A war being waged between the current Polish government and the country’s Constitutional Court is undermining the country's democracy and rule of law according to leading experts.
Jaroslaw Kaczynski and President Adrzej Duda
© AFP/Scanpix

May 3 is a public holiday in Poland which celebrated the 225th anniversary of Europe's first written constitution. The document was drafted by Polish-Lithuanian statesmen and was a culmination of political, social and economic reforms carried out in the Polish-Lithuanian Commonwealth over the second half of the eighteenth century.

Poland's Constitution is once again on the top of political agenda in Warsaw, with Polish opposition and international observers warning that the current government's actions are undermining the rule of law in the country.

In an interview, Dainius Žalimas, the chairman of Lithuania's Constitutional Court who took part in the May 3 celebrations, said that Poland is in the midst of a constitutional crisis.

When historians speak about the May 3 Constitution, they note that it was a very progressive document for its time. Poland is now once again making constitutional history - except that now the Polish government is accused of undermining the constitution. Can one say that Poland is in a constitutional crisis today?

“There is indeed a crisis of sorts otherwise Poland would not be under European scrutiny. Indeed, things are happening there that could be hardly imaginable in a democratic state, including Poland. Hardly anyone could have predicted that happening a year ago - that the Polish government would be completely ignoring the Constitutional Court's rulings, proclaiming them null and void, which in itself is a violation of a crucial principle of the rule of law.

“Frankly, it reeks of attempts to usurp and undermine the functions of constitutional justice. The Polish government is also saying it will not announce the Constitutional Court's rulings.

“There are signs of protest, too. For instance, I saw public readings of the Constitutional Court's rulings in Warsaw. The Constitutional Court has come to symbolize democracy and the rule of law. Some city municipalities have said they will abide by Constitutional Court rulings, even if they are not properly announced to come into effect.

Dainius Žalimas
Dainius Žalimas
© DELFI / Šarūnas Mažeika

“I could hardly imagine that an institution in Lithuania could decide not to publish a ruling from the Constitutional Court because it believed that the decision was illegitimate.”

But Jaroslaw Kaczynski, the leader of Poland's ruling Law and Justice party, argues that the Court put itself above the Constitution and usurped power that rightfully belongs to the parliament, a body directly elected by people. There have been similar statements made about Lithuania's Constitutional Court, too.

“I think that similar statements in Lithuania are not serious or made by people who are not influential - I hope that such decisions will never be made here. Since what is democracy? Democracy is not just the rule of the majority. Democracy is also about submitting to law. In the end, democracy is a system of checks and balances.

“The statements that you've quoted - which, by the way, are coming from an ordinary MP - are an attack on one of the pillars of democracy. They are motivated by a desire to assume the function which essentially cannot be parliament's.”

The Venice Commission has criticized the Polish government's decisions about the Constitutional Court. What is the role of the commission and what is the power of its decisions?

“The Venice Commission [or European Commission for Democracy through Law] is the most authoritative expert institution on constitutional law. It does not engage in politics, as the Polish government tried to argue after hearing an unfavourable conclusion. It is an advisory body of the Council of Europe, made up of experts from all European countries. They carry out analyses when requested by the countries themselves. In this case, Poland itself asked it to analyse decisions that could undermine the Constitutional Court's independence.

“And these do not concern only the appointment of judges. Poland later adopted laws that directly threaten the independence of the Constitutional Court or were designed to undermine this institution. Without it, there is no control, the government can do whatever it pleases, there's no one to check their political decisions.”

But some argue that the Polish government wants to put national interests above those of Europe, that the Constitutional Court has become a tool in Brussels hands and it should therefore be put into its place, have its powers curbed.

“Such arguments have nothing to do with law, they are irrational, even undignified. I was mostly surprised by how the EU flag is used in Poland as an opposition symbol. Opposition figures are organizing rallies where they fly EU flags and demand that Poland stick to European values.”

Poland's leaders have even spoken about replacing the current Constitution. This was mentioned by Kaczynski, who in fact has no post in the state's administration, and later repeated by the president. The drive to change the constitution is gaining momentum, it seems. What are the arguments for doing that?

“There is no drive yet, but I've heard during informal conversations that, back in 2010, they drafted a new version for the Constitution, designing a super-presidential republic and concentrating much power in the hands of the head of state.

“I don't know what form it [the new constitution] could take. From what I've heard during ceremonial speeches, the Polish president said that the 1997 Constitutional was just a transition.

“I ask a transition to what? It has been in force for almost two decades - I think it is unbecoming to say that the Constitution is provisional and transitional. The arguments he made were these: the current Constitution does not do enough to protect socially vulnerable people, it allows raising the age of retirement. But these are issues for economic and social policy, not the Constitution.

“I wonder if it's not an attempt to put a bridle on the judiciary. The impression I got in Poland is that judiciary is now the only branch of government that oppose the Constitution-breaching actions of the political government and is therefore a hindrance.”

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