history and the slogan make Poland great again [4].

In a society stung by communism, it becomes easy to depreciate law as a binding social force, as a foundation of the democratic subjectivity of the individual and as a check on the arbitrary exercise of power. In communism, the law (as the materialised will of the ruling class secured by the power of the state) is supposed to be a sword, not a shield. But neither the democratism of the origins nor the home-grown nature of the retreat from the rule of law can hide or justify the fact of this retreat taking place in contravention of constitutional principles. The 1997 Constitution has indeed not been amended, but it has been deprived of its protective significance through statutory laws incompatible with its letter and its spirit, restrictions on constitutional review, and – primarily – debasing of the standards of the functioning of the state and protection of the individual.

3. The idea of primacy of the law over strength is the foundation of the rule of law

Meanwhile, its mirror image – the ascendance of strength over the law – in Poland is not only a shameful political anachronism. It was a leading argument made in the parliamentary debate begun in 2015, leading to the current crisis in the rule of law [5].

Thus, only what corresponds with the will of the sovereign is to be considered democratic. It materialises with success at the polls. In the same manner, the sovereign is reduced merely to the current parliamentary majority. It is true that Article 4 of the Constitution states that power belongs to the nation, and democratic elections are the foundation for establishing parliament. But it does not follow that the “sovereign” is only the current parliamentary majority, nor that electoral success is a sufficient condition for democracy. A discomforting equivalence has emerged between the parliamentary majority and the sovereign.

What is more, the centre of political decision making has been located de facto beyond the structures of state bodies. At present, the source of the change strategy being implemented in Poland is not within the programme of the governing party carried out in parliament, but rather in the programmatic declarations of its leader (lectures, speeches, occasional press statements); and even in relation to the work of parliament, some decisions are taken ad hoc – for example, certain issues being removed from the daily agenda [6]. The leader does not perform any official state function, but is de facto controlling the wheel of the state vessel [7].

4. The juggling of labels

The declaration of an equivalence between the current parliamentary majority and the notion of the sovereign is an eristic Etikettenschwindel. It serves to delegitimise everything that does not correspond to the will of the present majority in parliament and the will of the party-based decision centre.

The substitution of labels hides the drastic degradation in the standards of parliamentary functioning. Since the majority decides, there is no need to treat the opposition seriously, even for the sake of appearances. This is why speeches by the opposition have been restricted – sometimes to as little as 5 minutes – there is little or no transparency in the parliament’s work, many procedural mechanisms and their standard time frames have been abandoned, procedures are simplified, the rule of three readings of legislation is ignored, work is done in committees rather than in plenary sessions, deadlines are violated, changes to the agenda are made without notice, public hearings and consultations are cut short, and there is no real discussion of draft bills. Legislation is a “shot in the dark” to be fixed with successive amendments.

This turns parliament into a facade; its sessions are meaningless. Draft bills are submitted formally as members’ bills, but are in fact written by the government. This makes it possible to skirt around the reconciliations and opinions required in the case of government bills. Critical expert opinions are ignored. Participation by the opposition is limited (time for statements is reduced, questions forbidden, discussion of and voting on amendments by the opposition is blocked). Parliament is called into session without notice, the agenda is amended without prior information, which makes it difficult for the opposition to get a handle on the real significance of a draft bill, sessions run non-stop, often forcing parliament to work into the night in order to immediately pass legislation on to the upper house of parliament. There is thus no time to become properly acquainted with bills. Discussion is restricted and shortened, MPs have their microphones cut off, methods designed to “wear out the opponent” are applied (night-time sessions run until a bill passes, in an unpleasant atmosphere, without giving opponents the opportunity to make their voices heard). There have been incidents of MPs being tossed out of the parliamentary chambers. Procedural tricks are employed.

Several important bills, including the budget bill for 2017, have been passed in unusual circumstances, without the participation of the opposition’s MPs. Bills are sent to the president for signing, who dispenses with experts’ opinions and rushes to put pen to paper – even in the middle of the night, if necessary.

