12 Juni 2016

Polish Judiciary and Constitutional Fidelity: beyond the institutional “Great Yes”?

We, the Polish Nation – all citizens of the Republic,

Both those who believe in God as the source of truth, justice, good and beauty,

As well as those not sharing such faith but respecting those universal values as arising from other sources

Equal in rights and obligations towards the common good – Poland […]

Obliged to bequeath to future generations all that is valuable from our over one thousand years‘ heritage […]

Hereby establish this Constitution of the Republic of Poland as the basic law for the State, based on respect for freedom and justice, cooperation between the public powers, social dialogue as well as on the principle of subsidiarity in the strengthening the powers of citizens and their communities

We call upon all those who will apply this Constitution for the good of the Third Republic to do so paying respect to the inherent dignity of the person, his or her right to freedom, the obligation of solidarity with others, and respect for these principles as the unshakeable foundation of the Republic of Poland.

Preamble to the Polish Constitution of 1997 (excerpts)

Institutional critical juncture and …

As the Polish government continues to refuse the publication of the judgments of the Constitutional Court (as of writing 10 judgments have not been published, most of these dealing with the fundamental rights of citizens), the issue of legal consequences of a judgment delivered, but unpublished, comes to the fore.

On 26th of April, 2016 the General Assembly of the Polish Supreme Court composed of 85 judges of the Supreme Court and acting to ensure the uniformity of the case law of ordinary and military courts, adopted the following resolution: “in accordance with the article 190 paragraph 2 of the Constitution, judgments of the Constitutional Court shall be immediately published. Unpublished judgment of the Constitutional Court that declare the specified provision to be unconstitutional repeals the presumption of constitutionality on the moment it is pronounced by the Court in the proceedings.

This resolution was adopted on the basis of art. 16 paragraph 1 point 6 of the Statute of 23rd of November 2002 on the Supreme Court which lists the competences of the General Assembly of the Judges of the Supreme Court. Point 6 lists the Court’s competence to “adopt resolutions in matters important to the functioning of the Court”.

The resolution met with the usual ridicule and disdain from the ruling majority. The speaker for the Law and Justice party referred to the General Assembly as the “group of buddies preserving the status quo of the old regime”.

In response to this statement, Supreme Administrative Court decided to speak up, too. The College of the Supreme Administrative Court adopted its own resolution on 27th of April, 2016. The College criticized as inadmissible and outrageous statements by politicians which refer to the General Assembly of the Supreme Court as a „group of buddies„. Preamble to the Polish Constitution and its art. 10 state that the system of government of the Republic of Poland is based in the separation and equilibrium of powers between the legislative, executive and judiciary. Having recalled art. 8 of the Constitution (constitution is the supreme law of the land and is granted direct application), the College called for a respect of the judicial independence in a democratic state ruled by law in which courts and tribunals are separate and independent from other branches of the government and are called on to safeguard the rights and freedoms of the citizens. Judges are subject to the Constitution and statutes only. Supreme Administrative Court reminded that on many occasions Polish administrative courts have approvingly referred to the rich case law of the Constitutional Court. The case law of the administrative courts always accepted the binding and final character of the rulings of the Constitutional Court (art. 190 paragraph 1 of the Constitution). The statute declared unconstitutional was treated as deprived of the presumption of constitutionality and, as a result, courts refused to apply it. At the same time, the College pointed out that the rulings of the Constitutional Court are to be promulgated immediately in the official journal in which the act was initially published (art. 190 paragraph 2 of the Constitution).

Institutional “Great Yes”

Not only humans have their own moments of truth. Institutions do too, and the choices they make at these moments of critical juncture weigh heavily on the legacy of an institution. The poem by C. Cavafis, Che fece il Gran Rifiuto (translated by Edmund Keeley) is important here.

For some people the day comes

when they have to declare the great Yes

or the great No. Its clear at once who has the Yes

ready within him; and saying it,

he goes from honor to honor, strong in his conviction.

He who refuses does not repent. Asked again,

hed still say no. Yet that nothe right no

drags him down all his life.

