Op-ed: Has Poland become a country without a constitution?

Por Maciej Kisilowski, 9 enero
Pro-democracy protest in Warsaw in 20176 (photo credit: Dariusz Kalan)
Op-ed: Has Poland become a country without a constitution?

With the recent appointment of a new chief judge and enactment of yet another wave of procedural constraints, Poland’s ruling PiS party has finished the takeover of the country’s constitutional court.

Since meaningful EU action based on Article 7 of the EU Treaty is highly unlikely, Poland’s international partners and foreign investors must now face a stark reality: Poland is a country without a functioning constitution.

To understand the situation, we need to grasp the core legal argument on which Poland’s PiS has based its entire strategy against the court. According to the theory, their parliamentary majority - not enough to formally amend the constitution - can still neuter the country’s basic laws by crippling the court’s power to review the constitutionality of laws that PiS enacts.

Ordinarily, such procedural constraints would themselves be subject to a constitutional review. But the government claims that it can effectively prevent such a review by simply declaring new procedures to take immediate effect. The “immediate effect” theory is ostensibly based on Article 190 of the Polish constitution, which provides for any law to remain in force until the constitutional court finds it unconstitutional. But PiS claims stretch that principle beyond recognition.

The government argues that the rule binds the Court even when it reviews laws that regulate the Court’s own operations. In short, the Court must act in accordance with any new procedural law, even when it reviews the constitutionality of that very law. The absurdity of this reasoning was aptly highlighted in the March opinion of the Venice Commission, the constitutional watchdog of the Council of Europe in Strasbourg.

If PiS' argument was right, the commission observed, “an ordinary law, which simply states 'herewith, constitutional control is abandoned - this law enters into force immediately' could be the sad end of constitutional justice.”

The commission’s point is only slightly hyperbolic. PiS has used the “immediately effect” approach to impose a six-month waiting period for most cases reviewed by the court, or introduce unconstitutional supermajorities required to find a law unconstitutional.

Absurd new constitutional controls

Most recently, in stunning defiance of the basic law, another immediately effective law allowed a group of just three legally appointed judges, all of who happened to be PiS allies, to nominate the court’s new chief judge. The sheer lawlessness of that nomination confounded even one judge recently picked by PiS, who refused to participate in the procedure, joining all the judges elected before 2015 by a liberal majority.

So far, PiS’ focus has chiefly been on stuffing the court with its loyalists. But in the future, the precedential effect of the pseudo-legal “immediate effect” theory may be even more devastating to Poland’s constitutional democracy. 

Imagine, for instance, that PiS moves to nationalise a company it dislikes or seize assets of a political opponent. Even potential objections of PiS-appointed judges may not matter. All the government will need to do is to accompany the nationalisation law with an “immediately effective” provision that excludes the constitutional court’s jurisdiction over the law in question.

Without massive judicial protests, Poland is effectively entering a period in which the PiS majority can enact any law, regardless of constitutional norms and values. Poland’s international partners would be wise to take notice. For the last 25 years, the country has increasingly been regarded as “more or less the West.” That assumption no longer holds.

As far as its constitutional system is concerned, Poland has come to resemble countries like Venezuela, Turkey, or the Philippines, where the will of those in power trumps legal rules and principles.

That is not to say that Poland is likely to see as drastic policy outcomes as the other countries just mentioned. PiS rule is still constrained by a myriad of non-legal forces. 

Demonstrations in major cities have been effective in forcing PiS to abandon its most radical ideas.

A slowing economy may soon force the government to accept some tough bargains in exchange for Western investments and financial aid. There is also growing resentment within moderate elements in PiS itself.

Settling political conflicts on the streets, with foreign economic pressure, or through internecine feuds in the regime will almost surely end up badly for Poles and for our future.

Sadly, that pain appears now to be the only way for the country to learn the value of limited, constitutional government.

Maciej Kisilowski is associate professor of law and public management at Central European University in Budapest

EU Observer

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