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Polish Constitutional Tribunal Under PiS: From an Activist Court, to a Paralysed Tribunal, to a Governmental Enabler
Abstract
After the electoral victories of 2015, PiS transformed the CT from an effective, counter-majoritarian device to scrutinise laws for their unconstitutionality, into a powerless institution paralysed by consecutive bills rendering it unable to review new PiS laws, and then into a positive supporter of the enhanced majoritarian powers. In a fundamental reversal of the traditional role of a constitutional court, it is now being used to protect the government from laws enacted long before PiS rule. Whatever else constitutional courts around the world are expected to do, there is no doubt that their first and primary function is to ensure adherence to a constitution and its protection against legislative majorities. In Poland, the Tribunal became a defender and protector of the legislative majority. This changed role, combined with general distrust of the CT and concerns about legitimacy of its judgments, explains also the extraordinary drop in the number of its judgments. For all practical purposes, the CT as a mechanism of constitutional review has ceased to exist: a reliable aide of the government and parliamentary majority has been born.
... Despite the legality of the appointment of the three judges, PiS made a use of its newly acquired parliamentary majority to declare all five judges unconstitutionally appointed and to elect their own candidates to replace them (Rytel-Warzocha, 2017). This started a full-fledged constitutional crisis, which escalated even more when, although the Tribunal declared the three judges appointed by PiS unconstitutional (claiming that their seats were already taken), President Andrzej Duda, despite being bound by law to swore in the judges that were lawfully appointed by the parliament, did so only in the case of the ones elected by PiS, including the three 'quasi-judges' (Sadurski, 2019). Initially, due to the opposition from the then President of the Tribunal Professor Rzepliński, the 'duplicate judges' did not take an active part in the work of the court. ...
... The sum total of these moves was to create a state of ambiguity regarding the impartiality and legality of the Tribunal itself. This ambiguity was exacerbated by two processes, outlined in detail by Sadurski (2019), which followed: (a) a 'legislative bombardment' meant to effectively paralyze the functioning of the Tribunal and hence to shield the constitutionally objectionable (or outright unconstitutional) reforms of PiS from judicial review (the most acute example being the proposed requirement of the Minister of Justice's (Prosecutor General) presence during the Tribunal's proceedings, giving him a de facto veto power in a certain types of cases); and (b) the government's rejection of publishing the Tribunal's judgments (including the aforementioned judgment declaring the election of the two judges in October 2015 unconstitutional). Not surprisingly, the legislative bombardment was nearly entirely abandoned when PiS gained a majority in the Tribunal (whereas the Tribunal's judgments from late 2015 and 2016 remain unpublished as of January 2019). ...
... Not surprisingly, the legislative bombardment was nearly entirely abandoned when PiS gained a majority in the Tribunal (whereas the Tribunal's judgments from late 2015 and 2016 remain unpublished as of January 2019). This, however, marked a shift in the Tribunal's role as a check on executive power to act effectively an enabler, as its active role in the effective destruction of the independence of the National Council of Judiciary testifies (Sadurski, 2019). The second offense, the refusing to publish judgments, has continued to this day; most egregiously, this action contravenes the direct requirement of the Article 190(2) of the Polish Constitution, which states that the government should publish judgments 'immediately' with no discretion or ambiguity whatsoever. ...
The economic literature is clear that transparent and impartial rule of law is crucial for successful economic outcomes. However, how does one guarantee rule of law? This paper uses the idea of ‘self-reinforcing’ institutions to show how political institutions may derail rule of law if associated judicial institutions are not self-reinforcing. We illustrate this using the contrasting examples of Estonia and Poland to frame the importance of institutional context in determining both rule of law and the path of legal institutions. Although starting tabula rasa for a legal system is difficult, it worked well for rule of law in Estonia in the post-communist transition. Alternately, Poland pursued a much more gradualist strategy of reform of formal legal institutions; this approach meant that justice institutions, slow to shed their legacy and connection with the past, were relatively weak and susceptible to attack from more powerful (political) ones. We conclude that legal institutions can protect the rule of law but only if they are in line with political institutions, using their self-reinforcing nature as a shield from political whims of the day.
... The situation in Poland is now well-documented (Zoll and Wortham 2018, Sadurski 2018, 2019b, Śledzińska-Simon 2018 Žurek 2018, Wyrzykowski 2019, Gajda-Roszczynialska and Markiewicz 2020, Pech et al. 2021). ...
... Transcripts of the conversations that appeared in the press suggested far-reaching manipulation of court cases in Kočner's favor, and communications published later detailed instances of inappropriate communication between the judges and Kočner. In sum, nineteen judges were accused of corruption, and several advocates are facing charges of corruption and obstruction of justice (Raábová 2018, Spectator staff and TASR 2019, Spectator staff 2019a, 2019b, 2019c, 2020a, Valček 2020. ...
Is it possible to distinguish whether a government is willing to eliminate its accountability or aims for public trust or efficacy growth? Moreover, which elements in the government’s actions differentiate valid criticism from an attack on the independence of the judiciary? This paper proposes an original approach toward recognizing an attack on the judiciary. While previous approaches focused on the reformer’s motivation, adherence to international standards, or the requirement of the “tribunal established by the law,” this approach is looking for a kernel of judicial independence and finds it in sufficient conditions for a judge’s free and impartial decision. In the paper, changes in Hungary and Poland will be compared to the Slovak judicial reform since 2020. While after three decades after the fall of state socialism, Hungary, Poland, and Slovakia face similar problems of backsliding of the rule of law and emerging populism, different motivations, interpretations, and outcomes of the judicial reforms can be seen in Slovakia.
... We are aware that there might be other motivations behind court-packing (e.g., political leaders may use court-packing simply to reward their allies and supporters with prestigious judicial positions), but we find these motivations only secondary, since taking control of the court being packed via a new majority has historically been the central aim of court-packing. But note that what politicians intend to do with new majorities (e.g., allying the packed court ideologically, silencing the packed court, using the packed court as an "insurance" or even as a "sword" against political opponents) is a separate question, which requires further research (see Ginsburg 2003;Helmke and Rosenbluth 2009;Sadurski 2019aSadurski , 2019b. judges ideologically aligned with the executive power, judges without a connection to the previous regime, or judges from a certain social or age group. ...
... We are aware that court-packing strategies, even if broadly understood as in our article, are still just one part of the puzzle, since court-packing is often combined with other court-curbing strategies, such as jurisdiction stripping and disempowering a judicial council in orbán's Hungary (Halmai 2012;Landau 2013;and Uitz 2015), reshuffling the composition of a judicial council and changing the Constitutional Tribunal's procedural rules in Kaczyński's Poland (Sadurski 2019b;Śledzińska-Simon 2018;Zoll and Wortham 2019). ...
Whether we like it or not, court-packing has flourished all over the world. Bolivian, Hungarian, Polish, and Turkish as well as Venezuelan political leaders have recently employed various strategies to stack their courts with loyal judges. Even in consolidated democracies, such as the United States, the possibility of court-packing is discussed with an intensity unheard of for several decades. Yet, our conceptual understanding of the phenomenon is still very limited. This article provides a novel conceptualization of court-packing and identifies three court-packing strategies: (1) the expanding strategy, which includes techniques that increase the size of the court; (2) the emptying strategy, which results in a decrease in the number of sitting judges; and (3) the swapping strategy, which aims at replacing sitting judges. Subsequently, it analyzes the potential safeguards, both formal and informal, against court-packing strategies and shows that formal institutions are rarely enough to fend off court-packing attempts.
