Tomasz Tadeusz Koncewicz ist Professor für Europarecht und Rechtsvergleichung an der Universität Danzig. Er ist gegenwärtig Fellow am Program in Law and Public Affairs (LAPA) an der Universität Princeton.
The Polish Constitutional Court is gone. The ordinary courts have been captured. The National Council of the Judiciary brought to the heel and replaced with the loyalists. Two and a half years after the fateful elections of 2015 there are important lessons to be learnt from the way the democratic backsliding has progressed and the liberal democracy has been overpowered. In order to fully understand the Polish counter-revolution, we must start by revisiting 1989.
Here we go again. The reports are resurfacing that the Commission is ready to back away from the Article 7 procedure that was initiated against Poland last December. Should we be surprised? For anybody who vaguely follows the Commission’s vanishing act, the answer must be a resounding „no”. Instead, the analysis that follows offers a journey back in time and argues that the past teaches us some important lessons and … rhymes.
In the judgment of 18th of April 2018 the European Court of Justice has ruled (unsurprisingly) that by carrying on logging activities on the UNESCO-protected Białowieża Forest, Poland has failed to fulfil its obligations under EU law. In the Białowieża case the process of judicialization of the EU governance called for a concerted action and dual commitments: from the Court and the Commission. The Court did its part, Commission failed and reverted to its bad ways from the past: negotiating with the government who has been giving short shrift to the Commission and to the core values of the EU law for two years and will continue doing that under the pretense of striving for a compromise with the EU. The Commission continues to be missing one crucial element: the politics of resentment are not just one-off aberration.
For the EU to have a chance against the rising politics of resentment, the language, and perspectives through which the EU looks at the member states, must be challenged and change. “Essential characteristics of EU law” must go today beyond traditional “First Principles” of supremacy and direct effect, to embrace the rule of law, separation of powers, independence of the judiciary and enforceability of these principles as part of the ever-evolving consensus.
The referral to the Court of Justice by the Irish judge that questions how the capture of the Polish judiciary affects her duties under the European Arrest Warrant regime has dramatically changed the landscape of the European rule of law crisis. We are witnessing a switch from the classic paradigm of EU law of «judges asking judges» (dialogue via preliminary rulings) to a more demanding « judges monitoring the judges ».
How should Polish judges respond, now that the Constitutional Court is being used in the day-to-day politics, and keeps delivering goods for its political masters? We have to be unequivocal here. Any future decisions taken by the „fake Court” with the “fake” judges sitting on the cases will be marred by invalidity. The ordinary judges will have a valid claim not to follow these rulings. Should they decide to follow decisions made with the participation of, or made by, “fake” judges, their own proceedings will be vitiated by invalidity.
The past has not been spared from the “politics of resentment” engulfing Poland for the last two years. The peculiar (mis)understanding and political instrumentalization of history by Polish rulers provide an important cautionary tale against one-sided partisan historical debate as it impacts how we remember the past and see ourselves today.
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.
A new brand of constitutionalism is on the rise in Poland, defined by a „constitution of fear”. Fear is the leitmotif of the constitution-making process defined by suspicion, exclusion, drive for retribution and settling the scores. As such it reflects the main tenets of populist constitutionalism: distrust in the institutions and rejection of the liberal status quo and culture of self-constraints.
Poland is facing a heavy constitutional crisis. Instead of another legal analysis, this is a letter to Jean-Claude Juncker to complain about European inaction about it. The comparison to Hungary makes clear that this is not a national, but indeed a European crisis.
