Poland's Constitutional Breakdown

304 Pages·2019·2.817 MB·English

by  Wojciech Sadurski

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POLAND’S CONSTITUTIONAL
BREAKDOWN
ii
OXFORD COMPARATIVE CONSTITUTIONALISM
Series Editors
Richard Albert, William Stamps Farish Professor of Law,
The University of Texas at Austin School of Law
Robert Schütze, Professor of European and Global Law,
Durham University and College of Europe
Comparative constitutional law has a long and distinguished history in intellectual
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who create or modify their constitutional orders, they often wish to learn from the
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Advisory Board
Denis Baranger, Professor of Public Law, Université Paris II Panthéon-A ssas
Wen- Chen Chang, Professor of Law, National Taiwan University
Roberto Gargarella, Professor of Law, Universidad Torcuato di Tella
Vicki C. Jackson, Thurgood Marshall Professor of Constitutional Law,
Harvard Law School
Christoph Möllers, Professor of Public Law and Jurisprudence,
Humboldt- Universität zu Berlin
Cheryl Saunders A.O., Laureate Professor Emeritus, Melbourne Law School
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Poland’s Constitutional
Breakdown
WOJCIECH SADURSKI
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3
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Preface
In March 2018 an Irish court handed down a judgment in a case which, on the face
of it, was simple, easy, and routine: a suspected drug trafficker, a national of another
European Union (EU) country, was sought by his country of citizenship under the
European Arrest Warrant (EAW) system. All procedures had been correctly fol-
lowed: the identity of Mr Artur Celmer was confirmed, no less than three arrest
warrants were properly filed, and there were no objections to the surrender based,
for instance, on the severity of possible punishment in the country that sought to
bring Mr Celmer to justice—P oland. All—w ell, almost all—c onditions for the sur-
render under the EAW were met.
And yet, Justice Aileen Donnelly refused to authorize the extradition of Mr
Celmer and instead made a request to the Court of Justice of European Union for a
preliminary ruling. The main reason for this was that because of recent legislative
changes in Poland, there was a strong suspicion that the rule of law there was sys-
tematically damaged, and this undermined the mutual trust that underpinned the
EAW process.
The twenty- three- page judgment1 makes fascinating legal reading. It refers to a
lot of extrinsic material— to the opinions of the Venice Commission (the European
Commission for Democracy Through Law) and to the European Commission’s
(EC’s) Reasoned Proposal on the use of sanctions (Art. 7 procedure) against
Poland. The accuracy of these documents, Justice Aileen Donnelly said, was not in
question because they ‘amount to specific, updated, objective and reliable informa-
tion as to the situation regarding the threat to the rule of law in Poland’.2 And the
conclusion must be that the EC’s Reasoned Proposal
is, by any measure, a shocking indictment of the status of the rule of law in a European
country in the second decade of the 21st Century. It sets out in stark terms what ap-
pears to be a deliberate, calculated and provocative legislative dismantling by Poland
of the independence of the judiciary, a key component of the rule of law.3
And if that was not enough, ‘[e] ven “the constitutionality of Polish laws can no
longer be effectively guaranteed” because the independence and legitimacy of the
Constitutional Tribunal are seriously undermined’.4
1 Minister for Justice and Equality v. Celmer [2018] IEHC 119.
2 Ibid., para. 122.
3 Ibid., para. 123.
4 Ibid., para. 123, quoting Reasoned Proposal in accordance with Art. 7(1) of the Treaty on European
Union regarding the rule of law in Poland, 20 December 2017, para. 180(1).
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Deliberate, calculated, and provocative. How could that have happened, espe-
cially in a country that was only a few years earlier widely, and justifiably, applauded
for its achievements in democratic consolidation, human rights, and judicial inde-
pendence? Or perhaps, as a bewildered Polish government immediately retorted,
the Irish judge was badly mistaken, misled, and ignorant of the real situation in
Poland? Polish deputy minister of justice Michał Warchoł expressed his incredulity
that ‘general, abstract deliberations, projections and speculations’ could become
the basis for a judgment, and suggested that the Irish court simply did not under-
stand his government’s reforms.5
If only this were true. This book provides an account of what happened, why it
happened, and how it happened, with the consequence that this Irish court’s judg-
ment was not only possible, but also eminently justified.
I begin in Chapter 1 with an outline of the general characteristics of the Poland’s
constitutional transformation since 2015, and then an explanation of why the con-
cept of ‘anti- constitutional populist backsliding’ is the most appropriate way of
describing it. It is anti- constitutional because it proceeds through statutory ‘amend-
ments’ and outright breaches of the Constitution; it is populist because the ruling
elite, while dismantling checks and balances, is actively fomenting societal support
and mobilization; and it is backsliding because it should be seen against the base-
line of high democratic standards achieved in the recent past. Chapter 2 provides
an outline of constitutional history in post-c ommunist Poland after 1989, em-
phasizing the sources and contours of a constitutional consensus which had been
dominant in Poland for much of that period, as encapsulated in the Constitution of
1997 (still in force) that provides an important insight into the background of the
anti- constitutional transformation of post- 2015. In the chapters that follow, I pro-
vide a detailed account of how comprehensive and momentous the legal changes
are, some going so far as to dismantle institutional checks on the government,