We must never forget, though, that courts (judges), are not alone. Lawyers and the legal community should always lurk in the background. When two Polish Supreme Courts finally broke their silence, they aligned themselves with other legal professions that have been voicing their concerns over the dismantling of the rule of law and undermining the authority of the Constitution. Taken together, we witness the emergence of the legal complex in Poland. Legal complex stands for a coalition of legal occupations that come together to embed, enable, draft, litigate, implement, oppose, critique, and ally with judges and courts[1]. When the Polish rule of law as we know is crumbling down, there are no comfort zones for lawyers and usual fence-sitting. It is the time of mobilization, speaking in one voice. However, as consequential as this process is, it is not enough to deliver goods in Poland today. Much more is needed: constitutional fidelity which transcends lawyers’ heads and touches people’s hearts.

The Courts have spoken, but how and why does it matter?

Constitutional fidelity is more than a duty and an obligation to observe the text. It should be construed as much more. I agree with J. Balkin that

Fidelity is not simply a matter of correspondence between an idea and a text, or a set of correct procedures for interpretation. It is not simply a matter of proper translation or proper synthesis or even proper political philosophy. Fidelity is not a relationship between a thing and an interpretation of that thing. Fidelity is not about texts; it is about selves. Fidelity is an orientation of a self towards something else, a relation- ship which is mediated through and often disguised by talk of texts, translations, correspondences and political philosophy. Fidelity is an attitude that we have towards something we attempt to understand; it is a discipline of self that is related to the discipline of a larger set of selves in a society. Fidelity is ontological and existential; it shapes us, affects us, has power over us, ennobles us, enslaves us. Fidelity is a form of power exercised over the self by the self and by the social forces that help make the self what it is. As such, fidelity is an equivocal concept, full of both good and bad, mixed inextricably together. Fidelity is the home of commitment, sacrifice, self-identification and patriotism, as well as the home of legitimation, servitude, self-deception and idolatry[2].

This raises important questions for my own understanding of fidelity to the Polish Constitution and the reading of the above resolutions. Fidelity must not be simply a matter of text and following the letter of the law. Being faithful to the document and the institutions it creates is more a state of mind, not mere practice. As such constitutional fidelity has a lot in common with constitutionalism which is not only about the document, but rather about the state of mind, limited government and culture of restraint.

Fidelity can refer to the original meaning of the constitutional document or to its fundamental core or to the text as such, speak to the principles and concepts that are embedded in the Polish constitutional structure and tradition, principles that make up our constitutional identity. Fidelity and its object thus have the potential of explicating who we were, where we came from and where we are headed and finally, strives to grasp in the possible way, who we are today. Each constitutional document has its past, present and future and these three temporal dimensions are linked by the rationale of the underlying principles of values. Principles and values that make up the constitutional identity must be interpreted so as to ensure both the continuity of the messages contained therein and their durability. What is needed is the compromise and equilibrium between necessary change that embraces The New and the stability that caters to The Tradition. The latter enables us to move forward and set our gaze on the future while not forgetting about the past and about the places we come from. In other words constitutional interpretation must be conservative (preserving the values) and reformative (reading these in the light of ever-changing circumstances). Future emerges at the intersection of both dimensions: looking back and staying in the present. Again as argued by Balkin:

Fidelity is a sort of servitude, a servitude that we gladly enter into in order to under- stand the Constitution. To become the faithful servants of the Constitution we must talk and think in terms of it; we must think constitutional thoughts, we must speak a constitutional language. The Constitution becomes the focus of our attention, the prism of our perspective. Our efforts are directed to understanding it-and many other things in society as well-in terms of its clauses, its concepts, its traditions. Through this discipline, this focus, we achieve a sort of tunnel vision: a closing off to other possibilities that would speak in a different language and think in a different way, a closing off to worlds in which the Constitution is only one document among many, worlds in which the Constitution is no great thing, but only a first draft of something much greater and more noble. And to think and talk, and focus our attention on the Constitution, to be faithful to it, and not to some other thing, we must bolt the doors, shut out the lights, block the entrances. Fidelity is servitude indeed. But this servitude is not so much something the Constitution does to us as something we do to ourselves in order to be faithful to it“.

