Last week, Poland stuck its thumb in the eye of the European Commission, again.  Responding to the complementary Rule of Law Recommendation that the Commission had issued two months earlier, the Polish government asserted that everything the Commission had complained about had been fixed. Since the government had compromised the independence of the Constitutional Court by both packing the Court with a working majority of loyalists and installing a more politically reliable Court president, the Polish government explained that there is nothing left to fight about. The Commission addressed Poland with law, and Poland responded with opposing facts on the ground.

Poland’s defiant response to the Commission’s requests indicates that the government is not planning to do what the European Commission believes it must. The Polish Law and Justice (PiS) government almost surely believes that the Commission will meekly accept defeat and allow another Member State to become an autocracy in plain sight, as the Commission already did with Hungary.

We believe that if the Commission does not defend the rule of law at this critical juncture, the rule of law will be honoured across the EU only in the breach. This is a fragile moment for Europe. Europe was built on law; it must defend the law to retain its identity and its future.

In this post, we will consider in more detail the Polish government’s reply to the findings and recommendations of the European Commission regarding the systemic threat to the rule of law in Poland and explain what we believe the response of the Commission must be. It may be worth recalling in this respect that the Recommendation adopted on 21 December 2016 gave Poland two extra months to comply with the first set of requests adopted by the European Commission in its initial Recommendation of 27 July 2016. The Commission did however also lengthen the list of requirements by asking the Polish government to urgently address new rule of law issues that arose after to the adoption of its first Recommendation.

In a number of previous posts published on this blog, we argued that:

1. There was no point continuing a process of ‘constructive dialogue’ with Polish authorities considering their determined violation of EU values and failure to even acknowledge the reality of a threat to the rule of law (see Pech, Systemic Threat to the Rule of Law in Poland);
2. Even without discernible support from the Council, the Commission ought to promptly trigger Article 7 TEU given how much evidence points towards the existence and implementation of a deliberate governmental strategy to systematically undermine checks and balances in order to entrench a one-party state (see Pech and Scheppele, Giving up on the Rule of Law);
3. There has been a compelling case for some time to activate Article 7 against both Poland and Hungary considering that Hungary has been engaged in a parallel sustained and systematic attack on the rule of law since 2010 and that Poland started down the same path in 2015 (see Scheppele, Can Poland be Sanctioned by the EU? Not unless Hungary is Sanctioned Too);
4. The effective capture of the Polish Constitutional Tribunal and the reactions of both the Polish president, Andrzej Duda, and Poland’s de facto ruler, Jarosław Kaczyński, to the Commission’s complementary Recommendation further demonstrate beyond any doubt that Article 7(1) TEU ought to have been triggered when the deadline for implementing the first Recommendation of 27 July 2016 expired last October (see Pech and Scheppele, Poland the European Commission: Part I Dialogue of the Deaf);
5. By giving more time to the Polish authorities to implement both the ‘old set’ and the ‘new set’ of rule of law recommendations it issued, the Commission has failed to learn from its prior dealings with Hungary and the successful capture of the Hungarian Constitutional Court by the government of Viktor Orbán. In the Commission’s defence however, Member States in the Council have so far shamefully failed to support the Commission’s enforcement of EU values directly against any EU country gone rogue, so Poland’s rule of law probe is proving that Article 7’s dissuasive power is close to nil (see Pech and Scheppele, Poland and the European Commission – Part II Hearing the Siren Song of the Rule of Law).

In this post, we will argue: 1) The Polish reply of 20 February 2017 to the European Commission’s rule of law findings is so clearly absurd, rude and full of ‘alternative facts’ that the case to trigger Article 7 TEU promptly is more compelling than ever and 2) It is time for Member State governments to get their act together and make explicit their disapproval of a government that finds it acceptable not only to violate its national Constitution and EU values in plain sight but also to bully and disrespect EU representatives such as Frans Timmermans and Donald Tusk.

The Polish statement of 20 February 2017

The reply the Polish government sent to the Commission has not been published, but the statement published on 20 February 2017 (see website of the Polish MFA) is in line with the Polish government’s past uncompromising stance and rude language (for an analysis of the previous Polish MFA statement, see Pech, Systemic Threat to the Rule of Law in Poland). Since the Polish government has not made public the ‘substantive explanations’, which it said it communicated to the Commission, we must rely on the public statement. It makes clear that the Polish government is unwilling to even accept that there is a potential problem on the rule of law front.

Let’s briefly analyse the key claims made by the Polish government in the MFA statement of 20 February 2017.

According to the government of Poland, all is now well.

‘the appointment of a new President of the Constitutional Tribunal by the President of the Republic of Poland on 21 December 2016 and the entry into force of the aforementioned new legislative regulations have created the proper conditions for the Constitutional Tribunal to be able to operate normally. Poland hopes that from now on all acts taken by the Constitutional Tribunal will comply with the applicable law.’

Let us unpack this misleading statement: The Polish government adopted a set of laws in breach of its Constitution and captured the Polish Constitutional Tribunal with the unconstitutional appointment of Julia Przyłębska as acting and then as the new president of the Tribunal. As one of her first acts of office, she seated the unconstitutionally elected PiS judges, so that the government now has a working majority on the Court. She did this while the European Commission was warning the Polish government against authorising the appointment of a new Court president.  The Polish government is now using Orwellian doublespeak to argue that the situation has returned to normal because it no longer is in conflict with the Court it has just subdued. These actions followed from an earlier and persistent refusal by the Polish government to publish the judgments of the Tribunal with which it disagreed, judgments that would have prevented PiS officials from undermining the effectiveness of constitutional review in Poland. Those judgments remain unpublished.

We predicted in a previous post (Pech and Scheppele, Poland and the European Commission – Part II Hearing the Siren Song of the Rule of Law) that the Polish government would deliberately make deceptive claims to pretend that it had in fact fixed problems created by the alleged ‘political bias’ of the former President of the Constitutional Court and the other sitting judges who were appointed before what Professor Wojciech Sadurski has perceptively described as a ‘constitutional coup d’état’ organised by PiS. To maintain the fiction that the Polish Constitutional Tribunal is now ‘operating normally’, the Polish authorities can be expected to refer some controversial measures to the Tribunal if only to preserve appearances (see Reuters, 29 Dec. 2016), get a judicial rubber stamp when needed, and convince uncritical outsiders that the system is now working fine.

Having taken control of the Tribunal, the Polish government can rest assured that the new President of the Polish Constitutional Tribunal will do her best not to disrupt their plans to consolidate autocracy in Poland. Indeed, the PiS judges may in fact help the ruling party accomplish this goal by adopting whatever interpretation of the Constitution is required to achieving the establishment of a one-party state regime and the implementation of its illiberal agenda. It was therefore unsurprising to hear Mr Waszczykowski, the Polish Minister of Foreign Affairs, arguing recently that the European Commission should allow Poland ‘to respect our own constitution’, not the Commission’s ‘vision of our constitution’. This led Mr Timmermans to rightly point out that ‘we are really now in alternative fact territory’ (see this Financial Times article).

Indeed, Mr Waszczykowski failed to mention that ‘his’ vision of the Polish Constitution not only flies in the face of its provisions but also of the case law of the pre-captured Polish Constitutional Tribunal, which is why his government has, among other things, outrageously and unlawfully refused to implement the judgments of the Constitutional Tribunal of 3 and 9 December 2015 on the legal status of judges elected under both the prior and current governments, as well its refusal to publish and implement in full of the judgment of 9 March 2016 that found aspects of the new law regulating the Court itself to be unconstitutional.

Mr Waszczykowski’s disregard for facts specifically and the rule of law more generally should not surprise anyone given his understanding of how a democracy should work. In a radio interview on 2 January 2017, he argued that Poland should become a ‘democracy without adjectives’, that is, not a liberal democracy but a ‘normal democracy’ where those winning an election should ‘have the right to rule, to achieve their plan and programme’. In his view, it is apparently just too bad if the implementation of the ruling party’s plan and programme means violating the rule of law, breaching human rights or undermining all checks and balances.

According to the government of Poland, simply answering questions is enough to demonstrate cooperation with the EU even if the answers are rude.

‘At the same time Poland would like to recall that in the spirit of sincere cooperation between a Member State and the European Commission it has been communicating substantive explanations concerning the situation in Poland for over a year now.’

It is difficult to assess the accuracy of the ‘substantive explanations’ allegedly provided by Poland in the absence of any publication of these explanations. As for the reference to the spirit of sincere cooperation, it may be worth recalling some of the public statements made by key Polish actors, beginning with the Polish Prime minister who stated on 27 October 2016 that her government would not introduce any of the ‘politically motivated’ changes recommended by the Commission. When not busy attacking the former President of the Polish Constitutional Tribunal, the Polish President also publicly accused the European Commission of having ‘overstepped its bounds’. Finally, one may cite Jarosław Kaczyński, the head of the ruling PiS party and the power behind the throne in Poland, who referred to the Commission’s rule of law probe on 22 December 2016 as ‘an absolute comedy, because there is nothing going on in Poland that contravenes the rule of law.’

According to the government of Poland, there was never a problem.

‘Poland has once again emphasized that the existing political dispute over the rules governing the functioning of the Constitutional Tribunal cannot be used as grounds for arguing that there is a systemic threat to the rule of law in Poland.’

This is perhaps the claim that explains why there cannot be any fruitful dialogue with the current Polish government. Violating in plain sight their own constitution and undermining the independence and effectiveness of the Polish Constitutional Tribunal is for PiS politicians a political matter. The truth of the matter however, as candidly admitted by Kaczyński himself is that PiS is willing to destroy the Polish judiciary starting with the Polish Constitutional Tribunal in order ‘to ensure there are no legal blocks on government policies’ (it has since emerged that PiS is now seeking to pass a seemingly unconstitutional law to undermine the functioning of the National Council of the Judiciary so as to de facto control the process by which new judges would be appointed: see Christian Davies, ‘Polish judges urged to ‘fight every inch’ for their independence’, The Guardian, 26 February 2017).

According to the government of Poland, all attacks on what it has done are purely political.

‘Poland interprets the actions and comments made by Frans Timmermans as politically motivated and serving to stigmatise one of the Member States. We call on the Vice-President of the European Commission to stop such acts.’

The MFA statement does make clear which specific ‘actions’ and ‘comments’ the Polish government has found ‘politically motivated’ and stigmatising. There is however ample examples of rude statements made by Polish officials. One may for instance recall here how in a radio interview, Mr Waszczykowski referred to Donald Tusk, the President of the European Council, as ‘icon of evil and stupidity’.

This is not the first time that Poland has responded this way. As noted in a previous post, in a statement published on the website of the Polish Ministry of Foreign Affairs (MFA) on 27 October 2016, the MFA denounced the ‘interferences into Poland’s internal affairs’ in violation of the principles of ‘objectivism [sic], or respect for sovereignty, subsidiarity, and national identity.’ The MFA further claimed that the Commission’s rule of law recommendations reflect ‘incorrect assumptions’ deriving from ‘incomplete knowledge about how the legal system and the Constitutional Tribunal operate in Poland’, before concluding that the Commission’s Recommendation of 27 July 2016 is ‘groundless’. The Polish government used similar immature language following the Venice Commission’s adoption of a critical Opinion on the Polish Act on the Constitutional Tribunal of 22 July (see document here).

With a ‘dialogue’ like this, it is clear that Poland has nothing constructive to say.

Meanwhile in the Council…

While the European Commission was doing its best to address the systemic attacks on the rule of law in Poland, the Council was busy gathering the views of the EU-28 national governments as part of its so-called ‘annual rule of law dialogue’.

The decision to establish such a dialogue among all Member States within the Council was adopted in December 2014. In a nutshell, the official aim is to promote and safeguard the rule of law in the EU via an annual dialogue ‘conducted on a non partisan and evidence-based approach’ and taking place once a year in the Council (see Kochenov and Pech, From bad to worse? On the Commission and the Council’s rule of law initiatives). The first dialogue was organised by the Luxembourg presidency and took place on 17 November 2015. Its main point of focus was the rule of law in the age of digitalisation (no, this was not meant to be a joke). The second dialogue took place in May 2016 under the Netherlands presidency and focused on migrants’ integration and EU fundamental values. One could easily think of more pressing and relevant rule of law problems to discuss rather than one which led some countries emphasising migrants’ duties to respect the values of the ‘receiving societies.’ Moreover, rather than unifying Member States around shared values, the dialogue on migration emphasized points of strong disagreement across Member States and therefore did nothing to create the solidarity that the Council would need to call out its own members for undermining the rule of law. The first two editions of the Council’s rule of law dialogue led some to justifiably regret ‘the Council’s lamentable inaction in the face of this profound crisis of the EU’s values’ (see Oliver and Stefanelli, Strengthening the Rule of Law in the EU: The Council’s Inaction).

In September 2016, the Slovak Presidency circulated an unpublished questionnaire to evaluate the ‘experience acquired on the basis of the dialogue’ (following a successful request for access to documents submitted to the Council last December, readers can find the full text of Council document no 12205/16 here). All of the EU Member States replied to this questionnaire, with only Bulgaria and the Slovak Republic failing to comply (One must assume they had better things to do than reviewing an alleged key instrument when it comes to upholding the rule of law in the EU.) The end result was a compilation of the 25 replies of the national governments minus Romania, which failed to explicitly authorise the Council to disclose its contribution. All of these documents were obtained via the same request for access to documents mentioned above (See Council of the EU, Rule of Law – Compilation of replies to the Presidency questionnaire, 13230/1/16, 3 November 2016, document available here).

The questionnaire itself was about evaluating the ‘experience acquired’ [sic] by asking national governments to explain how the dialogue could be improved; their views on the possible involvement of other EU institutions, other international organisations or NGOs in the process; or how the impact of the Council dialogue could be evaluated and increased, among other things. Reading the available replies to the questionnaire and the document summarising the outcome of the council meeting of 15-16 November 2016 (‘The Council evaluated the experience gained so far from the annual rule of law dialogue’ and that’s about it…), one can be forgiven for being torn between a deep pessimism about the usefulness of the Council’s ‘rule of law dialogue’ as currently organised and a deep worry that a number of national governments are still in denial about the urgent need to address democratic and rule of law backsliding in countries like Hungary and now Poland. Some (Hungary and Poland, of course, but also and rather unhelpfully countries such as France and Spain) have even argued against the rule of law dialogue at all, with the ludicrous argument that the EU Treaties would not allow for a periodic review process of the rule of law situation in Member States (see Council document no 13230/1/16 which, as previously noted, we obtained via a request for access to documents and which is reproduced here).

The Slovak presidency proposal to organise a more structured preparation of the discussions and more focused topics to ensure a coherent exchange of views is certainly a good one as is the idea of turning the dialogue into an annual peer review process. It would be more effective however for national governments to lend their clear support to the European Commission whenever it has identified a potential systemic threat to the rule of law under its 2014 Framework and to work with the European Parliament to look into the possible establishment of a recently proposed new mechanism which would incorporate existing rule of law instruments into a more coherent framework and subject all member states to a permanent monitoring mechanism. We could however do without an internal, confidential and superficial peer review process taking place within the Council, as this would just provide another fig leaf for countries such as Hungary and Poland, and help justify the Council’s lack of effective action against these illiberal not to say authoritarian regimes.

With its rule of law dialogue, the Council appears to be doing something about the rule of law problems in the EU while in fact doing nothing to address the most serious and glaring problems. In fact, since Hungary started down the road to autocratic government and now with Poland following in hot pursuit, the Council has said virtually nothing at all (with just very few national governments being brave enough to openly stating the obvious: see for instance the recent intervention of Luxembourg Foreign Minister: ‘Asselborn: Poland would not be allowed into the EU now’, Euractiv, 27 February 2017). The EU simply cannot function as a values Union, as the Treaties now commit it to being, if the intergovernmental part of the Union institutions operates to hide values problems in the member states.

Next steps

Regrettably, but in line with its previous reluctance to confront the reality of a belligerent government bent on violating the rule of law in plain sight, the European Commission appears to be planning informal consultations with EU member states as its next step. ‘The idea is to gauge EU governments’ views and support for moving forward,’ said one senior EU official cited in this Euractiv article, as if the Commission does not have the power to trigger Article 7 on its own.

We agree with the Commission when it said that it is ‘politically color blind when it comes to the rule of law’ and it was entirely right to point out that its concerns on Poland were shared by the European Parliament, the Council of Europe, the UN human rights body and other EU governments (not to mention the US under Obama as well as the OSCE). But we cannot entirely agree with the implications of the Commission’s next statement: ‘When the rule of law in any member state is in question it is an issue for all member states … Such is the nature of being part of the European Union.’

Of course, all member states should take seriously a systemic undermining of the rule of law in any EU country. Indeed, in the interconnected legal framework of the EU, the current systemic threat to the rule of law in Poland seriously endangers the whole EU legal framework which, to quote the Court of Justice, ‘is based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the EU is founded, as stated in Article 2 TEU’ (Opinion 2/13, para. 168).

But when the Commission points out that the threat to the rule of law is an issue for all member states, such a statement appears to serve an excuse for the Commission not to fulfil its role as Guardian of the Treaties. Regardless of whether the other EU bodies are prepared at the moment to go along with its assessment, the Commission must take the lead in attempting to persuade them. The Commission has already gathered evidence about Poland’s violations of the rule of law; the Commission’s new rule of law framework enabled it to assess the situation while it gave the member state the chance to correct the error of its ways. Now that the Polish government has rudely refused to cooperate and stand down from its attempts to capture the Constitutional Tribunal, but has instead accelerated its takeover of that institution, the Commission has all of the information it needs to move forward. In particular, once the dialogue between the Commission and one or more member states fails in ways that indicate that the rule of law problem is in fact serious, the Commission has the obligation as the Guardian of the Treaties to sound the alarm by moving to trigger Article 7 TEU.    Under paragraph 1 of that provision, the Commission may start the process when there is ‘clear risk of a serious breach by a Member State of the values referred to in Article 2’ TEU. While the Council has obligations that supplement those of the Commission under Article 7 TEU, the Commission does not need the Council’s permission to start the process.

One may therefore find it peculiar for the Commission to seek to gather the views of national governments informally at this stage. Perhaps it wants to know in advance that the Council will approve any proposal it makes before triggering Article 7. But the Treaty on the European Union does not condition the Commission’s action on Council approval; rather the reverse. The Commission has independent authority to trigger Article 7 TEU. If the Commission is to adequately guard the Treaties, it must take this role seriously. At a minimum, its solemn obligations as guardian counsel that the triggering of Article 7 TEU is not and should not be conditioned by the preliminary informal agreement of most national governments.

Numerous NGOs recommended in an open letter to the Commission on 16 February 2017 that the time has come to trigger Article 7 TEU. We agree with their statement that:

… the Polish government has continued to enact legislation in complete disregard for the Commission’s recommendations, and in a way that further entrenches rather than corrects the problems identified. …

It is necessary for the Commission to prevent the situation from deteriorating even further. Past experiences with other Member States which faced similar threats have shown that time does not solve the problems but rather risks entrenching them. Further delaying resorting to Article 7 TEU would risk undermining the Commission’s credibility. It would indicate to other Member States that they can undermine the founding values they signed on to respect and still expect no strong response by the EU.

On the other hand, recommending resort to the Article 7 TEU procedure would send a strong signal to Poland and other Member States, as well as the public, that the Commission is committed to ensuring compliance with the EU’s founding values and that it is ready to do what is needed to preserve them from attacks. It would open up a new phase in which both the Polish government and all the EU institutions will have to face up to their own responsibilities to uphold these values. Finally, it would send a strong signal to civil society in Poland that the Commission stands by its side in its fight for a society in which democracy, the rule of law, human rights and the other values protected under Article 2 TEU are upheld. …

In our opinion, the Commission should immediately trigger Article 7(1) TEU without further procrastination. As rightly noted by the Commission itself in its Communication ‘EU law: Better results through better application’:

The European Union is founded on the rule of law and relies on law to ensure that its policies and priorities are realised in the Member States. The effective application, implementation and enforcement of the law is a responsibility entrusted to the Commission by Article 17(1) of the Treaty on European Union … Beyond infringement management, the Commission has developed the Rule of Law Framework which it has applied where the ‘national rule of law safeguards’ no longer seem capable of effectively addressing a systemic threat to the rule of law in a Member State, and where such a threat cannot be addressed through infringement proceedings. This reflects the fact that upholding the rule of law is a prerequisite for upholding all rights and obligations deriving from the Treaties.

The time has come not to simply talk the talk but walk the walk.

It is clear, as we have watched first Hungary and now Poland fall out of the family of constitutional-democratic states, that EU member states find it hard to criticise another member state and act decisively even when faced with outrageous behaviour. Leaders of the other EU member states have tried to bury their heads in the sand and hope that purely national factors will change the situation from within. But entrenching one-party rule – capturing the courts, muzzling the media, attacking the opposition and gutting the independent civil service – results in disabling the very domestic institutions that would permit a successful recovery of EU values from within the member state, so that the problem can no longer be fixed peacefully from within the member state’s own structures. This is why the EU must act now before things get worse.

Post-communist European states were eager to join the EU after the Soviet influence on their governments disappeared. They were eager to do so because they wanted to improve their standards of living and to become members of one of the most exclusive clubs in the world. But they were also eager to join the EU as a sort of insurance policy against being brought the boot of authoritarianism again. If the EU institutions stand idly by as unconstrained majoritarianism undermines domestic constitutions and threatens the basic values of the EU in these member states, many will wonder whether the EU is really a community of values after all.

In contemporary societies, the law may serve different functions: a channel for public discourse, a tool for co-ordination, or indeed an instrument of coercion. In contemporary Poland, constitutional law has recently acquired a novel function – an instrument of revenge.

Those following Polish affairs will already have spotted a strange symmetry in the current constitutional crisis arising from the actions of the Polish ruling party, PiS. The saga revolving around the appointment of three anti-judges (Cioch, Morawski and Muszyński) to the Constitutional Tribunal (CT) in December 2015 offers a case in point.