Whatever is supposed to restrict the “will of the sovereign” or the parliamentary majority is automatically labelled as undemocratic. The first to be sacrificed was the Constitutional Tribunal. After two years, five amendments to the relevant Act, the appointment of new justices and change in the President – its function was changed. It ceased to be a safety valve protecting the Constitution from being violated by the legislature.

When political interested demanded it, the Tribunal even served to legitimise unconstitutional legislation [8] or to bury uncomfortable applications for judicial review – such as in the case of radical draft bills on abortion [9], or the case of the alleged unconstitutionality of the appointment of three justices in 2010 [10]. The Tribunal is no longer performing the function of review, but is becoming a political ally of the establishment. The open manipulation [11] of panels ruling in certain cases is leading to the Tribunal’s judgments providing a veneer of legitimacy (another label!) [12] to legislation which is in fact unconstitutional. A recent example is the review of the constitutionality of the National Council of the Judiciary (case no. K 12/18) – a body exercising decisive influence over the recruitment, careers and composition of the members of the judiciary. Doubts about this body have been expressed in an application for a preliminary ruling to the CJEU (C-824). The Council itself even submitted an application to the Constitutional Tribunal for a review of its own constitutionality (K 12/18). The positive result of the review was employed as an argument in the dispute between Poland and the CJEU, along with other organs of the EU, in the fight over the rule of law in Poland.

5. The juggling of labels has also impacted the principle of separation of powers

Article 10 of the Constitution expresses the principle of checks and balances. Within the triangle of the separation of powers, the position of the judicial branch has been devalued, in favour of the executive (the Minister of Justice, who is also the Prosecutor General). The Minister of Justice is a member of the government, and as such exercises direct influence over the appointment of chief justices to common courts. As the Prosecutor General, in turn, he has direct influence over the activities of prosecutors in penal law matters, as they are hierarchically subordinate to his authority (right to issue orders, instructions and guidelines to all prosecutors, as well as those engaged in investigating specific cases). Although the words of the Constitution themselves have not been changed, the separation of powers means something entirely different than it did prior to 2015.

Of decisive importance are legislative acts (and their implementation) on: the National Council of the Judiciary (previously, its 15 members-justices were selected by judges, today they are chosen by Members of Parliament); common courts (expanded administrative oversight of the Minister of Justice over courts); the public prosecutorial service (ad hoc steering by the Prosecutor General of proceedings in criminal cases); the Supreme Court (the President is selected in the course of the internal operations of the Court; the new, autonomous Disciplinary Chamber can punish justices for rulings determined to be improper [13]).

Within the separation of powers, a curtailing in the independence of the courts has taken place along with a rise in the influence of the President and the Minister of Justice. This is accompanied by the use of public monies to fund a propaganda campaign against the courts, displaying various types of improprieties and disfunctions (incomplete information, frequently untruthful or overblown). At the same time, accusations have been levelled of lust for power, corruption, the abuse of office for pursuing private ends, clique behaviour, and a lack of democracy in action [14]. Much has been made of the blocking of young judges’ promotions by contemptible older members of the elite with communist backgrounds. Stigmatisation is used, as well as tactics designed to awaken ambitions and win over younger justices, who are promised promotion after the older elites are disposed of.

The systematic exchange of elites is being done with the use of a range of instruments – cutting short terms of office, exchange of managerial cadres, employing disciplinary responsibility as a cudgel to discourage criticism and verbal resistance (“chilling effect,” selective repression). Broadly expressed preferences and suggestions relating to harsher punishments and to the selection of policy goals of the judiciary are a consciously employed instrument of the chilling effect aimed at the judiciary.

6. The juggling of labels finds an audience

After the 2015 elections, the public media (primarily television and radio), but also some mainstream newspapers were subjected to reforms [15] and exchanges of cadres [16]. Both new managerial staff (shortening the terms of office of supervisory boards) and journalists were installed. The critical functions of the media were eliminated through hitching them to unabashed propaganda messaging. Public television and radio were subjected to a “hostile takeover.” At the same time, access to information for independent media was restricted. This is how the mechanism for excluding opponents from public debate and construction of an alternative, propagandistic information flow were achieved. It has paved the way for new labels of phenomena, notions, and meaning of the Constitution.

