Restoration of the Polish Constitutional Tribunal as Reading the Constitution Forward

The question of how to restore the fallen and degenerated body that once was the Polish Constitutional Tribunal is finally to make its way to the Parliament this week. The stakes are clear: If we get lost in legalese and accept half-baked solutions, it will taint all ambitions and legislative projects aimed at restoring the rule of law in Poland. To avoid this mistake, the “fake court” should be “zeroed out” and newly appointed.

Laying the groundwork and “thinking out of the box”

Under normal circumstances, the law is interpreted “here and now” albeit with an eye on the past. However, there are times when one needs to go beyond this pattern and show greater interpretive creativity and conceptual openness in seeking a solution that also looks to the future. In his recently published book Reading Law Forward, American historian Peter Charles Hoffer describes the jurisprudence of several American judges who proposed just such a forward-looking model of constitutional interpretation. It may be worthwhile to draw on these experiences in the process of restoring the rule of law in Poland. As we argue for the restoration of the rule of law to stay within the four corners of the Constitution and its values it must take into account the adverse consequences that would persist if the current majority opted for some half measures, fearing (without constitutional justification as we explain below) that going all the way would be unconstitutional.

Freeing oneself from the constraints of the legalistic box is possible only if we have the imagination and willingness to critically reevaluate our existing language. Restoring the rule of law is similar to the actions of a sapper. Sometimes the mere safe and sterile removal of the fuse is not enough to defuse a mine, but sometimes the sapper will have to detonate it. Will detonation in defense of the constitution be an action tainted by illegality? Legalism = the letter of the law can sometimes kill the Constitution, but those who want to restore the rule of law just like sappers, cannot be suicidal just as the Constitution cannot be interpreted as a suicide pact. Some of the measures to restore the rule of law in Poland will be legalistic as compliance with the letter of the law, and some will have to go beyond the letter of the law in order to protect constitutional values and the integrity of the constitutional document humiliated for so long. Not every interpretation that goes beyond the wording of a provision is unlawful for that reason alone. If a literal interpretation leads to results and consequences that are absurd and obviously unjust, we are ready to break such a linguistic interpretation to exclude absurdity or injustice. It is exactly going beyond the traditional conceptual box that can contribute to the intellectual liberation needed to restore the true “practice of legalism”.

The discussion about what to do with the “Przyłębska court” proves that schematic thinking is still going strong. While lawyers agree that “the body” in Warsaw is no longer a constitutional court in the sense of the Constitution and rightly ask the question of what to do about it, they momentarily begin to fall into very dangerous legal sophisms. They begin to justify the thesis that we must accept the … unconstitutional status and we must muddle through and simply wait until the usurpers and collaborators go. And here their irrational attachment to a purely legalistic and deceptively simplistic approach comes to the fore and leads the whole discussion on the restoration of the rule of law astray. However, a lawyer who thinks in terms of the rule of law cannot stop at just a text, a paragraph, but must look at the context and calibrate his restoration methods through the prism of the consequences of actions taken or not taken.

Building a case

Our idea of “zeroing out” whatever is left of the Tribunal is firmly anchored in the Constitution. Indeed, the body under the political leadership of Ms Przyłębska has already “zeroed out” itself with its composition, its internal organization, its political disposition and, eventually, its sustained anti-constitutional jurisprudence. The Constitution has been torn to shreds and discarded by the very judges who should have been protecting it. We believe that extinguishing the fake court can be done by a solemn parliamentary resolution without the need to amend the Constitution. This is, of course, a very bold thesis, and some argue that such a move lacks a legal basis. But we find support for it in Articles 4, 7, 8 and 10 of the Constitution. Art. 4 declares that “Supreme power in the Republic of Poland shall be vested in the Nation” (para 1) and that “The Nation shall exercise such power directly or through their representatives” (para 2). Art. 7 says that the organs of public authority shall function on the basis of, and within the limits of, the law. Article 8 proclaims that the Constitution is the supreme law (para. 1 ) and is directly applicable (para. 2). Article 9 mandates that the Republic of Poland abides by international law. And finally, Art. 10 constitutionalizes the separation and balance of powers.

According to traditional thinking, the undefined and autonomous constitutional term “functioning on the basis of, and within the limits of, the law” is understood restrictively as meaning “only within the limits set out by the statutes”. To ensure the internal coherence of the constitutional text the correct interpretation, however, should rather read: “… on the basis of, and within the limits of the Constitution as the supreme law of the land and of the law” to which art. 7 refers. Here it is the Constitution that ultimately takes center stage and becomes, and rightfully so, our main point of reference. With the Constitution being the supreme law, the resolution as advocated here, should be passed by citing these articles as its legal basis. Moreover, a preamble should be inserted to explain to the citizens why we are doing what we are doing by way of the resolution in the name of the Constitution, its survival and in the name of the nation (art. 4).

