The Polish Constitutional Crisis and Institutional Self-Defense
To which extent is a court justified to bend the rules to resist an attack by other state institutions? At a symposium at Oxford on May 9th, 2017, four eminent legal scholars from Poland talked about the constitutional crisis, its roots and reverberations.
While the developments in Poland and in Hungary clearly have to do with a move away from legal constitutionalism, I am not so sure about their moving towards a form of political constitutionalism, as prof. Adam Czarnota suggests. In my view, a key dimension of political constitutionalism is the observation that specific constitutional norms and rights are ultimately ‘essentially contestable’ as reasonable disagreement is an intrinsic part of democracy. Therefore, the understanding and interpretation of such norms and rights ought to remain part of an on-going political debate, rather than being one-sidedly interpreted by the judiciary. Such an open and inclusionary political debate ought to take place within the limits of the constitution, as a basic framework for resolving disagreements. And it ought to be grounded in the ideas of audi alteram partem and the equal weight of different views in the debate.
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"It is the institutions that help us preserve decency. They need our help as well. Do not speak of “our institutions” unless you make them yours by acting on their behalf. Institutions do not protect themselves. They fall one after the other unless each is defended from the beginning. So choose an institution you care about - a court, a newspaper, a law, a labor union - and take its side."
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N.W. Barber and A. Vermeule, in their seminal paper, differentiate between three types of cases in which the exceptional role of courts can come to light. I will be interested only in the third type of cases, which has been defined by Barber and Vermeule as follows: ‘There are some cases in which the health of the constitutional order requires the judge to act not merely beyond the law, as it were, but actually contrary to the law.’
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Let me begin by quoting Abraham Lincoln’s Gettysburg Address, in which he stated that a “democratic government should be government of the people, by the people and for the people”. As you know the current government in Poland does not enjoy the support of the political and economic establishment or academic professors but it is supported by the majority of ordinary people.
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In the present constitutional crisis, my position is that we have to criticise the changes made by the ruling party to the Constitutional Tribunal but not because they undermine rule of law in Poland and are radical. In my opinion the changes are not radical at all. We do not see changes in the “grammar” of law but we observe changes of elites with preservation of the same institutional setting. Only the aesthetic dimension of exercise of power by the government has changed. The rhetoric indeed has rapidly changed but all mechanisms remain the same. In such a situation, the “self-defence” of the institutions including constitutional tribunal in Poland is a part of the political spectacle, part of the drama by which mobilised citizens are manipulated for political gain.
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Nicholas Barber’s paper “Self-Defence for Institutions” provides a useful tool for analysing the complex relationship between the branches of government, in particular between the most dangerous and the least dangerous ones: the legislative and the judicial. This paper sets out to elaborate the theoretical tool proposed by Barber and to show that the elaborated tool has a better explanatory value than the original when applied to real-world circumstances. The real-world case examined in this paper is the constitutional crisis that Poland has undergone for the last 18 months.
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