November 30
2020

Poland’s Constitutional Breakdown

Wojciech Sadurski

review by

Michał Krajewski

Wojciech Sadurski has set for his latest book three goals: first, to provide a comprehensive account of the anti-constitutional populist backsliding in Poland; second, to explain its causes in a country ‘widely, and justifiably, applauded for its achievements in democratic consolidation, human rights, and judicial independence’ (p. vi); and third, to consider the way out.

Scholars will find in the book, the first such extensive and detailed account of the Polish case, confronted with the increasingly vibrant debate regarding the proper conceptual description of democratic and constitutional erosion in various countries. Legal practitioners outside Poland, such as judges and attorneys, may find the book helpful while dealing with the question of whether rulings of Polish courts may be executed in other countries without breaching the fundamental right to a fair trial. European and international officials and commentators will surely find the book informative and inspiring regarding further actions oriented towards the protection of the rule of law in Poland and other countries.

The readers of the book should, however, keep in mind that Sadurski admitted not only to be a dispassionate analyst but also a concerned citizen. He claims no neutrality. In my view, his account and overall assessment are by all means accurate. But his explicit attachment to liberal constitutionalism, and its version prevailing in Poland between 1989 and 2015, might have influenced the choice of facts and viewpoints he has found relevant, his explanations and interpretations. Even though he is often very assertive in his assessments, I read his admission as an acknowledgement of the urgent need for further research and polemic to reveal and hopefully remedy weak points of the constitutional project in Poland and beyond.

In Chapter 1, Sadurski takes a bird’s eye view on the incremental and cumulative changes introduced by the Law and Justice Party (PiS) since 2015. Despite unaltered formal appearances and PiS’s pro-democratic rhetoric, constitutional institutions and processes have changed their practical operation and meaning, which explains why a detailed factual account is necessary to understand Poland’s backsliding. Sadurski denotes the Polish case as an ‘anti-constitutional populist backsliding’, referring to, respectively, a series of ordinary statutes manifestly breaching the Constitution, the PiS’s claim that it represents the ‘real’ people while dismantling institutional pluralism, and the deterioration in democratic qualities already attained. Many Poles might find the last point particularly controversial due to, for instance, the chronic malfunctioning of the Polish justice system over the previous 30 years. But I agree with the ‘backsliding’ label since the PiS’s judicial ‘reforms’ are by no means capable of remedying this malfunctioning but rather the contrary.

Chapter 2 lays the background for the main analysis by sketching out the constitutional history of Poland. Of particular importance is the process of making the Constitution of 1997, which Sadurski praises as inclusive, deliberative, and pluralist, although not ideal. He notes that right-wing political parties refused to support the Constitution, which, as they believed, did not sufficiently embody their vision. He then discusses the substance of the Constitution with its emphasis on individual and political rights, limited justiciability of social rights, and a robust constitutional review. He also notes the vast contentment of constitutional scholars with the current Constitution and a high rate of Polish citizens declaring the recognition of the Constitution’s authority. In his view, this data proves the Constitution’s consolidation in the public consciousness and the lack of tolerance for its breaches. But seeing relatively few, rapidly weakening and ultimately ineffective social protests and movements in defence of the Constitutional Tribunal and ordinary courts, one could argue that the respondents’ declarations do not translate into the real attachment of the society to its Constitution.

Chapters 3 meticulously documents the deplorable process of paralysing the Constitutional Tribunal. Sadurski begins by admitting that, before 2015, the Tribunal’s case law was often raising major controversies, for instance as regards the restriction of abortion and free speech or the status of religion and the Catholic Church. One could add to Sadurski’s list the case law upholding austerity measures introduced by the previous government in response to the financial crisis and clinging to the limited justiciability of social rights. There were also institutional problems: non-transparent elections of constitutional judges or low level of persuasiveness of Tribunal rulings permeated with a technical juristic language. The Tribunal used to be sometimes depicted as having a hidden political agenda or supporting the previous government, which might affect its authority. Sadurski discussed these issues in his earlier work. But he is now right to put in the foreground the Tribunal’s overall positive contribution to the protection of fundamental rights and the separation of powers. The central part of the chapter documents in great detail the Tribunal’s paralysing including court packing, the multiplication of procedural obstacles, a failure to publish rulings in the official journal, and finally the irregular appointment of the new Tribunal’s President. But there have been in the Polish constitutional and public debate thorny questions regarding the Tribunal’s self-defence which Sadurski has not raised. Why did not the constitutional judges duly elected make their oaths to the President in writing and assume their offices? Was the former Tribunal’s President right to try to negotiate with PiS regarding a gradual introduction of new judges? Was the Tribunal right to deny jurisdiction to review the appointments of its unconstitutionally elected members in the name of the clarity of a conceptual distinction between normative and individual acts? Sadurski ends the Chapter with a critical reflection upon the Polish model of concentrating constitutional review in the single Tribunal, with a distrust towards ‘dispersed review’ by ordinary courts, which ultimately has contributed to the system’s fragility.