... This was not the only one example of using legislation on pandemic control to introduce changes into penal law, or other branches of law, which were not related in any way to combating threats to public health. In sum it may be said that constitutional crisis, started with the ascent to power in 2015 of the Law and Justice party (Sadurski, 2019), was severely aggravated under the pandemic of SARS-CoV-2 virus. ...
For some time, violent crime had been rising across England and Wales resulting in the government’s Serious Violence Strategy 2018. This was set against a background of austerity, but just as re-investment in policing numbers was underway, the Covid-19 pandemic struck. As a result, crime patterns changed dramatically as did policing practices. In this chapter, we analyse the impact of the pandemic on crime figures but also show the development of changing policing practices. Focusing on one region and using the most recent police data from a county police service in the UK that we will refer to as ‘Midshire’ police, it will show how the pandemic saw reductions in many crime types but also allowed the introduction of innovative policing practices such as a public health approach. The pandemic may therefore leave a legacy of more focused public health approaches to violence reduction.
... This was not the only one example of using legislation on pandemic control to introduce changes into penal law, or other branches of law, which were not related in any way to combating threats to public health. In sum it may be said that constitutional crisis, started with the ascent to power in 2015 of the Law and Justice party (Sadurski, 2019), was severely aggravated under the pandemic of SARS-CoV-2 virus. ...
This chapter discusses the impact of the COVID-19 pandemic on crime rates in Switzerland in 2020. It analyses the development of the pandemic in the country and the measures adopted to contain its spread. Brief attention is given to the evolution of partial lockdown measures for the population and their implementation in the institutions of the criminal justice system. Several criminal justice indicators are considered to capture the differential impact of these factors on homicides, violence in general, and domestic violence, as well as property crimes, burglary, and cybercrime. These indicators observed in 2020 are confronted with those of previous years. Overall, the first year of the pandemic seems to have had a low impact on traditional crime. Cybercrime may represent a notable exception, but this hypothesis cannot be empirically corroborated, since 2020 coincided with the launch of a dedicated cybercrime data collection in Switzerland.
... 2022 sind 14 der 15 Richter*innen (inklusive der Präsidentin) durch Nominierung der PiS ins Amt gekommen. Die Rolle des polnischen Verfassungsgerichts hat sich von der Kontrolle hin zur Unterstützung der Regierung verschoben (Sadurski 2019). Das Mediengesetz der PiS-Regierung entzog dem Nationalen Rundfunkrat die Besetzungskompetenz von Rundfunkämtern und übertrug sie einem neu geschaffenen Nationalen Medienrat, der zum Großteil aus Abgeordneten der PiS besteht (Chapman 2017: 4 (Guasti 2020: 477). ...
Das Lehrbuch bietet eine einführende Darstellung des Populismus in allen relevanten Facetten. Namentlich adressiert das Buch seine unterschiedlichen Manifestationen (als Ideologie, Parteiprogramm und individuelle Einstellung), stellt den Populismus in vergleichender Perspektive vor und analysiert die Ursachen für den Wahlerfolg populistischer Parteien. Ferner diskutiert das Buch die Auswirkungen populistischer Parteien auf die Demokratie und den Parteienwettbewerb.
... Their interest in extending control of the judiciary relates to two issues. First, to PiS' first period in office between 2005 and 2007, when the Constitutional Tribunal (CT) had stopped several government bills from taking effect by declaring them unconstitutional (Sadurski 2019;Bill and Stanley 2020, 383). Second, their approach to courts and other public institutions in Poland expresses their intention to implement a counter-constitutional project (Blokker 2020, 348) that contests certain legal norms established at the roundtable talks in 1989 and the constitution in 1997. ...
What research on democratic backsliding often overlooks is that protest against the decline of rule of law also emerges inside state institutions. In Poland, the judges' associations are using legal means, organising public events and urging the European institutions to stand firm towards the Polish government. In this article, I analyse the judiciary's collective actions and motivations regarding on- and off-bench mobilisation. Based on in-depth interviews with judges, I show how they focus on litigation but use lobbying and protesting as complementary tools. Moreover, their networking and adaptation of measures to changing circumstances proves their ability to act strategically. © 2022 The Author(s). Published by Informa UK Limited, trading as Taylor & Francis Group.
... Similarly, there are conspicuously few studies combining an analysis of the postcolonial affinities of the discourses of the political Right with an analysis of the image and concept of law. As a result, the findings on the postcolonial framing used by the Right remain largely unconnected to the quickly growing corpus of the analyses of its legal philosophy and the law-making it inspires (Sadurski 2018(Sadurski , 2019Krygier 2019;Markowski 2015;Wyrzykowski 2019). ...
The article discusses the use of postcolonial framing in the 2019 election agenda of Prawo i Sprawiedliwość. The main argument is that the framing of contemporary EU-relations as a new colonial dependence is crucial for the understanding of the backsliding on the standards of the democratic rule of law in Poland. A detailed analysis of the 2019 agenda focuses on five selected components of postcolonial framing: (1) creolisation of elites; (2) mimicry; (3) hybridity; (4) subalternity; and (5) voicelessness. The discussion of findings zooms in on the ways in which the postcolonial framing of Poland’s position in the EU is being used to question the EU rule of law standards. Thus, the article makes a direct connection between framing the EU-Poland relations and the reasons offered in domestic politics to undermine the rule of law.
... While the ban had been some years in the making, ultraconservative forces felt emboldened by the recent reelection of the PiS-associated president Andrzej Duda (Kasia, 2020), and by the restrictions on public gatherings introduced because of the COVID-19 pandemic (Osiewicz, 2020). Consequently, on 22 October 2020, the Constitutional Tribunal -originally a counter-majoritarian device tasked with scrutinizing law for its unconstitutionality, taken over by PiS soon after its ascent to power in 2015 (Sadurski, 2019) -ruled that the already restrictive abortion law did not comply with the Polish Constitution. ...
This article analyzes how conspiratorial knowledge and bio-power were entangled in the Polish government’s discourse to undermine the 2020 Women’s Strike protests against the curbing of access to legal abortion. Theoretically, it uses Foucault's “bio-power” to conceptualize both the assault on reproductive rights and the securitization of ensuing protests based on “conspiratorial knowledge,” which uses conspiracy theories as a heuristic device to understand social changes. Empirically, discourse analysis is deployed to interrogate a video-recorded speech by Jarosław Kaczyński, the country’s de facto leader, posted on YouTube in response to the protests. First, the article exposes how the protests are recast as a conspiracy bent on the legal, biological, and moral destruction of the Polish nation. Second, it examines how a small sample of remediations of the video by oppositional media and women’s rights activists refutes the conspiratorial knowledge it promulgated. Throughout, the article also identifies the “(quasi-)cognitive” and “affective” forms of epistemic capital.
... In the case of Poland, however, this possibility has now been, de facto, blocked due to the ongoing crisis surrounding the Constitutional Tribunal, the origins of which can be found in reforms introduced by the present governing majority. 80 As a result of the changes introduced, the ECtHR stated in a recent judgment that the Tribunal does not currently meet the conditions allowing it to be recognized as a court of law. 81 An alternative to resolving doubts by means of a constitutional complaint 82 is to seek an interpretation of the Charter of Fundamental Rights from the Court of Justice. ...
