Dismantling the rule of law in Poland_Letowska.pdf (original) (raw)
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Country Report: The Rule of Law in Poland
www.democracy-reporting.org, 2020
Since 2015, a rule of law crisis has been intensifying in Poland. The ruling party has sought and partially succeeded to capture the most important judicial bodies through laws that contradict constitutional and European standards. The covid-19 pandemic has also had an impact on the rule of law, specifically in the unconstitutional decisions taken surrounding the presidential election originally planned for May 2020. These developments have been severely criticised both at the national and international level. While proceedings against Poland before the Court of Justice of the European Union are increasing, political procedures are stuck in political deadlock. Meanwhile, Polish society is deeply divided; while the attack on the judiciary has led to mass protests, the government still enjoys high public support. This report traces the development of rule of law backsliding in the country, explains the national and international responses and lays out possible ways ahead.
The Rule of Law Crisis in Poland: A New Chapter
2018
The rule of law crisis has been taking place in Poland since 2015 when the newly elected right-wing PiS government (Law and Justice) decided to radically restructure the justice system. The justice system reforms were initiated in December 2015 with the new law on the functioning of the Constitutional Tribunal, which after a period of controversies, also involving the European Commission and the Venice Commission, produced a constitutional Tribunal consisting of party loyalists and thus entirely disabled as an independent institution. The aim of the PiS government has been to carry out a radical exchange of political elites in key positions of the state (including the judges). The narrative for this radical change has been alleged pathologies of the Third Republic (which is a moniker to describe Poland after 1989). These pathologies are often framed by the PiS as resulting from “grey networks” of former functionaries of the communist secret services and their liberal dissidents who ...
Poland's Rule of Law Crisis: Some Thoughts
Hague Journal on the Rule of Law 11, 407-410, 2019
This year, Poland celebrates the 30th anniversary of the fall of the Communist regime. This represented a crucial victory for democracy over totalitarianism and was one of the most momentous events in Polish history. Unfortunately, however, recent political developments have put a damper on the celebration. With its sustained and unprecedented assault on the separation of powers and the independence of the judiciary, the current Polish government, which took office in November 2015, has forced people to reconsider their conviction that democracy and the rule of law are now so firmly entrenched that their impairment or subversion is beyond the capacity of any government, no matter how autocratic. As a result of these developments, Poland, once a paradigm of a successful transition to democracy, has become a pariah.
The rule of law in Poland – crisis or a new reality?
Academia Letters, 2021
Following the victory in the presidential and parliamentary elections in 2015 right-wing PiS party has launched a large-scale controversial reform of the judicial system which brought significant changes concerning functions and compositions of the Constitutional Tribunal, the Supreme Court, and the National Council of Judiciary. Introduced changes call into question the independence of the Polish judiciary, both under national and EU law. The article summarizes the main reforms introduced by the ruling party and makes an attempt to answer the question of whether those changes mark only a temporary backslide or constitute a new reality of illiberal democracies within the European Union. The reform began with the Constitutional Tribunal when President Duda, despite the legal obligation to do so, refused to take oaths of new judges elected at the last sitting of the outgoing Sejm (the Lower Chamber of the Parliament). The new Sejm adopted resolutions invalidating the nominations of the previous legislature and elected new judges. Consequently, three judges were appointed for the vacancies already occupied by the judges elected in October. The above-mentioned controversies, together with further amendments on the functioning of the Tribunal, have been found unconstitutional by the Constitutional Tribunal. However, Prime Minister Szydło refused to publish Constitutional Tribunal's judgments in the Official Journal calling them the opinion of some judges. Thus, pursuant to Article 190 of the Constitution, the judgments have not come into force. The UNHRC Special Rapporteur stated that this constitutes a flagrant breach of the principles of judicial independence and the separation of powers[1]. Despite the constitutional obligation, on several occasions, Prime Minister arbitrarily decided on the publication of judgments. The adverse phenomena of peculiar "last instance" in the person of Prime Minister who decides when and whether at all a given judgment will come into force can be observed. The above constitutes a serious inference of the executive branch in judicial independence. Such interference happend once