including the paralysis of the Constitutional Tribunal (CT), and then its conver-
sion into an active supporter of the government (Chapter 3). Chapter 4 examines
how the changes capture the regular courts and law enforcement institutions, while
Chapters 5 and 6 study the impact on the entire state apparatus and erosion of a
number of individual and political rights, such as the right to assembly, freedom
of speech, and privacy. Chapter 7 then offers some explanations of the sources of
Prawo i Sprawiedliwość (Law and Justice (PiS) party) electoral success and then of
its huge popularity in society. In Chapter 8 I reflect upon whether the European
context may offer some remedies or solutions to the Polish crisis, and argue that
the EU must (both for practical and principled reasons) intervene decisively in the
case of Poland’s breach of Article 2 of Treaty on European Union (TEU) values, that
5 See Christian Davies, ‘Ireland refuses extradition over concern at Polish justice reforms’, Guardian
(London, 14 March 2018) online edition, https:// www.theguardian.com/ world/ 2018/ mar/ 13/ ireland-
refuses- artur- celmer- extradition- poland- justice- reforms- ecj (accessed 20 October 2018).
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Preface vii
is, those of democracy, the rule of law, and individual rights. In Chapter 9, I take a
step back from this detailed account to offer more general observations on what
the Polish case can teach us about the vexed question, hotly debated in political sci-
ence and constitutional theory these days, namely whether a ‘populist democracy’
or ‘illiberal democracy’ is still a democracy tout court. In the Afterword, I look into
the future.
A final caveat needs to be made. The emphasis on backsliding in this book im-
plies that the construction of authoritarian populism in Poland is very much a
work in progress. It is dynamic, moving along a trajectory the subsequent stages of
which are uncertain. Kaczyński’s Poland is not Erdoğan’s Turkey; we can roughly
discern its directions, but we do not know the endpoints. Hence, any descriptive
characterization of the emerging regime must come with a proviso that it is tenta-
tive, and that the only thing that is certain is that there are no certainties about fur-
ther developments. All formulae adopted to describe the system must be preceded
by ‘quasi’ or ‘semi’; contradictory trends and forces are simultaneously present and
pull the state in opposite directions. It is not a plateau but movement, and even
if the populist- authoritarian forces seem today dominant, their triumph is by no
means a fait accompli.
The frantic pace of Polish backsliding also means that the account provided here
will likely no longer reflect the ever- changing situation when this book reaches its
first readers. This means that the value of this account will be largely historical—
which is not to downplay it, but to qualify it in an important way. The legal status
quo described here is valid as of 1 October 2018.
A personal disclosure: for me, Poland is not just a case study to be examined
as a specimen of a crisis of democracy and constitutionalism. To me Poland is my
country, which I love, and so there are occasions in the book when I abandon a
dispassionate and detached style, and let my emotions speak. I feel that I need not
apologize for that, but I should place it as a warning at the outset. I believe that this
book is accurate, but neutral it is not.
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Acknowledgements
This book was quick in the making, but I managed to incur huge debts to a large
number of people. My special thanks go to Bojan Bugarič, Adam Czarnota, Martin
Krygier, Laurent Pech, and Mirosław Wyrzykowski who read large parts of the
manuscript, providing me with very helpful suggestions and advice. Of course, I do
not want to entangle any of them in endorsement for my substantive propositions
and assessments.
I was unusually lucky in being able to rely on the work and assistance of some ex-
tremely talented young scholars who agreed to act as my researchers: Kirsten Gan,
Mateusz Grochowski, Mariana Olaizola Rosenblat, and especially Michał Marek
Ziółkowski. Whatever is good in this book is owed largely to them.
There are several other colleagues and friends with whom I discussed various
issues related to the subject of this book before and during its completion, and to
whom I am very grateful: Bruce Ackerman, Susan Rose Ackerman, Richard Albert,
Leszek Balcerowicz, Jack Balkin, Stanisław Biernat, Paul Blokker, Adam Bodnar
(who planted in my mind the idea of writing this book), Tom Gerald Daly, Andrzej
Drzemczewski, Moshe Cohen- Eliya, Rosalind Dixon, Grzegorz Ekiert, Monika
Florczak- Wątor, Lech Garlicki, Tom Ginsburg, Aleksandra Gliszczyńska- Grabias,
Mark Graber, Jan T. Gross, Gabor Halmai, Samuel Issacharoff, Vicki Jackson,
Ronald Janse, Dimitry Kochenov, Tomasz Tadeusz Koncewicz, Ewa Łętowska,
Marcin Matczak, Jan- Werner Müller, Gerald Neuman, Phillip Pettit, Robert Post,
Rick Pildes, Jiri Priban, Adam Przeworski, Michel Rosenfeld, Andrzej Rzepliński,
Kim Lane Scheppele, Robert Schuetze, Eugeniusz Smolar, Gila Stopler, Anna
Śledzińska- Simon, Joseph Weiler (who insisted that the book should be very
short— advice I tried to heed) and Jan Zielonka.
Special, everyday support was given to me by Anna, Alan and (in his own, inim-
itable way) Pikuś—a nd I am very grateful to them, too.
An early version of a part of Chapter 3 was published by the Hague Journal on
the Rule of Law in 2018, DOI: 10.1007/ s40803- 018- 0078- 1— and I am grateful to
the Editor, Professor Ronald Janse and Publisher, T.M.C. Asser Press, The Hague,
for their kind permission to include a rewritten and updated version here. Earlier
versions of some observations and accounts of developments scattered throughout
this book were included in my chapter in Mark A. Graber, Sanford Levinson, and
Mark Tushnet’s (eds), Constitutional Democracy in Crisis? (OUP 2018), and I am
also very grateful to the editors of that volume and to the publisher for their per-
mission to use some of that material.
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