For more than 30 years, EU institutions and Member States have been engaged in a dialogue on what measures might be considered appropriate to protect media pluralism. With the increasing globalization of digital services, national legislatures have increasingly recognized the need to actively shape the media market by controlling mergers taking place within it. The aim of this article is to discuss the PKN Orlen/Polska Press case and to explain the role of EU competition authorities in protecting media pluralism. The analysis also seeks to determine whether – and based on which competencies – the EU should counter systemic threats to media independence in Member States. The Polish experience may also be helpful in view of work currently underway on the new Media Freedom Act – EU legislation intended to counteract the growing monopolization of media and ensure its protection as a central pillar of democracy.
... It undermined the Constitutional Tribunal by packing the court and reducing its scope, before instituting measures to reduce the independence of lower-court judges (Kovács and Scheppele 2018: 196). Further echoing Hungary, the PiS-led government has limited freedom of assembly (Sadurski 2019) and restricted media freedom (Stanley and Cześnik 2019), especially of state-funded broadcasts and publications. Figure 1 plots the V-Dem Institute's national-level measure of liberal democracy for both countries, highlighting Hungary's earlier backsliding but also Poland's subsequent convergence. ...
Aspiring dominant-party regimes often institute major institutional and political reforms at the national level to ensure they retain control. However, subnational politics is an important, under-studied, component of regime consolidation. This study uses mayoral races in Hungary and Poland from 2006 to 2018 to examine two factors that may inhibit dominant-party regime consolidation in local politics: the use of two-round, i.e. runoff, electoral systems and strategic coordination among opposition parties. While we find little evidence that strategic coordination can lead to widespread opposition success in single-round systems, we do find that increasing the number of candidates decreases the likelihood of the nationally dominant party winning in the first round while not affecting the second round. As such, two-round mayoral elections may be an important buffer to dominant-party regime consolidation and may provide a training ground for the future opposition.
... In quella sede, la Commissione esprimeva preoccupazione, in particolare, per le seguenti misure: nomina illegittima della presidente del Tribunale costituzionale e ammissione di tre giudici costituzionali nominati senza valida base giuridica (su cui v. infra §3.1); rifiuto di pubblicare un rilevante numero di sentenze del Tribunale costituzionale (su cui v. infra §3.2); pensionamento forzato di un numero considerevole di giudici della Corte Suprema e dei tribunali ordinari dovuto alla combinazione tra l'abbassamento dell'età pensionabile con effetto immediato e la possibilità, assegnata rispettivamente al Presidente della Repubblica e al Ministro della Giustizia, di estenderne discrezionalmente il mandato attivo; modifiche alle procedure di nomina dei giudici della Corte Suprema, dei presidenti dei tribunali ordinari e del Consiglio nazionale della magistratura, che garantivano ampio spazio all'ingerenza politica; riforma del sistema disciplinare, con l'introduzione di due sezioni disciplinari in seno alla Corte Suprema interamente formate da giudici di nuova nomina, e conseguente ampliamento dei margini di controllo politico sull'attività dei magistrati. court packing, una serie di riforme legislative e il rifiuto di disporre la pubblicazione di alcune sentenze con le quali il Tribunale ha cercato invano di resistere alla "cattura" 112 ha permesso al partito di maggioranza di assumere il controllo del Tribunale costituzionale, passato rapidamente da supremo organo di garanzia costituzionale a sostanziale braccio dell'esecutivo 113 . Non solo il Tribunale non assicura più un effettivo controllo di costituzionalità, ma -come notato anche da Adam Bodnar, attuale Commissario per i diritti umani in Polonia, nonché una delle poche istituzioni indipendenti ancora operanti nel Paese -«[it] might be used to pursue political purposes of the ruling party, as a method to achieve certain political gains without engaging Parliament», suggerendo tra l'altro come esempio di questa tendenza proprio la questione di legittimità costituzionale relativa alla legge sull'aborto 114 . ...
The article considers recent socio-legal developments regarding abortion law in Poland after the Constitutional Tribunal’s ruling of 22 October 2020, which declared access to abortion in case of foetal abnormalities unconstitutional. This comment argues that, rather than exceptional, these events are actually consistent with the law and policy on abortion in Post-Communist Poland, as well as with the democratic backsliding facing the country since the end of 2015.
... So, when in Poland, the Tribunal became a defender and protector of the legislative majority, this has serious consequences regarding the separation of powers which becomes void. 30 As a consequence of undermining the judiciary's independence and impartiality, there are no more checks and balances in place. This manipulation of institutions and procedures that support democracy is a key feature of structural populism. ...
This essay is the result of what I learned in a course on „Constitutional Democracy in Crisis: Diagnosis and Remedies”.
In the first Section I try to give a definition of populism and constitutional
democracy. Those will help guiding the following analysis of key features of populism and their potential to threaten constitutional democracy in Section two. In a concluding Section, I will try to sum up the findings and briefly talk about possible approaches in preserving liberal democracy.
... At the same time, the ruling majority made a series of administrative and legislative decisions leading to the actual takeover of the Constitutional Tribunal by their nominees. 76 In this regard, a total of six acts were adopted that amended the principles of the Constitutional Tribunal's operation, 77 three judges were appointed to positions already filled, and the Presidenta member of PiS -refused to receive the oaths of judges elected in accordance with the law. Not only was the new Constitutional Tribunal filled in a way that gave rise to serious doubts about legality of this process, it was also headed by a judge that had been appointed its president in violation of the Act adopted by PiS itself. ...
The principle of proportionality is fundamental to modern democracies. Proportionality and strict necessity are also essential requirements for the legality of public authorities’ surveillance activities. However, nowadays it is becoming more and more difficult to assess the proportionality of a given measure, especially since its surveillance effect may take some time to become apparent. That is why legislatures are increasingly introducing additional legal safeguards to reduce the risk of abuse of power. But can more mechanisms limiting surveillance powers effectively minimize the risk that these powers will be used for non-legal purposes? This key problem will be discussed based on the example of Poland – a EU Member State whose case will be used to illustrate the limited usefulness of the “checks and balances” model in a situation where a resolutely determined authority systematically aims to achieve its goals in violation of the rule of law.
... Rather, the minister of justice threatens those judges who do not accept the primacy of the TK (Davies 2018, p. 4;Sadurski 2018b;Czarny 2018). The Supreme Court is still struggling to maintain its independence, since the CJEU declared the governments' attempts to introduce a new retirement age unconstitutional and is now about to deliver a judgement on the introduction of two new chambers, the Disciplinary Chamber and the Public Affairs and Extraordinary Control Chamber 2 Sadurski 2018a;Śledzińska-Simon 2018). All in all, the independence of the judicial system is clearly curtailed, and so far the ruling party adopted only very cosmetic changes of the respective legislation, despite critical reports by the Council of Europe's Venice Commission (Venice Commission 2016a, b, 2017 and the European Commission's Rule of Law Framework. ...
‘This important volume sheds new light on a great puzzle of the European integration project: What explains the successes of illiberal politics and anti-EU rhetoric in societies where public trust in EU institutions remains strong? The studies offer a rich spectrum of multidisciplinary perspectives by scholars from across the European continent.’
—Zsuzsa Csergő, Professor for Political Studies at Queen’s University, Canada
‘This timely volume offers an original, comprehensive and nuanced account of current illiberal trends and anti-EU and Euroskeptic politics in East Central Europe. It is a most welcome and informative read for anyone interested in rule of law and compliance challenges in the EU, their contextual frames, processes, conditions and consequences.’