For a year, the right of these three figures to sit on the CT was questioned not only by the majority of Polish constitutional lawyers, but challenged by its (now) former President, Andrzej Rzepliński. Immediately after Rzepliński’s  term of office ended, the three anti-judges were introduced to the CT panel by his replacement, the PiS-appointed Julia Przyłębska.

However, packing the court with their own judges was not sufficient for PiS: a month later their Minister of Justice Zbigniew Ziobro, acting as the Prosecutor General, filed a tit-for-tat motion questioning the right of three other judges (Rymar, Tuleja, and Zubik) to sit on the Court, in effect signaling: “You question our judges, we question yours”.

Who can tell that the questioning of the three anti-judges’ appointment was based on two CT verdicts from December 2015 and supported by the Venice Committee, while Ziobro’s motion rests on a conjured procedural triviality? Certainly not the confused general public, who have consequently lost interest in this apparently abstruse legal dispute.

The tit-for-tat strategy has recently been redeployed by PiS and now jeopardizes the Supreme Court. As readers of this blog know, in January, the Warsaw Court of Appeal referred a substantial prejudicial question to the Polish Supreme Court. The gist of the question is whether the recent appointment of Julia Przyłębska as President of the CT was carried out properly (on the doubts concerning her appointment you can read here).

The response of fifty PiS MPs was to file a motion to the Constitutional Tribunal challenging the appointment of Małgorzata Gersdorf as President of the Supreme Court. Following PiS’s symmetrical model, Przyłębska appointed herself as one of the judges on the panel which is to decide on the MPs’ motion. Thus we have a situation in which the President of the Constitutional Tribunal will legally assess whether the President of the Supreme Court is empowered to legally assess the powers of the President of the Constitutional Tribunal. A vicious circle, in every sense of the term.

The authors of the motion questioning the legality of the appointment of Gersdorf went to great pains to make their case identical with that concerning the appointment of Przyłębska. However, the similarities between the two cases are purely superficial.

On the face of it, both cases entail a doubt as to whether the judges at the respective courts (the Constitutional Tribunal in the case of Przyłębska and the Supreme Court in the case of Gersdorf) should undertake an extra resolution after selecting candidates. That resolution is needed to formally present the candidates to the President of Poland, who appoints them.

Digging a little deeper, one sees that the two cases are fundamentally different. In the Supreme Court, the reason for not undertaking the extra resolution is simple: no requirement for this resolution exists in the Polish Constitution or statutes.  Moreover, the practice of not undertaking the resolution is sanctioned by custom: no such resolution was undertaken in the Supreme Court for the last fourteen years, and no conflict arose over it. The PiS MPs were the first to claim that the lack of a requirement for this resolution is unconstitutional. In Przyłębska’s case, the relevant statute clearly requires the resolution. However, no further resolution was undertaken because the set of requirements for selecting the candidates and those for presenting them to the President of Poland differ.

Przyłębska was able to secure a sufficient number of votes to be selected as a candidate for the President of the CT. She was not able to do the same with the second resolution, that of being presented to the President of Poland. For fear of not being supported by the majority of judges in this resolution, she did not submit it to ballot.

Thus at the center of Gersdorf’s case lies a formality with no real-world consequences, while at the center of Przyłębska’s case is a crucial decision concerning the power of a parliamentary majority to interfere in the leadership of the constitutional court.

The potential ramifications of the motion attacking Gersdorf’s appointment as President of the Supreme Court renders it a paragon of legal eccentricity. In the case that the legal basis for that appointment is found to be unconstitutional, the motion’s authors urge the Constitutional Tribunal to render all actions performed on that legal basis null and void. It is not clear how far this demand goes: the actions undertaken by the Supreme Court under Gersdorf’s presidency include the formal confirmation of the legality of the last presidential and parliamentary elections. Thus, if the motion is successful, Poland’s de jure and de facto leaders (President Duda and MP Jarosław Kaczynski) may find the legality of their own appointments undermined.

Its legal merits aside, the primary purpose of the motion is to undermine Gersdorf’s legitimacy before the Supreme Court decides on whether Przyłębska was appointed properly. The latter case merits the Supreme Court’s consideration, and it is likely that it will question Przyłębska’s appointment.  With their Gersdorf motion, PiS is laying the ground for an effective political counterattack: they have engineered a useful symmetrical narrative from the precariousness of Przyłębska’s position, making that of her counterpart at the Supreme Court equally so – at least in the eyes of the uninitiated. This narrative can be deployed when the expected Supreme Court decision inevitably triggers political turmoil and revives the fight for the independence of the Constitutional Tribunal.

The strategy of PiS is to send a clear message: whoever wishes to use their legal powers against the government can be sure the government will strike back. This message is not confined to the courts. Last week, the representatives of several local governments withdrew their motion from the Constitutional Tribunal two minutes before a hearing for which they had waited three years. The motion claimed that local governments are delegated tasks by the central government, but without being allocated the funds to fulfil them. The reason for withdrawing the motion was a last-minute change of the judicial panel which was to decide their case, with one of the anti-judges replacing a longer-standing, fully legitimate one. As the Tribunal refused to either exclude the anti-judge or to postpone the hearing, withdrawing the motion remained the only option (in order to leave the door open to have the case heard in the future by a fully legitimized panel).  The very next day, PiS announced that a series of inspections would start in the local governments to check how they manage their business, indicating that if they lack money for delegated tasks, it must be their own fault.

The PiS strategy is typical for governments that instrumentalise the law to achieve their political ends. For them, the law ceases to be a reservoir of public values and serves instead as a stick with which to beat its political rivals. Not only is this eye-for-an-eye strategy myopic; what is worse is that it leads to a form of constitutional blindness whereby rights become unrecognizable, leaving in their stead the perception of threatening shapes.

One of the latest topics in the debate on the future of constitutional control in Poland concerns the possibility and the need of common court judges to directly apply the Constitution. This possibility has already existed in theory – according to the Article 8 para 2 of the Constitution of Poland, the provisions of the Constitution shall apply directly, unless the Constitution provides otherwise. However, in practice, until now in case when the conformity of the normative act with the Constitution was questioned in particular case, the court has always referred the question of law the Constitutional Tribunal (CT). The need to come back to the discussion on direct applicability of the Constitution stems from the questionable legality of some Constitutional Tribunal (CT) rulings in connection with the incorrect appointment of three so-called “quasi-judges” in December 2015

In the near future we can probably expect many examples of CT judgments that shall be questioned both substantially and procedurally. The first of such situations occurred in the case K 2/15 which was brought before the CT by the  Polish  Commissioner for Human Rights (Ombudsman) in January 2015. Although the final decision deserves to be fully accepted on the merits, its genesis provokes a debate on whether or not it can actually be considered a valid judgment.

The case in question (K 2/15) concerned a single provision of the Foreign Service Act that had failed to include the possibility of reimbursing education fees for children of diplomats in the host country in a specific case. The subject-matter of the case turned out to be uncomplicated, as the other participants in the proceeding (the Sejm and the Prosecutor General) were of the same opinion as the Commissioner. Therefore the CT decided to operate in closed session and not after the public hearing.

From the procedural point of view, however, a problem emerged as two ‘quasi-judges’ (M. Muszyński and L. Morawski) were selected by the new President of the CT to be among the Tribunal’s panel of five judges . To remind the readers: M. Muszyński, L. Morawski and H. Cioch, in the opinion of the Polish Commissioner for Human Rights, cannot be considered constitutional judges. They were   irregularly appointed by the Sejm on 2 December 2015, to take the seats of other previously and duly appointed judges.  It should be remembered that the inappropriateness of the appointment by the Sejm of those three persons was confirmed on several occasions in the CT’s judicial decisions (ruling of 3 December 2015, K 35/15; ruling of 9 March 2016, K 47/15; ruling of 11 August 2016, K 39/16; decision of 7 January 2016, U 8/15). And although they were not allowed by the previous President of the CT – Prof. A. Rzepliński – to participate in judicial panels, in December 2016 his term of office ended and Julia Przyłębska – his replacement –  immediately introduced them to the panel.

After the panel’s composition was announced, the Commissioner for Human Rights – as the applicant – faced a dilemma as to which course of action to take. The latest Act on the organisation and procedure applicable to proceedings before the CT of 30 November 2016, does not include provisions on the exclusion of someone who actually is not and has never been a Tribunal’s judge. The provisions of the act only give a rationale for excluding a duly appointed judge from participation in hearings relating to a specific case. Under these circumstances, having no other option, the Commissioner assumed that one should apply the act’s provision which includes a reference to the Code of Civil Procedure, according to which the proceedings should be deemed invalid in case where the panel composition is not consistent with legal regulations. This applies to the case in question as two of the five judges of the panel in the case were appointed in a manner not consistent with the Constitution.

Therefore, the Commissioner for Human Rights submitted a request for the exclusion of M. Muszyński and L. Morawski from adjudicating in case K 2/15. On 15 February 2017 the CT refused to consent to the Commissioner’s request. That decision was delivered to the Commissioner in the afternoon of the day preceding the settlement of the main case, so he had no other remedies at his disposal. It must be clearly stated that this decision on not excluding two persons is dubious, if at all legally binding. First and foremost, H. Cioch, another quasi-judge appointed in the same manner, participated in the decision not to consent to the Commissioner’s request. His participation marks a clear violation of the nemo iudex in causa sua principle. Furthermore, the panel also included a judge appointed to hear the main case K 2/15 (judge Z. Jędrzejewski), which is unacceptable pursuant to the provisions of the Code of Civil Procedure that should have been applied accordingly in the proceeding before the CT. Up till now it was clear that the judge who is a member of the panel in the main case cannot take part in deciding on procedural problems, such as requests for excluding someone from the panel. This time this rule was breached and Z. Jędrzejewski – constitutional judge assigned to case K 2/15 – decided also on the Commissioner’s request. 

On 23 February 2017, after a closed-door hearing, the incorrectly appointed members of the panel passed a ruling in the main case in which – not surprisingly taking into account the positions of the participants in the proceeding – it deemed the challenged provisions inconsistent with the Constitution. This could be considered a success of and for the Commissioner, if it weren’t to be interpreted as a non-existent ruling. The idea of non-existent rulings is known to the doctrine of civil procedural law and is supported by experts in ths field also to be applied in cases like this, since the Civil Procedure Code should be applied accordingly also in the proceedings before the CT. To say it clearly: not all cases of CT judgment passed by a judicial panel comprising an incorrectly appointed member would have such consequences. But this situation is unique as it demonstrates a far-reaching violation of the rule of law in a democratic country. A decision by judges who are not allowed to adjudicate, as it has been confirmed four times by the CT, can only be regarded null and void.

We shall hope that this time the legislator changes the provision of the challenged act according to the CT judgement of 23 February 2015, although in this case this judgment can be considered non-existent. But let me give you another example of the ruling of the CT from yesterday (16^th March 2017, case Kp 1/17) on the law on assemblies in which an incorrectly appointed panel decided that the act was in compliance with the Constitution against the motion of the President of the Republic of Poland and many other experts’ opinions.  In that case, the issue will have to be resolved by common or administrative courts which will have to assess on individual basis if they share the view that such a judgment, issued by the CT panel including “quasi-judges” should be considered non-existent. This, in turn, would mean the transition from centralised model of constitutional control to a system of dispersed control over compliance with the Constitution in Poland. The presented case clearly illustrates how complex the legal situation has become after the improper appointment of judges in December 2015.

The latest efforts of the Polish government to reform the judiciary have met with fierce criticism both nationally and internationally. A new legislation concerning the National Council for the Judiciary has recently been introduced to the Polish Parliament, the Sejm, and awaits deliberation. The approach the Polish government has chosen is indeed problematic in the light of European standards for Councils for the Judiciary but so is the German model of selecting judges, which the Polish governments explicitly refers to as a point of reference for their reform. While the German and Polish situation are different for a number of reasons, the importance of selecting and appointing judges based on objective criteria rather than because of political affiliations must be of equal importance in both countries.

Article 186 (1) of the Polish Constitution stipulates: “The National Council for the Judiciary shall safeguard the independence of courts and judges”. The Council’s competences include the submission of requests to the President of the Republic for the appointment of judges to the Supreme Court, administrative courts, common courts and military courts (Art. 179 of the Constitution).

The Polish government has drafted an act that proposes major changes concerning the organization and composition of the Council. On this blog, these changes have been discussed and were convincingly identified as constitutionally questionable. The Draft Act also met with opposition from constitutional lawyers Polish judges and the MEDEL Association.

While we are in no position to assess the constitutionality of the Draft Act, we would like to examine the Draft Act in the light of European standards for Councils for the Judiciary.

The reform and European standards for Councils for the Judiciary

The introduction for Councils for the Judiciary has been recommended by the Council of Europe (at paras. 26-29), the Consultative Council of European Judges and the Venice Commission (at paras. 28-32). Councils for the Judiciary are supposed to safeguard the independence of the judiciary by selecting candidates for vacant judicial posts. Where such Councils have been installed, they can only fulfill this role if they meet certain standards.

To begin with, a Council for the Judiciary should either exclusively or by a substantial majority be composed of judges selected by their peers. This aims at preventing any manipulation or undue pressure from political parties. While Article 187 of the Polish Constitution fixes a substantial majority of judges on the Council (17 out of 25), the newly introduced two-section-system considerably enhances the influence of non-judicial members: no judge can be appointed who is not also backed by the political appointees of the Council.

According to European standards, judicial members of a Council should be selected by their peers or, for a limited number of members, ex officio. In general, the selection should guarantee a wide representation of the judiciary at all levels. The interference of political authorities or judicial hierarchies should be avoided. Impartiality and independence of its members and of the Council itself must be the guiding principles. Since a prospective member of the Council must be supported by a substantial number of Sejm deputies or its Presidium,  the Draft Act leaves the selection of members of the Council to the Sejm. Also, there are no criteria to be applied for the selection of judicial candidates. It will be up to the Speaker of the Sejm to choose any candidate he/she deems appropriate. Further, nothing provides for an adequate representation of all levels of the judiciary.

So far, the proposed amendments raise serious doubts as to their compliance with European standards for Councils for the Judiciary. It is possible that the amendments might entail negative effects on the separation of powers and the independence of the judiciary, as they might lead to a decisive influence of politicians over the selection of judges.

These worries are supported by comments of Polish government officials: When the reform of the Constitutional Tribunal was on its way, the Venice Commission (at paras 115-119) was confronted with the theory that judges appointed while the opposition party was in power were “opposition judges”. Similar comments made by Jarosław Kaczyński strengthen the perception that the government sees judges as “belonging” to the party that appointed them.

Similar tendencies have also been noted (at para 44) in other European countries (at paras. 42 – 95). This understanding of the judicial office runs contrary to what is seen as a European standard: as the Venice Commission (at paras. 118-119) has stated, judges have a “duty of ingratitude” towards the authority that selected or appointed them. They can never represent a political party. They are independent and their loyalty is to the laws and the Constitution. While Members of Parliament are elected because of their political views, this is very different from the role of judges or judicial members of a Council for the Judiciary.

Still, the Polish Government insists that their proposed system for selecting judges is by no means original and advances the German system of electing judges as a point of reference. This argument is of particular importance, as any criticism of the reform from Europe or Germany would lose its weight if it turned out that a similar system was tolerated in Germany.

The German model and the question of democratic legitimacy of judges

In Germany, no Councils for the Judiciary exist. On the German state-level (Bundesländer), many different systems for selecting judges are in place, but they are all heavily dominated by the political branches of government. This is also true for the selection of federal judges. We will focus on the appointment of federal judges only, as an analysis of the complicated patchwork of systems for judicial appointments in the states would exceed the limits of this post.

Federal Court judges are appointed by the “Richterwahlausschuss”, an appointment committee composed of the competent federal minister, the competent ministers of the Länder and the same number of members selected by the Bundestag (Art. 95 (2) of the Basic Law). The federal minister remains bound by his/her constitutional duty to appoint only based on merit (“Bestenauslese” derived from Art. 33 (2) of the Basic Law); the other members, none of whom are members of the judiciary, are free in their electoral choice.

This system is no model of transparency or “depolitization”. A strong political influence makes the selection process intransparent and is not in line with the necessary “depolitization” of judicial appointments. The process may be found to be particularly democratic, but it does not by itself ensure judicial appointments based on objective criteria without potential undue influence from politics as expected by European standards. According to these standards, to counter the risks of a “politization” of the judiciary, every decision relating to a judge’s appointment or career should only be based on objective criteria and be either taken by an independent authority or subject to guarantees to ensure that it is not taken other than on the basis of such criteria. While Germany has not introduced a Council for the Judiciary, in fact, certain practices are in place which have so far prevented that the selection of judges has turned into a threat for the rule of law:

Firstly, the Länder have a strong influence on the selection of federal judges through the “Richterwahlausschuss”. This ensures that no federal government and parliamentary majority can appoint federal judges only based on its own assessment. The governments of the Länder therefore ensure a certain balance of interest in the politically sensitive process of selecting federal judges.

Secondly, there is effective judicial control concerning judicial appointments. Decisions on the appointment of judges by the minister of justice can be challenged in Court. Recently, the FCC (at paras. 27 – 35) has clarified its position on some of the criteria applicable to the review of the selection process. Most notably, the “Richterwahlausschuss” is under an obligation to select a candidate who can be appointed by the competent minister without forcing him/her to violate his/her duty to appoint only based on merit. Further, the minister can refuse the appointment of a selected candidate if he/she is manifestly ill-suited for the position. If the minister decides to appoint a selected candidate, even though the professional evaluation found them not to be suitable for the position, the minister has an obligation to state his/her reasons. Many more criteria have been developed through an abundance of lawsuits brought by competitors for judicial posts. This judicial control aims at preventing appointments that are clearly politically motivated and has already proven to intervene effectively.

Thirdly, there can be found what could be called a “culture of independence”. Political actors tend to be aware that they are choosing independent judges   who only answer to the laws and the Constitution. Apart from some misguided comments about the “political loyalty” of Justice Huber of the FCC, there is relatively little political criticism aimed at judges that would amount to disrespect or undue pressure against the judiciary. This contrasts the outspoken hostilities of Polish government officials against their judiciary already mentioned above. The public discussion about the suitability of former politician Peter Müller for an appointment to the FCC shows that the public is very much aware of the necessity to appoint judges only based on merit. In any case, the Justices of the FCC have shown that they are not bothered by political restraints. There are no sound reports that any German judges have acted under pressure of political parties or other authorities.

These practices result in a functional selection of judges that in itself is not contrary to the basic principles of European standards. However, they do not guarantee that adverse effects on the rule of law can be avoided if the tides turn politically.

The potentially problematic influence of the executive has its roots in Article 20 (2) of the Basic Law which – similarly to Article 4 of the Polish Constitution – states that all state authority is derived from the people. It must be possible to trace back any exercise of state power to the act of a democratic vote through a continuous chain of democratic legitimacy. This requirement is met by both the selection of judges by a “Richterwahlausschuss” or solely by the minister of justice. It is precisely this alleged need for a stronger democratic legitimacy of judges that is advanced by the Polish government in favor of their reform.

While it is not all clear that additional democratic legitimacy for judges in the form of political responsibility of the political actors involved can be derived from the selection by a “Richterwahlausschuss”, it could, on a broader level, be worth reflecting on the question of what kind of legitimacy really is necessary for the judicial office. In the light of recent political events, it might be worth reconsidering if democratic legitimacy of judges can remain a priority when basic safeguards of the rule of law are being questioned. The “democratization” of the appointment process of judges bears the risk of a “politization” which can jeopardize the independence and impartiality of the judiciary. These principles are of such vital importance for the rule of law and therefore also for a functioning, modern constitutional democracy itself that they should enjoy the highest priority when it comes to choosing judges and the persons that select them.

It is true that judges are partly legitimized by an appointment in accordance with the laws and the Constitution. This so-called “formal legitimacy” aims at the procedure of their appointment and is a possibility to satisfy the requirements of Article 20 (2) of the Basic Law and Article 4 of the Polish Constitution respectively. Democratic legitimacy of judges is further enhanced by the fact that they usually apply laws that have been passed by a democratically elected parliament. However, the primary source of judicial legitimacy, as the CCJE (at paras. 17-19) has stated before, is the highest possible quality of a judge’s work. This so-called “functional legitimacy” describes the public trust in a hard working, well-functioning, ethically and morally stable and highly competent judiciary. This form of legitimacy ensures the necessary independence of judges and effectively guarantees the acceptance of judicial decisions. It is not the task of judges to decide cases in the way the current political majority would like them to decide. A functioning judicial system that is to serve the rule of law cannot depend on what the majority  – however democratically legitimate it may be, –  wants. A judge’s decision can, and sometimes must be, unpopular. Therefore, the quality of judicial work and the public trust the judiciary gains through this work is a better foundation for the exercise of state power by judges than the mere focus on their democratic legitimacy.

Against this theoretical background, the events in Poland should be reason enough for Germany to critically assess its model of judicial appointments in the light of European standards. As for Poland, the government’s reference to Germany for the Draft Act is not entirely misguided. However, it remains unclear if the necessary guarantees and safeguards are in place in Poland to ensure that judges are only chosen based on objective criteria. Also, it should be noted that the German system has not been set up by a new political majority in order to shape the judiciary to its liking as it seems to be the case in Poland.

The President of Poland has announced that a constitutional referendum will be held in 2018. This is surprising for at least two reasons.

First, according to the Polish Constitution, a constitutional referendum is held after a bill of amendment is drawn up, to allow the nation to either accept or reject it. This makes very good sense, as any amendments to the Constitution should have as much public support as possible. The Constitution itself requires amendments to its main provisions to be approved in a referendum – providing a democratic safety net against constitutional coups. However, the proposed referendum is to be held without a bill having been prepared and the issues on which the Polish nation is to be consulted are to involve directional issues, e.g. the choice of regime – presidential or parliamentary. It will therefore be a non-binding consultative referendum, not a constitutional referendum. Will it be worth it?

A referendum is an expensive undertaking and the nation’s capacity to answer complex legal questions is limited. There also seems little sense in answering questions on individual constitutional issues without knowing the whole. The Constitution is a system and regime models may have different consequences depending on, e.g. the role of the courts and how elections are run. It’s a bit like deciding what the area of a house will be without knowing how many storeys or rooms it will have: it is difficult to give an opinion and a house built on the basis of agreement on one issue may be completely unsuitable for another reason.

