Abstract
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 interpretative 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.
Highlights
Many people must be wondering how it is possible that Poland, which not so long ago was lauded for its exemplary transition from a communist dictatorship to a liberal democracy, could have so swiftly descended into authoritarianism via a crisis in123Vol.:(0123456789)M
In November 2015, the newly elected Parliament, in which the PiS gained a majority in both houses, nullified the appointment of five Constitutional Tribunal (CT) judges made by the previous Parliament
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.”
Summary
A systemic constitutional crisis in the Republic of Poland erupted in November 2015, immediately after the Law and Justice party (the PiS) won the country’s parliamentary elections. The first stage of this crisis consisted of cancelling the earlier appointment of five CT judges and ‘packing’ the CT (the judicial body responsible for the constitutional review of legislation) with new judges, and in a series of. Attempts to commandeer the CT by enacting six bills aimed at paralyzing its operations.. Attempts to commandeer the CT by enacting six bills aimed at paralyzing its operations.3 This first stage ended in December 2016, when a new CT President was appointed by the President of the Republic of Poland. The second stage of the crisis started in 2017 and consisted of the political takeover of the NCJ, the constitutional body responsible for protecting the independence of the judiciary and for appointing and promoting judges, as well as in commandeering the SC.. (a) paralyzing the CT6; (b) subjecting the previously autonomous NCJ to the legislature and the Minister of Justice (MoJ), thereby politicizing judicial appointments; (c) several attempts to remove SC judges from their positions and politically motivated dismissals and appointments of court presidents and vice-presidents.
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