—Andreas Maurer, Professor and Jean Monnet Chair for EU Integration Studies at Innsbruck University, Austria
This open access book provides an in-depth look into current illiberal trends and anti-EU politics in East Central Europe which have the potential to fundamentally change the EU. It helps to understand their domestic causes, context conditions, specific processes and consequences and contributes to empirically informed theory-building. The volume includes contributions from researchers from various disciplines and multiple perspectives on the topic. The case studies, comparative works and quantitative analyses provide a comprehensive picture of current societal, political and institutional developments in the Czech Republic, Hungary, Poland and Slovakia. Through studying similarities and differences between East Central European and other EU countries, the chapters also explore whether there are regional patterns of democracy- and EU-related problems.
Astrid Lorenz is Professor of Political Science at Leipzig University, Germany.
Lisa H. Anders is a researcher in the Institute for Political Science at Leipzig University, Germany.
... Numerous case studies trace the institutional reforms dismantling the rule of law in ECE countries (Batory 2015;Jaremba 2016;Priebus 2016;Rupnik 2012;Sadurski 2019aSadurski , 2019bSólyom 2015). To describe the phenomenon of interest, they came up with an astonishing variety of keywords, such as "Frankenstate" (Scheppele 2013), "diffusely defective democracy" (Bogaards 2018), "Potemkin democracy" or "elected autocracy" (Ágh 2015) and "externally constrained hybrid regime" (Bozóki and Hegedűs 2018). ...
This opening chapter introduces the subject matter and objectives of the book. It first explains central terms and provides an overview of the different illiberal trends in Hungary, Poland, the Czech Republic and Slovakia. It then sketches recent conflicts between EU actors and the four East Central European states and explains why these conflicts are of a new quality. Next, it summarises the state of research on illiberal backsliding and on the EU’s tools against it and identifies shortcomings and gaps in the literature. Finally, it outlines the aims as well as the overall structure of the book and provides an overview of the contributions.
... Rather, the minister of justice threatens those judges who do not accept the primacy of the TK (Davies 2018, p. 4;Sadurski 2018b;Czarny 2018). The Supreme Court is still struggling to maintain its independence, since the CJEU declared the governments' attempts to introduce a new retirement age unconstitutional and is now about to deliver a judgement on the introduction of two new chambers, the Disciplinary Chamber and the Public Affairs and Extraordinary Control Chamber 2 Sadurski 2018a;Śledzińska-Simon 2018). All in all, the independence of the judicial system is clearly curtailed, and so far the ruling party adopted only very cosmetic changes of the respective legislation, despite critical reports by the Council of Europe's Venice Commission (Venice Commission 2016a, b, 2017 and the European Commission's Rule of Law Framework. ...
Using historical institutionalism for a comparison of domestic processes around minority rights in the Czech Republic and Slovakia, this chapter shows that the European Union’s effect on the conflicts over minority rights is much weaker than suspected. While the EU and the Council of Europe provide a framework of LGBT rights and gender equality, the mechanics of the member states’ backlash against minority accommodation can be mainly attributed to the domestic clashes between progressive and conservative forces aided by their transnational allies. As a result of different domestic configurations, some European norms take root, while in other cases, domestic actors seek not only to prevent accommodation but increasingly to roll back rights. The 2006 registered partnership law and the law against domestic violence in the Czech Republic (2006) are examples of the former—the Slovak 2015 anti-LGBT referendum, the 2020 proposals of limiting abortion rights in Slovakia, and the withdrawal from the Istanbul Convention in February 2020 of the latter.
... If one common denominator in all this politics could be named, it is restoration of national glory. In the rhetoric of the current governing party, a few recurrent phrases express this intention (Bucholc and Komornik 2016;Bucholc 2018a;Sadurski 2018). Two among them are particularly apt: "getting up from our knees" (wstać z kolan) and "pedagogy of shame" (pedagogika wstydu). ...
»Schengen und der Rosenkranz: Katholische Religion und das postkoloniale
Syndrom im polnischen Nationalhabitus«. The article discusses the formation
of national habitus in Poland and its recent transformation in the postsocialist
period from the perspective of Norbert Elias’s sociology of social processes.
The starting point of the analysis is the action “Rosary to the Borders”
(Różaniec do granic) of 2017: the article analyses the use of universal Catholic
and nation-bound symbolic resources in this action referring to Elias’s symbol
theory, in order to indicate the main characteristics of the mechanism of collective
memory in this action connecting Catholic symbols to the national ones.
Religious imagery of Polishness is then related to a reconstruction of Polish
state-formation process, and two uses of national habitus, the internal and the
external one, are identified, in which religious symbols play a significant role.
The external use is illustrated by the brief overview of German-Polish antagonism.
Finally, the postcolonial syndrome of Polis society is identified as source
of the framing combining external and internal use of Polish national habitus,
especially after 2015.
... The TK decided to discontinue the proceedings in the face of the earlier judgment of 10 December 2014, case K 52/13, regarding the same constitutional problem. In the aforementioned judgment, the TK ruled on the compliance of the controversial regulation with the Constitution what has been criticised by eminent constitutionalists (Sadurski, 2019a;2019b). Nevertheless, the Ombudsman argued that the TK did not recognise the accusation of unconstitutionality of the ban on the ritual slaughter in its entirety in the previous judgment, because it omitted the issue of the dedication of meat derived from such slaughter, which can only be the needs of local religious communities. ...
The question of the application and impact of the Charter of Fundamental Rights of the EU ('Charter') in quotidian practice of human rights protection and review is a strategic one. Given the predominantly decentralised effects of EU law and with the due account to the wide interpretation of the scope of the Charter's application (Art. 51(1)) presented by the CJEU (C-617/10 Fransson), the national dimension of the application of the Charter forms the crucial issue for the functioning of the EU system of fundamental rights protection. The Charter itself has a big potential to infl uence the content, nature and mechanisms of the fundamental rights protection at the national level. The present paper focuses on this phenomena in connection to the case-law, opinions and workload of the Polish Constitutional Tribunal ('TK'). It analyses the approach of TK towards the Charter in abstract manner as well as the (non)appearance of the Charter in the reasoning of the court in concrete cases. The article reports on the main cases and analyses the reasons of the aloof approach of the TK towards the EU human rights catalogue.
... 'Lex Gross' was eventually struck down in a ruling of the Constitutional Tribunal (which coincided with a liberal takeover of power in late 2007). But in 2018, after the Constitutional Tribunal was transformed into a "governmental enabler" [11] and Zbigniew Ziobro returned to his position as Minister of Justice, 'Lex Gross' was restored in new, upgraded form as the amendment to the IPN law, causing even greater havoc with its muddy logic. ...
One year after the Polish parliament adopted an amendment that would criminalize certain statements about
Polish involvement in the Holocaust, this article revisits both the original amendment and the political
developments since. It argues that allthough the law was eventually changed to calm down concerns about
freedom of speech, sanctions still exist and their longer-term effects on Polish society and public discourse are
daunting.
... 55 55 Sartori (1962) at 861. 48 Sadurski (2018b). 49 Loewenstein (1957) at 148-149. ...
After many waves of democratisation a new type of constitutional transformation has become the focus of scholarly attention. Some researchers claim that the current erosion of constitutionalism can be understood better if the phenomenon is compared to the twentieth century dictatorships. Many others argue that what is happening today is a self-destruction of liberal democracy through democratic procedures and under the formal rule of law. This article aims to contribute to the understanding of the new system, and offers another approach. It shows that in a normative sense democracy today is the only legitimate constitutional system. That is why a key attribute of contemporary authoritarianism, a sui generis system between constitutional democracy and dictatorship, is a pretence of democracy. The article suggests that mechanisms of pretence can be identified with the help of constitutional markers, which allow a reliable distinction between constitutional democracy and authoritarianism. Constitutional markers can be revealed on two levels: first, by a systematic account of the constitutional text and practice and second, by exploring the deep structure of the false justification of the system.