The second reason is more problematic. In light of a Constitutional Tribunal ruling passed in December 2015, the President is breaching the Polish Constitution every day by failing to take the oath of Tribunal judges appointed by the previous parliament (the ruling ordered the oath to be taken “without delay”). The current ruling party, which is also calling for the Constitution to be amended, has even bigger sins on its conscience. The question arises as to what authority those who have trampled on it without hesitation have to discuss the Constitution? Let’s imagine that acquaintances at a party at your house start breaking the crockery, throwing guests out and demolishing the house, after which they propose a discussion on the party organisation rules. There would not be much to talk about.

There is one other question that should be considered, especially in light of the fact that the Polish government rejected the application of several hundred thousand citizens for a referendum on lower secondary school reform. If the current government had a majority allowing them to amend the Constitution, would it being asking the nation for advice on how to do so? I doubt it. So maybe the aim of this referendum is to seek legitimacy to make amendments for which there is no legitimacy? It is after all easier to gain support in a few general questions than to win an election with a majority enabling a constitutional change to be made.

On 20 June, the Polish Constitutional Tribunal, with three anti-judges among its members, decided that certain provisions of the Act on the National Council of the Judiciary of Poland were unconstitutional.  By doing so, the Tribunal unanimously conceded to the motion of the Minister of Justice, who had questioned those provisions in the course of work on reform of the National Council of the Judiciary. The reason why the current Polish Government unexpectedly suspended the process of usurping control of the national judicial system in order to enlist the help of the constitutional court can be understood with the help of a metaphor.

Let us assume that: i) the Constitution is an approved building project design; ii) the party that has formed the government is building a house; iii.) the Constitutional Tribunal is the Central Construction Inspector; and iii.) we are all neighbours.

In normal circumstances, when a builder does not build in conformity with the approved design, neighbours would go to the Inspector and ask him to determine whether the builder is breaching the approved building project design.  The Inspector, who is independent of the builder, reviews the matter, determines the incompliance and orders that anything that is not consistent with the approved design should be removed.  The builder conforms with the Inspector’s decision and the matter is settled.

In the present situation in Poland, the builder breaches the project design on several instances, not fearing the Inspector at all.  Why?  Because the Inspector is under the control of the builder, and the Inspector’s office is staffed with the builder’s people, some of them appointed illegally and some fully loyal towards the builder. The inspector may even go so far as to declare that he represents the builder (in fact, one of the anti-judges of the Polish Constitutional Court, Professor Morawski, did exactly so during the conference in Oxford in May this year). So the builder does what he wants.

Let us now move from the Constitutional Tribunal to the National Council of the Judiciary, the constitutional body which protects the independence of courts.  An act of law restructuring the National Council of the Judiciary is already going through Parliament which, if passed, will cause courts to become fully politicized.

Applying our metaphor, let us imagine that the National Council of the Judiciary is a sizeable building which gets in the builder’s way, and the builder wants to demolish it completely.  The demolition will make it possible for the builder to take over all regional and local construction inspector offices, and consolidate the previous takeover of the Central Construction Inspector’s office. Of course, such a demolition is in breach of the approved building project design (i.e. the Constitution).  The builder could demolish the inconvenient building unchecked because the Inspector would not say anything. However, the builder is somewhat deterred by the neighbours’ loud protests.

But the builder is resourceful. He sends a letter to the Inspector, in which he requests an inspection, claiming that two steps were incorrectly built next to the door and some windows are uneven.  The Inspector does as he is told and fully concurs with the builder’s assessment. The builder can now go to the neighbours and say that the target building has significant defects, which were confirmed by an independent Inspector, and must be completely demolished and rebuilt from a scratch, under his control and according to his plan.  The neighbours say that it would be enough to replace the steps and windows but the builder has already gone on to give a television interview on the matter (he has considerable influence in television too).

And here the metaphor ends, but the game continues. The government’s motion to the Constitutional Tribunal regarding the National Council of the Judiciary is a smokescreen to confuse the public and take control over courts at a lower political cost.  Its trivial challenges against the Act on the National Council of the Judiciary are doubtful (a charge of unproportional representation of judges) or absurd (a charge concerning institutional vs. individual term of office).  Even if they were justified, Minister Ziobro should address only those two issues in the planned reform.

However, the Minister challenged the provisions that include the words “election of judges to the National Council of the Judiciary” and “term of office of a member of the National Council of the Judiciary” on purpose in order to be able to say at a press conference that those two areas in general require a decisive and broad intervention from the Parliament, even if this intervention is totally disproportionate to the unconstitutionality found in the challenged regulation. And now, with the help of the Constitutional Tribunal, the Minister will demolish the independent judiciary.

Last November, the former presidents of the Polish Constitutional Tribunal issued a joint statement to protest against the subjugation of the Tribunal. Now, as the PiS government is about to effectively bring the entire judiciary under their control, they speak up again:

Without an independent administration of justice no State under the rule of law can exist. The draft statutes on the functioning of the ordinary courts the National Council of the Judiciary and the Supreme Court, which modify de facto the Constitution, will eventually abolish the independence and autonomy of the Polish judiciary from political institutions.

The adoption of these statutes, which ensure a decisive and uncontrolled influence of one or two politicians on the appointment of court presidents, the composition of the National Council of the Judiciary, the dissolution of the current and establishment of a “new” Supreme Court – the most important adjudicating body of our State – not only makes impossible any control of the legality of the actions taken by other authorities, but also impedes the effective protection of the citizens’ rights and freedoms.

The Minister of Justice’s discretionary power to appoint court presidents confers on the government the power of permanent tampering with judicial independence by establishing a corps of politically obedient judges.

The disablement of the Constitutional Court has made an effective constitutional review of statutes and their application impossible and leads to arbitrary and unconstitutional legal solutions.

We call upon the members of Parliament, Senators and the President not to allow the inclusion in our legal order of statutes which may permanently destroy the Republic’s position of a State under the rule of law.

Andrzej Rzepliński

Marek Safjan

Jerzy Stępień

Bohdan Zdziennicki

Andrzej Zoll

Während der Streit um den Verfassungsgerichtshof aus polnischer Sicht als mittlerweile beendet gilt, versucht die Europäische Union eine passende Lösung zu finden, die in der Empfehlung der Kommission geäußerten Forderungen durchzusetzen. Die regierende Partei „Recht und Gerechtigkeit“ beschließt jedoch in der Zwischenzeit weitere Justizreformen, die genauso, wie das umstrittene Verfassungsgerichtshofgesetz, gegen die Grundsätze der Europäischen Union aus Art. 2 EUV, vor allem gegen die Rechtsstaatlichkeit und Demokratie, verstoßen können.

Am Mittwoch, den 12. Juli 2017, hat der polnische Sejm zwei neue Gesetze beschlossen, die die Organisation des Nationalen Rates der Justiz sowie der ordentlichen Gerichtsbarkeit regeln. Diese reformierten Bestimmungen müssen noch vom Senat beschlossen werden, an dessen Entscheidung ist jedoch nicht zu zweifeln.

Laut der Mitteilung des Justizministeriums vom 12. Juli 2017 regelt das erste neu beschlossene Gesetz die Organisation sowie die Vorgehensweise bei der Auswahl der Mitglieder des Nationalen Rates der Justiz. Bei diesem Rat handelt es sich um ein unabhängiges verfassungsrechtliches Kollegialorgan, das im Jahre 1989 gegründet wurde. Die Reform des Gesetzes beinhaltet unter anderem die Gründung von zwei neuen Organen, sogenannten Ersten und Zweiten Versammlung des Rates. Danach sollen zu der Ersten Versammlung der Präsident des Obersten Gerichtshofs, der Justizminister, der Präsident des Obersten Verwaltungsgerichts, eine Person, die vom Präsidenten ernannt wurde, vier Abgeordnete und zwei Senatoren gehören. Die Zweite Versammlung wird aus 15 Richtern, unabhängig von der Gerichtsebene, bestehen, die durch den Sejm und nicht wie zuvor durch die Richterversammlungen ausgewählt werden. Kandidaten können das Präsidium des Sejms sowie eine Gruppe von mindestens 50 Abgeordneten vorschlagen. Die Kandidaten  dürfen jedoch nur aus einem von den Verbänden der Richter und Staatsanwälte, einer Gruppe von mindestens 25 Richtern oder den Organen der Berufsverbände der Rechtsanwälte und Notare empfohlenen Kreis ausgewählt werden. Nach Ansicht des Ministeriums sollen dadurch die Objektivität sowie das Gleichgewicht des Organs gewährleistet werden und seine Organisation den europäischen Standards entsprechen.

Das zweite neu beschlossene Gesetz regelt die Organisation der ordentlichen Gerichte. Danach sollen zum Beispiel die Fälle den Richtern zufällig zugewiesen werden. Eine solche Anforderung gilt derzeit nur in einem sehr begrenzten Umfang im Strafverfahren. Die zufällige Zuweisung von Fällen, vor allem in der zweiten Instanz, soll nach Ansicht des Ministeriums gegen Missbräuchen schützen und den Bürgern eine Sicherheit geben, dass die Sache nicht absichtlich einem bestimmten Richter zugewiesen wurde. Weiterhin sieht das Gesetz eine gerechte Arbeitsverteilung der Richter vor. Dafür soll ein spezielles elektronisches System eingeführt werden, das die artspezifischen Fragen beurteilen und die Fälle gerecht zwischen den Richtern verteilen wird. Außerdem sollen die Befugnisse des Justizministers deutlich ausgeweitet werden. Diese beinhalten zum Beispiel die Ernennung und Entlassung des Präsidenten und Vizepräsidenten der Gerichte ohne der früher benötigten Zustimmung der Generalversammlung der Richter. Alle diese Änderungen sollen nach Ansicht des Ministeriums die Arbeitsweise der Gerichte verbessern und beschleunigen.

Nicht nur diese Reformen lösen verfassungsrechtliche Bedenken aus. Am 12. Juli 2017 hat die regierende Partei „Recht und Gerechtigkeit“ auch ein weiteres Gesetzesprojekt eingereicht, das die Organisation und Arbeitsweise des Obersten Gerichtshofs regeln sollte. Nach diesem Gesetz sollen in der Zukunft drei neue Kammern des Gerichtshofs errichtet werden, die sich mit dem privaten, öffentlichen und disziplinaren Recht beschäftigen werden. Außerdem werden mit der Verkündung dieses Gesetzes die gegenwärtig tätigen Richter in den Ruhestand gehen. Dem Justizminister wird auch die Befugnis verliehen,  über die Verteilung zu den jeweiligen Kammern zu entscheiden. Ob das Gesetz in einer solchen Form beschlossen wird, bleibt gerade abzuwarten.

Angesichts der beschlossenen Gesetze kann die Gefährdung der Unabhängigkeit der Gerichte zu einem Verstoß gegen Art. 10 der polnischen Verfassung führen, der eine klare gleichgewichtige Gewaltenteilung vorsieht. Obendrein wird durch die Änderung der Organisation des Nationalen Rates der Justiz die Kadenz der gegenwärtigen Mitglieder verkürzt, was gegen den Art. 187 ust. 3 der polnischen Verfassung verstößt. Auch die Erweiterung der Befugnisse des Justizministers, vor allem bei der Ernennung des Präsidenten und Vizepräsidenten der Gerichte, führt zu einem Ungleichgewicht der Gewalteinteilung. Die Grundsätze der Rechtsstaatlichkeit und der Demokratie in Polen sind somit in Gefahr, so dass die Europäische Union verpflichtet erscheint, gegen diese Bestimmungen vorzugehen. Der Vizepräsident der Europäischen Kommission, Frans Timmermans, hat sein Besorgnis bezüglich der oben beschriebenen Gesetze schon im März dieses Jahres geäußert. Auch der Menschenrechtskommissar des Europarats, Nils Muižnieks, appellierte in einem Brief an den Sprecher des Parlaments, den Entwurf zur Änderung des Gesetzes über den Nationalen Rat der Justiz abzulehnen, da seiner Meinung nach durch diese Reform die Unabhängigkeit der Justiz gefährdet wird.

Fraglich bleibt aber an dieser Stelle, ob die EU die gleichen Schritte vornehmen wird, die sie beim Streit um den Verfassungsgerichtshof eingeleitet hat. Macht diese Vorgehensweise überhaupt Sinn, wenn die Erfolglosigkeit abzusehen ist? In dem Fall Polen zeigen die europäischen Regelungen ihre Schwäche. Weder das Rechtsstaatsverfahren noch das Verfahren nach Art. 7 EUV wird in dieser Situation die angestrebte Lösung bringen, so lange Ungarn auf der Seite Polens steht und mit seinem Veto Sanktionen effektiv verhindern kann. Dass die regierende Partei „Recht und Gerechtigkeit“ ihre Mehrheit verliert, wie es auch vor zehn Jahren geschah, ist zwar nicht ausgeschlossen, derzeit aber eher unwahrscheinlich, da sie je nach Umfrage bis zu 16 Prozentpunkten auf Bundesebene vor der zweitstärksten Partei „PO“ liegt. Ein anderes Bild auf Landesebene zeichnet sich auch nicht ab. 

Next week the Polish parliament will most likely pass a bill sponsored by the ruling Law and Justice party, introducing a total overhaul of the country’s judicial system. The tenures of all judges sitting on the Supreme Court, Poland’s highest judicial instance, will be immediately expired, while their successors will be installed by the justice minister. In other words, the members of the last judicial body standing in the way of Law and Justice eradicating tripartite division of powers and court independence will now be appointed by a politically tainted minister.

The reform is just another of many episodes in the Law and Justice’s long-standing conflict with Poland’s judiciary system and a violation of the rule of law. Practically since the day of the party’s all-out parliamentary victory in October 2015, Jaroslaw Kaczynski, the PiS chairman and de facto the country’s highest authority, has declared a crusade against Polish courts and judges. Labelling them a caste, a clique held together by a network of close-knit, corrupted links, Kaczynski saw them as a relic of the past, a residue of the post-communist realm, ill-suited to – and standing in the way of – his grand project of a new, mighty, great Poland. Already in 2006, during his previous attempt at ruling the country, the PiS chairman, doctor of law himself, accused the courts of getting in the way of his reform plans – this time, no opposition was to be tolerated. And, one must admit, he wasted no time in his offensive. Soon after assuming power, PiS dismantled the Constitutional Tribunal, a body tasked with examining the compliance of the laws with the constitution. For that to happen, Kaczynski used president Duda, who by setting a precedent in the country’s democratic record, refused to swear in previously elected judges to the Tribunal and instead allowed PiS to install their own candidates. The move triggered a wave of international controversies and domestic upheaval – the opposition took  to the streets in defence of the tribunal, while the European Union launched a probe into the violation of the rule of law principle. PiS, meanwhile, continued to claim that the legitimacy the party gained in general elections gave them the right to purge one of the country’s most important courts.

However dramatic these moves might seem, the worst of the possible consequences stemming from Kaczynski’s conflict with the judiciary lies beyond the news headlines and acts of civil disobedience. The PiS leader is not only aiming to completely reshuffle the personal composition of the courts. His true enemy is the very principle of the rule of law – which once eradicated from the public sphere, could be very difficult, if not impossible, to be reintroduced.

The argument put forward by Poland’s incumbent party lies on the assumption that rule of law is merely a disputable term, pertaining to the liberal, eurocratic propaganda of Brussels and the likes, which Poland – as a sovereign country – does not need to obey. And even though it is indeed a complex phenomenon, rich with definitional disputes, its significance reaches well beyond legal frameworks and codes. As aptly observed by the legal philosopher Joseph Raz, rule of law is not just merely a virtue. It is a necessary condition for the law to be serving any good purpose at all. That is the case because it guarantees that the incumbent, independent of the kind of executive action it performs, is constrained by a set of fixed rules which are, most importantly, created beforehand and known to the public. In other words, the key role of the rule of law is to ensure predictability in the actions of the power holder – that these will not violate the rules known to society, while the laws it introduces will not be retroactive. When such a modality occurs, Raz argues (and many other thinkers agree), the citizen is able to plan its prospective actions in society on the basis of known set of rules and behaviours – binding himself inasmuch as the government.

However, the rule of law performs other functions as well, which Jaroslaw Kaczynski, like his illiberal partner in crime, Hungary’s Viktor Orbàn, either deliberately bypasses or remains unaware of. Rule of law might mean something completely different for legal professionals and for ordinary people, but remains equally important for both. Apart from ensuring predictability of the incumbent, it also prevents the latter’s arbitrary use of power – a crucial element in ensuring stable state-society relations. One crucial area where the arbitrary use of power is particularly damaging to social trust is the independence of the judiciary. The ideal of the rule of law stipulates that the courts are required to be subject only and exclusively to the law. In reality, this is a complex ideal often fulfilled only in part, but where it is undermined or absent, it is hard to expect the citizens to obey the rulings and adhere to the principles of law.

Eventually, the rule of law is an important component fostering trust towards state institutions – a commodity highly deficient in post-transitional countries such as Poland or Hungary. It guarantees the law in a given community can be understood, predicted and therefore relied upon, so the citizens can be guided by it in their everyday actions. For that to take place, equality before the law is necessary. As banal as it sounds, rule of law guarantees an equal status in court to both citizens and the power holders. Most of all, however, it stipulates that actions not authorised by law cannot be seen as act of the incumbent as incumbent, because, at least in theory, that would be without legal effect and unlawful. No surprise, therefore, that Central Europe’s illiberals are so keen to avoid rule of law by all means possible.

Given the paralysis of the Constitutional Tribunal and, the Supreme Court remained the last fortress of judicial independence. PiS already fought battles against it – over a month ago, following a lengthy inquiry, the court decided that Andrzej Duda, the country’s sitting president who won the post as Law and Justice candidate two years ago, did not have the authority to pardon Mariusz Kaminski, current cabinet minister in charge of secret services oversight, who had been accused on overstepping his competences during the party’s previous stay in power in the years 2005-2007. Duda pardoned him on November 18, 2015, days before Kaminski’s appointment into the new Law and Justice government and after he filed an appeal to the case. In other words, the president pardoned a person that was not yet convicted through a legal and binding court ruling.

President Duda and the PiS government vigorously opposed the ruling. Beata Mazurek, the party’s spokesperson, went as far as telling the press that Poland needs „democracy, not judge-cracy”, which shows clearly that the party is not going to back down. And despite the fact that lawyers and legal experts continue to argue whether Duda’s act of pardoning constituted a violation of the constitution or was simply an act of no account,  irreversible damage has already been done. PiS’s actions such as paralysing the constitutional court or using the privilege of pardon unlawfully for purely political reasons send a clear message to the public – that the law does not really matter, at least not to those in power. As a result, the credibility and respect for the very institution of law shrinks drastically. Bartosz Weglarczyk, one of Poland’s most recognisable journalists, accurately summed up the whole conflict in his tweet: „if the president is allowed to question the decisions of the Supreme Court, why can’t I do the same?”. For a country to which rule of law was brought only in 1989, as a completely alien concept and it has not yet taken solid root, such disrespect for the law can be extremely detrimental.

Violation of the rule of law can take  two forms. It might lead to a feeling of uncertainty among citizens – as it brings about the unpredictability of the incumbent’s actions – and it might trigger social frustration and failed expectations. Although neither of these results is desirable, the latter is much more detrimental in its consequences. Citizens, frustrated and disappointed that the law remains merely a disputable concept, open to radically different interpretations, will begin to live around it – just like they did under communist rule. Before the democratic transition, it was common in Poland, or any other country of the Eastern Bloc, to perceive law as all-encompassing inasmuch as abstract. People made their ways around it, largely through networks of mutual favours and grey-zone exchange of goods. Procedure signified nothing else but an opportunity to go around it. With PiS bypassing rule of law and nullifying the independence of the judiciary, living around the law might soon become again the prime demeanour for survival.

Sadly, however, history does not end with PiS or Orbàn’s Fidesz in power. It will continue beyond the rule of the illiberals – and perhaps this is where the greatest danger lies. Their time in power will at some point come to an end. And whoever takes their place, will be able to kick an open door. With a paralysed Constitutional Tribunal, discredited judiciary and eradicated rule of law,  authoritarian governance is that much closer. It is hard to imagine that any political actor would refuse to take advantage at least partially of such favourable conditions.

The rule of law takes a long time to root. It plays, however, a key role in deepening democracy and fostering trust towards state institutions. That is why bypassing it and ignoring its impact on social cohesion will likely bring about catastrophic consequences for several terms to come. Trust in post-transitional societies is extremely hard to acquire. Whatever has been gained since the region’s 1989 transition, is about to be lost. For Poland and Hungary, the worst, in fact, might still be yet to come.

Having regard for the existence and future of our Homeland,

Which recovered, in 1989, the possibility of a sovereign and democratic determination of its fate,

We, the Polish Nation - all citizens of the Republic […]

Recognizing our responsibility before God or our own consciences,

Hereby establish this Constitution of the Republic of Poland as the basic law for the State, based on respect for freedom and justice, cooperation between the public powers, social dialogue as well as on the principle of subsidiarity in the strengthening the powers of citizens and their communities.

We call upon all those who will apply this Constitution for the good of the Third Republic to do so paying respect to the inherent dignity of the person, his or her right to freedom, the obligation of solidarity with others, and respect for these principles as the unshakeable foundation of the Republic of Poland.

Preamble to the Polish Constitutionof 1997

The Court celebrates its centennial and … dies in silence

2017 was supposed to be a special year for the Supreme Court in the same way as 2016 should have been special for the Polish Constitutional Court. In the former case 2017 marks the centennial of the Court’s existence (1917 – 2017), in the latter 2016 the 30th anniversary of the Constitutional Court’s operation. It turns out that in both cases, rather than celebrating the past and looking into the future, the anniversary turned out to be the end of the road for both supreme jurisdictions.