Many people wonder why Poland, which used to be a paragon of successful transition from communism to liberal democracy, descended so easily to an illiberal state via a rule of law crisis. How was it that the defences erected against relapsing into illiberalism, namely independent constitutional and judicial review, were so easily undermined? The majority of commentators point to the strength of the attack on mechanisms ensuring the rule of law, while few focus on the weakness of their defence. In this paper, I argue that one of the reasons why the attack on the rule of law was so successful was the formalistic legal mindset which prevailed among Polish judges and lawyers. This mindset, which is a post-communist legacy, is characterised by a reductionism of interpretative premises that can be taken into consideration in deciding constitutional hard cases. In the Polish case, the reductionism is conspicuous in two main areas: first, in the application of bright-line rules without consideration of general constitutional principles; and second, in the judicial acceptance of politician's use of formal legal tools without consideration of those actors' motives. The conclusion I come to is that judicial formalism, commonly perceived as a tool for establishing the rule of law, can nonetheless contribute to its destruction. The Polish experience shows that the development of a robust, non-formalistic methodology of legal decision-making – one which makes use of general constitutional principles and tests the motives of constitutional actors – is a prerequisite for defence of the rule of law.
The Clash of Powers in Poland's Rule of Law Crisis: Tools of Attack and Self-Defense
Hague Journal on the Rule of Law, 2020
Many people must be wondering how it is possible that Poland, not so long ago hailed for its exemplary transition from a communist dictatorship to a liberal democracy , could have so swiftly descended into authoritarianism via a crisis in the rule of law. The majority of commentators point to the size and ferocity of the attack on those mechanisms meant to safeguard the rule of law, whereas few focus on the weakness of their defence. This article attempts to redress that imbalance. The crucial facts of the Polish crisis are first presented, and the nature of both the attacks on the rule of law in Poland and the measures taken in its defence are then presented. In describing their defence, this article not only draws on Nicholas Barber's concept of the self-defence of institutions, but attempts to improve upon it in the light of the Polish crisis. Further in the article, I argue that one of the reasons for the success of the assault on the rule of law is the formalistic legal mindset that is prevalent among Polish lawyers. This mindset is characterized by a reductionism of the interpreta-tive premises to be applied when deciding constitutional cases. This reductionism is conspicuous in the application of bright-line rules with no consideration of general constitutional principles. I argue that the development of a robust, non-formalistic methodology of legal decision-making is a prerequisite for a successful defence of the rule of law.
Convulsions in the Rule of Law,
Ost Europa Recht Nr 4/2018, 2018
This contribution discusses the reasons for the ongoing deconstruction of the judiciary in Poland by a parliamentary majority – elected by a minority – changing the entire system. How could that have happened in a nation governed by the rule of law that met all the requirements of the rule of law when joining the European Union? The article analyses the transformation processes in Poland, discussing the specific diffi- culties caused by more recent as well as the country’s distant history, with a broad analysis of the numerous fateful factors and events that are crucial for an in-depth un- derstanding of the ongoing convulsions in the rule of law in Poland, which eventually caused a breakdown of the democratic order in Poland.
Disciplinary Proceedings as an Instrument for Breaking the Rule of Law in Poland
Hague Journal on the Rule of Law
This article advances the thesis that disciplinary proceedings may constitute a tool for breaking the rule of law in Poland. In 2017, as part of a package of legal changes to the judiciary, a disciplinary system was created in Poland to ensure that judges were subservient to the political will of the authorities. From the beginning, new disciplinary officers appointed by the Minister of Justice (the Prosecutor General) have targeted judges who disagree with unconstitutional changes to the judiciary. Disciplinary proceedings are by no means repressions that affect judges who demand that other authorities respect the rule of law in Poland. The article discusses, on a step by step basis, the practical mechanisms taken by the political authorities to break the rule of law in Poland. Particular attention is paid to the measures which have been taken concerning the judiciary. The article discusses the judgment of the CJEU on 19 November 2019 in combined cases C-585/18, C-624/18, and C-625...