... Sprawiedliwość, hereafter "PiS") after its victory in 2015 presidential and parliamentary elections was the Constitutional Tribunal, and the first act of the constitutional crisis was the conflict between the new governing party and the Tribunal (Bucholc and Komornik 2016). The struggle concluded at the end of 2016 with a victory of PiS, whose nominee overtook the Tribunal's presidency and turned it into a "governmental enabler" (Sadurski 2018b). The fate of the Tribunal illustrates the double bind between institutions and constitutional order. ...
The article discusses the part played by collective memory in the current threat to the rule of law in Poland. The starting point is the concept of commemorative lawmaking and a critical discussion of the use of the concept of memory laws in recent scholarship. An analysis of framing operations performed by PiS memory politics offers examples of how the notion of commemorative lawmaking can be deployed in order to explore techniques of legal governance of memory, including bricolage (illustrated by the case of Polish Constitution of 1997), retouch (exemplified by recent reform of Polish judiciary) and re-stylization (analysis based on the Act on National Institute of Remembrance of 2018). The article concludes with an exploration of the intrinsic connection between the threat to the rule of law in Poland and memory politics of the current Polish government, accompanied by a discussion of possible further developments in the field of law and memory studies.
En este artículo se analizan las relaciones entre los regímenes populistas-iliberales y los Tribunales constitucionales, a partir de los casos de Hungría y Polonia. Estos casos de estudio demuestran que los Tribunales constitucionales que operan en un régimen populista-iliberal pueden transformarse rápidamente de blancos de los Gobiernos a importantes aliados de las mayorías en el poder. En ese punto, el reasoning de dichos órganos puede parecerse muy a menudo a la retórica que utilizan las fuerzas populistas. Otra lección importante que ofrece el análisis de los casos húngaro y polaco es que las posibles soluciones que se han planteado, desde una perspectiva de constitutional design (especialmente en lo que se refiere a los procesos de nombramiento y composición de los Tribunales constitucionales, así como a la adopción de modelos alternativos de justicia constitucional), para evitar, o por lo menos dificultar, la captura de los órganos de justicia constitucional por parte de los regímenes populistas-iliberales, tienen sí algunos puntos fuertes, pero también debilidades evidentes.
Monografia Wizerunek prezydenta Andrzeja Dudy na łamach „Tygodnika
Powszechnego” (2015-2020), sytuująca się zasadniczo w dyscyplinie nauki
o komunikacji społecznej i mediach, stanowi próbę systematycznej rekonstrukcji
wizerunku przedstawiciela polskiej prawicy, prezydenta Andrzeja
Dudy w okresie sprawowania przez niego urzędu Prezydenta RP, tj. od dnia
jego zaprzysiężenia 6 sierpnia 2015 roku do zakończenia kadencji w dniu
5 sierpnia 2020 roku. Autor usiłuje skonfrontować deklarowane dokonania
głowy państwa w tym czasie (m.in. w następujących obszarach: polityka
zagraniczna, bezpieczeństwo militarne, polityka społeczna, udział w procesie
legislacyjnym, troska o politykę historyczną – zaprezentowanych na oficjalnej
stronie internetowej Prezydenta RP https://www.prezydent.pl/aktualnosci/
wydarzenia/art,1828,piec-lat-prezydentury-andrzeja-dudy.html) z wizerunkiem
prasowym polityka na łamach „Tygodnika Powszechnego”. Ambicją
piszącego była weryfikacja, w jakim stopniu prezydentura Andrzeja Dudy
była postrzegana przez periodyk jako autonomiczna wobec obozu Zjednoczonej
Prawicy sprawującego w tym samym czasie rządy. Analiza objęła
także reprezentacje medialne deklarowanego przez prezydenta przywiązania
do wartości chrześcijańskich.
Niniejszą książkę należy usytuować wśród publikacji badających wizerunek
polskich liderów politycznych. Kontekst społeczno-polityczny odniósł
się do kwestii obecnych w agendzie medialnej i politycznej w drugiej
dekadzie XXI wieku. Przeprowadzona analiza prasoznawcza uwyraźniła
istnienie procesu dychotomizacji polskiej sceny politycznej oraz silnych
antagonizmów o charakterze politycznym w polskim społeczeństwie i polskiej
opinii publicznej, której jednym z wyrazicieli jest opiniotwórczy „Tygodnik
Powszechny”. Warto odnotować, że krakowski periodyk zaoferował czytelnikom szeroką panoramę relacji i interpretacji reform w obszarze
legislacji autorstwa PiS, jednocześnie wskazując postawę Prezydenta RP,
cechującą się zasadniczo akceptacją zmian dokonanych przez polityków
obozu Zjednoczonej Prawicy, z którego się wywodzi i który udzielił mu
poparcia politycznego. Periodyk wskazywał ponadto konsekwencje kryzysu
praworządności w Polsce dla relacji z liderami politycznymi struktur Unii
Europejskiej. Interesujące wnioski pochodzące z przedstawionej przez krakowski
periodyk relacji prezydent Duda – hierarchiczny Kościół katolicki
w Polsce wzbogacają obszar badań również w obszarze politologii religii.
W pracy wykorzystano metodę ilościowej i jakościowej analizy zawartości.
Ponadto w badaniach odwołano się do teorii wartości informacji, teorii
selekcji informacji i teorii ram interpretacyjnych, a także analizy systemowej.
Autor żywi nadzieję, że publikacja Wizerunek prezydenta Andrzeja
Dudy na łamach „Tygodnika Powszechnego” (2015-2020) stanie się punktem
wyjścia do dalszych badań z obszaru komunikacji wizualnej, w których
uwaga badacza będzie skoncentrowana na zdjęciach, rysunkach, fotografiach
towarzyszących tekstom prasowym opublikowanym w tygodniku i odwołujących
się do osoby prezydenta. Monografia może być również użyteczna dla
medioznawców i politologów analizujących zagadnienia z obszaru mediów,
religii i polityki.
Since 2015, the governing party, Law and Justice (PiS), has gradually eroded democratic institutions in Poland. To find out whether this process has been reflected in the political discourse solely as a collapse of liberal democracy or whether we are observing a narrative redefinition of the meaning of democracy, we conducted a systematic qualitative study of the framing of democracy in PiS parliamentary speeches (2001–2020), set against the comparative background of major Polish political parties. Having adapted the Varieties of Democracy’s classification of dimensions of democracy to discourse analysis, we show that while the liberal model of democracy has dominated Polish political discourse, it has been used by PiS less frequently than by other parties and in an increasingly critical way. Furthermore, electoral and majoritarian democracy has been growing in importance and the will of the electoral majority has been used to legitimize breaking democratic procedures. However, the government’s broad redistributive policies have not been accompanied by a more egalitarian vision of democracy. We argue that the unwillingness to incorporate an egalitarian dimension into narratives on democracy demonstrates that the ruling party frames redistribution as their conditional charity towards selected social and occupational groups and not as a corrective towards economically inclusive democracy.