Late at night on Wednesday, July 12, 2017, a legislative proposal amending the Act on the Supreme Court (draft no. 1727) has been pulled out of a hat like a rabbit and submitted to the Sejm. The date is important as it marks the end of the Polish Supreme Court as we used to know it, and heralds the death knell for the rule of law in Poland (for recap see statement by Professor E. Łętowska here and also analysis by M. Kisilowski here). The ruthlessness and take-no-prisoners strategy by the ruling party (PiS which in English reads „Law and Justice) are shocking even when considering the already established brutal standards of PiS. Whereas it took more than a year of relentless onslaught and careful legislative scheming to finally dismantle the Polish Constitutional Court, all that was needed to emasculate the Supreme Court and the National Council of Judiciary was a single legislative sleight of hand and one seating of the Sejm and Senate (on July 14, 2017).

They Came at Night: Farewell to the Separation of Powers    

The most shocking of all the provisions of the draft is Article 87 which virtually constitutes an overnight demolition of the Supreme Court. Article 87 (1) reads: „On the day following the date of entry into force of this Act, all judges of the Supreme Court appointed in accordance with hitherto binding provisions of law, excluding judges selected by the Minister of Justice, shall be granted a retirement status. On the day of entry into force of this law, the Minister of Justice shall designate in the Official Journal judges of the Supreme Court who shall remain in active service, taking into account a necessity of introducing organizational changes resulting from the new Law and of maintaining continuity of work of the Supreme Court”. According to Article 88 of the draft, if „a Judge of the Supreme Court was granted a retirement under art. 87(1), tasks and competences of the First President of the Supreme Court shall be performed by the judge of the Supreme Court who is selected by the Minister of Justice”. These provisions shall enter into force within 14 days from the day of their official publication (Article 108).

To date, in accordance with the independence and separateness of the judicial branch, the power to propose judges to the Supreme Court lied in the hands of the National Council of the Judiciary and the candidates approved by the Council were then appointed by the President of the Republic. There was simply no role for the Minister of Justice to play in the appointment process. The amendment, however, will now change the equilibrium in a dramatic way and lead to the Minister of Justice taking over the independent Court and enjoying (unchecked) power to pick and choose those judges that will fit his vision of a court subordinated to the executive branch and that will fall into line with the aspirations of the political power. The Minister of Justice will also be granted the power to delegate judges from inferior courts to the Supreme Court and thus build „a new Supreme Court” to its liking from ground up. Importantly, the draft does not provide for any criteria of the selection of those judges that will remain in active service. Knowing how paranoia-driven parties like the PiS operate, the Minister will surely go after those judges who participated in the issuance of judgments not to the liking of the majority, while leaving in place those who were and will remain loyal (whatever that means). Likewise on the day of entry into force of the new law, the current First President of the court will be dismissed and a judge appointed by the Minister of Justice single-handedly will take her place (Article 88 quoted above). In this way the constitutional protection and fixed term of office (6 years) of the First President of the Supreme Court are relegated to legal technicality. This also means that the electoral power given to the General Assembly of the Judges of the Supreme Court and to the President of the Republic by Article 183 (3) of the Constitution actually becomes an illusion. The draft does not specify how long such an interim First President of the Supreme Court shall fulfil his/her duties. Following the entry into force of the draft the Minister of Justice will also have the power to appoint a candidate for the office of the (permanent) First President of the Supreme Court. The National Council of Judiciary is not even mentioned in this „new” and clearly unconstitutional procedure. It will also be the Minister who will select the candidates for judges of the Supreme Court in the first recruitment procedure. The draft provides that the Minister shall submit one candidate for each vacant judicial position to the National Council of the Judiciary, which will then have 14 days for consideration of this candidature. On the expiry of this 14-day period, the candidates picked by the Minister shall be submitted for appointment to the President of Poland. In practice, it will therefore be the Minister of Justice who will play a decisive role in the nomination of Supreme Court judges, instead of the President and the National Council of Judiciary, whose function will be reduced to rubber-stamp the Minister’s will. Appointments will not be preceded by any meaningful assessment of the candidates’ qualifications and the competent organs of the Supreme Court (in accordance with the now in force Law on the Supreme Court of November 23, 2002, the General Assembly of the Judges of the Supreme Court selects candidates for the judges of the Supreme Court and the candidates so approved and selected are then notified by the First President of the Supreme Court to the National Council of the Judiciary), will be deprived of any input in the assessment of the candidates. Consequently, the self-government of the Court and the independence of the judiciary are reduced to naught.

The capture of the Court at the level of appointment process is further reinforced by the organisational and procedural powers granted to the Minister of Justice (drafting the rules of the court specifying the number of judicial positions, the purview and the organisation of the newly created chambers – see below).

The amendment additionally demolishes the internal structure of the court. Where there used to be chambers which corresponded to the jurisdiction allocated to the Court (civil, criminal, labour and military), the draft now replaces them by three new chambers: public law, private law and disciplinary. The disciplinary chamber will be „a court within a court” with a separate registry and budget. Its judges will receive better remuneration (higher by 40 %) than „ordinary” judges of the court. This chamber will be responsible for disciplinary proceedings of members of all legal professions in Poland (judges, public prosecutors, attorneys, public notaries and legal advisers). The Minister of Justice will exercise the actual supervision over the disciplinary proceedings with respect to the judges of the Supreme Court, ordinary courts and military courts, which includes the right to issue binding instructions concerning the course of these proceedings.

Last but not least, the purge extends to other employees of the Supreme Court as it provides for a special vetting procedure. The wording of the draft is extremely open-ended on this point (Article 90 (2)), for good reason. It would be pointless to leave the staff of the “old” court intact while purging the court itself from the „old” judges. We have already seen how the new broom of capture swept clean the Constitutional Court by not only forcing PiS-backed Judged onto the bench per fas et nefas, but also by dismissing the staff of the „old” court. The same script is followed with regard to the Supreme Court. The First President of the Court is now given a discretionary power of appraisal of the employees. The draft provides that new terms of employment „may” be proposed to the employees of the Court. When such new terms are not proposed, or, when they are not accepted, the employment will be terminated.

To say that the draft strengthens the position of the Minister of Justice, would be the understatement of the century! The draft completely rewrites the separation of powers (Article 10 of the Constitution) by making the court, and individual judges, fully subservient to the Minister of Justice. Yet, the implications of this most recent populist foray into the rule of law do not stop at the Court’s doors. The entire legal landscape in Poland has been altered up to the point where the character and identity of the State ruled by law has been affected. The draft now awaits the thumbs-up from the PiS ultra-loyal President. Given his record of unashamed rubber-stamping of all PiS-led initiatives so far, not even his last-minute „stand” on the reform of the judiciary changes this assessment, since his true motives and political calculations remain unclear right now. One must be very cautious before hailing Mr. Duda as an objective and constitution-minded broker of a compromise. He continues to be a „PiS President” for all intents and purposes and in order to shake off this label and earn constitutional trust much more is needed than a one-off salvo and cosmetic exercise of disobedience. As a result, 14th of July 2017 will be remembered as a paradigmatic date. It marks the completion of the unconstitutional capture that has been engulfing Polish public life and discourse for the last two years.

Purge at the Service of Capture

(Un)constitutional capture is a generic and novel concept¹⁾For the concept see also J. W. Müller, Rising to the challenge of constitutional capture. that poses a challenge for the EU by showing that liberalism and democracy no longer animate national constitutions. Unconstitutional capture and the piecemeal undermining the liberal democratic state also pose new challenges for the rule of law as well as external constraints for the domestic pouvoir constituant²⁾C. Dupré, The Unconstitutional Constitution: A Timely Concept, in A. Von Bogdandy, P. Sonnevend, (eds.), Constitutional Crisis in the European Constitutional Area. Theory, Law and Politics in Hungary and Romania, (Oxford/Portland, Hart Publishing, 2015); K. L. Scheppele, Unconstitutional constituent power; A. Barak, Unconstitutional constitutional amendments, (2011) 44 Israel Law Review 321; R. Albert, The Theory and Doctrine of Unconstitutional Constitutional Amendment in Canada; R. Albert, Four Unconstitutional Constitutions and their Democratic Foundations. For EU perspective see R. Passchier, M. Stremler, Unconstitutional Constitutional Amendments in European Union Law: Considering the Existence of Substantive Constraints on Treaty Revision. As forcefully argued by K. L. Scheppele and L. Pech, “consolidation of majoritarian autocracies […] represents more of an existential threat to the EU’s existence and functioning than the exit of any of its Member States”. The capture plays a pivotal role in disabling the checks and balances. It renders the constitution a “sham”³⁾“Sham” (sometimes also called “facade”) constitutions fail to constrain or even describe the powers of the state. On the concept see D. S. Law, M. Versteeg, Sham Constitutions, (2013) 101 California Law Review 863. as it strips the constitution off its limiting and constraining function. The principle of the separation of powers becomes illusory as the capture opens gate to unchecked arbitrariness. As shown by the demolition of the Supreme Court, the capture is not merely a one-off aberration. It is rather a novel threat to the rule of law as it is not limited to one moment in time. It is a process of incremental taking over the independent institutions and the liberal state. For some time Hungary was a prototype of a “captured state” and one would assume that the European Commission had learnt from its passivity and acquiescence to V. Orban’s tactics of capturing the state. The lesson has been taught loudly and clearly and yet it was missed by the Commission then, and now. While Polish authorities seek to methodically implement Orban’s constitutional capture rulebook, the Commission is repeating its past mistakes. The Commission is once again displaying the same naïve belief in the virtues of dialoguing with autocrats, giving them all the time they need to subvert the national constitutional order, whereas the only way to hinder constitutional capture, or to “constitutionally recapture the unconstitutional capture”, is to act preemptively, before the capture is complete. In order to thwart the capture, counter act is necessary at the very beginning, not later. Waiting on the sideline, talking to the perpetrators and hoping for their change of heart, will only embolden and entrench the regime. The regime knows that and will do anything to buy more time to entrench the capture and make the recapture very unlikely. The leaders of Hungary, and now Poland, know very well how to play this game, with the EU further and further extending time limits and engaging in a futile dialogue, while the capture is becoming more and more entrenched, difficult to roll back and, last but not least, emboldened as the demise of the Supreme Court painfully shows. Knowing that nothing will happen anyway, PiS did not even make an effort to disguise its unconstitutional ambitions this time and simply annihilated the court with one single piece of legislation.

The sequence of the capture in Poland makes perfect sense: The Constitutional Court was targeted first because that would ensure that next phases would sail through without any scrutiny from its side. Who cares that the new legislation flies in the face of the constitution since there is no procedural and institutional avenue to enforce constitutional rules? As of today, not only is the Polish Constitutional Court gone; the Supreme Court has followed and joined the list of fallen institutions. Both were turned into facade institutions that shall rubber-stamp any, and all, initiatives of the majority, and serve their political masters.

As A. Barak rightly points out “[…t]he response to an incorrect judgment is not to abandon communication and break the rules of the game but to use the existing relationship to create a situation in which the result of the mistake will be corrected. Breaking the rules of the game crosses the red line, and is likely to take on many forms: wild and unrestrained criticism of the judgment, attacks on the very legitimacy of the judicial decision, recommendations […] to narrow the scope of the courts’ jurisdiction, threats to create new courts in order to overcome undesirable judgments, attempts to increase the political influence on judicial appointments and promotions, calling for prosecution of judges […], demands to terminate judicial appointments […] All these lead, in the end, to the breakdown of the relationship. This is the beginning of the end of democracy”⁴⁾A. Barak, The Judge in a Democracy, (Princeton University Press, 2006), p. 239 – 241.. We have seen all this and more unravelling in Poland, with Europe reduced to a passive by-stander. Worst of all, the capture is not over yet and it will continue unhindered and more emboldened than ever.

Reading the Constitution in Times of Constitutional Humiliation

For any reasonable democrat the conclusions should already be clear so that any detailed commentary is obsolete. So in lieu of an academic summary, let the Polish Constitution speak up itself. Reading the constitution in times of the rejection of the constitutional text and the capture of institutions, is worth more than a thousand words and might be more powerful even than the most sophisticated legal commentary.

The Polish Constitution provides in plain and elegant words:

Article 2

The Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice […]

Article 8

1. The Constitution shall be the supreme law of the Republic of Poland.

2. The provisions of the Constitution shall apply directly, unless the Constitution provides otherwise […]

Article 10

1. The system of government of the Republic of Poland shall be based on the separation of and balance between the legislative, executive and judicial powers.

2. Legislative power shall be vested in the Sejm and the Senate, executive power shall be vested in the President of the Republic of Poland and the Council of Ministers, and the judicial power shall be vested in courts and tribunals […].

Chapter VIII

COURTS AND TRIBUNALS

Article 173

The courts and tribunals shall constitute a separate power and shall be independent of other branches of power […]

COURTS

Article 175

1. The administration of justice in the Republic of Poland shall be implemented by the Supreme Court, the common courts, administrative courts and military courts […]

Article 179

Judges shall be appointed for an indefinite period by the President of the Republic on the motion of the National Council of the Judiciary.

Article 180

1. Judges shall not be removable.

2. Recall of a judge from office, suspension from office, transfer to another bench or position against his will, may only occur by virtue of a court judgment and only in those instances prescribed in statute.

3. A judge may be retired as a result of illness or infirmity which prevents him discharging the duties of his office. The procedure for doing so, as well as for appealing against such decision, shall be specified by statute.

4. A statute shall establish an age limit beyond which a judge shall proceed to retirement.

5. Where there has been a reorganization of the court system or changes to the boundaries of court districts, a judge may be allocated to another court or retired with maintenance of his full remuneration […]

Article 183

1. The Supreme Court shall exercise supervision over common and military courts regarding judgments […]

2. The First President of the Supreme Court shall be appointed by the President of the Republic for a 6-year term of office from amongst candidates proposed by the General Assembly of the Judges of the Supreme Court […]

Article 186

1. The National Council of the Judiciary shall safeguard the independence of courts and judges.

2. The National Council of the Judiciary may make application to the Constitutional Tribunal regarding the conformity to the Constitution of normative acts to the extent to which they relate to the independence of courts and judges.  

Article 187

1. The National Council of the Judiciary shall be composed as follows:

1) the First President of the Supreme Court, the Minister of Justice, the President of the Supreme Administrative Court and an individual appointed by the President of the Republic;      
 2) 15 judges chosen from amongst the judges of the Supreme Court, common courts, administrative courts and military courts;
 3) 4 members chosen by the Sejm from amongst its Deputies and 2 members chosen by the Senate from amongst its Senators.

2. The National Council of the Judiciary shall choose, from amongst its members, a chairperson and two deputy chairpersons.

3. The term of office of those chosen as members of the National Council of the Judiciary shall be 4 years.

4. The organizational structure, the scope of activity and procedures for work of the National Council of the Judiciary, as well as the manner of choosing its members, shall be specified by statute.

In the light of the above, are there any doubts left as to what had happened in Poland on July 14, 2017? As I read the Preamble to my Constitution, its foundational principles and its chapter on courts again and again, I remain heart-broken. I have never felt my hopelessness and helplessness more acutely.

With the latest draft laws about the judiciary, the Law and Justice party (PiS) has crossed yet another line. President Duda’s announcement of a veto appears on first sight to present an obstacle to PiS’ march towards completely unrestricted, unitary state power. In this post, I will examine first what effects the PiS drafts will have on the independence of the judiciary by the hands of PiS and then, whether or not President Duda’s so-called veto holds what it seems to promise.

Three powers become one

Last week parliament passed a bill of amendment to the Act on the National Council of the Judiciary (NCJ), the special selection board that decides who fills judges’ positions, thereby giving politicians full control over the appointment and promotion of judges. Parliament also passed a bill of amendment to the Courts Act which gives the Minister of Justice huge influence over presidents heading the work of the courts.

As if this were not enough, on Wednesday evening another bill on the judiciary was passed to the Sejm which supplements the above steps in PiS’s plans for unitary state power. Their executive takeover of the NCJ would be of little use if there were no vacancies that board could fill, and the specific aim of the latest bill, which targets the Supreme Court, is to create vacancies at the very top of the judicial hierarchy. Almost overnight, all Supreme Court judges, except those chosen by Minister of Justice are to be sent into retirement.

This latest onslaught on the independence of the judiciary shows that the multi-stage process of violating the Polish Constitution, which started with an attack on the Constitutional Tribunal (CT) and the National Broadcasting Council, is fully underway. PiS’s serial violation of the Constitution is obliged by its political programme of changing the state system without officially amending the Constitution, for which it does not have a sufficient parliamentary majority. As the CT is now fully (and unlawfully) under PiS’s control, the Constitution is becoming something of a dead letter.

The attack on the separation of powers was objected to in almost all legal environments: advocate and attorney-at-law councils and even prosecutors’ associations. The changes were condemned by the parliamentary opposition, which has called for mass protests. Strong criticism has also come from abroad. As if in response to the outcry against the government, the Polish Foreign Ministry sent a declaration of friendship to Turkey and President Erdogan on the anniversary of last year’s failed coup. Let us hope that the Turkish president, who had no hesitation in throwing hundreds of judges into prison, has not been chosen as a role-model by the increasingly autocratic PiS government.

Following its executive takeover of the CT, the government uses it in a way akin to a thief who regularly requests a court to confirm that he has still not stolen anything: the applications filed with the CT in the past six months by the Minister of Justice and PiS MPs are not aimed at assessing constitutionality, but are tools in a political battle. Some applications are requests for the CT to legitimise constitutionally doubtful measures, some are clear attacks on government opponents. Recent applications have challenged the selection of wayward CT judges, questioned the legality of the selection of the Supreme Court President (who, it goes without saying, is critical of the government),  and the right of the Supreme Court (SC) to issue resolutions. This last application was filed with the CT after the notorious SC resolution finding that the President did not have the right to pardon the head of the Secret Services, Mariusz Kamiński, for a court case against him before it is resolved.

If the mechanism to use the CT as a tool in the political battle is repeated in the case of the Supreme Court and common courts, the outlook will be bleak for justice in Poland. The law can be a very dangerous tool in the hands of unscrupulous authorities: criminal law gives them the possibility of removing any opposing politician from public life, as a criminal conviction is a disqualification for running for parliament or president. If both the prosecutors’ offices and the courts, including the Supreme Court, are under the control of the executive, this becomes a very real possibility.

PiS has no doubt learned the lessons of its previous tenure with regard to the judicial system. The current (and former) Minister for Justice, Zbigniew Ziobro, is unlikely to repeat the mistake he made in 2006 against Dr. Garlicki, a cardiac surgeon who was accused of murdering patients. Then, after an infamous public charge violating the principle of innocent until proved guilty (“no one will ever have their life taken by this man again”), Ziobro improvidently put the accused person in the hands of the court, which found him not guilty. With full control of the judicial process, the Minister can be more certain that if he brings charges against someone, the outcome is less likely to contradict his will.

Political control of the courts poses a danger to businesses too. The Minister for Finance has legitimate power to question any tax returns filed in the last six years. In any normal country, if the tax administration questions a return, the tax decision can be appealed to a court which is independent of the administration. In a country in which both the administration and the courts are fully controlled by the same authority (the executive), appeals are pointless, especially if a clear directive is given beforehand that the state requires funds to continue costly social programmes.

Moreover, once the state administration knows that the spectre of its decisions being overturned by the courts has been dispelled, it may become increasingly brazen and undertake more daring actions, especially if they are assessed in terms of their effect rather than their lawfulness. The risk of groundless charges being brought against entrepreneurs will increase in direct proportion to the reduction in the possibility of their independent judicial review.

Last but not least, a court controlled by politicians is a threat to ordinary citizens, whose entire lives are bound by the law, from the certification that proves their birth to that which confirms their death. Legal decisions underpin education, rights to hold property, to travel, and to receive benefits. In the wrong hands, the law provides an extremely dangerous multi-purpose tool, which can be used for deprivation of rights, silencing of dissent, and exertion of pressure. For example, the Polish Constitution provides that fair compensation must be given for expropriation, but under the current programme, whether or not compensation is fair will be assessed by a court which is dependent on the expropriating party. Similarly, where proceedings are re-opened, a person has the right to defend him or herself in court. But will a judge whose fate depends wholly on a politician act against their interests?

A paraphrase of provisions of the Constitution that I was recently sent in private correspondence summarizes the situation well. The author writes that after control has been taken of the NCJ and the Supreme Court, article 10(2) of the Polish Constitution on the separation of powers will read as follows:

Legislative power is exercised by Law and Justice [PiS], executive power is exercised by Law and Justice, and judicial power is exercised by Law and Justice.

Worse still, the unity of state power arising from this provision may not only prevail in Poland but may become deeply rooted. Once the planned amendments enter into effect, the validity of elections to the Sejm and the Senate in Poland will, according to article 101(1) of the Constitution, be confirmed by Law and Justice (previously by the Supreme Court). But this will have nothing in common with true law and true justice.

Not much of a Veto after all

Yesterday, President Duda appeared to be ready to veto the draft legislation that allows Law and Justice to commandeer the Supreme Court. This glimmer of hope for those increasingly disillusioned with the President’s distance from his own political stable is in fact an ignis fatuus: rather than signalling a refusal to sign in the legislation on the grounds of merit (he did not present any criticism against the draft law), his projected objection is conditional on rejection of his amendment to another draft.

That other draft is the statute on the National Council of Judiciary, which was finalized last week; it gives the parliamentary majority the right to appoint the members of the Council and by doing so influence the appointment of all Polish judges. The President’s proposed amendment is to introduce a qualified (3/5) majority for appointing members of the Council; its ostensible objective is to assure that any appointees will be supported by more than one political party. At face value, the proposal seems a good one, but deeper analysis reveals that it is not.

First, it shows the President’s acceptance of the principle (promoted by PiS in their draft legislation) that members of the Council should in future be appointed by politicians rather than by judges, as it is now. Understandably, the Polish association of judges has criticized the President’s proposal as unconstitutional.

Second, the qualified majority will affect only the members of the Council who are judges, not those who are politicians. The problem is that the new Council will comprise two chambers: a judicial and political one; what is more, the political chamber will be able to block any judicial nomination supported by the judicial chamber. As a consequence, the President’s proposal will not actually change the balance of power in the Council, which is in favour of the political will.

