Sadurski, Wojciech

Steinbeis, Maximilian

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„What is Going on in Poland is an Attack againstDemocracy“ verfassungsblog.de /what-is-going-on-in-poland-is-an-attack-against-democracy/The governing Law and Justice party recently has announced that it intends to draft a new constitution forPoland. What do you make of that?There has been a Law and Justice draft for a new constitution in 2010, but that has been withdrawn and theparty never tried to put it back on the table. Since then I have heard only soundbites and slogans, never anythingcoming close to anything like a coherent idea about what this new constitutional project would be. My feeling is,they won’t do it. The political costs of putting on the agenda the issue of a new constitution would be for them toohigh. They will pursue that idea only if there is a political payoff, if they need it as a diversion from the economicand diplomatic costs of their policy. Other than that, they will not give themselves the headache to take on such abig project that would only attract the attention of all their critics. They just don’t need it.Why not?Because what they have been doing over the past months was already a de facto change of the constitution.That is why I think that the way of describing what is going on in Poland is basically a constitutional coup d’état.That is a strong word…Yes, and I am using it not to vent my anger and be emotional but rather in a very technical, descriptive sense. Ade-facto change to the constitution without following the amendment procedure but through sub-constitutionallaws is what I call a constitutional coup d’etat. The principle of supremacy of the constitution is that you cannotchange the constitution by simple statutes. Constitution controls statutes, not the other way around.And that is what the Law and Justice government has been doing since it came to power in 2015?Yes. The most blatant example is the law on the Constitutional Tribunal, of course. There had been a first law inDecember 2015 which has been subsequently invalidated by the Tribunal – a decision the government keepsrefusing to acknowledge – and found untenable by the Venice Commission. Last week, the Law and Justicemajority in parliament has adopted a new law. Government propaganda tried, apparently with some success, tosell this law as a step towards reconciliation. But on closer look it is the exact opposite.How would you describe this new law on the Constitutional Tribunal?The new law contains three sets of provisions, each absolutely toxic in its own way. The first set is aboutimmunizing all new laws adopted by the new ruling elite from effective control. The second set is aboutparalyzing the operations of the Constitutional Tribunal in the long term. The third is about giving the executivean immense influence over the Constitutional Tribunal. In addition to that, there are a number of smaller, butnasty provisions – dirty tricks, if you will – such as limiting the duty of the government to publish the judments ofthe Tribunal to judments issued after 10th of March, which is exactly one day after the most important judgmentof all, the one on the first law on the Constitutional Tribunal, was issued. For most of these provisions, there is noprincipled rationale whatsoever. Even if we adopt the most charitable and generous view, it is impossible todefend them with a straight face. They are simply very ad-hoc, very nasty ways of making the Tribunalpowerless. That is what this law is about.The first set you mentioned, provisions immunizing laws enacted by PiS from constitutional scrutiny – what doesit contain?The most important was a principle already strongly criticized by the Venice Commission which strictly requiresthe Constitutional Tribunal to hear cases in the order they come in. That means that the Tribunal, and this isunprecedented, cannot control its docket and make some cases more urgent than others. Imagine a doctor had1/5to conduct surgery strictly in the order in which patients arrive at the hospital! The Tribunal has a backlog ofabout 100 cases. If it has to decide on these first it is totally unrealistic that it will be able to even start consideringthe new laws enacted by the Law and Justice government, some of which are blatantly unconstitutional.Such as?First, the law about public media. This law totally subordinates public radio and TV to the government, not in asubtle way, but in a very explicit, simple and crude way. For example, the Director General of public TV isappointed by the minister of the Treasury. This is obviously inconsistent with the fundamental principles ofindependent media and, therefore, freedom of speech. The second is the total politization of public service. Anidea of independence of public service as a requirement of a democratic state based on the rule of law. Allguarantees of this have been abandoned, such as the requirement of open competitions to fill vacancies. Thirdlyand much closer to direct threats to individual liberties, there has been a law against terrorism which gives policeand security services very strong powers of suspending e.g. the rights to public assembly. Finally, anotherexample is the so-called invigilation law that gives the police and the secret service much broader powers tomonitor and surveil citizens, including tapping telephones, controlling their internet moves, basically outside ofany judicial scrutiny. The only requirement the security services have that every half year they have to producestatistical information to the judge about how many actions had been undertaken, without any need toindividualize, to justify etc. These four laws alone contain a great number of, to put it mildly, constitutionallyhighly suspect provision which are now in force.Are you saying that Poland is moving in the direction of a police state?If we take into account the potentials and capacities amassed by the secret branches of the executive, we arenot far from becoming a police state. But let me get back to the immunizing strategy. If, in the future, thegovernment wants to enact a law that might be declared unconstitutional there is a very efficient way to do so.There is another provision that makes it sufficiently simple to inundate the Tribunal with motions about all