The current crisis in the relationship between the Polish Constitutional Court and the Court of Justice of the European Union (ECJ) is of crucial significance for the process of regional integration based on the values of liberal democracy taking place in the EU. The constitutional crisis in Poland that began in the end of 2015 has challenged the systemic position of the Polish Constitutional Court. It resulted in a new model of constitutional adjudication, and in this new model the Constitutional Court, stripped of its counter-majoritarian power, cannot be perceived as the guardian of liberal democracy. This article postulates that the assessment of the present case law of the Polish Constitutional Court in European matters is made through the prism of the Constitutional Court’s jurisprudence pre-2016 (i.e. before the constitutional crisis). Based on that assumption, the current reversal in the case law of the Polish Constitutional Court concerning the ECJ is analysed and assessed. It is argued that the root cause of the constitutional crisis in Poland is the departure from the principles of liberal democracy in the jurisprudence of the Constitutional Court, which are foundational—in light of the assumptions of the integration process—for the axiological identity of the EU and its Member States. This article also shows how the principles and concepts developed in the Polish constitutional jurisprudence pre-2016 could have served to avoid the current conflict with the ECJ, and how those notions are misused in the current jurisprudence of the Polish Constitutional Court.
This book bridges the study of European constitutionalism with the study of 'fiscal federalism' – the subfield of public economics concerned with structuring public finances between different levels of government in federal states. On one axis, this book delves into European Union and Member State constitutional law from all EU Member States in order to investigate and identify the existence of permanent constitutional boundaries that will impinge upon the selection of proposed models for EU fiscal federalism. On the second axis, this book engages the study of fiscal federalism in order to determine which institutional configurations known to that field remain legally and economically implementable within those boundaries. It provides a far-reaching investigation of which models of fiscal federalism are compatible with the constitutional boundaries of the European legal order.
Governmental response to the Covid-19 pandemic in Poland was and still is of very controversial nature, as legislative measures introduced in March 2020 are considered by most lawyers to be unconstitutional. They were also used for purposes unrelated to the pandemic. As regards impact of the pandemic, and governmental measures on crime rates and patterns, the emerging picture is not clear: there was neither consistent growth nor decline of crime. As a matter of fact, during the year 2020, many offences tended to decline, as they did during the last couple of years. But there were some exceptions to that rule. There is no doubt that the pandemic and its accompanying measures could have had a radical impact on increasing or decreasing opportunities for various forms of crime. However, available data for the entire year 2020 do not necessarily show patterns consistent with assumptions regarding changes in opportunity structures.
This is a collective book whose chapters have been divided in two sections. The first section deals with the different but generic elements and signs which show that the EU is undergoing a deep crisis of values. The second section is devoted to some specific case-studies that are focused on specific States where the attacks against the rule of law are more clearly felt.
Accession of a third country to the EU (or EU enlargement) is a complex process that places both procedural and substantive constraints on Member States in the context of drafting the Accession Agreement of the country concerned. This chapter identifies the procedural constraints on Member States that flow firstly, from the wording of Article 49 TEU itself; secondly, established practice; and thirdly, from principles of negotiation that were consistently applied in every subsequent accession wave. A closer analysis of the enlargement process and past practice reveals that the procedure laid down in Article 49 TEU is perhaps not as precise as the Court claimed it to be in Mattheus v. Doegeo (C-93/78, ECLI:EU:C:1978:206, para. 7). While it establishes the main framework to be followed by the institutions operating within its scope, Article 49 TEU does not go beyond laying down the basic contours of the process. Therefore, to provide a fuller and clearer account of how it works in practice, this chapter provides an overview of the evolution of past enlargement practice starting from the precedent set by the first enlargement. Next, the chapter establishes the main principles that governed past processes of accession and negotiations taking place therein. Identifying these principles and verifying their consistent application over past enlargement waves demonstrates the existence of further constraints on Member States in this context, even if those are, not strictly speaking, of legal nature.
This article deals with a new development in the jurisprudence of Poland’s Constitutional Tribunal: the Tribunal’s finding that art. 6 of the European Convention on Human Rights is incompatible to some extent with the Polish Constitution. The Tribunal ruled thus for the first time in its judgment of 24 November 2021 in case ref. K 6/21 in a reaction to the European Court of Human Rights judgment in the case of Xero Flor v. Poland (application no. 4907/18). The article critiques this judgment both from the national and international perspective. I argue that contrary to the intention of the Prosecutor General, who is also the Minister of Justice and who initiated the proceedings leading to this judgment, this judgment does not affect the obligation to enforce the Xero Flor judgment. As the Constitutional Tribunal, in commented judgment, fails to fulfil one of its essential functions, protecting citizens’ rights and freedoms, this judgment should be perceived as proof of the instrumentalisation of the Constitutional Tribunal for internal political purposes. This ruling, however, formed the basis for a new line of jurisprudence, as the Convention was again challenged before the Constitutional Tribunal by the Prosecutor General in reaction to subsequent ECtHR judgments. Constitutional Tribunal in its judgment of 10 March 2022 in case ref. K 7/21 ruled again on European Convention on Human Rights incompatibility with Polish Constitution.
Adopting the methods of institutional analysis and case law analysis, the paper answers how specific elements of rule of law backsliding impact advocacy for minorities’ rights’ recognition. The phenomenon is analysed in the case of Poland, a state that since 2015 has been experiencing directed erosion on rule of law standards. Between 2018 and 2020, governmental leaders in Poland targeted lesbian, gay, bisexual, and transgender (LGBT) people in the context of electoral campaigns. The paper discusses long-term legal, political, and social factors contributing to creating an environment where such anti-LGBT campaigns are possible. It further demonstrates that specific elements of rule of law backsliding, such as politically subordinating the Constitutional Tribunal and the office of the Prosecutor General, enable authorities to apply discriminatory legal instruments to limit the targeted minority’s rights and also make resistance to it with legal means more complex. Against this backdrop, the paper argues that human rights defenders’ immediate responses—private civil lawsuits, artistic projects, and monitoring of discriminatory actions of the authorities—were key for drawing domestic and international attention to anti-LGBT campaigns, which later led to the European Union’s institutions concrete actions and an independent Commissioner for Human Rights’ legal actions. Cumulatively, these actions contributed to reversing elements of the anti-LGBT campaign in Poland.
Freedom of assembly is one of the fundamental rights that form the backbone of democracy. It guarantees people the right to public and peaceful assembly, enabling them to express their own views and bring some influence to bear upon social and political processes. The purpose of this article is to analyse the legal measures introduced in Poland as a response to the COVID-19 pandemic, which resulted in the restriction of freedom of association and the right to protest. For the purpose of this analysis, compliance with formal legislative requirements, as well as the actual application of and compliance with the adopted legal measures, will be taken into account. Additionally, the broader political and legal context of the analysed measures should be considered, as they are related to a crisis of the rule of law in Poland that has been ongoing since 2015.
During the rule of law backsliding crisis in Poland since late 2015, Civil Society Organizations (CSOs) have been active in the struggles to defend judicial independence. CSOs cooperate closely with judges and support their ‘judicial resistance’. This Article has three main objectives: describe and analyze the relationship between judges and CSOs; show the evolution — both continuity and discontinuity in their relations over time; assess whether CSOs’ activities are of any practical significance and therefore worth attention. The CSO-judicial relationship is analyzed for three periods: 1976–1989, the years before the transformation of Poland from a ‘people’s republic’ to a democracy; 1989–2015, the time of building liberal democracy and the rule of law; 2015–2020, the time of defending the rule of law from a populist attack.