Third, a 3/5 majority is likely to lead to parliamentary stalemates, which will be very advantageous for Law and Justice. The new regulation on the Supreme Court introduces a mechanism of silent consent of the Council for all nominations to the Supreme Court submitted to it by the Minister of Justice. As a consequence, a stalemate in the appointment of the Council members will make it even easier for the Minister to pack the Supreme Court with his judges: if the Council is not able to oppose nominations within 14 days, the nominees can be sworn in by the President. If the members of the Council cannot be chosen, the Minister for Justice will have carte blanche to pack the Supreme Court.

In short, the President’s conditional veto does not change much in terms of Law and Justice’s methodical take-over of the Polish judiciary, but merely represents the loss of another opportunity to display political independence. Such a display would require a full Presidential veto against all the planned amendments concerning the Polish judiciary, and not the ineffective palliative measure he proposed yesterday.

Die Europäische Union ist nicht nur eine Rechts-, sondern auch eine Wertegemeinschaft. Art. 2 EUV führt ausdrücklich auf, dass sich die Union auf die Achtung der Menschenwürde, der Freiheit, der Demokratie, der Gleichheit, der Rechtsstaatlichkeit und der Wahrung der Menschenrechte gründet. Entsprechende Werteklauseln enthalten die konsentierten Grundeinstellungen der Mitglieder eines Gemeinwesens über die grundlegende Ausgestaltung der jeweiligen Herrschaftsordnung und dienen in dieser Form damit nicht zuletzt der gemeinsamen Selbstvergewisserung jenseits aller politischen Auseinandersetzungen.

Werteklauseln sind daher notwendig offen und weit formuliert, eine genaue inhaltliche Definition fällt, abgesehen von gewissen Kernelementen, dementsprechend schwer. Gerade im politischen Alltagsgeschäft spielen die Werteklauseln daher in der Regel nur eine geringe Rolle, da sich die politischen Auseinandersetzungen unabhängig von der vertretenen Ansicht (eindeutig) innerhalb des von ihnen eröffneten Rahmens bewegen werden.

Die Werteklauseln sind gleichwohl vollwertiges Recht; auch Art. 2 EUV ist insofern kein bloßer Programmsatz, sondern gültiges EU-Vertragsrecht (Verfassungsrecht?) und damit für sämtliche Mitgliedstaaten verbindlich. Und insofern kommt den Werteklauseln denn auch ein normativer Gehalt zu. Es ist, mit anderen Worten, selbstverständlich möglich, gegen Werteklauseln zu verstoßen. Wirklich eindeutig werden solche Verstöße allerdings zumeist nur dort sein, wo es um dessen Kernbestandteile geht. Und gerade dort, erweist es sich nicht selten als fraglich, ob gerade das Recht das richtige Instrument ist, um eine auseinanderfallende Wertegemeinschaft wieder zu vereinen. Denn gerade hier dürfte ein Anwendungsfall des Böckenförde’schen Diktums gegeben sein: Auch die Wertegemeinschaft lebt letztlich von Voraussetzungen, die sie selbst nicht zu garantieren vermag. Wer sich an bestimmte Werte materiell nicht mehr gebunden fühlt, wird sich auch durch rechtlichen Zwang kaum oder sogar erst recht nicht umstimmen lassen.

Das heißt andererseits nicht, dass das Recht nicht auch einen gewissen Beitrag zur Wiederbelebung einer in die Krise geratenen Wertegemeinschaft zu leisten vermag. Die soeben ausgeführten Gedanken mahnen jedoch, sich erstens nicht auf das Recht zu verlassen und zweitens stets zu bedenken, dass rechtlicher Zwang unter Umständen genau das Gegenteil dessen bewirken kann, was eigentlich bezweckt ist.

Vor diesem Hintergrund ist denn auch die Regelung des Art. 7 EUV zu interpretieren. Das darin enthaltene Sanktionsverfahren soll also helfen, die Wertegemeinschaft in Krisenzeiten zu erhalten. Ob ein entsprechender Gebrauch des Art. 7 EUV opportun erscheint, ist letztlich eine politische Frage; er wird – so viel steht sicher fest – stets nur ein Instrument unter vielen sein können. Art. 7 EUV macht dabei schon durch das Erfordernis einer „schwerwiegenden Verletzung“ deutlich, dass er nur in besonderen Krisenzeiten in Betracht kommt. Es muss sich also um Verletzungen der oben angesprochenen Kernelemente des Wertekanons handeln, um solche also, auf die sich alle Mitgliedstaaten trotz bestehender Differenzen in den Details einig sind.

Das in Art. 7 Abs. 2 EUV genannte Einstimmigkeitserfordernis bildet die prozessuale Absicherung dieses materiellen Erfordernisses – ein Beschluss kann nur ergehen, wo alle (bis auf den betroffenen Mitgliedstaat) auch wirklich einig sind. Andererseits sollte diese Einstimmigkeit, so sollte man zumindest annehmen, in einer Wertegemeinschaft auch kein Problem sein, sofern tatsächlich schwerwiegende Verletzungen im Raume stehen.

Die beunruhigenden Vorgänge in Polen nähren nun allerdings Zweifel, ob dies tatsächlich der Fall ist. Zwar geht kaum jemand davon aus, dass die beschlossenen (noch nicht unterzeichneten) Gesetze zur Reform der Justiz keinen entsprechenden schwerwiegenden Verstoß darstellen – die Kommission ist hier zuletzt sehr deutlich geworden. Als problematisch erweist sich nun jedoch die prozessuale Komponente, da Ungarn bereits mehr oder weniger deutlich signalisiert hat, einen entsprechenden Beschluss im Europäischen Rat nicht mitzutragen. Damit aber ist der Drohung mit einem möglichen Stimmrechtsentzug, der „nuclear option“, jede Ernsthaftigkeit genommen. Ohne Ungarn kein Beschluss.

Als misslich erweist sich das aber vor allem deswegen, weil mit Ungarn ein Staat mit einem Veto droht, dessen Wertekonformität nicht erst seit der Flüchtlingskrise ebenfalls immer wieder in Frage steht. Soll es also möglich sein, dass ein Stimmrechtsentzug letztlich allein deswegen nicht möglich ist, weil sich nicht ein Mitgliedstaat, sondern zwei Mitgliedstaaten dem Wertekanon entziehen? Kann, so ließe sich auch formulieren, die Regelung des Art. 7 EUV durch kollusives Zusammenwirken unterlaufen werden?

Art. 7 EUV ist darauf ausgerichtet, dass ein einzelner Mitgliedstaat gegen die Werteklausel verstößt – dass sich eine Mehrzahl von Mitgliedstaaten gleichzeitig entsprechend verhalten könnte, schien schlicht nicht vorstellbar (immerhin geht es um schwerwiegende Verstöße). Die Vorgänge in Polen und Ungarn haben nun aber diese offene Flanke des Art. 7 EUV offen gelegt.

Eine Möglichkeit, die daraus folgende Funktionsunfähigkeit des Art. 7 EUV zu umgehen, bestünde in einem gemeinsamen Verfahren gegen Polen und Ungarn. Ein solches gemeinsames Verfahren – so die Überlegung – hätte zur Folge, dass im Europäischen Rat auch nur einmal abgestimmt würde. Das Erfordernis der Einstimmigkeit wäre natürlich weiterhin gegeben. Nur wären an dieser einzelnen Abstimmung Polen und Ungarn gegen die das gemeinsame Verfahren eingeleitet wurde auch gemeinsam nicht stimmberechtigt. Einstimmigkeit wäre also schon gegeben, wenn die 26 anderen Staaten mit Ja stimmen (bzw. sich enthalten, vgl. Art. 345 AEUV) sollten.

Der Regelung des Art. 7 EUV lässt sich eine solche Möglichkeit der Verfahrensverbindung (wie dargelegt) nicht entnehmen. Damit ist allerdings nicht gesagt, dass sie von vornherein ausgeschlossen ist. Um die von den Unionsverträgen nicht vorhergesehene Funktionsunfähigkeit der Norm in bestimmten Konstellationen zu verhindern, erscheint es durchaus zulässig, eine entsprechende Verbindungsmöglichkeit zu akzeptieren; Art. 7 EUV erlaubte damit ein Vorgehen gegen einen Mitgliedstaat oder gegen eine Gruppe von Mitgliedstaaten.

Andererseits darf es nicht möglich sein, dass der Europäische Rat durch entsprechende Verfahrensverbindungen aus der Einstimmigkeits- faktisch eine Mehrheitsentscheidung macht, um dadurch ein bestimmtes und nicht-konsentiertes Werteverständnis zu etablieren. Im Grundsatz muss es daher bei der getrennten Behandlung jedes einzelnen Verfahrens bleiben. Etwas anderes wird man nur unter den folgenden zwei kumulativen Voraussetzungen annehmen können:

Erstens es bedarf eines engen Zusammenhangs zwischen den jeweils vorgeworfenen Werteverstößen. Es muss also im Kern um den gleichen bzw. jedenfalls um einen sehr ähnlichen Werteverstoß gehen. Ausgeschlossen wäre ein solcher Zusammenhang etwa, wenn dem einen Mitgliedstaat Vorwürfe wegen einer Verletzung der Rechtsstaatlichkeit gemacht würden, während dem anderen Demokratieverstöße angelastet würden, die noch dazu in gänzlich unterschiedlichen Sachverhaltskonstellationen aufgetreten sind. Es muss, in anderen Worten, letztlich „um die gleiche Sache“ gehen. Das ist daher auch dort nicht der Fall, wo einem Mitgliedstaat lediglich vorgeworfen wird, eine einstimmige Entscheidung zu verhindern. Beide Mitgliedstaaten müssen also materiell ähnliche Verstöße gegen die Werte des Art. 2 EUV begangen haben.

Zweitens bedarf es des begründeten Verdachts eines kollusiven Zusammenwirkens der betroffenen Mitgliedstaaten im Hinblick auf die Verhinderung einer Einstimmigkeitsentscheidung des Europäischen Rates. Dazu genügt die bloße Behauptung von Seiten des Europäischen Rates noch nicht, vielmehr müsste diese durch empirische Belege auch ausreichend und nachvollziehbar begründet werden.

Ob bzw. inwieweit diese Voraussetzungen bei Polen und Ungarn tatsächlich gegeben sind, bedürfte einer näheren Untersuchung. Auf den ersten Blick spricht hier Einiges dafür, dass dies der Fall zumindest aber gut vertretbar ist. Ob der Europäische Rat nun tatsächlich einen entsprechenden Aussetzungsbeschluss treffen sollte, ist eine andere Frage, auf die das Recht letztlich keine Antwort parat hält. Es hält aber zumindest die Option eines solchen Beschlusses aufrecht.

Polish President Duda’s veto of the government’s bills on the judiciary caught both the governing party and the opposition by surprise, and can indeed be seen as something of a miracle. The President’s consistent support for all of PiS’s previous assaults on the rule of law in Poland had not given much hope for his conversion, yet he found courage to oppose his political benefactors and at least delay their final blow to the independence of his country’s judiciary.

The direct consequence of the two vetoes is that the bills on the National Council of Judiciary and on the Supreme Court will not come into force and will instead be returned to the parliament. To remove the vetoes, the government would need to muster a 60% voting majority, with 50% of MPs present in the house. This is politically impossible, unless PiS prevents the opposition from attending the parliamentary ballot.

A second consequence is that the third bill, the one giving the Minister of Justice the right to appoint and dismiss the presidents of the regular courts, now becomes law. Isolated from the remaining two bills, this one may seem less dangerous for the independence of judges; nevertheless, it gives politicians considerable control over the day-to-day work of Polish courts and should have been vetoed as well.

Announcing his decision, Duda said he would supervise the redrafting of the two vetoed bills, and they would be resubmitted for parliamentary deliberations soon. The scope and nature of changes to the bills are unknown. Previous communications from the Presidential Palace suggest that the main tenet of the bill concerning the National Council of Judiciary, namely the parliament’s right to appoint its members, will remain, as will the President’s previous requirement for a qualified (3/5) parliamentary majority for the appointments.

The new version of the Supreme Court bill is a greater mystery. In his speech announcing the veto, President Duda heavily criticized the Prosecutor General’s right to appoint and dismiss judges. Removing this element from the bill will – from PiS’s perspective – remove its teeth.

A further mystery is whether Duda’s recent vetoes signal a more permanent change in his fidelities to his political stable and to the Constitution; an opportunity to witness the depth of his conversion arises soon. The untimely death of Professor Morawski, one of the anti-judges appointed to the Constitutional Tribunal (CT) by Duda in December 2015, has created a vacancy in the CT which must be filled soon. The big question is with whom: one of the judges legally elected by the previous parliament or a new one, soon to be elected by PiS.

Duda’s history with the appointment of CT judges is troubled. First, he swore in the current anti-judges on the night of December 2^nd, mere hours before the CT issued a verdict confirming his duty to appoint those elected by the previous parliament. He then refused to appoint those legally elected judges, arguing that he could not have known the content of the verdict of December 3rd, and claiming that no vacancies at the Constitutional Tribunal were available.

Now that the President is fully aware of the verdict, and of the CT vacancy, his decision on this issue will prove whether he truly is on his road to Damascus.

Abuse of the law occurs when the law is used to pursue objectives other than those for which it was created, and when an illegal effect is achieved by lawful means. The first abuse was committed by the biblical King David: after seducing Bathsheba, he sent her husband, Uriah the Hittite, to his death in a battle with the Ammonites and then married his widow. As king, David had the right to order Uriah to take part in the battle, but he did so to achieve his own ends, not to defend the country.

Marshalling the law to one’s own ends

Abuse of law is a recurring element of Poland’s rule of law crisis. It enabled the authorities to take control of the Constitutional Tribunal (CT) when the power to pass legislation was used for illegitimate purposes, namely to paralyse the CT. Abuse of the law by the authorities was next directed towards the Supreme Court. First, an attempt was made at a blanket removal of judges by using the power to reorganise the courts and retire judges in exceptional cases. When this failed after a presidential veto, steps to prevent the Supreme Court from issuing decisions were taken by acting CT President Julia Przyłębska (see my previous blog post for the illegitimate nature of her presidential role) and the prosecution service (who demanded that proceedings in a politically sensitive Supreme Court case be suspended).

Both Judge Przyłębska and the prosecution service relied on a previous abuse of powers by the Marshal (Speaker) of the lower house of the Polish parliament, the Sejm. He had requested the Constitutional Court to resolve a competence dispute between the Supreme Court (SC) and the President over the right of pardon. When a motion to resolve a competence dispute is brought before the CT, proceedings before the SC are suspended: the Marshal’s aim was to thwart proceedings before that court, and he was successful. As in other abuse of law cases, he used his power contrary to the purpose for which it was granted to him: instead of breaking an institutional deadlock, it was used to block Supreme Court proceedings and save an ally’s skin.

In accordance with the letter but not the spirit

The reader might wonder how we know that in all those cases the relevant actions were taken in bad faith. Perhaps David truly intended to defend his country, perhaps the Marshal sincerely acted to resolve an institutional deadlock, and perhaps Judge Przyłębska was concerned with procedural respect for the law? Perhaps. However, the background to their actions and the context for them show that this was not the case. Context includes the motives of the actors, their atypical actions implying an ulterior motive, and the actual results of the actions, which confirm that there was a motive.

David’s motives resulted from his previous relationship with Bathsheba, his actions were atypical because he pointlessly sacrificed an excellent soldier, and the result was that he married the deceased soldier’s widow. In the Marshal’s case, his motives resulted from his previous attitude (he persistently allowed bills violating the principle of the tripartite separation of powers to be voted upon), his actions were atypical because the competence dispute was artificial (the Supreme Court has never wanted to substitute the President in exercising powers of pardon), and the result was that the Supreme Court’s independence was limited by the politically sensitive proceedings being blocked.

Can the lawfulness of somebody’s action be analysed based on the context, motives and atypical nature of that action? The answer depends on whether one is a formalist or not. According to legal formalists, the only criteria to be applied in judgement are those related to the formal correctness of the actions of the state authority. For formalists, argumentation based on concepts of bad faith and the exercise of a power contrary to its objective both leave the assessor too much room for interpretative manoeuvre and do not have a clear legal basis. In short, the answer is “no”.

Formalistic arguments are used not only by those who abuse the law and require that its letter be absolutely followed, but also by the judges who ruled that the proceedings in the politically sensitive Supreme Court case be suspended. In the elaboration of their decision, they stated that the Marshal’s motion was not abstract but oriented towards that case, which at least implies its objective. However, they did not assess whether the motion, the prosecution service’s motion based on it, and pressure from Judge Przyłębska represented abuse of law. All of these are reasons to suspect a hidden agenda on the part of the authorities, but from the formalist perspective of the judges, it would be unseemly to contaminate the purely formal nature of law with a context, politics or ordinary human deviousness. Formalists oblige actions to be taken at face value because they do not think that bad faith is a sufficient reason to challenge them, at least when it comes to the authorities.

Equal and more equal

Things are different when individuals are concerned. Formalists may not believe in the bad faith of the state, but are all too willing to believe in it when it comes to citizens of that state. For years now, civil law has provided for the “abuse of a subjective right”, where a private individual exercises a right in a manner contradictory to its purpose or to the principles of community life. For example, anyone can invoke the right to dismiss a claim against them on the basis of the expiration of the time limit for such claims. However, if the right is evoked by an individual after their use of delaying tactics (e.g. deliberately prolonged negotiation) to the point that an aggrieved party is unable to submit a motion within the stipulated time limit, the evocation of the right (a limitations plea) is considered an abuse of the law. In such a case, the court may dismiss the limitations plea under article 5 of the Polish Civil Code.

Tax law contains a tax evasion clause allowing a legal transaction made by a taxpayer to be challenged by demonstrating that its purpose was other than that declared. For example, if an individual lends their property to a stranger for free (rather than renting it out and paying tax on the rent), the treasury administration may conclude that the “lending” agreement is actually a rental one and on that basis assess tax due.

Thus the unquestioned faith of formalist judges and clerks in the actions of the state is not applied when assessing those of the individual, to the extent that they even admit non-formalist argumentation when judging individuals. As a consequence, they argue that there was an ulterior motive (prolonged negotiations) or that an action is artificial in the circumstances (it is odd to lend property to a stranger free of charge). Such argumentation refers to the citizen’s purposes and intentions, not to the formal aspect of his actions. Should not actions taken by an authority be assessed in the same way?

Illicit motive

They should. That is why US courts have been using the motive test in their judgments for years now. The test makes it possible for an action to be found unconstitutional if it can be demonstrated that the declared purpose of the action was other than the actual one or is illicit (illicit motive). This test was used, e.g. in US v. O’Brien and Washington v. Davis. The illicit motive argumentation was recently raised by a court assessing the constitutionality of President Trump’s executive order on immigration. The court ruled that the order was in fact targeted at particular countries, not individual dangerous citizens, which was unconstitutional. The court established the purpose of the executive order from the President’s Twitter post.

Why can our judges not test the purpose of a motion taken by the Marshal of the parliament or of the prosecution service that benefits from it? Because our national courts rarely use argumentation based on the motives of an authority when assessing the constitutionality of its actions. They assume that the state is always trustworthy, even when it is clearly acting in bad faith. Formalists treat article 2 of the Polish Constitution, which lays down the principle of citizens’ trust in the state and the law made by the state, not as a requirement for the authority to play fair but rather as an unconditional requirement for the subjects of that authority to trust it. In fact, the principle of trust expressed in article 2 of the Polish Constitution prohibits abuses of law: one cannot trust a state that acts with an ulterior motive and a law that deliberately has effects other than those declared.

And it is probably clear to everyone that the present authority has been acting with the illicit ulterior motive of curtailing the independence of the judiciary. The Marshal of the Sejm allowed a total of six grossly unconstitutional bills on the Constitutional Tribunal to be put before it, and three equally unconstitutional bills on common courts. Julia Przyłębska allowed so-called anti-judges to sit on the CT, and has been manipulating deadlines for dealing with cases: she swiftly examined the constitutionality of the Polish Court Register Act to enable the Law and Justice party to take control of the courts, while deliberately prolonging the examination of the matter of three judges whose appointments were challenged by the Minister of Justice in order to prevent them from ruling.

Although this does not mean that all the actions taken by Marshal Kuchciński and Judge Przyłębska are illegal by definition, there are still grounds for examining on a case-by-case basis whether the context of their actions does not imply bad faith. A taxpayer with a history of tax evasion should put the tax authorities on guard to a greater extent than one with no such history. Would the authorities always conclude blindly that an individual had acted in good faith even though the context implied otherwise? As we have seen, probably not, but that is what formalists do with respect to an authority that has repeatedly acted in bad faith.

When the authorities cheat

The principle of equal treatment requires that abuses of law by the authorities be remedied by application of the same standards to them as are applied to individuals. If it can be demonstrated that an individual is acting for a purpose other than that declared, the same can be demonstrated with regard to an authority. To do so requires the motives of the authority to be examined, and arguments based on the purposes and functions of institutions to be used. This in turn involves a direct application of the constitution, especially in this case its regulations regarding the function of an independent judiciary. As long as our judges do not treat authorities and individuals equally, we will be defenceless against the authorities who are using the institutional powers of the state to dismantle the rule of law.

Formalists immersed in the world of legal regulations but unheeding to the real world behind them will pretend that the game is being played according to the rules, even when the essence of all those rules have been broken. They will be defenceless against the abuse of law because a purely formal analysis will prevent them from seeing it: the abuse of power is lawful in form but unlawful in effect. They will never share the opinion expressed in Ho Ah Kow v. Nunan: “… we cannot shut our eyes to matters of public notoriety and general cognizance. When we take our seats on the bench we are not struck with blindness, and forbidden to know as judges what we see as men …”.

Constitutional contempt

According to the prophet Nathan, by misusing his powers David showed contempt for God’s law. In our secular state, the Constitution is the counterpart of God’s law. Sadly, our judges find that the Constitution cannot be applied directly even though Article 8 expressly provides a basis for its direct application. Consequently, our judges will never oppose abuses by the authorities.