7. Decorum instead of legitimisation

The juggling of labels (see pts 3-6 above) exhibits a shared lineage with the phenomenon recognized and described by Jerzy Zajadło as interpretation inimical to the Constitution [17]. It is a bad-faith “political strategy accompanied by a particular and perfidious political rhetoric.” This is “a hidden strategy, but one which is pursued consciously and with premeditation, at times paradoxically given additional camouflage.”

“In its ultimate form, the phenomenon of interpretatio constitutionis hostilis is an example of the extreme instrumentalization of the interpretative process fused to the needs of the current political situation, ergo – an example of recognition of the primacy of politic over law, at the level of the fundamental law.” Its objective is to strive “in bad faith to install in the legal system normative solutions that are clearly unconstitutional, but which nevertheless become the law.”

Of course, on the grounds of generally accepted principles of legal interpretation, we could say that it is quite simple – it is necessary to abrogate those norms from the system on grounds of a rule known even to the most inattentive law student: lex superior derogat legi inferiori. And this is the basis of the entire problem. Ultimately, this means another manifestation of the juggling of labels: abandoning solicitude for the legitimisation of the law in the name of maintaining the hypocrisy of decorum.

Footnotes

Note: footnotes have been given in square brackets in the text.

1. S. Hanley, J. Dawson, Poland Was Never as Democratic as It Looked. The EU’s membership conditions only dressed up illiberal societies in democrats’ clothing. Now we’re seeing the fallout, “Foreign Policy”, 3.01.2017.

2. The negative reception by EU authorities of the White Paper on reform of the judiciary presented by the government was for just this reason. See https://www.premier.gov.pl/mobile/wydarzenia/aktualnosci/rzad-przedstawia-biala-ksiege-w-sprawie-reform-polskiego-wymiaru.html ; https://www.rmf24.pl/tylko-w-rmf24/katarzyna-szymanska-borginion/blogi/news-biala-ksiega-rozzloscila-kraje-ue,nId,2559285 (accessed 20.3.2019).

3. According to the classification proposed by S. Levitsky, L.A. Way (Competitive Authoritarianism. Hybrid Regimes After the Cold War, Cambridge University Press 2010, s. 366), observed phenomena can be qualified as the beginning of an uneven electoral playing field, itself one of the harbingers of authoritarianism.

4. Report “Good Change in Small Town. Neoauthoritarianism in Polish Politics from the Perspective of a Small Town” [orig. Dobra zmiana w Miastku. Neoautorytaryzm w polskiej polityce z perspektywy małego miasta], M. Gdula, Instytut Studiów Zaawansowanych, https://krytykapolityczna.pl/instytut/raport-dobra-zmiana-w-miastku/ (accessed 20.03.2019).

5. Symbolic declaration of Senior Marshal Kornel Morawiecki (nota bene father of the current Prime Minister, Mateusz Morawiecki) at the inaugural session of the current parliament, November 2015: “The law is important, but the law is not a sacred relic – the good of the nation is above the law! If the law disrupts this good, we are forbidden from considering it something untouchable and unchangeable. I say – the law is to be our servant! Law that does not serve the nation is illegitimate.” See also interview Mateusz Morawiecki for “Deutsche Welle”, 16.02.2017, http://www.polityka.pl/tygodnikpolityka/kraj/1694538,1,mateusz-morawiecki-dla-deutsche-welle-kto-sie-nabierze-na-to-co-powiedzial.read (accessed: 03.04.2017)

6. For example: https://dorzeczy.pl/kraj/87003/Nagly-zwrot-w-Sejmie-Kaczynski-wniosl-o-zmiane-porzadku-obrad.html (Law on road traffic); https://tvn24bis.pl/z-kraju,74/stawki-vat-projekt-mf-zdjety-z-porzadku-obrad-sejmu-po-rozmowie-z-prezesem-pis,918680.html (issues surrounding VAT) – accessed 20.03.2019; removal from parliamentary agenda of the project enhancing the Sunday trading ban – https://strefabiznesu.pl/zaostrzenie-ustawy-o-niedzielnym-handlu-wstrzymane-wzrasta-liczba-osob-ktorym-zakaz-handlu-sie-nie-podoba-ich-odsetek-bedzie/ar/13809958 (accessed 20.3.2019).