Drawing on sources including years of participant observation providing unique and insider knowledge, the author analyzes the activities and outputs of CSOs and judges focusing on their interactions and cooperation. The author argues that CSOs play a significant role in the struggle for the rule of law and judicial independence. This Article demonstrates that CSOs’ current engagement and input is not an extraordinary, ad hoc phenomenon, but rather one that arose from the previous interactions between the judiciary and civil society. The author argues that what we witness in Poland is an unprecedented phenomenon, both in the character of the relationship between judges and CSOs, and the scale and diversity of their cooperation. At the same time, the author claims that CSOs are underappreciated, including by academia, their work is taken for granted, and their role in the legal complex can be seen as a partly lost opportunity. If noticed, appreciated, and supported CSOs activities and their role could be more meaningful.
The success of the legal transitions occurring in the 1990s was quite dubious. Although, as a result of enlargement of the EU, much of the “other Europe” became part of the European Union, it would be too simplistic to assume that, with the fall of the Berlin Wall, the region became part of Western European political and legal landscape. While the books of the old era were discarded, legislation repealed and new institutions created, one should not underestimate the continuing strength of the old values, principles and legal thought in general. After all, the authors of those discarded books remained in the academia, even if they seemingly started to produce – virtually overnight – new works, while defending new values and principles. Alongside with the academics, the entire legal personnel of the old era survived the systemic change, and this contributed to the persisting spirit of old legal culture. That is why the philosophies of the old socialist legal system were able, not only to survive, but to govern a substantial portion of the post-socialist legal and judicial discourse. The deepest layers of the old legal culture are resistant to sudden changes by their very nature. They seldom have a direct connection to the former official political ideology, and they are often clothed in the new legal vocabulary. Furthermore, the most persistent features of socialist legal culture are often those linked to the region’s illiberal pre-socialist past, although substantively modified during the era of socialism. I will show some examples of old socialist concepts which seem to be alive and well in the new legal system. First, I am going to deal with the authoritarian model of judicial process, which appears to prevail in the region of Central and Eastern Europe. The socialist conception of a judicial process continues to haunt the region even several decades after the fall of “existing socialism.” The parties continue to be viewed as passive objects in the post-communist litigation. Second, I am going to explain a specific socialist novelty, the concept of supreme courts’ interpretative statements, legislating from the bench without any real-life case pending before those courts. Last but not least, I will show the gradual decline of the activist role of constitutional courts in the region and the return to the tradition of self-restrained judiciary influenced by politics and politicians.
Poland has gone through a series of remarkable political transformations over the last 30 years. It has changed from a communist state in the Soviet sphere of influence to an autonomic prosperous democracy and proud member of the EU. Paradoxically, since 2015, Poland seems to be heading rapidly in the opposite direction. It was the Polish Solidarity movement that started the peaceful revolution that subsequently triggered important democratic changes on a worldwide scale, including the demolition of the Berlin Wall, the collapse of Communism and the end of Cold War. Fighting for freedom and independence is an important part of Polish national identity, sealed with the blood of generations dying in numerous uprisings. However, participation in the democratic process is curiously limited in Poland. The right-wing, populist Law and Justice Party (PiS) won elections in Poland in 2015. Since then, Poles have given up more and more freedoms in exchange for promises of protection from different imaginary enemies, including Muslim refugees and the gay and lesbian community. More and more social groups are being marginalized and deprived of their civil rights. The COVID-19 pandemic has given the ruling party a reason to further limit the right of assembly and protest. Polish society is sinking into deeper and deeper divisions.
A growing body of literature examines the EU’s reactions to illiberal trends in ECE countries. These studies predominantly focus on political instruments such as Article 7 and the Commission’s new rule of law mechanism, and there is a broad consensus on the view that these tools are too weak to combat breaches of liberal principles. This chapter therefore explores the potential of alternative strategies, namely the involvement of civil society actors in backsliding countries. By looking at the Polish case, it explores how much Polish civil society interacts with the European institutions in order to address violations of the rule of law and which strategies these actors unfold. It examines whether this cooperation may help to safeguard democracy in a bottom-up manner. The overall goal of the chapter is to investigate how much the EU’s instruments against democratic backsliding could and should be accompanied effectively by strategies aiming at collaboration with liberal forces within the backsliding member states.
Many people must be wondering how it is possible that Poland, not so long ago hailed for its exemplary transition from a communist dictatorship to a liberal democracy, could have so swiftly descended into authoritarianism via a crisis in the rule of law. The majority of commentators point to the size and ferocity of the attack on those mechanisms meant to safeguard the rule of law, whereas few focus on the weakness of their defence. This article attempts to redress that imbalance. The crucial facts of the Polish crisis are first presented, and the nature of both the attacks on the rule of law in Poland and the measures taken in its defence are then presented. In describing their defence, this article not only draws on Nicholas Barber’s concept of the self-defence of institutions, but attempts to improve upon it in the light of the Polish crisis. Further in the article, I argue that one of the reasons for the success of the assault on the rule of law is the formalistic legal mindset that is prevalent among Polish lawyers. This mindset is characterized by a reductionism of the interpretative premises to be applied when deciding constitutional cases. This reductionism is conspicuous in the application of bright-line rules with no consideration of general constitutional principles. I argue that the development of a robust, non-formalistic methodology of legal decision-making is a prerequisite for a successful defence of the rule of law.
Ongoing discussions on the need to amend the effective Constitution of the Republic of Poland of 2 April 1997 or to enact a new Fundamental Law have made the question on the limits of permitted modifications of system-related decisions to become increasingly pertinent also in the context of Polish constitutional law. The question posed above naturally raises further questions: the importance of the constitution itself, its role in the legal system, the relationship between constituent power and constituted power, as well as the interdependence between constitutionalism and democracy. These questions are well embedded in theoretical and legal considerations, and the answers to them depend to a large extent on the adoption of specific initial assumptions.
Cambridge Core - Human Rights - Human Rights in a Time of Populism - edited by Gerald L. Neuman
Human Rights in a Time of Populism - edited by Gerald L. Neuman April 2020
This contribution deals with the ability or not of the European Union (EU) to act in situations of serious systemic violations of the rule of law in a Member State. It does this by looking at the different available mechanisms including Article 7 in the Treaty on European Union (TEU) and the new Rule of Law Framework and excluding infringement procedures before the Court of Justice of the EU. The contribution also discusses whether as a result of a serious breach of the TEU a Member State could be expelled from the organisation. The TEU contains no provision on expulsion, but the Vienna Convention on the Law of Treaties potentially does. In conclusion, the contribution finds that neither mechanism can be likened to a weapon, nor are they probably dissuasive, but they might be persuasive thanks to a persistent and protracted dialogue. The EU has no realistic choice but to be a gentle civiliser of Member States.
It has been stated that there are also gray zones between democracy and authoritarianism which are considered by different political scientists who believe that many of the approaches taken in the works given in the field of democracy and authoritarianism are no longer up to the present day. These gray zones can be grouped under the title of "mixed regimes". The concept of "electoral authoritarianism", which is one of the most preferred under this general title, has started to show itself in many countries, including Central and Eastern Europe, which could be called "Third World" in the post-Soviet period. This concept has been a useful tool to reveal that many regimes, which have been called democracy since the 1990s, actually have a very minimalist approach, unlike the belief that they have not met the requirements of representative democracy. As a matter of fact, economic and social transformations stand as a reality in the last period when it can change the dominant ideology or understanding in societies. It has begun to bring to power the right populist, conservative and nationalist parties, which economic and social transformations see as their savior, in certain parts of society, causing revanchism. Some of the specific features of such parties are the one-sided reading of democracy, the restriction or disregard of freedoms, the opposition becoming dysfunctional under state pressure, and the feeding of mainstream parties through scandals and corruption. In this context, the Party of Law and Justice (PiS) was the only ruler of the legislative and executive, with the party coming to power in the post-2015 presidential election and in the parliamentary elections. Political actors such as the Constitutional Court, media and non-governmental organizations, which are seen as the only obstacles limiting PiS, are to be controlled. This leads to backslidings from democracy in Poland on the issue of "rule of law" and “freedoms".