There may be, of course, voices of discontent and counter arguments that one day the future political majority will readily take advantage of such a precedent. We reject this line of thinking. If one day a political force of Kaczyński’s evil ilk will be bent on a devastation of the Constitution as it has occurred in recent years, the argument of the precedent set will be only of secondary importance. Such a force hostile to the Constitution will cut wide, far, and deep regardless of whether today we reach a resolution of the Sejm as advocated above or rather adopt an incidental amendment to the Constitution. Superchairman Kaczyński and chief unconstitutional arsonist has already announced as much when he said on TV: “We will have recourse to special and extraordinary measures.”

Crucially, our choice of the solemn resolution, rather than an episodic amendment of the Constitution, is justified by our rejection of the narrative of those who once kept violating the Constitution at will and who now rather cynically plead for its amendment. We must not let the arsonists dictate our choices, path, and pace. After all, the constitutional devastation between 2015 and 2023 did not occur through the amendment of the Constitution, but through relentless anti-constitutional actions of a factual nature, unconstitutional resolutions of the Parliament and repeated hostile interpretations by the “fake court”. Therefore, we argue that with the unamended and always prevailing Constitution of 1997, an actus contrarius is required and sufficient – a resolution that restores the state of play in accordance with the Constitution. The adoption of the solemn parliamentary resolution as proposed here does not create a new legal system in Poland, but simply restores what the Constitution mandates, and what we do not have: a constitutional court in line with what the Constitution demands. Therefore, it is not the Constitution that must be changed but rather constitutionality and constitutional practice on the ground must be restored. The elections of 15 November 2023 were won on the promise to restore the Constitution and our representatives should perform this by way of a resolution (Article 4 of the Constitution). Dithering and procrastinating on the part of the Parliament will only prove that we have not learnt much from the debacle of 2015-2023.

Restoration as a constitutional fidelity

Acts of hostile interpretation of the Constitution by the judges that were elected to protect the very Constitution, must be unequivocally named, stigmatized, never rewarded, or swept under the rug. Our response must be decisive and tailored to the gravity of the perversions committed, and always remain faithful to the Constitution. It is the “fidelity to the Constitution” that must be the keyword of today, tomorrow and the day after tomorrow and become the meta signpost for resolving issues “here and now”. “Constitutional fidelity” means not what the Constitution does to me, but what I do to myself and around me to be and remain faithful to it. Such fidelity is an attitude of commitment, dedication, and submission since I as a citizen and a politician submit to the discipline of the constitutional document and pledge to obey and defend it. The restoration of the rule of law must pursue the primary goal of restoring meaning to the key elements of our civic vocabulary that have been stripped of meaning, manipulated in the service of ruthless politics: Constitution – constitutional court – rule of law – integration – respect – authority of the law – dignity and authority of institutions – separation of powers.

Restoration as “Reading the Constitution forward”

There are indeed times when interpretation of the Constitution requires not only prudence but also courage in line with Nec temere, nec timide – the motto which the city of Gdańsk has lived by for ages. We agree with A. Sajó that “by getting rid of the shackles of legal formalism we can contribute to the intellectual liberation needed for the return to the much-needed routine of legalism. Imagination is what animates change”. In 2015-2023 we have been warned. When misconstrued by narrow and formalistic reading, legalism can indeed become today a recipe for a collective constitutional suicide and bury our constitutional document for good. Are we finally ready to free ourselves from the self-imposed legalistic box and move forward courageously, but not rashly?

Thinking about where we are, where we want to go and what we are doing to constitutionally anchor our proposition, we have paused upon reading the opening sentence of the book Reading Law Forward:

“Classical jurisprudence asks: ‘What is the function of law?’ How are judges supposed to decide cases? Modern jurisprudence adds: What is the relationship between law and society, and how can law improve that relationship?”

If this is the essence of reading law forward, it is highly pertinent for the discussion of the restoration and future of the Polish Constitutional Tribunal. For it is not only about reversing the process of legal delegitimization of this body that it was subjected to 2015-2023. It is also as much about restoring its social legitimacy. The latter aspect probably goes beyond just the turmoil surrounding the Constitutional Tribunal but is just as critical for the successful restoration of the rule of law in Poland. While American judges were concerned with interpreting specific laws on the basis of specific facts, in our case we deal with something far more complex and difficult: “reading the Constitution and law forward” in the context of our entire political-legal-socio system which has been damaged in ways that our traditional legalistic box can neither comprehend nor adequately capture and express. Imagination and courage must drive the change now.