sorts oflaws, even trivial ones, just to build up the docket. So the law the government wants to be constitutionallyimmunized will have to wait in the queue for years to come. But suppose, just for the sake of the argument, theTribunal somehow manages to get rid of the whole backlog, it might still find itself unable to do its job. Any newlaw can be considered by the Tribunal only after 30 days minimum.Why 30 days? No-one knows. The only rationale is that it makes it impossible to fast-track laws which are found to beparticularly urgent and important. Now, add to this the fact that the Law and Justice government has abandonedthe practice of vacatio legis and that all of its most sensitive laws have been adopted with the proviso that theyenter into force immediately. That means that there will be a minimum of 30 days in which any ever sounconstitutional law will enter in operation and create a fait accompli.What about the second set, provisions designed to paralyze the Tribunal in the long term?A number of provisions can only be explained by the rationale to make it as difficult as possible to invalidatelaws. The most striking one is the rule that in the full bench the majority required to invalidation is two thirds. Youneed 11 out of 15 judges now. Law and Justice already has three judges on the bench, and three more waiting.They will have an effective veto. Apart from that it is patently unconstitutional, as the Constitution itself saysunequivocally that the Constitutional Tribunal decides with „majority of votes“, which means „simple majority“because whenever the Constitution requires an absolute or qualified majority, it expressly says so. Additionally,there is a new provision that gives any four judges a right to demand postponement in any case without givingreasons for three months, twice. So, even if there is a 2/3 majority, four judges can delay any decision for half ayear. The third example is even more cynical. In a number of cases the participation of the Attorney General ismandatory. If he does not show up at the hearing the case cannot be considered. Just by failing to perform hisformal duty he can stop the procedure.And that would be legal for him?2/5Perfectly legal.You mentioned provisions designed to give the executive control over the Constitutional Tribunal. What do youmean by that?Three examples. First, the exclusion of a judge for disciplinary reasons by the General Assembly ofConstitutional Tribunal judges can now be vetoed by the President. The Law in Justice party anticipates probablythat some of its judges will be of such low moral standing – some of the judges already voted in by the Presidentbelong to that category – that they may be subject to disciplinary action, so the President will be able to quashthese decisions. Second, the President and the Attorney General, both active politicians, have a right to make amotion of deeming specific cases as being particularly complex and therefore have to be heard by the full benchof judges. That is not just a technicality. It raises the standard of invalidating a law much higher. Finally, thePresident will have the authority to change the sequence in which the Tribunal has to adjudicate its cases. Theselaws shift a lot of power from the judicial branch to the executive.Doesn’t it take a constitutional amendment to give the President more powers?Of course it does. These competences are given to the President by a simple statute, and this in itself, whetherwe like it or not, is obviously unconstitutional, which is why I call this a constitional coup d’état. The constitutionlists the competences of the President in an enumerative and exhaustive way.The Law and Justice party, you say, aims to neutralize the Constitutional Tribunal as an institution which holds itsexecutive and legislative actions to constitutional scrutiny. What about the rest of the judiciary? Would otherjudges be able to step in and fill the gap left by the Constitutional Tribunal?You put a finger on perhaps the most intriguing and puzzling issue here. If we assume that the ConstitutionalTribunal will cease to exist or become a mere façade institution, then obviously the whole weight of judicialscrutiny, also of constitutional scrutiny, would be shifted upon the regular judiciary. Now, the big question is: Willthe so-called regular judges, civil, criminal, administrative etc., be able to carry this burden? I must say that I ammoderately optimistic about it, especially when it comes to the Supreme Court.Most constitutional orders try to monopolize constitutional review in one specific court to prevent legalfractioning…Sure. We had these debates and intra-judiciary conflicts in Poland, too. But now, when we contemplate veryseriously the possibility of a maybe permanent disablement of the Constitutional Tribunal, I think – but verystrongly as a second-best – we need to invest some hope with the regular judges, that each of them has to seehim- or herself as a constitutional judge, that they are bound more by the constitution than by statutes and mayset aside a statute if they believe it to be inconsistent with the constitution. Polish judges will have to start actingin this way.And this would be viable in terms of constitutional doctrine, for an ordinary judge to set aside a legal provisionbecause of its assumed unconstitutionality?Absolutely. When they develop reasonable doubts about the constitutionality of a law, each single judge has alegal duty to stay the proceedings and to formulate a question to the Constitutional Tribunal and wait for theanswer that will be binding. But if we add to that a variable that the Constitutional Tribunal is powerless there willbe no-one to ask, and therefore the judge will have to do it him- or herself.Wouldn’t that undermine legal certainty if one judge finds a law unconstitutional and another doesn’t?Yes. That would be one of the consequences. We would have to dispense with this sort of Kelsenian idea ofabsolute total coherence of the law. It would be a situation of legal pluralism. In countries where the law is oftenof very low quality and laws themselves contain all sorts of gaps and blurs, inconsistency of the application of thelaw is not something unqualifiedly bad. I don’t believe in that sense of the rule of law that says that law mustalways