7. See reconstruction of his views, J. Kaczyński, “Is Poland a Law-Governed State” [orig. Czy Polska jest państwem prawa] “Pressje. Teka XXIV Klubu Jagiellońskiego” 2010, pp. 222-229; K. Mazur, “Jarosław Kaczyński – the Last Revolutionary of the Third Republic” [orig. Jarosław Kaczyński – ostatni rewolucjonista III RP], Jagiellonski24.pl, 18.01.2016, http://jagiellonski24.pl/2016/01/18/jaroslaw-kaczynski-ostatni-rewolucjonista-iii-rp/ (accessed: 14.02.2017).

8. For example: Kp 1/17 (approvingly of restrictions on the right to free assembly).

9. K 13/17 on limiting permissibility of abortion, https://ekai.pl/petycja-z-20-tys-podpisow-do-prezes-tk-o-pilne-rozpatrzenie-wniosku-ws-aborcji-eugenicznej/ (accessed 20.3.2019).

10. U 1/17 (this case led to the exclusion of three justices appointed in 2010, which results in the “suspension” of their activity in the Tribunal).

11. https://www.rp.pl/Sedziowie-i-sady/307059964-Sedziowie-Trybunalu-Konstytucyjnego-napisali-do-Julii-Przylebskiej-ws-manipulowania-skladami-orzekajacymi.html, accessed 20.3.2019.

12. This is how the Commissioner for Human Rights commented the facade that was the application for review of the constitutionality of the National Council of the Judiciary. https://www.rpo.gov.pl/pl/content/wnioski-do-tk-co-do-krs-naduzyciem-praw-rpo-chce-umorzenia sprawy?fbclid=IwAR1mxmgiBYAjVD2cFIEi3oDZ7Uyl5PrsiNC01mvNRYDRkOhPlzXgCOZl140

13. E.g. for failing to order temporary detention (precedence: https://oko.press/sedzia-ukarana-za-sprawiedliwe-orzeczenie-bo-chcial-tego-ziobro/?utm_source=OKO.press+-+Newsletter+codzienny&utm_campaign=58b82069ae-Codzienny+newsletter+OKO.press&utm_medium=email&utm_term=0_96d3f04fb4-58b82069ae-114577901,) Examples of disciplinary proceedings being used to govern by fear: see report “A State that Punishes” [orig. Państwo które karze], Komitet Ochrony Sprawiedliwości https://archiwumosiatynskiego.pl/wpis-w-debacie/raport-kos-panstwo-ktore-karze-czyli-naciski-i-represje-wobec-polskich-sedziow-i-prokuratorow/

14. It is typical that e.g. the European Commission presented to the CJEU its position in combined cases C-585/18, C 624/18, C-625/18. It states that the manner of selection of judges to the Council could be accpeted as not infringing rule of law, but there can be no acceptance of the undermining of trust in the judiciary that was done in that way.

15. https://wiadomosci.wp.pl/wyciekl-dokument-ke-nt-reformy-sadownictwa-nie-spelnia-warunkow-6361123741324929a (accessed 20.3.2019). Two amendments in 2016 to the Radio and Television Act were supposed to make it possible to dissolve the supervisory boards exercising influence over public media and install new members. This was linked with the dismissal of over 200 journalists (a well-known sports commentator was sacked for expressing his political views in an interview). In 2018, a report by Reporters without Borders saw Poland slide to its lowest-ever 58th place.

16. See joint report on the situation of public media in Poland issued by Article 19 and the Helsinki Foundation for Human Rights of 8.02.2017, http://www.hfhr.pl/article-19-i-hfhr-publikuja-wspolny-raport-o-mediach-publicznych-w-polsce/ (accessed: 03.04.2017).

17.http://www.przeglad.konstytucyjny.law.uj.edu.pl/wp-content/uploads/2018/05/PKonst_1_2018_26-36.pdf (accessed 23.3.2019).