The Palace of Culture in Warsaw, a
monument of communist rule (Photo: Jorge Lascar)
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
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