As long as judges fail to treat the Constitution as hard law and they avoid arguments based on its principles, purposes and functions, they will be unable to oppose abuses by the authorities. This judicial formalism makes it possible for David-like authorities to use the law as a tool for actions promoting illicit interests rather than to pursue objectives established for the public good.

Poland’s prolonged rule of law crisis goes beyond the political and legal to the psychological. Those who believe in the value of respect for the law, the inviolability of the constitution and the independence of the courts have seen the things they believe in ruthlessly destroyed. They are likely to be experiencing a psychological trauma.

A Question of Revenge

This psychological dimension should not be underestimated as it is entwined with the desire both for a return to normality and for justice. Whenever I have spoken publicly about the rule of law crisis, both at public meetings and to the media, I have been asked two questions: the first concerns revenge, the second concerns restoring order. Will those who caused the crisis be punished – will they be “taught a lesson”, put in prison? And can the mess can be cleared up – will we be able to restore respect for the Constitution, courts, public prosecutor’s office and other public institutions?

The answers to both questions are closely related. The style in which Poland will punish those behind the crisis once it is over will determine whether and how quickly we will be able to restore order. The style in which we restore order will determine the moral authority of those doing the punishing  as will perceptions of fairness of that punishment.

A Question of Style

Some of the proposals for restoring post-crisis order focus on effectiveness to the exclusion of any other considerations. For example, one prominent politician, Ludwik Dorn, noted that if the winners of the next elections wish to restore the previous constitutional order for the Constitutional Tribunal and the courts, they will have to revert to legal measures identical to those used by the current authorities against those institutions.  The current authorities breached the Constitution to put their own judges in place of those appointed by the previous parliament, so the argument goes that those judges should be removed in similar fashion. Similarly, the current authorities have paralyzed the Constitutional Tribunal, so after the next election, that body should be dissolved by an act of parliament (even though that breaches the Constitution) and a new one appointed. In other words: the mess that was caused by disregarding procedures, lawfulness and the Constitution should be cleaned up by disregarding procedures, lawfulness and the Constitution.

This approach would be a reciprocal answer to the events of recent months, but would it be a fair one? Despite the psychological charm of giving someone a taste of their own medicine, such behaviour realizes the most dangerous threat that the recent breach of the rule of law in Poland has created: the risk of the breach becoming a precedent, and the precedent becoming a norm. Understanding and unravelling this complexity requires a review of Poland’s rule of law crisis.

Two Types of Justice

The source of the crisis is the present authorities’ very peculiar understanding of the relationship between procedural justice and substantive justice. Procedural justice is attained through compliance with formal legal requirements and by basic procedural guarantees: the right to have a case heard by an independent court, the right to defense, the freedom from self-incrimination and the lawfulness of the evidence submitted. Substantive justice is achieved by giving every person what he deserves: penalizing the bad, rewarding the good, giving the innocent peace of mind.

Among experts, procedural justice is considered a means of achieving substantive justice, but the current Polish government sees things otherwise:  for them, procedural justice is an obstacle to achieving substantive justice.

For example, members of the current Polish government treat the presumption of innocence as an expression of the prosecutor’s gullibility: for example, immediately following the arrest of a surgeon in 2007, the then and current Minister for Justice (Zbigniew Ziobro) stated that the surgeon would never again deprive anyone of life. When the case came to trial and the evidence heard, the surgeon was exculpated.

Another example of the perception of procedural justice as an obstacle to the achievement of the substantive variety can be seen in the way the current government perceives judges, who, instead of their standard role of impartial guarantors of justice, are considered agents of a deep state. This was illustrated by the accusation of Member of Parliament, Arkadiusz Mularczyk, during debates preceding the 2007 lustration law, that the Constitutional Tribunal judges cooperated with the communist secret police, the implication being that they were unlikely to deliver justice. This claim was later enhanced by PiS leader Jarosław Kaczyński,  who advanced the theory that the law hinders rather than helps the pursuit of what is right.

Originally expressed ten years ago, those convictions are now back in full force under an invigorated (majority) PiS government whose eagerness to pursue substantive justice has most recently imperiled the separation of powers. The perceived redundancy of procedural justice is reflected in the government’s approach to the Constitutional Tribunal and the judiciary: the independence of the Constitutional Tribunal is secondary to the need for it to be composed of people who understand the government’s sense of justice; the independence of judges in the courts is secondary to the achievement of the government’s substantive objectives.

These convictions are reinforced by the appointment of a reprivatization commission, which, in line with the intention of its creators, is to replace inefficient courts in restoring justice in this politically charged area. Managed by a non-lawyer and composed of politically-aligned members, the commission has judicial powers. Ultimately a kangaroo court, the commission is a manifestation of the belief that it is not institutions but individuals that ensure fair judgments. What is more, it has been hailed by PiS leader Jarosław Kaczyński as the prototype for a solution that may be used in other areas if it works in the current one, heralding the systematic waiver of the guarantees provided by procedural justice.

Faith in Individuals, not in Institutions

A recent parliamentary commission investigation into the 2010 Smoleńsk plane crash (in which almost 100 Polish state representatives died, including President Lech Kaczyński) provides a vision of the brave new world in which substantive justice prevails over the procedural variety. A strong internal conviction about what really happened in Smoleńsk leads to the dismissal of evidence which does not fit within the framework of that conviction, and to coherence being sought in facts that firmly refuse to be coherent. Similarly, a strong individual conviction that someone is guilty or about what is unfair leads to facts being interpreted subjectively to fit the theory.

The structural similarity between the search for the truth about Smoleńsk and the search for justice is also visible in the authorities’ approach to relations between an institution (commission or court) and the people who make up that institution. If the effect of the work of a given institution does not meet the authorities’ expectations, the discussion does not concentrate on whether the findings are correct or the truth-seeking procedure appropriate. Rather, the focus switches to proving that the composition of the commission or court is inappropriate and personal attacks are launched against those individuals. The inevitable conclusion is that the members of the institution need to be replaced.

This scenario arises from the conviction that institutions and procedures do not guarantee the truth, but that the individual conducting the proceedings do. Similarly,  immutable laws of physics and established constitutional regulations do not determine the final outcome of a case; the investigator’s internal conviction about truth or justice do.

History Lessons

History teaches us that attempts to achieve substantive justice at the cost of procedural justice have always led to disaster: the Inquisition, witch-hunts, kangaroo courts such as the Volksgerichtshof and politically-motivated trials provide ample evidence that the perception of justice and justice itself are seldom aligned. Each of those cases disregards the great fault of human nature – bounded rationality: our individual thinking patterns tend towards extreme bias based on subjective assumptions, stereotypes and prejudice. Our conviction that someone is guilty leads us to search for confirming evidence and to disregard doubts, while our faith in the legitimacy of our objectives leads us to believe that the end justifies the means. In pursuit of that end, we make serious sacrifices: someone’s freedom, someone’s values and, in extreme cases, someone’s life.

It is such historical experience of substantive justice that has led Western culture to have so much faith in procedural justice. In addition to respect for the formal side of law, its basic elements are checks and balances: the defense attorney weighs in against the public prosecutor, the Constitutional Tribunal checks the parliament, the executive authorities are counterbalanced by independent judicial ones. This balanced structure protects us from the bounded rationality of either party and ensures a thorough examination of facts and elimination of bias to arrive at truth and justice.

The Wisdom of Weakness

Poland’s rule of law crisis stems from the conviction that respect for institutions and the requirement to observe procedures are for the feeble or the gullible. With power currently seen as a permit to do what you think is right, making sacrifices and disregarding imponderables, the greatest risk in removing the effects of the crisis is to cure a breach of procedure with another breach of procedure. This will simply replicate the precedent, strengthening the effects of the crisis instead of weakening them.

The conviction behind modern legal systems is that true justice can be achieved only by unconditionally complying with the requirements of procedural justice. Although compliance makes modern societies seem enslaved by procedure, only compliance to procedure secures substantive justice. Therefore, to remedy Poland’s current predicament and ensure the crisis is not perpetuated, every effort should be made to remove its effects in full compliance with constitutional requirements and respect for the values trampled underfoot by those who caused that crisis. Those efforts need to start now, at least intellectually.

Über Gesundheit und Mehrdeutigkeit 

Nach Paul Craig, dem britischen Rechtsprofessor, soll gegenüber jedem, der das Betreten der „Welt der Rechtsstaatlichkeit“ riskiert, eine Gesundheitswarnung ausgesprochen werden.[1] Dies ergibt sich unter anderem daraus, dass in den Fachdebatten der Rechtswissenschaft gravierende Meinungsunterschiede in Bezug auf den Begriff der Rechtsstaatlichkeit selbst sowie die rechtlichen und politischen Konsequenzen, die aus der Verletzung der Regeln der Rechtsstaatlichkeit resultieren sollten, existieren.

Seit Ende des Kalten Krieges haben sich sowohl internationale Organisationen als auch nationale Regierungen (auch von undemokratischen Staaten) den Grundsätzen der Rechtsstaatlichkeit verschrieben, allerdings oft nur in Form eines Lippenbekenntnisses.[2] Daher genoss zwar die Rechtstaatlichkeit eine breite Unterstützung in der internationalen Politik, aber nur auf der rhetorischen Ebene.

Dies hatte Folgen für das Verständnis der Rechtsstaatlichkeit in der EU, denn auch hier kam es nicht zu einer eindeutigen Herauskristallisierung von Bedeutung und Anwendungsumfang dieser Regel. Natürlich lässt sich auch argumentieren, dass der Gerichtshof der Europäischen Union jederzeit die Definition der Rechtstaatlichkeit hätte präzisieren können. Er tat es nicht und zwar gezielt, denn die Zustimmung der EU-Mitgliedsstaaten zur Ausweitung der Rechtsstaatlichkeit im EU-Recht war möglicherweise gerade dank der konzeptuellen und rechtlichen Vieldeutung möglich.

Daraus allerdings entstand eine besondere Konstruktion des Schutzes der Rechtsstaatlichkeit in der EU. Dieser hat nämlich in der EU eine „Dachfunktion“, und zwar unabhängig davon, dass die Rechtstaatlichkeit durch den Art. 2 des EU-Vertrags und durch die Rechtsprechung des EuGH in das EU-Rechtssystem direkt integriert wurde. Eine bloße Verwendung des Begriffes ohne eine definitorische Klärung, vor allem hinsichtlich der Folgen bei der Verletzung der Rechtsstaatlichkeit, ist ein ernsthaftes Hindernis bei der Ahndung des Regelbruchs.

Der EuGH hat sich mangels einer klaren Definition der Rechtsstaatlichkeit im EU-Recht immer wieder auf allgemeine rechtliche Regeln berufen, die den Verfassungstraditionen der Mitgliedsstaaten gemein sind.[3] Damit verortet der EuGH die definitorischen Quellen der Rechtsstaatlichkeit in den Mitgliedstaaten selbst. Dadurch folgt das Verfahren bei der Verletzung der Rechtsstaatlichkeit nach Art. 7 und Art. 49 des EU-Vertrages eher einer politischen und weniger einer rechtlichen Logik. Somit unterliegt die endgültige Entscheidung über etwaige Sanktionen gegenüber den Mitgliedstaaten vor allem EU-politischen, geopolitischen und wirtschaftsutilitaristischen Kriterien.

Konstruktion oder Pfadabhängigkeit? 

Politikwissenschaftler weisen darauf hin, dass Regelwerke, und damit auch Rechtssysteme, oft aus einer Reihe von kontextuellen Entscheidungen resultieren, die über Jahrzehnte hinweg additiv zu suboptimalen und widersprüchlichen Entwicklungen führen können. Mit dem Begriff der Pfadabhängigkeit können institutionelle Ineffizienzen und gar Zusammenbruch von Regelwerken erklärt werden.

Bei den heutigen Schwierigkeiten der Rechtsstaatlichkeit in der EU war ein Zusammenspiel zwischen dem EuGH und den Mitgliedstaaten ausschlaggebend. 1986 beschrieb der EuGH die europäische Gemeinschaft in seinem entscheidenden Urteil in der Sache Les Verts folgendermaßen:[4]

„Dazu ist zunächst hervorzuheben, dass die Europäische Wirtschaftsgemeinschaft eine Rechtsgemeinschaft [Hervorhebung durch die Autoren] der Art ist, dass weder die Mitgliedstaaten noch die Gemeinschaftsorgane der Kontrolle darüber entzogen sind, ob ihre Handlungen im Einklang mit der Verfassungsurkunde der Gemeinschaft, dem Vertrag, stehen. Mit den Artikeln 173 und 184 EWG-Vertrag auf der einen und Artikel 177 EWG-Vertrag auf der anderen Seite ist ein umfassendes Rechtsschutzsystem geschaffen worden, innerhalb dessen dem Gerichtshof die Überprüfung der Rechtmäßigkeit der Handlungen der Organe übertragen ist.“

Die Mitgliedsstaaten zögerten zunächst, die Rechtsprechung des EuGH in das Primärrecht einzugliedern. Indem sie jedoch den Maastrichter Vertrag 1993 ratifizierten, erkannten sie an, dass die Rechtsstaatlichkeit eine Regel ist, auf die sich die EU in ihrer institutionellen Identität stützt. Die Regel wurde in den ehemaligen Art. 6 Abs. 1 des EU-Vertrags (heute Art. 2 des EU-Vertrags) und die Charta der Grundrechte der EU aufgenommen.

Allerdings deutete der Lissabonner Vertrag von 2009 die Regel der Rechtsstaatlichkeit als „Wert“ um. Die Ersetzung „der Regel” mit dem Begriff „des Werts” ist problematisch, denn es richtet die Diskussion auf die philosophische Debatte über die Begriffsnatur[5] und weniger auf rechtliche Konsequenzen. Armin von Bogdandy weist darauf hin, dass die im Art. 2 des EU-Vertrags enthaltenen „Werte” als Regeln nur dann zu verstehen sind, wenn sie rechtliche Konsequenzen nach sich ziehen[6].

Das entscheidende Problem ist nun Art. 7 des EU-Vertrags. Es liegt nahe, zu vermuten, dass die Anwendung des Artikels nicht intendiert und er eher konzipiert wurde, um die institutionelle Identität der EU zum Ausdruck zu bringen. Wurde allerdings tatsächlich beabsichtigt, Art. 7 als eine „Nuklearoption“ zu konstruieren, dann scheiterte die EU gewaltig an dieser Aufgabe. Art. 7 kann gegen eine Regierung des Mitgliedstaates angewandt werden, allerdings nicht, wenn es mindestens eine andere Regierung gibt, die ein Veto gegen das Verfahren einlegt. Es ist kaum nachzuvollziehen, dass die Autoren des Lissabonner Vertrags nicht an ein solches Szenario gedacht haben, zumal frühere Fälle von Sanktionen gegen Österreich im Jahre 2000 kontrovers unter den Mitliedstaaten debattiert wurden. Hinzu kommt, dass die zu bestrafende Regierung die „andere Nuklearoption“ des EU-Austritts (Art. 50 EUV) ins Spiel bringen könnte-  ein Instrument, das insbesondere nach dem Brexit-Referendum nicht mehr so unwahrscheinlich erscheint, aber auch bei den Verhandlungen des Lissabonner Vertrages eine Rolle spielte.

Ein „Gap“ beim Schutz der Rechtsstaatlichkeit in der EU

Die EU leidet an einem institutionellen Widerspruch zwischen der zentralen Bedeutung der Rechtsstaatlichkeit im Rechtssystem der EU und der Unfähigkeit der Union, den Schutz der Rechtsstaatlichkeit zu garantieren. Einerseits handelt es sich bei der Rechtsstaatlichkeit um eine gemeinsame Verfassungsregel aller EU-Mitgliedsstaaten, deren Befolgung eine unabdingbare Konsequenz des EU-Beitritts für Kandidatenstaaten ist. Andererseits ist der Schutz der Regel sowohl auf der EU-Ebene als auch in den Mitgliedsstaaten mit keinen wirksamen Garantien und Rechtsmechanismen versehen. Im Endergebnis bleibt der Schutz der Rechtsstaatlichkeit unwirksam. Daraus ergibt sich ein „Gap“ zwischen der politischen Symbolik und der rechtlichen Praxis.

Auch bevor Ungarn, Rumänien und Polen als Problemfälle für die Rechtsstaatlichkeit durch die EU identifiziert wurden, gab es Anlass zu glauben, dass die „Dachfunktion“ der Rechtsstaatlichkeit in der EU durch eine subjektive und politisierte Auslegung keinen wirklichen Schutz bieten kann. So zeigten z.B. die Beteiligung einiger EU-Staaten an geheimen CIA-Gefängnissen in Europa (vor allem im Kontext der angewandten Foltermethoden und des fehlenden Rechtsschutzes) und die auffallende Reaktionsunfähigkeit der EU deutlich die Grenzen des Schutzes der Rechtsstaatlichkeit in der EU.

Derzeit verfügt die EU über keine wirksamen Mechanismen, die die Rechtsstaatlichkeit in den Mitgliedsstaaten effizient schützen würden. Möglich sind vor allem direkte Stellungnahmen der Europäischen Kommission bezüglich der Rechtstaatlichkeit in den Mitgliedsstaaten gemäß Art. 258 des Vertrags über die Arbeitsweise der Europäischen Union, also die sogennante „Soft Method“. Sie stellt zwar eine Reaktion auf Brüche der breit gefassten rechtsstaatlichen Verpflichtungen dar. Dennoch bieten sie keinen rechtlich wirksamen Schutz vor den Verletzungen dieser Regel.

Der Mechanismus wirkt erst in Verbindung mit dem Nachweis der Verletzung des materiellen Rechts (einer konkreten Norm, z.B. der Verletzung von Art. 19 des Vertrags über die Europäische Union oder der Antidiskriminierungs-Richtlinien). Dies ist jedoch in der Anwendung schwierig und in manchen Fällen gar nicht möglich, wie z.B. die Kontroversen um das polnische Verfassungsgericht zeigen. Das Beispiel Polen verdeutlicht, dass mehrere Stellungnahmen der Kommission bezüglich der Entwicklungen im polnischen Rechtssystem seit 2015 völlig unwirksm waren und dass die „Soft Method“ in ernsten Fällen an ihre Grenzen stösst.

Jenseits der rechtlichen Verfahren werden derzeitig direkte finanzielle Strafen wie eine Kürzung der Regionalförderung und der Umverteilungshilfen diskutiert. Solche Maßnahmen erwecken jedoch rechtliche Zweifel und haben tendenziell einen beschränkten Wirkungsumfang, denn die entsprechende Sanktionsentscheidung bleibt im Zuständigkeitsbereich der Ausführungsgewalt und nicht der Justizkontrolle. Damit gibt es Bedenken, ob Sanktionen dieser Art überhaupt mit dem Prinzip der Rechtsstaatlichkeit vereinbar sind. Das kann wiederum den Eindruck einer politischen und somit tendenziösen Entscheidungsfindung erwecken. 

Was bleibt zu tun?

Derzeit sind im Grunde nur direkte Klagen der Europäischen Kommission gegen Mitgliedsstaaten beim EuGH der einzige ernstzunehmende Schutzmechanismus des EU-Rechts. Allerdings können diese ihre Wirksamkeit nur in Verbindung mit der Verletzung des materiellen Rechts (einer konkreten Norm, z.B. Art. 19 des EU-Vertrags oder Antidiskriminierungsrichtlinien) entfalten. Dies ist wesentlich, denn im Falle von rechtsmateriellen Regelungen verfügt die EU über einen direkten rechtlichen Zugriff durch den EuGH. Wenn ein Mitgliedsstaat die vertraglichen Verpflichtungen im materiellen Recht verletzt, z.B. eine Richtlinie nicht implementiert, wird ein relativ effektiver Sicherungsmechanismus angewendet (eine Klage der Kommission und ein Urteil des EuGH). Dies erinnert an Regelungen aus dem Kontext des nationalen Rechts.

Dagegen muss die EU im Falle eines institutionellen Konflikts zwischen der EU und einem Mitgliedsstaat, die „Toolbox“ des Völkerrechts nutzen, deren Wirksamkeit stark von der Kooperationsbereitschaft der betroffenen Länder abhängig ist. Dies ist umso wichtiger als die meisten EU-Mitgliedstaaten in ihren nationalen Verfassungen die EU als eine gewöhnliche internationale Organisation definieren, womit sich immer wieder auf das Primat des nationalen Rechts berufen können.

[1] P. Craig, The Rule of Law [in:] House of Lords Select Committee on the Constitution, Relations between the executive, the judiciary and Parliament, HL Paper 151 2006-2007, S. 97.

[2] Kritisch: U. Mattei, L. Nader, Plunder: When the Rule of Law is Illegal, Blackwell 2008.

[3] Z.B. das Urteil des Gerichts vom 30. Januar 2002 in der Sache T-54/99 max.mobil Telekommunikation gegen die Kommission [2002] S. 48 und 57 – bei Urteilen im Berufungsverfahren findet man keinen Bezug auf die Regel der Rechtsstaatlichkeit: C-141/02 P [2005] vgl. Urteil I-1283.

[4] C-294/83 Les Verts gegen Parlament [1986].

[5] Zu unterscheiden sind grundlegende moralische Regeln (menschliche Würde, Freiheit), auf die sich die EU stützt, und „strukturelle“ Regeln (Demokratie, Rechtsstaatlichkeit), auf deren Grundlage die EU tätig ist. Vgl. L. Pech, A Union Founded on the Rule of Law – Meaning and Reality of the Rule of Law as a Constitutional Principle of EU Law, European Constitutional Law Review 6/2010, S. 367.

[6] Vgl. A. von Bogdandy, Constitutional Principles [in:] A. von Bogdandy, J. Bast J. (Hg.), Principles of European Constitutional Law, Oxford 2006, S. 9.

