„A Good Constitution” and the Habits of Heart

Unless we want to complete an obituary for the rule of law in 2018, the challenge should be clear. While improving constitutional safeguards against the excesses of any majority is of utmost importance, it is insufficient. What is needed this time is moving beyond text text and on to building the context in which a constitution will prosper.

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On Cockroaches and the Rule of Law

As I awoke one morning from uneasy dreams I found myself transformed in my bed into a gigantic insect. Like Gregor Samsa in Kafka’s Metamorphosis, I had mutated into an enormous and abominable cockroach with no prior warning. It just happened. As I woke up, I could feel how my new legs and antennae moved with sinuous speed. Then I knew what I really had become. I had muted into a Spanish fascist.

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One Law, Two Justices

Poland’s rule of law crisis stems from the conviction that respect for institutions and the requirement to observe procedures are for the weak. The greatest risk arising from the crisis is that the recent disregard for both institutions and procedures will become a norm for future governments, whatever their political orientation.

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Defenceless Formalists: on Abuse of Law and the Weakness of the Polish Judiciary

Poland’s constitutional crisis is caused by the power of those who attack the rule of law, but also by the weakness of those who defend it. This weakness derives from courts taking a traditional formalist approach, excluding purposive and functional argumentation and leaving themselves prone to attack by the abuse of power through the other branches of government.

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A Stress Test for Europe’s Judiciaries

The rule of law, judicial independence and separation of powers are values guaranteed in constitutions of member states of the Council of Europe. Nevertheless, in recent years, a number of challenges to these accepted values have emerged in different countries all over Europe. Events in countries like Hungary, Ukraine, Slovakia and Turkey should be mentioned in this context. Poland’s reforms of its judiciary (some of them still in draft stage) are the latest and gravest example of this European crisis. While such threats to judicial independence in individual states are a fundamental problem for European co-operation based on shared values of democracy, the rule of law and human rights, European states should not wait for remedies to be found on the European level. Rather, European states should learn from the challenges in Poland and other countries to critically review the constitutional and legal framework of their own national judiciaries. To facilitate this process, we suggest to stress test Europe’s judiciaries.

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Is Poland’s President Duda on the Road to Damascus?

Does President Duda’s recent vetoes signal a more permanent change in his fidelities to his political stable and to the Constitution? An opportunity to witness the depth of his conversion arises soon. The untimely death of Professor Morawski, one of the anti-judges appointed to the Constitutional Tribunal (CT) by Duda in December 2015, has created a vacancy in the CT which must be filled soon. The big question is with whom.

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Who’s next? On the Future of the Rule of Law in Poland, and why President Duda will not save it

With the latest draft laws about the judiciary, the Law and Justice party (PiS) has crossed yet another line. President Duda’s announcement of a veto appears on first sight to present an obstacle to PiS’ march towards completely unrestricted, unitary state power. In this post, I will examine first what effects the PiS drafts will have on the independence of the judiciary by the hands of PiS and then, whether or not President Duda’s so-called veto holds what it seems to promise.

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Farewell to the Separation of Powers – On the Judicial Purge and the Capture in the Heart of Europe

After the cautious and carefully prepared dismantling of the Polish Constitutional Court, the Supreme Court’s independence was now swept away in the twinkling of an eye. Late at night on Wednesday, July 12, 2017, a draft law virtually constituting an overnight demolition of the Supreme Court was proposed. This amendment heralds the death knell for the rule of law in Poland.

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