Such understanding of fidelity underscores the aspirational function of the constitutional document. It aspires to reflect “us” in the best, and not perfect, way. It aspires to capture this reflection, and yet it will never achieve this goal in a definite and final way, since “we” change and evolve along with the document. Preamble to the Polish Constitution shows the commitment to which Polish nation aspires, commitments that are anchored in the past, developed and refined in the present and carried over into the future. It means that the Constitution’s commitments have not been yet met. This never-ending meandering between the past and the backward-looking and the future with its forward-looking is a matter of constitutional reflection and politics. Such pacting must be undertaken by each generation which has its own distinctive role to play in spelling out what the constitutional pact mandates today. Constitutional fidelity underpins this process and arises at the interstices of practice, text, interpretation and culture.

The fact that the promise of the Constitution was not fully realized (argument often repeated by the new Polish majority in favour of rejecting the Constitution) must not detract from our Fidelity. Quite to the contrary. It should fuel it and make us try even harder to make these commitments a reality. It is in this sense that the constitutional fidelity is about generational reading of the document. It is not about uncritical iconoclasm. It is about pragmatic recognition that our constitutional allegiances are shaped, reshaped, reexamined as we move forward and as the world around the constitution changes and fluctuates. There is no place for fear of failure, because failure is the part of the fidelity as no Constitution is perfect. Fidelity is about the journey and the process, rather than a boat and final destination. Past must be the key to the future, but not only. After all, constitutions that are meant to last must be understood as documents made for people of fundamentally different views, as Justice Oliver Wendell Holmes rightfully said. Again American constitutional tradition of looking to the past in a constructive way might be used here:

We turn to the past not because the past contains within it all of the answers to our questions, but because it is the repository of our common struggles and common commitments; it offers us invaluable resources as we debate the most important questions of political life, which cannot fully and finally be settled[3].

Each generation should build on the best of the past and move forward with this baggage. After all, this is exactly what the Preamble to the Polish Constitution mandates. This is the kind of fidelity I am talking about and the one that should inform the understanding of the constitutional commitments the judges should owe to the Constitution of 1997.

Polish judges, the Constitution and the weight of the past

All this takes on special importance today when the Constitution is under systemic attack and flouting. The resolutions above offer promising vistas moving forward but right now they are just this: non-binding acts of two Polish Supreme Courts sending important messages on their respective position in the constitutional crisis that has been engulfing Poland for the last 6 months. How these resolutions will translate into the daily practice of lower courts is altogether a different question. Given the historic baggage of Polish judges and their limited understanding of judicial function, the positive reception of the resolutions at the “bottom” of the judicial ladder must not be taken for granted. The weight of the past and old habits might obviate the embrace by the ordinary judges of the resolutions of the supreme courts. The minds of Polish judges continue to be hostage to the belief that the Constitution is a purely declaratory document with no normative content and no role to play in the judicial resolution of disputes. As a result, constitutional document is often relegated to the margins of the judicial practice. All this clouds the positive reception of the above resolutions with the uncertainty. After all, the common thread that runs through the resolutions is making the Constitution supreme law of the land and part and parcel of the daily decision- making process of a lower judge. Supreme Courts have clearly laid down the route to follow. Now, the time for real actions on the ground has arrived. However, at this point, the fidelity of an average judge to the Constitution remains simply unknown.

Constitutional Fidelity and going beyond lawyers‘ heads

To have faith in the Constitution is to have faith in an ongoing set of institutions whose meaning the individual will not be able to control. Most of us participate only in the great mass of public opinion that eventually affects the meaning and direction of the Constitution; our views are like a drop of water in a great ocean. We cannot mold the object of our faith to our will […]„.