“Stop for a second in a rushing crowd. There is the Other next to you. Meeting Him is the greatest experience of all. Talking to the Other, feeling him out while at the same time knowing that he sees and understands the world differently, is crucial to building the atmosphere for positive dialogue”

R. Kapuścinski, Ten Inny, (The Other), Warszawa, 2010 (my translation)

From resentment to the politics of resentment. A manual

Resentment sweeps across Europe. Yet, the concept itself, its consequences and modus operandi, are far from clear. We continue to lack a solid conceptual framework to deal with it. We only scratch the surface by adopting intuitive understanding of the term and equate it with the politics of protest, contestation and revolt against mainstream politics. Yet contestation and conflict itself are a part and parcel of a democratic process and open public sphere in why different world views compete for popular attention. In this traditional sense resentment is often analysed together with the populism and the two are even used interchangeably. Just like populism resentment is not only anti-elitist, but also anti-pluralist, two features rightly identified by J. W. Müller in his insightful analysis as constitutive for populism. Populism appeals to resentment by excluding others from „the people”, rising suspicion and uncertainty, thriving on conspiracy theories.

Resentment never works on its own, though. It is always a function, and mixture of, culture, history and domestic politics. As a result of this „bifurcation” resentment works differently in different environments and manifests itself in different guises: Brexit in UK, more generally anti-European sentiments across the continent, rise of the right-wing parties in Germany, Austria and France, the spread of hate speech and exclusion of the „the Other”, and, last but not least, more recently disabling constitutional checks and balances and taking over the state with looming POLEXIT in Poland. The rationale behind resentment – distrust – plays out in each and every case just mentioned, yet it operates differently, with varying intensity, consequences and methods. Resentment transforms our traditional understanding of conflict. While democratic politicians compete with their own visions for society and politics and to this end make representative claims, they always stick to the language of “probability” for describing their alternatives to the status quo. They are ready to present these to the constitutional vetting through procedures and elections, and most importantly, they will be ready to accept failure and come back … with better alternatives. The constitution provides the political stage and frames this never-ending contestation and vying for political recognition. This is what makes democracy vibrant and dynamic. On the other hand, resentment-driven politicians see their claims as settling most fundamental issues once and for all and not allowing any room for critique and contestation. Their claims can not be judged along the lines of „truth” and „falsehood” because of their moral dimension. Their claims are always the best and not open for further contestation.

So far so good. I would argue, however, that transitioning from „resentment” as an emotion of rejection and critique of the unsatisfactory liberal status quo to the more formalised and institutionalised „politics of resentment” is crucial in our understanding of the ascent of illiberal narratives in Europe. It gives us a chance of harnessing resentment in more conceptual terms and schemes. Resentment alone is an emotion in need of constitutional doctrine, and “politics of resentment” add a crucial dimension to populism: a constitutional doctrine that competes with the dominant liberal constitutionalism (for important clarification see also here) and delivers on the promise of populist narratives. The doctrine of „politics of resentment” ranges from relentless abuse of constitutional arrangements to flat-out rejection of a constitutional document. Critique (the constitution seen as a vestige of the old regime) is a unifying factor for both approaches; what distinguishes one from the other is how deep and far the constitutional humiliation goes. In the former case, given the lack of constitutional majority, the constitution is dispensed with per fas et nefas by disregarding its clear provisions or adopting regulations that fly in the face of a constitution. With constitutional review in tatters, such unconstitutional practice becomes business us usual. In the latter case,  the politics of resentment resort to the ultimate weapon and adopt a new constitution that reflects and entrenches new narrative. One of the tenets of the new doctrine of “the politics of resentment” is outright rejection of the liberal rule of law. It distorts the communication processes between the representatives of the people and the people themselves. It is an unwanted technicality that, at best protects the disgusting elites while oppressing the real people. As such it must be remodelled and harnessed so as to enable and protect the decision making that at long last would reflect the purified rule of the people.

What truly differentiates the „politics of resentment” from mere contestation and dissatisfaction with the status quo is its resort to the “constitutional capture” as a tool to remodel the state and unseat the hitherto dominant (and allegedly failing) liberal narrative. Constitutional capture is a generic and novel concept (interestingly, American scholars are waking up now to their own version of constitutional capture, or retrogression, as they call it). It stands for a systemic weakening of checks and balances and entrenching power by making future changes in power difficult.

Constitutional capture has in-built spill-over effect and as such the potential of Europe-wide adverse consequences. It travels in time and space. The „Turkish – Hungarian – Polish” connection is a case in point and shows how new authoritarians learn from each other. As there is simply no place for a veto emanating from any institution other than the majoritarian parliaments, the „politics of resentment” target institutions that otherwise might be seen as a brake on the power of the people’s representatives. Institutions are only accepted as long as they are our institutions and translate the only right message that deserves to be out in the public sphere. Such understanding leads to an important tweak to the established narrative: institutions that have been channeling (for populists “distorting”) the rule of law must be dealt with as expeditiously as possible. With the extreme majoritarianism as one of the courier stones of the new doctrine, disabling constitutional courts and judicial review is first order of the day for constitutional capture.

As a result, and with the benefit of hindsight, the Polish Constitutional Court never had a chance and its destruction was first on the to-do list of the Polish authoritarians. The very survival of the politics of resentment was on the line here and the independent court was its most deadly enemy. The logging case now pending at the Court of Justice, and the repeated denouncement by Polish ruling party of any decision the Court will take in the case, proves this anti-institutional trajectory and some more. Poland’s paranoid reaction to the Court’s alleged meddling in our own affairs adds a new crucial dimension to the “exit in values” (we are past this stage now) – “exit in legality” (I am grateful to Kim Lane Scheppele for this distinction). All institutions, domestic, supranational, stand in the way and are not part of the new populist constitutionalism. This is no longer gentle constitutional tinkering. This is all-out constitutional reconquest.

Politics of resentment and belonging

My argument is that at its deepest “politics of resentment” call into doubt the very commitments entered voluntarily. „Politics of resentment” strikes at the very core of the societal fabric. “Politics of resentment” speaks on behalf of the people, and at the same time it itself defines the people. My argument is that resentment-driven politics is much more dangerous for the EU than the Euro crisis. As serious and grave as the financial crisis is, it is after all a result of political miscalculations and omissions, and the challenges now are about leadership and policy reorientation. With the politics of resentment, though, the situation is diametrically different. The challenges coming in the wake of the „politics of resentment” are more fundamental and existential in nature as the very backbone of the EU (rule of law and democracy) is at stake. For one, the „politics of resentment” endanger the very basis of mutual trust that has been defining the European project ever since its inception. The trust has been always built on the convergence between the fundamental values of Member States and their legal orders on the one hand, and the foundations of the Union legal order on the other hand. In the latter case, the EU must be seen as a whole that is, as a collectivity beyond the set of states that is more than the sum of its parts. Indeed, as one of the founding fathers of European Treaties, P. Pescatore, has emphasised in his classic The Law of Integration. Emergence of a new phenomenon in international relations based on the experience of the European Communities, (Leiden, 1974), supranationality has been predicated on the idea of „an order determined by the existence of common values and interests”.

Seen from this perspective, constitutional capture in Poland, both at the level of values and legality, is much more than just an isolated example of yet another government going rogue. There is an important European dimension to what has transpired in Poland over the last 24 months. Past European crises galvanised European states toward further EU integration. Yet, past crises never questioned the overlapping European consensus that coalesced around a broadly shared political vision of Europe. Resentment-driven constitutional capture in Poland undermines the very idea of Europe, and the principles of liberalism, tolerance, “living together” and “never again”. It replaces these founding principles with zero-sum politics, „us vs. them” and a competing constitutional narrative of fundamental disagreement over values. It proclaims that “We, the European peoples” are not ready to live together in one pluralistic constitutional regime. It becomes clear that “the politics of resentment” backed up by capture not only challenges the standard origin story of the EU – that it was founded to bring peace and prosperity to Europe by ending the possibility of war and encouraging the common rebuilding of economies – but puts forward a new competing constitutional project and design. The „overlapping consensus” recognises that the European polity is composed of distinct peoples and respects other peoples’ lives and ways. Yet, for the consensus to work at the same time, „We the European peoples” should acknowledge certain fundamentals that bind and discipline us and brought us together. As argued by J. H. H. Weiler: “it is a remarkable instance of constitutional tolerance to accept to be bound by a decision not by ‚my people’ but by a majority among peoples which are precisely not mine – a people, if you wish, of ‚others’. I compromise my self determination in this fashion as an expression of this kind of internal – towards myself and external – towards others – tolerance”.

It is here that the “politics of resentment” deals a deadly blow to the whole of European project. Resentment-driven constitutional capture challenges European solidarity and mutual trust in a fundamental way. It proposes to reverse “an ever closer union among the peoples of Europe” and signals a dark turn inward. By showing that liberalism and democracy no longer animate national constitutions and politics, and by revealing that illiberal states can now flourish within the EU, the Polish experience poses an existential challenge to the EU. Can the EU mount a response to the challenge? Is EU still able to foster respect for commitments of principle that brought member states together? Does it have a safety valve by which it can deflate excessive nationalism and manifestly illiberal practices? Can it preserve the common values that launched the European project – supranationalism? More particularly, can domestic constitution-making be constrained from the outside? So far these questions received deflating negative replies as the EU has been reduced to an idle by-stander, extending  deadlines and assurances of a dialogue, all this while Polish authoritarians laugh at EU’s face and the capture marched on. EU leadership might even be unaware that as of today it already lost Poland …

The Politics of resentment: From captured state to captive mind

If there is one thing the authoritarians are afraid of, it is free thinking and an empowered citizenry. That explains why the “politics of resentment” must not stop at the institutions. It takes over the public discourse, creates new heroes and plots worthy of putting on the pedestal of history. It is instructive (again for all the wrong reasons) how politics of resentment translated into the politics of memory and has been rewriting history in Poland and, finally, how it affected the way Poles remember the past. The „politics of resentment” resorts to what I call memory capture that calls into question “We, the Polish people”. “Memory capture” is based on a systemic weakening of the inclusive approach to the past, which allows all voices to be heard. It offers a more flattened and one-dimensional explanation of where “We, the Poles” came from and what makes up our national identity.

“Memory capture” is vindictive: Poland and the Poles have suffered so much in the past that they are now entitled to a greater respect and recognition for their sufferings. Poland has rightful expectations to be a taker, not a giver, because we have already given too much and should now be compensated for all our sacrifices and sufferings. Crucially for my analysis, memory capture consists of enslaving the past within one dominant narrative and, as a result, entails an imbalance in our collective remembering and way of looking at the past. Certain elements are exposed and celebrated, while others that do not fit the overarching rationale and narrative are relegated to the margins of public discourse, castigated, and even, as will be shown below, penalised. In the end, the historical debate is tainted by an imbalance and asymmetry.

This is where the concept of mis-memory enters the picture, distorting our reading of our national history and the past. The high rhetoric adopted is always the same: to protect the good name of Poland. Beneath the surface, though, lurk the true motives of Polish political masters: negation of historical truth by silencing those who dare to speak honestly, without sugar-coating, about past events. “Memory capture” and “mis-memory” dictate a vision of the past that is one-dimensional: we suffered, and others always plotted against us. Today the day of reckoning has come and Poland must be put back on the pedestal as a victimised sufferer. Anyone who counters our understanding of our past is characterised almost instantaneously as a liar and a traitor.

Dealing with the politics of resentment resentment: A challenge of new opening

Moving forward is predicated on our ability to reposition ourselves vis-a-vis the sacrosanct narrative of „an ever closing union among the peoples of Europe” and abandon the comforting conviction of taken-for-grantedness and that somehow Europe will find a way in the end. The challenge is to build a conceptual framework for dealing with „politics of resentment”. My argument is that such conceptual framework should be centered around basic challenges which would be presented here as a mixture of the past, present and the future. It calls on the revisiting forgotten founding narratives of European integration (dimension of the past), rethinking Europe’s vocation today (dimension of the present) and finally, opening up for, and embracing, new vistas (dimension of the future and language we use when talking today of the European Union). I propose to group the challenges in the following way: the challenge of „We, the peoples”; the challenge of inclusion; the challenge of constitutional culture and fidelity („bottom-up” constitutionalism); the challenge of dialogue/public discourse; the challenge of pluralism/tolerance; the challenge of building constitutional fidelity; the challenge of rethinking the „membership in crisis” and, interrelated to that, the challenge of credible commitments backed up by viable enforcement mechanisms, and finally the challenge of belonging and embracing „the Other” as part of European pluralist constitutionalism.

„Politics of resentment” strike at the very basis of social fabric: trust. They alienate, exclude, destroy the old world and narratives without offering new alternatives except exclusion and distrust. Crucially, in the end they capture the state, the institutions, constitutional and historic narratives, seal off the space for free exchange of ideas and world views. As we try to move forward, the question is this: Are we ready to continue living together in a constitutional regime, internally divergent, yet always able to respond to the exigencies and demands of new realities? The challenge behind this question has been eloquently summarised by J. Tully’s „canoe metaphor”: „Perhaps the great constitutional struggles and failures around the world today are groping towards the third way of constitutional change, symbolised by the ability of the members of the canoe to discuss and reform their constitutional arrangements in response to the demands for recognition as they paddle. A constitution can be both the foundation of democracy and, at the same time, subject to democratic discussion and change in practice”. With the „politics of resentment” at the heart of European disintegration, with the deafening passivity, lack of political leadership and constitutional imagination of the European elites, and with the „constitutional capture” being elevated now to the status of new constitutional doctrine, the challenge of „Doing Europe”, of overlapping consensus and tolerance for “the Other” has never been more acute … and dramatic. The comfortable „it won’t happen to us” is no longer an option. Will the EU finally tune in and listen?

Were the president of any country to propose acts of law that remove almost half of the members of its supreme court, interrupt the constitutional term of office of the chairperson of such court, give himself the right to appoint a new chairperson of the court, and finally, interrupt the constitutionally defined term of office of a judicial council responsible for appointing judges, the consequences of such manifestly unconstitutional solutions would be massive public opposition and accusations of a coup d’état.  And yet in Poland, where this is exactly what is happening, the President’s proposals are met with understanding.  Why?  Because they are perceived as better than the even more unconstitutional proposals put forward earlier by the ruling party, Law and Justice.

The first act of law proposed by the President is one on the Polish Judicial Council (PJC).  The solutions incorporated in this draft sustain the unconstitutional solution earlier proposed by Law and Justice.  It envisages that judicial members of the Polish Judicial Council (as distinct from the non-judicial members, who are appointed by politicians and are a minority on the Council) are selected not by other judges but by members of parliament.  The Polish Constitution clearly provides which PJC members are appointed by representatives of the executive and which by the legislature.  As regards judicial members, the Constitution does not specify who appoints them because the principles behind the separation and balance of powers regulated in Article 10 of the Constitution require judges themselves to do it (the same follows from an analysis of legislative history of enacting the 1997 Constitution.)  Nevertheless, President Duda, just like Law and Justice, accepts that it is possible to presume certain powers of parliament not expressly stipulated in the Constitution.

The President’s proposal for an improvement in the way in which judicial PJC members are to be appointed is still by the Sejm (the lower chamber of the Polish Parliament), but by a qualified one of three-fifths of votes rather than an ordinary majority.  The President has supplemented this proposal, originally announced in July, with an additional solution:  as a qualified majority may lead to a standstill if members of parliament are unable to agree upon a candidate, the President should appoint judicial PJC members. President Duda stated that he was aware that granting him such competences would be a breach of the Polish Constitution, therefore, he suggested … amending it.

The proposal is a good illustration of the President’s attitude towards the Constitution – if it does not agree with his actions, then it is the Constitution rather than those actions needs to be amended.  The President seems not to understand that the provisions of the Constitution are not disparate ornaments which may be selectively changed but are interrelated elements which create a systemic whole. A change in the Constitution giving the President (or parliament) influence over the composition of the council responsible for appointing all Polish judges would not be a minor amendment resolving a technical problem (which, by the way, the President himself has caused) but a systemic change, contradicting the idea of the separation of powers.

Since the parliamentary opposition has predictably refused to countenance any amendment to the Constitution, the President suggested a new solution to prevent a future standstill in the election of judicial members of the PJC.  Under this solution, if they are not elected by qualified majority, voting on candidates will be based on the “one MP – one vote” principle.  The effect would be that the majority of judicial members of the PJC would thereby be appointed by Law and Justice.

As if that were not enough, the most outrageous element of the draft act on PJC is that it envisages the interruption of the constitutional term of office of current Council members and re-election of their replacements, all at once, under the new regime. In effect, this solution would give parliament the right to replace the entire PJC practically overnight.

The second of the proposed drafts, the Supreme Court Act, is equally noxious, particularly because of its numerous unconstitutional provisions. Instead of the immediate replacement of all Supreme Court judges (as proposed by Law and Justice in July), the President has set their retirement age at 65 years. On reaching this age, a judge retires unless the President agrees to his or her continued service. In effect, about 40% of Supreme Court judges will lose their positions over a short time.  In addition, given that the First Chairperson of the Supreme Court, Małgorzata Gersdorf, will soon be 65 years old, she will be deprived of her function of court president before the end of her term of office, even though the Constitution guarantees a term of office of six years. The draft Supreme Court Act expressly provides for the procedure to be applied when a court president retires and gives the President the right to appoint his/her replacement. Such provisions are openly unconstitutional and the fact that they are less explicitly so than the ruling party’s earlier ones does not make them legitimate.

Other solutions proposed by the President are equally controversial, and one in particular will destabilize the legal order in Poland.  The draft introduces the so-called extraordinary complaint, which may be lodged also by politicians (e.g. 30 MPs, 20 senators, the Public Prosecutor General – Z. Ziobro), under which it will be possible to re-open any case on which a non-appealable court ruling was issued within the last 20 years. Such cases would be reviewed by a newly established Chamber of Extraordinary Control and Public Affairs, to be composed of judges elected under the new appointment regime, and jurors appointed by the Senate – thus two groups ultimately appointed by politicians. What is more, the draft does not address how opening the possibility of challenging 20 years of judgments will affect Poland’s perception abroad as a legally stable environment for investment.

For the future, an extraordinary complaint may be lodged against any final and (previously) unappealable judgment within five years of its issuance. Given that the main problem the public has with Polish courts is the protracted nature of proceedings, it is hard to understand how introducing a further court instance solves this issue.  Finally, the draft does not explain the relation between the extraordinary complaint and the Constitutional complaint, which it duplicates in covering judgements which are perceived to violate constitutional rules, rights and freedoms.

Another solution that raises serious concerns also refers to the Chamber of Extraordinary Control and Public Affairs, namely conferring on that body the right to decide on the validity of parliamentary, presidential and local elections, as well as referenda.  With members appointed by the current government, as described above, this new Chamber is a threat to the foundations of democracy because there are no mechanisms to ensure unbiased oversight of the legality of future Polish elections (assuming they too will not be replaced with an improved mechanism to enhance the power of the current government).

To recapitulate, the recent solutions presented by the President are noxious because they blatantly violate the Polish Constitution. They allow the legislative and executive powers to have control over the process of appointing and removing judges. They ensure politicians will have control over the chamber of the Supreme Court, which is of key importance for democracy in Poland, and they destabilize the Polish legal order.  The only light in which the President’s solutions can appear favourably is in comparison to Law and Justice’s previous proposals. Unfortunately, that is the light in which they are most commonly seen.

Public debate is an essential element of a democratic society. While this debate should not spare the judiciary, public attacks against the judiciary of a critical intensity can be observed in several European countries. The most recent example originates from Poland, where, in September 2017, a campaign on bill boards and on the internet was launched in support of the controversial draft acts on judicial reform. The campaign portrays judges as a “privileged cast” and as being corrupt, criminal and incompetent. Having regard to these events, it should be borne in mind that attacks against the judiciary from members of the legislative and executive can pose real threats to judicial independence and the separation of powers. This post takes these considerations as the starting point for a general discussion on how to properly evaluate public criticism of the judiciary. We suggest a frame of reference which seeks to balance the right of free speech and the legitimate interest of the judiciary to not have its legitimacy and independence abridged by political actors. In this regard, we argue that the level of scrutiny must depend on where such criticism comes from.

I. Examples of public attacks against the judiciary

A special form of public criticism of the judiciary can be witnessed in Poland in the context of the reforms of the Polish judiciary. In the summer of 2017, the Sejm voted on three draft acts concerning the judiciary: One on the National Council for the judiciary, one on the organization of courts and one on the Supreme Court. All three draft acts were met with heavy national and international criticism. For the following descriptions, we rely on the account given by the Polish judges Dariusz Mazur, member of the judge’s association ‘Thermis’ and Waldemar Zurek, the spokesman of the Polish National Council for the judiciary, which can be accessed here:

By September 8th, an ad-campaign was launched on the Internet, on large billboards and on TV by the so-called “Polish National Foundation”, which was established by the current Sejm and is financed by 17 state-owned companies. The official goal of the PR-campaign is to promote the reforms of the judiciary inside of Poland. While there are problems in the Polish judiciary, as for example the long duration of court procedures, the campaign does not address the reasons for these problems (according to the judges’ association ‘Iustitia’, as much as 517 posts are vacant in the Polish judiciary). Rather, the campaign portrays the judiciary and judges in general in a negative way. The billboards are designed in black and white. One board, for example, shows on the left side, in white letters on black ground the words: “That’s how it is:  Judges about themselves: An extraordinary caste.” below that, in small print: “It is time that this changes” and on the right, white side, in black letters it is written: “That’s how it should be: judges are responsible like other citizens when they break the law.”

(picture: Dariusz Masur)

The campaign also produces a distorting mirror image of the Polish judiciary by describing – in quite a tendentious way – disciplinary proceedings against judges and by admonishing real or alleged errors of justice. To prove its point, the campaign refers, for example to a case of a judge who stole trousers. It fails to mention, however, that the judge was retired and – more importantly – mentally ill.

The government and the governing Law and Justice Party deny any involvement in the campaign. However, Prime Minister Beata Szydło was present at the official inauguration of the campaign and the campaign itself was registered and is run, apparently, by two former employees of the chancellery of the Prime Minister. Further, their financial resources are provided by state-owned companies whose managers have all been nominated by the Law and Justice Party. The campaign also fits right into the narrative of the government that publicly stated that the judiciary must be “given back to the Polish people” – a message also replayed on state-owned television channels, where “protectors of pedophiles and people who are not paying maintenance for their children” are claimed to be “at the forefront of the resistance against the reform of the judiciary” and where only the reform proposed by the government can “eliminate corruption and the abuse of power” in the judiciary.