Chapter 4 completes the picture by analysing the equally deploring process of undermining judicial independence by institutional changes, the new system of disciplinary proceedings, the empowerment of the Minister of Justice, mendacious propaganda and harassment against individual judges. Why did not society stand up en masse in defence of the courts? Sadurski mentions that courts have always had a bad press because of chronic delays in judicial proceedings. But what should also be emphasised is deeper problems of post-communist legal culture prevailing in courts such as the excessive formalism, the sticking to the literal wording of provisions, the unwillingness to engage with constitutional, European or international standards and avoiding politically controversial decisions. These problems undermine the social trust in the rule of law, especially in times when the capacity of law to stabilise social relations becomes weaker due to the increasingly complex reality. These problems recently manifested themselves, for instance, as a major scandal regarding systemic abuses in courts of claims for the restitution of property lost during the communist rule, although the scandal was largely due to the Parliament’s failure to regulate this matter. Nonetheless, PiS does not address the roots of these problems but simply aims to take direct control over broad spheres of social life. Chapters 5 and 6 illustrate this strategy by discussing troubling changes in the legislative process, civil service, public media, the independent (until recently) electoral committee, civil society and the freedom of assemblies.

Chapter 7 considers the causes of the Polish backsliding. Besides legal factors, such as the lack of sufficient entrenchment of independent institutions, Sadurski blames xenophobic attitudes among the Polish society, its distrust towards multicultural tolerance and the current political elite, impatience with liberal constraints on government, a distorting effect of the Polish electoral system, and skilful propaganda. He may underestimate the justified and long-lasting sense of economic insecurity by many Poles and a resulting loss of social cohesion. PiS portrayed itself as addressing some of the pressing social problems, e.g. by providing new generous social benefits. It was able to do so because many of such issues were never solved or even acknowledged by previous governments, which might impact society’s weak attachment to the ideals of the rule of law. Such problems include the massive replacement of labour law contracts with civil law contracts implying less social protection for workers, housing problems affecting mainly young people, the deficient quality of public services such as public healthcare, the decline of public transport causing social exclusion in the province, low wages in the public sector affecting, among others, school teachers and medical staff.

Chapter 8 discusses the responses of EU and international institutions. In particular, Sadurski analyses how the Polish case provided an opportunity for the EU institutions to assert the competence to define red lines of national judicial independence. This Chapter would require further research and update, especially in light of recent rulings of the Court of Justice and the Polish Supreme Court which, a few days ago, were contested by the captured Constitutional Tribunal. At this moment, it remains doubtful whether the EU institution will manage to restore judicial independence in Poland.

In the concluding Chapter, Sadurski engages with different theoretical concepts to denote the Polish case. In his view, the term ‘illiberal democracy’ becomes, in the long run, an oxymoron: democracy and a broad range of rights, practices and institutions enabling a fair political process are co-dependent. He also convincingly argues against treating the Polish case as an instance of ‘political constitutionalism’, which, although not favouring robust constitutional review, still requires a strong separation of powers to constrain politics. He then explains that PiS actions cannot be seen as remaining within the boundaries of the law. Even though PiS sticks to the literal wording of legal provisions, when convenient, it breaches ‘unwritten rules’ conferring upon legal provisions their proper meaning. The ‘unwritten rules’ that Sadurski introduces might be perhaps simply explained as the outcomes of systemic and functional interpretation that PiS deliberately ignores, when these would require considering the requirements of the separation of powers. Thus, PiS exploits, to the extreme, legal textualism and formalism prevalent in the Polish legal culture.

Sadurski engages with his last question – what the way out is – only in the afterword. He seems to place his hope in civil society and independent private media. Thus, he may be suggesting that there is a way back to the previous liberal and legalist constitutionalism with a robust constitutional review. Hopefully, this question, in particular, will inspire further research or polemic debate.

 

Dr Michał Krajewski is a post-doctoral research fellow at iCourts Centre of Excellence for International Courts, Faculty of Law, University of Copenhagen. He works on an ERC research project ‘IMAGINE – European Constitutional Imaginaries: Utopias, Ideologies and the Other’.

 

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