As important as institutions are, engaged citizenry has its own fidelity and commitments to live up to. Our fidelity is at its best when people (not only lawyers!) see themselves as being part of the process that the constitution embodies from nation – building through nation- discovery to nation-sustaining and growth. Fidelity is not about logic, but first of all about sense of belonging, emotions, tradition and history. Only combination of these factors is able to define the contours, and, finally, durability of, our fidelity to, the Constitution.

That is why the statements by the supreme courts must be read in the light of more general trend of professing the allegiance to the Constitution and to the Constitutional Court by various quarters of Polish society. “The great mass of public opinion” not only affects the meaning and direction of the Polish Constitution, but also impacts its very survival. Recent weeks saw the biggest mass protests post-1989. In Warsaw 250,000 people were out in the streets and made their voice heard against hijacking of the last 25 years of Polish history. This political mobilization of Polish society must be seen as a reminder of 500-year long Polish history to which the Preamble proudly refers. Our fidelity to the Constitution should be an expression of loyalty to the great moments of our history and the past that is marked by plurality of voices and respect for the Other in the best Polish tradition of openness and tolerance. 1997 Constitution is only part of this tradition. Rule of law, democracy, freedoms and rights, functioning system of judicial protection, constitutional court with a strong record of human rights protection and rule of law, all are built on the tradition of limited government, separation of powers, centrality of the individual and the respect for the self -imposed rules that had been a staple of Polish constitutional narrative and on which Polish Constitution now builds.

Taken together, the statements from Poland’s highest courts and the societal mobilization are first symptoms of a constitutional fidelity in the making. As we continue to discover our fidelity on the fly, present generation of Poles has a special responsibility to balance the past and the future against the present dangers to the very survival of Our Constitutional document that was adopted in 1997 by far greater majority than the one that voted for the current majority in 2015. Make no mistake. Polish democracy and the rule of law A. D. 2016 will not be saved by the European Commission enforcing European values against yet another recalcitrant Government or by lawyers, no matter how many, coming together. The rescue package must come from within or, in other words, from the popular “Great Yes” as the expression of Our Constitutional Fidelity.

[1] T. C. Haliday, Why the Legal Complex is Integral to Theories of Consequential Courts, in D. Kapiszewski, G. Silverstein, R. A. Kagan, (eds.), Consequential Courts. Judicial roles in Global Perspective, (2013), p. 337, 339.

[2] Agreements with hell and other objects of our faith, (1997) 65 Fordham Law Review 1703.

[3] J. M. Balkin, R. B. Siegel, Introduction, in The Constitution in 2020, (2009), p. 4.


SUGGESTED CITATION  Koncewicz, Tomasz Tadeusz: Polish Judiciary and Constitutional Fidelity: beyond the institutional “Great Yes”?, VerfBlog, 2016/6/12, https://verfassungsblog.de/polish-judiciary-and-constitutional-fidelity-beyond-the-institutional-great-yes/, DOI: 10.17176/20160613-125647.

21 Comments

  1. Pole Sa 18 Jun 2016 at 00:13 - Reply

    250.000 people protested ? How about 250.000.000.000.000. Mr.Fairy Tale ?

  2. Another Pole Sa 18 Jun 2016 at 11:55 - Reply

    Agreed. Even Gazeta Wyborcza, a newspaper biased towards the protesters, counted 55K people at most. You should really check your info before publishing…

  3. ex-student Sa 18 Jun 2016 at 12:28 - Reply

    I’m saddened to read and hear that such a bright mind and charismatic teacher is using plain lies and manipulation just to try and reanimate the dead idea. The idea of EU – the one that he blindly support and which is even more utopian than real socialism. I remember your lectures Professor and they were good place to discuss opposing matters but for now i lost all the respect. I wish you fast recover from this madness.

  4. Christian Boulanger Sa 18 Jun 2016 at 15:32 - Reply

    So, poles and ex-students, do you have any interesting arguments to make against the content of this article or is this all?