be fully and perfectly coherent. Coherence is not an independent value. Yes, we then have a situation inwhich in a similar case a judge in Krakow will decide differently than a judge in Gdansk. Too bad! That doesn’t3/5frighten me.The Polish government has met with remarkable resistance from the EU Commission, so far. Some complainthat this shows a lack of respect towards Polish democracy. What would you reply?What is going on in Poland is an attack against democracy. And it is not something that happens at the marginsof democracy. It happens at the core. This is qualitatively different from ordinary squabbles about right or wrongconstitutional policy among reasonable democrats. This is an assault on the very foundations of democracy. Aquestion like whether the president may have control over the constitutional tribunal is not just some technicality.That is a fundamental issue of separation of powers. Would you in Germany be happy if your Minister of Justicewere able to control what is going on in Karlsruhe in any particular case? It is as bad as that! This is nothyperbolic. If you accept these laws, then you accept the fundamental undermining of democracy.How optimistic are you that external pressure can make a difference at all in current Polish politics?I think it can make a difference. To be effective, the pressure must be synchronized between European Unionand the US administration. The rule of law framework procedure now set in motion by the EU Commision willcertainly not end with a suspension of voting rights of :Poland in the Council. That is totally unrealistic. But itmight end with a determination of the dangers to the rule of law, which would already be a huge reputational lossfor the government of Poland. But even if it doesn’t come up with this formal ending, the very fact that theprocedure would be going on would be something that the government of Poland would not be able to simplyignore.With respect to Hungary, whose government did things comparable to the Polish policies in many ways, wastreated much more leniently than Poland by the EU. How is Poland different?The Hungarians managed to get away with their illiberal provisions both in their constitution and in various lawsfor a combination of reasons which do not apply to Poland. The fundamental factor is that the Hungarian PrimeMinister Victor Orbán had a constitutional majority. He could change the constitution, so you couldn’t simply say,your actions are unconstitutional. You can say they are illiberal, populist, cruel, undemocratic, but notunconstitutional. They have adopted a bad constitution, an illiberal constitution, but a constitution nevertheless.Jaroslaw Kaczynski, much to his regret, doesn’t have a constitutional majority. So what he tries to do is clearly aconstitutional coup d’état.What do you mean by that?The factual change of the constitution through subconstitutional measures. If you do that it exposes you muchmore openly to a rule of law scrutiny. The new procedure run by the Commission is a rule of law procedure. Thatmakes a difference. If it is about democracy one may discuss and disagree. If it is about the rule of law it is muchmore difficult to disagree if you go against the constitution.What other factors do you see that distinguish the Hungarian case from the Polish?Orbán and his people are much smarter and much more cunning than our government. They kept saying to theCommission: Oh yes, we see what you are saying, you may be partly right. They changed their laws here andthere, pushed and pulled back – very smart. Kaczynski is the opposite. He doesn’t know and doesn’t trust theEuropean Union. His people are insulting EU officials, reacting defensively and aggressively at the same time.Also, their opposition to the EU is much more ideological than the Hungarians whose main interest seems to beto build up a new financial oligarchy around Orbán. One of the few good things that can be said about Kaczynskiand his people is that they are not oligarchs. They are not predominantly into big money making. They pursue anideology of Poland as a proud sovereign state based on Catholic national identity etc. – things Orbán would onlysay to please someone. In Poland, they actually believe it.Do you still have hope that Poland might find a way out of its constitutional predicament any time soon?One of the very few sources of optimism for me is the hope of a possibility of external intervention. I am notafraid to use that word. There is no such thing as internal affairs in the European Union. The European Union4/5has a duty to intervene when fundamental principles of Art. 2 TEU are in danger. Then there is the pressureapplied by the US government. And one must not forget that there is also a growing movement of grassrootsresistance within Poland which will generate over time a strong potential of civil disobedience. That are the onlysources of hope. I do not credit the current elite with any good faith because they have shown enough already oftheir real face.Did the Brexit referendum change the picture in some way?The prospect of the UK leaving the Union brings in a new political dynamic in Europe. I fear, and the Polishgovernment hopes, that the focus of public opinion now shifts to other things. But maybe even more important isthe fact that the Brexit referendum reveals them to have been in alliance with people who are fundamentallyagainst the European Union. I don’t think that Kaczynski wants a Polexit. He holds obsolete ideas about theEuropean Union, but he has no intention to leave it. But the fact that his main allies in Brussels are all sort ofcrazies really exposes them. It lays bare his fundamental strategic mistake that he has failed to make allies withwhom he can make anything positive within the European Union.Questions by Maximilian Steinbeis LICENSED UNDER CC BY NC NDSUGGESTED CITATION  Sadurski, Wojciech; Steinbeis, Maximilian: „What is Going on in Poland is an Attackagainst Democracy“, VerfBlog, 2016/7/15, http://verfassungsblog.de/what-is-going-on-in-poland-is-an-attack-against-democracy/.5/5

„What is Going on in Poland is an Attack against Democracy“

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„What is Going on in Poland is an Attack against Democracy“

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