Even if the Polish example is particularly worrying, public criticism of judicial decisions – especially by politicians – is neither a novel phenomenon nor limited to Poland. US-President Thomas Jefferson was among the most outspoken critics of the Supreme Court Judgment in the case of “Marbury vs. Madison”. More recently, the Hungarian foreign minister, Péter Szijjártó, has called the judgment of the European Court of Justice (‘ECJ’) in joined cases C643/15 and C647/15 concerning the refugee quota, among other things, “appalling and irresponsible”. US-President Donald Trump publicly questioned the qualification and legitimacy of a “so called judge”. The floor leader of the German far-right party AfD in the Bundestag, Alice Weidel, has recently tweeted about the “insane judges at the ECJ”, while criticizing a judgment from the European Court of Human Rights (ECtHR), thereby not only personally insulting judges but also getting the most basic facts wrong. In November 2016, after a three judge panel of the High Court of Justice for England and Wales decided that Article 50 TEU could only be triggered after an Act of Parliament, the Daily Mail opened with a photograph of the judges and the headline “ENEMIES OF THE PEOPLE”.

II. Public debate and the judiciary – Defining the problem

Public debate is an essential element of a democratic society. In principle, the judiciary and decisions and actions of judges and prosecutors are not and must not be exempt from public scrutiny. However, there is a fine line between freedom of expression and legitimate criticism on the one hand, and disrespect and undue pressure on the other. The specific tasks of the judiciary in democracies under the rule of law require public confidence in and respect for the judiciary. If unfounded public criticism reaches a certain degree, the pillar of trust on which the judicial system is built, can crumble. It is especially worrying if representatives of other branches of government criticize and try to delegitimize the judiciary. In a state build on the rule of law, it is sensibly the task and raison d’être of an independent judiciary to also reach – within its competences – politically unpopular decisions, that cannot depend on what politicians or the majority want or desire. Unfounded, defamatory or insulting criticism by other state powers therefore negates this important function of an independent judiciary. It is therefore not surprising, that strong public criticism is used in different European countries as part of the “toolbox” of political forces that wish to limit judicial independence and delegitimize the judiciary (see for examples: CCJE, CCPE “Challenges for judicial independence and impartiality in the member states of the Council of Europe” SGInf(2016)3, at paras. 260 – 283).

III. Ideas for a frame of reference to evaluate public criticism of the judiciary

While most of the criticisms depicted above may seem uncalled for, given the importance of public debate, it is not always easy to tell at what point they actually have to be considered illegitimate. We suggest that a distinction should be made according to whether criticism comes from a private source (1) or from members of the legislative or executive power (2). Only in the latter case, a criticism can pose a threat to judicial independence and the separation of powers (2a). Difficult to evaluate are, however, cases where public attacks come from a private source with strong links to the executive, as seems to be the case in Poland (2b.)

1. Criticism from private parties

a) “Scandalizing the Courts”

Criticism coming from a private party, be it an individual or a corporation, must be accepted within the general limits of the freedom of expression such as libel or public order. As equally important foundations of a free and democratic society, the freedom of expression – and of the press for that matter – and the independence and authority of the judiciary cannot be ranked in an inflexible and hierarchical order. Rather, they should carefully be brought to a sufficient balance. This balancing process may start with the assumption that in general, criticism of and even harsh attacks by private persons against the judiciary do not by themselves pose a risk to the rule of law but must, generally, be accepted in a free and democratic society. In the UK for example, this principle was recognised in 2013 when “scandalising the courts” was abolished as a variety of the “contempt of Court” offence. However, the ECtHR that correctly acknowledged in the case of Peruzzi vs. Italy (appl. n° 39294/09)  that under very specific circumstances, the interest “to maintain the authority and impartiality of the judiciary” may form one of the aspects that might be able to justify a limitation on the freedom of expression.

b) Duties to react?

Especially in the context of the aforementioned defamation of judges in a national British newspaper the question arises, if members of the other powers, especially the executive (here the Lord Chancellor and the Prime Minister), should be expected to publicly defend the judiciary against attacks, especially coming from the media. While we recognise a duty of the executive to protect the judiciary against safety threats, we do not assume a duty to intercede and become implicated in a public debate in order to protect the rule of law. A timely reaction is certainly desirable. This would not only show the necessary respect for the judiciary, but also an awareness of the fact that judges must remain impartial and therefore cannot engage in public debate like politicians. However, a failure of a politician to adequately react does not, at least not on its own, pose a threat for the separation of powers and judicial independence. What a political failure to react can show – and this is bad enough – is a lack of proper style and understanding for the role of the judiciary.

The judiciary or individual judges cannot respond to such criticism and rebut these assertions as they, generally, only speaks through their judgments. In some countries, it has have been reported (at para 277), the Supreme Court or a National Council for the Judiciary addresses criticism against the Judiciary. In the UK, for example, the then-president of the Supreme Court, Lord Neuberger, commented on the headline “Enemies of the People” in a BBC interview. Within their prerogatives and while strictly observing the limits on public expression their office places on them, especially the highest judges should not shy away from a careful dialogue with the press, possibly through a designated spokesperson or through well dosed and cautious public appearances. This is how the judiciary can build a relationship with the press based on mutual respect for the respective roles of the judiciary and the media in a democratic society to advance the position of the Courts in the public eye. If such a relationship is established, journalists can step up in defence of the judiciary against the media and other branches of government.

2. Criticism from other branches of government

a) Direct attacks

Most problematic are cases in which other branches of government act against the judiciary by means of defamation out of political opportunity or discontent with judicial decisions. These attacks form a whole different level of danger for the independence of the judiciary and the rule of law in general. Attacks coming from members of the executive and legislative, especially if politicians in their official capacities direct their criticisms openly and in an aggressive manner against judges themselves and/or their rulings can amount to a blunt disregard for the basic functions of the rule of law. As the CCJE’s Opinion No. 18 (2015) (at para. 36) pointed out, the encouragement of disobedience against judicial decisions and the encouragement of violence against judges is a violation of the independence of judges and a serious threat to the separation of powers. Such cases have been reported (at paras. 275-276) from Ukraine, for example. Public statements indicating a preference for a decision in a particular case can also exert considerable pressure on a particular judge. In such a case, the ECtHR decided in Kinský v. the Czech Republic (application no. 42856/06), that a Court under such pressure did not meet the requirement of an independent court according to Article 6 ECHR. Especially if supreme, constitutional, supra- and international Courts decide politically sensitive matters against the wishes of a political party, only the acceptance and implementation of such rulings acknowledges the fundamental role of the judiciary. As the ECJ’s Advocate General Poiares Maduro famously wrote in  his opinion in Kadi I (C-402/05 P at para 45): “[…] the political process [in certain cases] is liable to become overly responsive to immediate popular concerns, leading the authorities to allay the anxieties of the many at the expense of the rights of a few. This is precisely when courts ought to get involved, in order to ensure that the political necessities of today do not become the legal realities of tomorrow. Their responsibility is to guarantee that what may be politically expedient at a particular moment also complies with the rule of law without which, in the long run, no democratic society can truly prosper.” This specific task of the judiciary places boundaries on criticism against the judiciary by other branches of government in that they are limited to discussing the legal merits of a judgement and its implications but may not, in order to preserve the balance between the powers, delegitimize judges and their work through politically motivated statements against the Courts.

b) Indirect attacks

More difficult to evaluate are, however, cases in which public attacks do not come directly from a member of the executive or legislative power but from a private source with questionable independence. This can be the case if former state officials manage a campaign financed by state enterprises, such as seems to be the case in Poland, or where the state media is in effect under the control of the government. In such a situation, the private, unofficial character of the source of the attack is a mere sham and should consequently be subject to a heightened scrutiny. In German public law, the principle is recognized that the state cannot shed off the boundaries of public law, especially of human rights, by acting in the legal form of a company, as was exemplified by the FRAPORT-Judgment of the Federal Constitutional Court in 2011. We do not suggest that it would be wise to draw on this case in detail and the German legal doctrine behind it. However, we think that in a very general way, this principle can be useful in respect to the question at hand. Just as it is not acceptable that state power hides behind a private company it controls, we argue that likewise, the legislative and the executive cannot hide behind the alleged private character of sources which are in fact under their financial and factual control. The more direct and apparent the organizational and content-related influence of government officials is, the more strictly should their potentially undue influence on the judiciary be monitored. In practice, however, establishing whether such strong links actually exist between governmental officials and the private source is a difficult question which needs to be answered in every individual case. For establishing the necessary facts, the help of journalists rather than lawyers will be required.

IV. Conclusion

Anyone who would rather like to have his/her disputes with others or with the state resolved under the law, applied by an independent and impartial judge rather than by virtue of force, should be interested in maintain judicial independence and the rule of law. An alliance of the civil society, legal professionals and journalists should therefore be vigilant concerning the challenges the rule of law is facing these days in Europe. The framework proposed here might be a useful tool in determining when public criticism of the judiciary may become such a challenge.

When electoral mandates and constitutional/legal change are used in the service of an illiberal agenda, I call this phenomenon „autocratic legalism”

K. L. Scheppele, Autocratic legalism,  University of Chicago Law Review (forthcoming)

The constitutional manifesto of the Polish authoritarians is well known and might be conveniently summarised as follows: There is one culprit behind the alleged Polish enslavement by the EU and rampant injustice that has defined Poland post-1989. It is the Constitution of 1997, written for and by the new post-solidarity elites that have seamlessly mingled with the ex-communists to oppress hard-working true Poles. This Constitution is a source of our predicament because this is not the true Polish Constitution. Rather it is a document that betrays Polish history, belittles Poles and falls way short of capturing the true and prideful Polish spirit. We are now told that  a new constitution is needed to finally liberate us from the corrupt past and fake state that was never for real. Yet despite all the historical inaccuracies (to put it mildly) and paranoias, Polish populist constitutionalism deserves to be taken seriously. It is not the result of some aberrant detour or momentary bout of rage. Rather it is a complete and comprehensive constitutional project based on new constitutional design, new characters, plots and themes. When completed, it would have a transformative effect on the Polish constitutional landscape and crown the unconstitutional capture that has engulfed Poland since 2015. The „new constitutionalism” was succinctly and ominously summarized by the honorary Marshal of Polish Sejm: „It is the will of the people, not the law that counts”. When the law does not serve the interests of the people, it is always the latter that will prevail.  Such understanding leads to important tweak to the established narrative: institutions (e.g. the Constitutional Court) that have been channeling (for populists distorting) the rule of law must be dealt with as expeditiously as possible. This is also where the unmitigated, almost sacred, will of the people becomes the true source of fear.

A populist constitution of fear: Reconstruction

The new brand of constitutionalism on the rise in Poland is defined by a „constitution of fear”. Fear is the leitmotif of the constitution-making process defined by suspicion, exclusion, drive for retribution and settling the scores. As such it reflects the main tenets of populist constitutionalism: distrust in the institutions and rejection of the liberal status quo and culture of self-constraints. As argued by F. Schauer with regard to the American Constitution, „a constitution of fear“ fails to protect from new harms not contemplated by the Founders or protects us from harms that no longer exist. To these two imperfections one might add in the Polish context a zealous push to protect against the fake harms, dangers and imperfections that exist only in the paranoid minds of Polish constitution-makers.

„A constitution of fear“ is not a one-off occurrence. Quite the contrary. It crowns the politics of resentment. It becomes its manifesto. „A constitution of fear“ is partisan as it only speaks to those whom it accepts as real people and who share the new „ideals”. All others are excluded and not welcome. „A Constitution of fear” is inward-looking. It protects national uniqueness and is read in direct opposition to the outside and always hostile world that is portrayed as a source of uncertainty at best, and decadence and fear, at worst. A „constitution of fear” is used as a defensive tool against all these dangers.

“A Constitution” of fear has a new role to play in the society. Instead of protecting an individual against the state, it elevates the community to the center stage and pushes the individual into the shadow of the state. While liberal constitutions put a premium on conflict management, inclusion, evolutionary (incremental) change that would be both open to diversity, and accommodate it as a social and normative fact, „a constitution of fear“ thrives on dis-engagement and revolutionary tradition that builds on the avowed objective of clean slate and starting from zero and the drive to settle fundamental questions once and for all.

The safeguards typical of the constitutional liberal state (separation of powers and checks and balances, judicial independence) are a mere after-thought and are seen as an unwanted and unnecessary distortion of the smooth communication between the sovereign and its representatives. Procedure and safeguards only slow things down, make the process opaque and misunderstood by the people, and as such we must do away with all these liberal technicalities and inventions. Likewise, openness and inclusion are ridiculed and rejected. Exclusivity and instrumentalism become new names of the constitutional game.

If there is one common denominator, this is it: the political takes over the legal, with the latter harnessed to serve the former and the people being treated as a legal subject in its own right and with its own voice. It is the mono-ethic and mono-cultural purified people, collectivity rather than individualism where open and participatory citizenship are concepts alien to the constitutional language of „a constitution of fear“. „A Constitution of fear“ is no longer a tool to protect citizens against the state. Rather it becomes a tool to entrench power and exclude dissent and to create a flattened and barren public sphere. It excludes any competition among possible constitutional ideologies and visions of the most desirable models of the state or even more: a populist constitution is fearful of even the slightest sign of variegation in channeling the popular will. „A constitution of fear“ transforms the rule of law from one of the cornerstones of a legal system into a mere technicality, seen as a nuisance in the process of extracting the true will of the people. Just like under the communist regime, the constitution becomes a political manifesto of power, not a safeguard against the arbitrary power.

A populist constitution of fear: Implementation

The constitutional narrative by the Polish ruling party is telling. The „grand” conference in Gdansk in August 2017 under the auspices of President Duda laid bare the true intentions of the ruling party (for a prophetic voice see analysis of Professor W. Sadurski here). The conference was held under the catchy phrase „Constitution for the people, not the elites” which in itself is indicative of the animus of suspicion and retribution that drives the minds and hearts of PIS-style constitutional design. For starters, the 1997 Constitution has been discredited as a „minority constitution”, even though the support for the Constitution (53,45%) surpassed the number of voters that supported Mr Duda in the presidential elections in 2015 (51.55%)! Following then Duda’s skewed populist logic he is a minority president and must be replaced…

At the conference we got an amalgam of empty slogans (for my critique see also here) which make any reasonable discussion extremely difficult. Two examples of this pseudo-constitutional narrative: We are told that the socio-economic design needs a fundamental overhaul and that the social market economy as one of the foundations of the state (art. 20 of the 1997 Constitution) is an empty provision (why? how?), despite the fact that it balances freedom of commercial activity, private property, solidarity and social dialogue. The constitutional right to form trade unions is not respected and therefore must be spelt out differently etc. Constitutional gobbledygook in the hope that „the people will buy it” and will not bother asking more arcane questions.

What is the remedy to all these constitutional evils? Of course, a new constitution. The old-new 2010 draft of the PIS Constitution leaves no doubt as to what the new constitution must and will look like, should PIS succeed in obtaining a constitutional supermajority. Poland is presented as the unified state, fully sovereign, proud, always a taker, never a giver. Already the very first sentence of its Preamble (keep on reading, this is not a joke) puts any reasonable democrat on the alert: „In the name of the Almighty God, We Polish Nation, being thankful to the Divine Providence for the gift of independence and mindful of our over one-thousand history rooted in christianity”. This stands in stark contrast to today’s version of 1997 Preamble „We the Polish Nation” that welcomes and manages diversity as it includes all citizens of the Republic, not only those who trace their roots to christianity. The new axiology would be then further reflected in the oath of office: President, ministers and members of the parliament would be left with no choice whether to add or not „So help me God”. Separation of church and state will become illusory, and the constitution would guarantee the teaching of catholic religion in schools. This is only for starters, without even mentioning the weakened status of the judges (no more „separation and independence from other branches”) or wide-ranging power of the President to declare a state of emergency in case of a threat to the constitutional order. In the hands of crafty hands of J. Kaczynski and his cohorts, this will be certainly put to good use. Writing a constitution for … new elites has just begun.

A Constitution of fear for a democracy on the periphery

“A constitution of fear“ entrenches unconstitutional capture. It stands as its final stage and most glorious moment of recapturing the state from corrupt and disgusting elites of the post-1989 phantom state. As the contours of „a constitution of fear“ become more and more visible, so does the concept of a new version of „democracy” that such constitution will serve. The peripheral democracy represents a new brand or incarnation of democracy. It is based on 5 major claims that: (1) the 1989 transformation was not only politically, but also morally flawed; (2) the system as conceived in 1989 with the overarching rationale of rule of law served only the few, while leaving behind the many and, interconnected, (3) the institutional design favored the powerful („Wall Street”) while disadvantaging „Main Street”, (4) the political dominates over the legal, and finally and crucially, (5) a new system of governance and a novel constitutional design are needed, thus the concept of capture of the „bad” state in order to create a new and more virtuous one with the constitution of fear as crowning the project. The element of periphery not only adds important insights into our understanding how democratic regime is captured, but also enables this very capture.

Democracy on the periphery is a besieged regime, always on the stand-by. It feeds off the politics of resentment which are inherently revolutionary: there is always „the insidious other”, and we must never let our guard down. „A constitution of fear“ institutionalises and entrenches this state of now „normal emergency”. „Democracy on periphery” has a peculiar understanding of the constitution. Whereas the liberal democracy presupposes constitutional conflict (within the parameters of a legal system) over the values and vision of a state, the constitution of fear in a peripheral state closes off space for dissent and different voices. The former is based on the political, while the latter focuses on partisan. Competition and representation are understood differently: in the liberal democracy they are encouraged, on the periphery they are discouraged and waved off as there is always an exclusive claim to representation and voice. Only one voice. As a result, space for contestation is significantly reduced: acceptable arguments are predetermined, rather than worked out in the discursive framework and process, actors and public are exposed to one-sided version of the political. All „others” are no longer objective opponents to be respected and disagree with, they become partisan adversaries, enemies of the new state and its constitution.

Importantly for my analysis, democracy on the periphery is counterfactual as it disregards the fact of deep division in societies and glides over it with dramatic consequences for the state and citizenry: suppression and a flattened vision of society. The Constitution ceases to reach out, rather it decides in a most authoritarian way what is right, what is good life, and chooses for everyone one and only world view. When all is said and done, a constitution takes backstage to the political process. It is reduced to a vehicle for good change, rather than a tool for managing diversity. This is exactly where Poland finds itself right now: building a groundwork for constitutional design around distrust, exclusion, retribution and anti-individualism. These are the contours for a new constitutional document in the making: „a constitution of fear“ for a peripheral democracy.

Liberal Constitution of Fear and … Hope

Constitutional safe-guards will not do the trick unless they are backed up by strong civic activity, popular support for institutions and culture of restraint and self-imposed limitations. For aspiring autocrats and capture, there are no more terrifying and powerful opponents. The question has been asked on many occasions about a possible unifying factor against further encroachments of PIS. The 1997 Constitution is a document that serves an open society that is made up of many voices and faces. It is a document based on the rule of law, human dignity and tolerance for the other. As such, it has the potential of bringing together anti-PIS voices under one roof.

While fear acts as the source of empowerment for the constitution-makers, the perspective of the citizens is different, one of disempowerment. Indeed citizens should have their own fears of an emerging constitution of fear à la PIS. A constitution that sets the government free and leaves it unchecked must be feared, and yet, fear is not alien to democracy. As understood from the perspective of citizenry, fear here should be a powerful reminder why citizens should never approve a constitution that leaves them at the mercy of the majority and subjugates the individual to the communal, legal to the political. Here the dual nature of fear comes to the fore, and we must be clear about the kinds of fear we are talking about.

Democracy, when viewed negatively, is the least flawed among available regimes. It prevents, or at least minimizes the danger of bad results and „things going wrong“, more than securing good outcomes. That is why and rightly so democracies have their own constitution of fear. Yet, this democratic fear is understood differently from resentment-driven fear. Rather than removing safeguards and constraints, it disciplines the government and keeps in it check in case of a government going off the rails. „The democratic constitution of fear“ recognizes the inherent dangers of backtracking on the democratic promise, and to this end it institutes an elaborate system of checks and constraints, all to make sure that our fears of governmental excesses and tyranny of majority will never materialize. As opposed to populist fears, democratic fears call for more safeguards and checks and as such are nothing extraordinary. They follow the very logic of democratic government: in order to avoid arbitrariness each power must be checked and limited. In the constitutional world of PIS, though, fears are of a different kind and work in the opposite direction. Fears of the recurrence of the corrupt and morally unfit III. Republic, of the political correctness of the independent (seen as a vice) institutions, of the EU’s final assault on the Poland’s cherished sovereignty, they all call for more, not less concentration of power, for more control over people’s lives and choices, more supervision-driven state institutions and one centralized narrative of what good life in a purified Polish nation should look like.

The drive not to repeat the mistakes of the past and/or safeguard us against the bad past and its present recurrence is not a negative emotion altogether. Rather, my point is that fear alone can only do so much. For any constitution to survive and sustain democracy in the long run, it must be complemented by something more promising, positive and forward-looking. Good constitutional design also needs HOPE that would be interwoven with FEAR. On the one hand, separation of powers and checks and balances, the constitutionalization of proportionality, a strong and independent judiciary are all fear-driven constraints. On the other hand, and in clear opposition to the populist constitution of fear, liberal constitution of fear puts stock in strengthening the safeguards, not limiting them, and that is the most important difference between two documents and their understanding of what fear entails for a constitution. The idea of open society, a comprehensive catalogue of human rights, dignity of each human being, tolerance for „the other” and his difference, and finally openness to and curiosity of the world, are all staples of a constitution of hope.

KONS-TY-TUC-JA

Only when a constitutional document succeeds in bringing together FEAR and HOPE and strives to reflect and ordain both, it becomes a balanced Constitution. The evocative poster that became symbol of protests in Poland in July 2017 in defense of the independent judiciary read „KONS-TY-TUC-JA” where „TY”stands in Polish for „YOU” and „JA” for „ME”. Indeed the survival of our 1997 Constitution of hope depends now exclusively on „ME” and „YOU”. The stakes could not be higher: true constitutional reckoning has arrived.