  5. ex-student Sa 18 Jun 2016 at 17:35 - Reply

    Dear Mr. Christian, it is hard to even start any polemic with this article because it is based on lies and presumptions. How one can argue in such manner?
    But lets see;
    First of all there were no 250k demonstrations in Poland. Even pro-demonstration media admitted those were merely 50k attendees (mostly supporters of parties that recently lost elections and „old order“). Sadly that is manipulation.

    Second, Professor is basicaly saying that democratically elected Government and President should obey constitution (i can agree with that) and Constitutional Court rulings. BUT should they obey Constitutional Court rulings that are biased towards parties that lost elections? It is common knowledge that President of Constitutional Court is not independent in this matter but advocates „old order“. Sovereign power that comes from the voting people in democracy have spoken its mind in elections and parties that lost them should respect that. Instead, they try to manipulate european public with lies that Poland is turning into authoritarian state which is kinda funny but not even close to the truth. There are specific parties that lost their power and they cant accept that fact. Again – sadly Professor is among those who support the „old order“, parties that lost in recent elections and social-euro enthusiastic utopian idea. We here in Poland said clearly that we do not follow the same path and others should respect it. That is democracy even with its flaws. ALSO Law is not an axiomatic value…those are Homeland, Nation, Reason of State and the law should serve them. If it’s not – it SHOULD be changed.

  6. Christian Boulanger Sa 18 Jun 2016 at 18:03 - Reply

    Well, this is argumentative material that we can work with. Thank you.

    First question: who is „We here in Poland“? You mean the 37.5% of the population that voted for PiS? All the Poles I know absolutely disagree with your position, and more than half of Poles think that the government is wrong in its behavior towards the court (as of April 2016). So you can speak for yourself and other supporters of the government, but not for „the poles“.

    And yes, the current government was democratically elected. Nobody is disputing that. But it was elected according to the constitution and is bound by this constitution. Period. If you want to change the constitution, get the supermajority necessary to change it. But PiS doesn’t have that majority, and so its refusal to follow the Tribunal’s decisions is blatantly unconstitutional. All talk of homeland, nation etc is just talk – maybe you feel that way, I respect that, but it is legally irrelevant.

    So if PiS wants to act unconstitutional, it violates its obligations that Poland agreed to when joining the European Union under the Copenhagen Criteria. It is simple as that.

  7. ex-student Sa 18 Jun 2016 at 18:44 - Reply

    I’m glad that we agree on the first part where Professor’s manipulation was mentioned.

    About „We here in Poland“ part: Yes PiS got 37,5% but when you do the math and add other votes that went to political parties opposing „old order“ the result may surprise you (Kukiz15, KORWiN, RN). Also it is hard to state exactly how many poles think that Government is wrong in this case (polls unfortunately are sponsored) but trust me with this – support for this Government and President rose in comparison to the polls taken just after elections and even to the point where PiS is thinking about earlier elections to get supermajority. I can imagine that is not convenient for the „old order“ supporters but thats a fact.
    PiS got majority from electoral law rules NOT the constituion – but yes, they should obey it. POINT IS constitution itself is not clear when it comes to the disputed problem. It is one of many reasons why it should be changed and hopefully will be.

    „All talk of homeland, nation etc is just talk – maybe you feel that way, I respect that, but it is legally irrelevant.“ – Try to read what I wrote about it one more time. You realy think that law should be obeyed „no matter what“? That is authoritarian approach my friend. Also those values are specificaly and clearly mentioned in the preamble and constitution itself – in the very first chapters.

    It is sad to hear that „all your friends“ disagree with my position. It only proves that you lack different approach and other points of view in your surroundings. Maybe try to open right ear for the voice of reason?

    „So if PiS wants to act unconstitutional, it violates its obligations that Poland agreed to when joining the European Union under the Copenhagen Criteria. It is simple as that.“
    Thank God we are not obligated to stay in EU forever. So as an republican I fully support referendum just like one that soon will take place in United Kingdom. EU is just an idea, ideas are aging and tend to be dissapointing over time. Especially when socialist lay their hands on it.

