CONSTITUTIONAL COURT AND THE CONSTITUTIONAL CRISIS IN POLAND (original) (raw)
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2021
This chapter assesses the systemic changes that have affected the first target of the Law and Justice government the Constitutional Tribunal. One of Hungarian Prime Minister Viktor Orban's speeches, in which illiberal democracy is presented as a political project that constitutes the optimal solution for Hungarian society, is considered to have been the beginning of the approach. In turn, illiberal constitutionalism is defined as ‘capturing the constitution and constitutionalism with legal means such as formal and informal constitutional change and packing and paralyzing the constitutional court. Bruce Ackerman’s theory of constitutional moment was originally formulated in relation to the US political system and takes into account its specificity. The rulings of the Constitutional Tribunal from 2019-2020 presented in the chapter prove that there has already been an 'illiberal turn' in the Constitutional Tribunal itself. The changes that have occurred in Poland since 2015 should really be conceptualised as an illiberal, counter-constitutional revolution.
Hague Journal on the Rule of Law
The current crisis in the relationship between the Polish Constitutional Court and the Court of Justice of the European Union (ECJ) is of crucial significance for the process of regional integration based on the values of liberal democracy taking place in the EU. The constitutional crisis in Poland that began in the end of 2015 has challenged the systemic position of the Polish Constitutional Court. It resulted in a new model of constitutional adjudication, and in this new model the Constitutional Court, stripped of its counter-majoritarian power, cannot be perceived as the guardian of liberal democracy. This article postulates that the assessment of the present case law of the Polish Constitutional Court in European matters is made through the prism of the Constitutional Court’s jurisprudence pre-2016 (i.e. before the constitutional crisis). Based on that assumption, the current reversal in the case law of the Polish Constitutional Court concerning the ECJ is analysed and assessed....
Judicial Change to the Law-in-Action of Constitutional Review of Statutes in Poland
Utrecht Law Review, Volume 18, Issue 1, 2022, 2022
One of the unexpected effects of the constitutional crisis in Poland that began at the turn of 2015 is the expansion of diffuse constitutional review of statutes. The Polish Constitution adopts a centralised model of constitutional review, but in the cases they hear common courts still independently disapply statutes that violate constitutional norms. Their stated grounds for doing so focus on the need to act in the place of the Constitutional Tribunal, which has lost its independence from the political power, as well as the necessity of continued effective preservation of the Constitution’s primacy and of the fundamental rights and freedoms of individuals. This article takes a more detailed look at this new judicial practice, describes the rationale for its adoption and analyses its consequences from the legal perspective. The trend is capable of being described in theoretical terms, which is the reason for this article’s research hypothesis that the courts’ activities are changing the law-in-action of constitutional review in Poland, as a consequence of the formulation and activation of a defensive mechanism for constitutional democracy.
A " good " change in the Polish Constitutional Tribunal? 3
SUMMARY: The article presents the development of the constitutional crisis in Poland after the 2015 elections, won by Prawo i Sprawiedliwość. The changes that are taking place in Poland at the moment (the new legislation and the general political attitude presented by the governing party) do not favour liberal democracy in its classical, parliamentarian meaning, but aim at concentrating political power (dominance of the executive branch represented by a political leader). Disarming institutional system that secures balancing of powers is one element of this process. The changes are carried out in the name of the will of the people that cannot be tamed or stopped by law, which places itself above the people. The Constitutional Tribunal, as a guardian of the Constitution (the only body that can adjudicate on the conformity with the Constitution) is one of the first victims of this policy.
European Papers, 2020
The present Insight compares the decisions of two chambers of the Polish Supreme Court regarding the domestic enforcement, under the terms laid down in the Polish Constitution, of a judgment of the Court of Justice, the independence of the judicial branch and the consequences of a judicial appointment. The starting point for the analysis is an overview of recent reforms of judiciary in Poland and the judgment of the Court of Justice in A.K. (Indépendance de la chambre disciplinaire de la Cour suprême) [GC] (judgement of 19 November 2019, joined cases C-585/18, C-624/18 and C-625/18). The first discussed ruling of the Supreme Court aimed to fully enforce that judgment of the Court of Justice, whereas the second sought to limit its actual impact.
Constitutional Moment and the Polish Constitutional Crisis 2015–2018 (a few Critical Remarks)
Przegląd Konstytucyjny, 2019
In the middle of the Polish constitutional 2015–2018 crisis, references to a ‘constitutional moment’ concept had suddenly and unexpectedly appeared in the Polish public debate. This article aims to confront fundamental conditions and implcations of constitutional moment theory with the Polish constitutional framework. Firstly, I will argue that it may be controversial to refer directly to the constitutional moment in an interpretive sense due to the scope of current Polish constitutional regulation and its historical development. Secondly, I will argue that according to the fundamental findings of Bruce Ackerman’s theory its application during the constitutional crisis in Poland is also impossible both in a descriptive as well as interpretive sense. Then, with references to Sujit Choudhry’s interpretation of Ackerman’s ‘higher lawmaking,’ the article will conclude that Poland may have a constitutional moment (in a descriptive sense only) at the end of constitutional crisis and the need to restore the rule of law.
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
Judiciary Saga in Poland: An Affair Torn between European Standards and ECtHR Criteria
9 Polish Rev. Int'l & Eur. L. 39 (2020) , 2020
Judicial independence is a cornerstone of contemporary constitutional systems within European legal orders that Poland, among many other European States, codified the principle at a constitutional level through Article 173 of the Constitution of the Republic of Poland. Nonetheless, the concrete implementation of the theoretical framework remains a bone of contention between the national States and the main international actors. The latter faction, based on the acknowledgement that no single political model could ideally comply with the principle of the separation of powers and secure complete independence of the judiciary, has developed an impressive number of legal tools that are part of a more diffuse European trend of interpretation, which should be labelled as European standard or European corpus aiming at preserving the judiciary order from outward interferences by the legislative and executive powers. In Poland, after the extensive victory earned by the Law and Justice (PIS) party in the Parliamentary election of 2015, the executive branch propelled a series of interlock reforms with the aim of reshuffling the whole judicial asset of the country. In the first place, the way forward was marked by a compound diatribe concerning the Constitutional Tribunal, and the essence of the dispute concerned the mandate’s legitimacy of three sitting judges after the Court’s reinterpretation of the K 34/15 ruling that ended up on 2.12.2015 with the election of five new judges appointed ex novo by the ruling party. Afterwards, the attention shifted towards the rethinking of the National Council of Judiciary (KRS), a mixed judicial body guardian of the independence of the judiciary, asserting, firstly, the unconstitutionality of its statute and, subsequently, planning a new method of appointment for the judicial members previously elected by the judiciary itself. Ultimately, as a closing step, the spotlight turned in the direction of the Supreme Courts judges, where the most spectacular sweep was the provision aimed at lowering the retirement age for the sitting judges on a scheme similar to the proposal made by the Hungarian government in 2011, where voices were raised, respectively, by the Hungarian Constitutional Court, the European Court of Justice and the European Court of Human Rights, and where, regretfully, the judicial independence standard played a minor role in the Courts’ reasoning. This concluding phase convinced the Commission to launch an expedited procedure against Poland before the Court of Justice, thus forcing the Polish government to retracts previous law through the adoption of a repealing law on 17.12.2018; in any event, as predicted earlier by the Opinion delivered by the AG Tanchev in Case C-619/18, the ECJ epilogue released on 24.6.2019, dissimilar to the one reached in the Hungarian case, was the heaviest ‘contrariness to EU law’.