One of the politically momentous and legally precedential constitutional problems of recent years which had to be faced by the Polish constitutional court has been the dispute whether it is possible to exclude the applicable statute defining the organization and procedure of the CT proceedings as a basis for adjudication.An analysis of the judgment of the Tribunal addressing that issue proves that the Polish constitutional court excluded the possibility that the same regulation could serve simultaneously as the object of control and the basis for control proceedings.This results from the essence of constitutional control of the law which in such arrangement of its key elements would simply repeal itself, i.e. would lead to its own invalidation.Subordination of constitutional judges exclusively to the Constitution extends to all actions they perform in serving their office and other consubstantial manifestations of exercising the power to judge.This is a derivative of jurisprudential responsibilities of the Tribunal, which include both passing a final judgment as to compliance of challenged statutes, as well as other acts of application of law.Art. 195 (1) in fine of the Polish Constitution lays down a competence norm for a CT judge to refuse, in specific circumstances, to abide by the CT Act. One of the analytical assumptions is recognition of the finality of CT judgments.The possibility to exclude a provision of the CT Act is an action in the area of application of law.Determination of the legal framework for passing judgments has nothing in common with constitutional control of challenged statutes.Those actions derive from totally different orders and their goals are differe.
One of the politically momentous and legally precedential constitutional problems of recent years which had to be faced by the Polish constitutional court has been the dispute whether it is possible to exclude the applicable statute defining the organization and procedure of the CT proceedings as a basis for adjudication.
An analysis of the judgment of the Tribunal addressing that issue proves that the Polish constitutional court excluded the possibility that the same regulation could serve simultaneously as the object of control and the basis for control proceedings. This results from the essence of constitutional control of the law which in such arrangement of its key elements would simply repeal itself, i.e. would lead to its own invalidation. Subordination of constitutional judges exclusively to the Constitution extends to all actions they perform in serving their office and other consubstantial manifestations of exercising the power to judge. This is a derivative of jurisprudential responsibilities of the Tribunal, which include both passing a final judgment as to compliance of challenged statutes, as well as other acts of application of law.
Art. 195 (1) in fine of the Polish Constitution lays down a competence norm for a CT judge to refuse, in specific circumstances, to abide by the CT Act. One of the analytical assumptions is recognition of the finality of CT judgments. The possibility to exclude a provision of the CT Act is an action in the area of application of law. Determination of the legal framework for passing judgments has nothing in common with constitutional control of challenged statutes. Those actions derive from totally different orders and their goals are different.
The current surge of populism in ECE demonstrates that constitutional democracy is in great danger when its core principles no longer enjoy wide democratic support. Paradoxically, constitutional democracy can play its “counter-majoritarian” role only when a majority of the people believe that it is the only game in town. But such support cannot be presumed; it must be continuously fought for in a democratic political arena. Ultimately, democratic political parties and social movements with credible political ideas and programs offer the best hope for the survival of constitutional democracy. The role of law and constitutional checks and balances is less of an essential bulwark against democratic backsliding than is traditionally presumed in the legal literature.
Two decades ago, Martin Shapiro urged public law scholars to expand their horizons and begin studying “any public law other than constitutional law, any court other than the Supreme Court, any public lawmaker other then the judge, and any country other than the United States” (Shapiro 1989). Shapiro recognized that American public law scholarship stood at the margins of political science because it did not adequately engage the broad questions in the field0. Perhaps more importantly, Shapiro recognized that judicial institutions had become important political players in a number of countries and that a “judicialization of politics” was on the advance across much of the world. Since Shapiro's first call for more comparative scholarship, there has been an explosion in the judicial politics literature focused on a variety of regions and themes, including the role of courts in democratizing countries, the relationship between law and social movements, and the judicialization of international politics. However, there has been relatively little research on the dynamics of judicial politics in non-democracies. This gap in the literature is likely the result of a long-standing presumption among many political scientists that courts in authoritarian regimes serve as mere pawns of their rulers, and that they therefore lack any independent influence in political life. Yet, as many of the contributors to this volume have demonstrated elsewhere (Barros 2002, Hilbink 2007, Moustafa 2007, Pereira 2005, Solomon 1996), the empirical reality in many authoritarian regimes cuts against this conventional wisdom.
Where does judicial power come from, how does it develop, and what political conditions support its expansion? This book answers these important questions through an examination of three constitutional courts in East Asia, where law is traditionally viewed as a tool of authoritarian rulers. New democracies around the world have adopted constitutional courts to oversee the operation of democratic politics. Thomas Ginsburg argues that, while judicial review does put constraints on government, it is sought as a solution to the problem of uncertainty in constitutional design. By providing –insurance— to prospective electoral losers, judicial review facilitates democracy.
This is a completely revised and updated second edition of Rights Before Courts (2005, paper edition 2008). This book carefully examines the most recent wave of the emergence and case law of activist constitutional courts: those that were set up after the fall of communism in Central and Eastern Europe. In contrast to most other analysts and scholars, the study does not take for granted that they are a "force for good" but rather subjects them to critical scrutiny against a background of wide-ranging comparative and theoretical analysis of constitutional judicial review in the modern world. The new edition takes in new case law and constitutional developments in the decade since the first edition, including considering the recent disturbing disempowerment of the Hungarian Constitutional Court (which previously was probably the most powerful constitutional court in the world) resulting from the fundamental constitutional changes brought about by the Fidesz government. © 2014 Springer Science+Business Media Dordrecht. All rights are reserved.
Freedom of Religion versus Humane Treatment of Animals: Polish Constitutional Tribunal’s Judgment on Permissibility of Religious Slaughter - Volume 11 Issue 3 - Aleksandra Gliszczyńska-Grabias, Wojciech Sadurski
This is an edited Introduction of a new book which will be published by Oxford University Press in August 2012: Wojciech Sadurski, Constitutionalism and the Enlargement of Europe (Oxford 2012). After the fall of Communism in Central and Eastern Europe (CEE), the newly democratized countries of the region joined two main pan-European political and legal structures: the Council of Europe and the European Union. This book shows how the Eastward enlargement of these two structures fostered the 'constitutionalization' both of the Council of Europe and of the EU. Prompted by the enlargement of the Council of Europe and the admission of a number of countries which brought unique and often more substantial problems onto the Court's agenda, the main judicial body of the Council of Europe, the European Court of Human Rights, became a quasi 'constitutional court' of Europe. When it comes to the EU, the enlargement (first prospective, and then, actual) has been an important agenda-setter for the constitutionalization of the EU; in particular, for openly placing the issue of fundamental rights on the EU agenda as a legitimate and indispensable matter of concern for the EU. But the 'constitutional synergies' were a two-way street: the accession to both pan-European structures has also affected the development of democratic constitutionalism in CEE states.
Farewell to the separation of powers-on the Judicial Purge and the capture in the heart of Europe. VerfBlog
- T T Koncewicz
Human rights in contemporary world: essays in honour of Professor Leszek Garlicki
- M Zubik
Poland’s Constitutional Tribunal under Siege
- A Śledzińska-Simon
Constitutional Courts: forms, functions and practice in comparative perspective
- A Harding
- P Leyland
- T Groppi
Judicial review in new democracies
- T Ginsburg