  8. Maximilian Steinbeis Sa 18 Jun 2016 at 19:15 - Reply

    No, my friend, you are not going to get away as easily as that. Please try to remember what Professor Koncewicz has without doubt taught you about what a constitution is about: legally constraining majoritarian power. That PiS was democratically elected to power and Civic Platform democratically ousted is both uncontested and irrelevant. The democratic mandate given by the Polish people, falling short of the 2/3 threshold, does clearly not include the power to change the constitution. Now, enacting a law with the intent and effect to make the Constitutional Tribunal ineffective amounts to a change of the constitution and would therefore require a mandate to change it, since an effective Constitutional Tribunal is a constitutional requirement in Poland, is it not? So, if it does so anyway, their law will be unconstitutional, which is what the Tribunal declared it to be, only to find out that the President refuses to publish the judgment, and the up to now 14 subsequent ones too, which is not only in blatant disobedience to his legal and constitutional obligations but also doing fatal damage to the rule of law in a very direct manner, as nobody knows what ultimately the law is in Poland now.

    Now, all this has been extensively written on here on this blog and elsewhere. You can do away with all that, of course, and call it nonsense and „old system“ and whatever you like, but what you cannot do is claim obedience to your constitution and to the rule of law. Your government has been extremely clear that it choses unmitigated bully politics over respecting its constitutional constraints. Don’t you worry about having to „stay in the EU forever“. With this attitude, I will do all I can to fight for that you won’t.

  9. ex-student Sa 18 Jun 2016 at 19:26 - Reply

    My dear friend, it is spirit of law that matters more than its rule. Maybe someday you will understand it. Takes time but finally hits you.

    Best wishes from independent Poland.

  10. Christian Boulanger Sa 18 Jun 2016 at 19:27 - Reply

    Well, you can agree with yourself on whatever you want. I won’t dispute you since I have no source to rely on, but that doesn’t mean I agree. Whatever, that’s not the interesting part.

    The only way your argument might be convincing is if you can show me that all the parties you mentioned agreed on attacking the constitutional tribunal and altering its review powers in their election platforms. Then PiS would have a democratic mandate for its action, although they still would be unconstitutional. I doubt you can prove that, but go ahead and bring the evidence.

    Actually the constitution is *cristally* clear when it comes to the disputed problem.

    Article 7: The organs of public authority shall function on the basis of, and within the limits of, the law.

    Article 8: The Constitution shall be the supreme law of the Republic of Poland. The provisions of the Constitution shall apply directly, unless the Constitution provides otherwise.

    Article 195: Judges of the Constitutional Tribunal, in the exercise of their office, shall be independent and subject only to the Constitution.

    Yes, actually, in a rule of law state the law has to be obeyed. That is, in fact, what differentiates a constitutional democracy from a dictatorship, where the rulers just do what they want. Democracy is not just the rule of the majority, it is the rule of the majority under the rules of the law.

    You are completely right that Poland has the right to secede from the EU, if people chose to. Then you can be free from the rule of law. I am not sure, though, that this is what your compatriots want.

  11. Christian Boulanger Sa 18 Jun 2016 at 20:03 - Reply

    Oh, dear ex-student, I thought we were having an intellectual discussion, and then you leave! Maybe you know somebody who can defend the PiS position, then please refer him to here. Otherwise people might think that there is nothing to defend.

  12. ex-student Sa 18 Jun 2016 at 20:04 - Reply

    „The only way your argument might be convincing is if you can show me that all the parties you mentioned agreed on attacking the constitutional tribunal and altering its review powers in their election platforms. Then PiS would have a democratic mandate for its action, although they still would be unconstitutional. I doubt you can prove that, but go ahead and bring the evidence. “

    And they did. Both KORWiN and RN are in for new constitution.(you can check their pre-election program)
    Same goes for Kukiz15 and even more since they opt not only for the new constitution but for new electoral law aswell. You can risk a statement that it is matter of time now. Either PiS will agree with Kukiz15 over a new constitution project or they will go for earlier elections to get supermajority.

    As for constitution itself, try going deeper with article 197. Imagine that ruling party does not want to change constitution yet but wants to make necessarily changes in the Constitutional Court (one that prevent possibility of nominating judges by the party that lost people trust just before elections = what Civic Platform actualy did). They do not need to change contitution to achieve that! All that is needed is regular act of law and they did just that. Now where it is not that crystal clear as you mentioned. Constitutional Court would rule about the changes made by that act which makes it totaly irrational. We can agree on the matter that Judges shouldnt judge in their own cases (as far as i remmember that is the basic principle within all law-systems) dont we?

    This is why whole situation is problematic. NOW back to the „spirit of law“ part – what would you prefer – the voice of people represented by the ruling party or minority sitting in Constitutional Court defending their privileges and „old order“? Because that is what it is now, no matter what manipulating media and „respected“ figures try to implicate.

    Have a nice evening.

  13. ex-student Sa 18 Jun 2016 at 20:12 - Reply

    On a side note – Professor Koncewicz was my lecturer but not when it comes to Constitutional Law thankfully (just European Institutional Law) and with all my respect towards him – he is not an authority in that matter to me.

  14. Christian Boulanger Sa 18 Jun 2016 at 20:16 - Reply

    Oh, so you do stay in the debate. I am sorry, I misunderstood.

    „Both KORWiN and RN are in for new constitution.“

    Sure, no problem. Make a new constitution, and get the necessary majority for it. In the meantime, obey the old one, and nobody has a problem. But you still haven’t shown that attacking the court was part of any party’s election platform. So bring more detail.

    „Constitutional Court would rule about the changes made by that act which makes it totaly irrational. We can agree on the matter that Judges shouldnt judge in their own cases (as far as i remmember that is the basic principle within all law-systems) dont we?“

    That’s more like an interesting debate. So where exactly does it say in the Constitution that Judges should not judge in their own cases? If they are bound to uphold the constitution, which the amendments make impossible?

    „The voice of the people“ does not exist. There is a population, that votes for parties, according to their election platforms. The parties that got the most votes form a government. That’s it. People vote for parties for all kind of reasons (for example, promises of social benefits).

    I would agree with you that the situation is problematic and there needs to be a solution. But it must be one that follows correct procedures, and not just the plan of an old man that does not have any formal political position except his seat in the Sejm.

  15. ex-student Sa 18 Jun 2016 at 20:27 - Reply

    Finally we are getting somewhere. It would be very productive if we could discuss over the solution but first you should consider one more thing. Try to read more about that old man and you might be very surprised. For now you seem to lack sense of respect which, I can imagine, was produced by overwhelming propaganda against him. Believe me or not – I’m far from blindly supporting every single decision made by that „old man“ but what that I’m sure of is that he does it for the Homeland. Not for pride, money or to shine like Donald Tusk inbetween other euro-enthusiasts. This is why he deserves that respect.

  16. Christian Boulanger Sa 18 Jun 2016 at 21:13 - Reply

    Of course I have respect for the people who have played a role in bringing down the communist system. It might also be that Kaczyński sincerely believes he is doing this for his homeland. This should not, however, keep me or anyone else from criticizing him if we believe that he is actually hurting his homeland big time. Can we agree on that?

    So anything more on the party platforms concerning the disempowerment of the Tribunal? This is not a rhetorical question, I am really interested.

  17. ex-student Sa 18 Jun 2016 at 21:28 - Reply

    It can be hard to find english version

    KORWiN:
    https://www.partiakorwin.pl/program/

    About new constitution:

    „1.1.5. Obecna Konstytucja gwarantuje utrzymanie bałaganu kompetencyjnego i uniemożliwia naprawę państwa Polskiego. Polska pilnie potrzebuje nowej Konstytucji, by państwo mogło lepiej funkcjonować.“

    About liquidation of Constitutional Court:

    „1.9. Likwidowane organy konstytucyjne

    Zniesieniu uległyby następujące organy konstytucyjne:

    4) Trybunał Konstytucyjny,“

    Also Supreme Court would get Constitutional Court responsibilities.

    RN:
    http://ruchnarodowy.net/program/

    „Koniec z demokracją liberalną
    Nowa konstytucja demokracji narodowej

    Polakom niezbędne jest państwo narodu polskiego. W państwie narodowym gospodarzem jest naród, który sprawuje władzę nie w imię ideologii liberalnej, socjalistycznej czy innej, ale dla realizacji klasycznie pojmowanego dobra wspólnego. Dobro wspólne rozpoznawane jest w świetle prawa naturalnego i w drodze analizy narodowych interesów. Demokracja liberalna ze swej istoty znosi kategorię dobra wspólnego, podważa prawo naturalne i pozostaje ślepa na losy wspólnoty narodu. Czas zerwać ze sztucznie w Polsce szczepioną doktryną liberalno-demokratyczną i odkryć na nowo tradycje narodowego demokratyzmu. Postulujemy nową konstytucję, wyrastającą z najlepszych polskich tradycji, zgodną z zasadami cywilizacji łacińskiej i zabezpieczającą wszechstronną podmiotowość państwa. Sprawiedliwy ład ustrojowy Rzeczypospolitej może zapewnić tylko ustrój mieszany, odległy od oczekiwań ponadnarodowych koterii i zasadniczo różny od demoliberalnych tendencji.“

    In short – new constitution postulate.

    Feel free to ask if you have further questions since i doubt you can find objective information about it on your ground – sadly.

  18. Maximilian Steinbeis So 19 Jun 2016 at 00:16 - Reply

    @Christian: „The only way your argument might be convincing is if you can show me that all the parties you mentioned agreed on attacking the constitutional tribunal and altering its review powers in their election platforms. Then PiS would have a democratic mandate for its action, although they still would be unconstitutional.“
    Sorry, I beg to differ. How does a election platform from any number of parties give PiS a democratic mandate to disregard the constitution? It is ultimately the constitution that defines what exactly the winner of an election is legally entitled to do and what not – in short, that defines the democratic mandate, right?

    @ex-student: „My dear friend, it is spirit of law that matters more than its rule. Maybe someday you will understand it. Takes time but finally hits you.“
    You are trying to tell me that law is a matter of revelation? Now, isn’t that cute. You did study law, though, right?
    No, seriously: Let’s cut out the bickering. Let’s talk law. Do you actually think that the PiS majority could abolish the Constitutional Tribunal without 2/3 of the votes in parliament and along the Art. 235 procedure? And if you don’t, what is your legal argument to defend the constitutionality of the law of Nov 19th?

  19. Maximilian Steinbeis So 19 Jun 2016 at 00:28 - Reply

    @ex-student: please tell us – how many seats did KORWiN and Ruch Narodowny win in the 2015 parliamentary elections?

  20. Christian Boulanger So 19 Jun 2016 at 09:00 - Reply

    Since it is Sunday and there is more to life than constitutional law, I won’t be able to respond before this evening. Just quickly:

    @Max: What I meant was the following. If, and only if, there was a majority of parties that advertised that they would curtail the courts powers, than PiS would have some sort of popular mandate to do what they’re trying to do. That would still not make it constitutional and would still contravene Poland’s obligations under EU rule of law principles. But they would be able to point to a majority backing their claims. However, I dispute that such a mandate exists.

    @ex-Student: I couldn’t google translate your quotes yet, so I cannot respond at this time. However, if all it says that the other parties wanted to change the constitution, that wouldn’t support your point. You have to show specifically that they wanted to curtail the Tribunal’s powers (see above). So if you can provide quotes for that, please? And, as I said, it wouldn’t make anything PiS is currently doing constitutional or legitimate. We’ll continue the conversation. Maybe others can provide more Polish legal and political context in the meantime.

  21. Christian Boulanger So 19 Jun 2016 at 19:19 - Reply

    @ex-student: thank you for the party platform excerpts. So KORWIN (who got 4,76% of the popular vote and no seat in the Sejm) explicitly demanded the abolition. Very interesting!
    Any other party? What about PiS? The „new constitution“ argument is not relevant, because we are not talking about a constitution-making process.

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