After 1989 Poland struggled to build up a free state based on the rule of law. More recently, illiberal constitutionalism has been damaging these hard-won gains. This blogpost will argue that the systematic dismantling of Poland’s rule of law, without officially amending the Constitution, was possible due to a peculiar interpretative technique called spotlight interpretation. Its essence lies in the opportunistic interpretation of systemically important constitutional provisions to achieve the short-term political goals of the ruling majority, and it has arguably been central to the destruction of judicial independence in Poland’s constitutional order.
Constitutional Interpretation in Poland
The significance of methods of constitutional interpretation in Poland results mainly from the fact that introducing formal amendments to the 1997 Constitution of Poland is very difficult. As the constitutional amendment procedure laid out in Article 235 requires a high majority, formal constitutional amendments have been nearly impossible. While Article 235 is often taken to “fully explain” the issue of amendments, modifications of the Constitution are not limited to formal amendments but can also occur through methods of constitutional interpretation.
Before 2016, the Constitutional Tribunal was the body tasked with the interpretation of constitutional provisions, according to its competences defined in Article 188 of the Constitution. However, the dismantling of the Constitutional Tribunal (W. Sadurski, Demokracja na czarną godzinę, Cracow – Budapest – Syracuse 2022, Chapter IX), paved the way for the emergence of what I refer to as the practice of spotlight interpretation of the Constitution, a form of abusive constitutional interpretation that utilizes the linguistic method of legal interpretation to serve populist ends and is marked by its anti-systemic character.
A Few Examples
The first symptom of the “revolution” in constitutional interpretation was a stunning interpretation of the constitutional provisions concerning the Constitutional Tribunal itself, following the elections of October 2015. According to Article 190(1) of the Constitution, “judgments of the Constitutional Tribunal shall be of universally binding application and shall be final”, while Article 190(2) requires the Prime Minister to publish its judgments immediately. Both of these provisions were reinterpreted to enable the government to control the judgments of the Constitutional Tribunal.
Thus, a new interpretation of the former provision, sometimes picturesquely described as “the interpretation on the stairs” (because it was announced on the stairs of the Constitutional Tribunal building), stated that the judgments of the Constitutional Tribunal are not always valid and final, because the Constitution does not specify what the finality of judgments means and how it should be understood (Orzeczenia TK nie zawsze są ostateczne – rp.pl, accessed: 16.03.2023). Meanwhile, the latter provision was interpreted to legalize the government’s supposed right to review the judgments of the Tribunal. Specifically, it suggested that the Prime Minister must ensure that the text submitted for publication meets the legal requirements of a ruling and that it does not contain errors which affect the substance of the judgment. Consequently, publishing the judgments of the Constitutional Tribunal is not a simple technical activity of transferring a text received from the President of the Constitutional Tribunal to a publishing body (Przegląd Sejmowy 2016, no. 3, p. 99). Instead, this interpretation was upheld by the government until the end of 2016, i.e. until all judicial positions in the Tribunal were packed with government loyalists. Therefore, spotlight interpretation was used in 2015-2016 in order to take over the control over the Constitutional Tribunal by the government.
Another example of the use of spotlight interpretation can be seen in the act of December 8, 2017 regarding the provisions concerning the National Council of the Judiciary. The Council plays an extremely important role as it safeguards the independence of the courts and judges (Article 186(1) of the Constitution). In particular, it nominates candidates for judges of common courts, who are then appointed by the President. Its impartiality is therefore crucial. Article 187 of the Constitution stipulates that the Council consists of 25 persons (15 judges and 10 other members), with a mixed composition with representatives from all three branches of government. The majority are representatives of the judiciary, who until 2017 were elected by judges themselves. Article 187 also states that the role of the Sejm – a chamber of Poland’s bicameral Parliament – is limited to electing 4 deputies (the Senate elects 2 senators, the President appoints 1 person).
However, the parliamentary majority interpreted Article 187 so that since 2017 all 15 judges have been elected by the Sejm, and not by other judges as is constitutionally mandated. This abrogated a 30 year-long constitutional precedent that each branch only elect representatives of their own branch to the Council. It also unlawfully shortened the constitutional term of office of the elected members of the Council to 4 years.
In 2022, the newly constituted Supreme Court, in one of its rulings concerning this interpretation, stated that the National Council of the Judiciary formed in accordance with the provisions of the 2017 law “is not identical to a constitutional body whose composition and method of selection is regulated by the Constitution of Poland, in particular by Article 187(1)”. It further noted that the appointment procedure for judges to the Council predated the 1997 Constitution. It had been agreed upon in the 1989 Round Table Agreements and it was preserved in the successive laws on the National Council of the Judiciary, so that “it was clear to everyone” that the members in question were selected by the judicial community. There are no reasons to assume that the composition and the method of selection of the National Council of the Judiciary were shaped in the Constitution in a different way than it resulted from the previous construction of this body over nearly 30 years (Resolution of the Supreme Court of 2 June 2022, I KZP, OSNK 2022/6/22, LEX no. 3348360). As a result, the Supreme Court rejected the new interpretation of Article 187. However, its position was ignored by the Sejm who continues to elect judges to the Council.
Features of Spotlight Interpretation and its Significance
These examples illustrate the characteristic features of spotlight interpretation. The first one is its anti-systemic character in that it contradicts the long-term and entrenched understanding of a provision and its practical application. On the other hand, supporters of spotlight interpretation claim that in the case of the composition of the National Council of the Judiciary, because “the Constitution does not prohibit the Sejm from electing judges”, the Sejm is entitled to carry out such an election. I have no doubts that a systemic approach should be the key feature of constitutional interpretation. It means that a provision is interpreted with reference to other provisions and that the mutual connections and dependencies between them are taken into account. Spotlight constitutional interpretation has destroyed the previous interpretation of Article 187, according to which the election of the judicial members of the National Council of the Judiciary is not carried out by political bodies. This allowed the legislator to restructure the composition of the Council, which resulted in “an inherent lack of independence of this body and irreversible contamination of the entire process of appointing judges” (resolution of the Supreme Court).
Another feature of spotlight interpretation consists in prioritizing the linguistic method of interpretation over teleological and functional methods. Linguistic interpretation does not have its usual legal meaning here, but consists in highlighting the ambiguity of words in everyday language (e.g. “finality”). While the linguistic method is indispensable in the interpretation of law, it must be supplemented by other methods to avoid its abusive use. Numerous examples of abusing the linguistic method of interpretation could be given. For example, in March 2020, during the SARS-CoV-2 epidemic, the government made a surprising interpretation of Article 232 of the Constitution (which defines the conditions for introducing a state of natural disaster by the government), based solely on the linguistic method. The government interpreted this provision to justify refraining from introducing a state of natural disaster which would have barred the government from carrying out the scheduled presidential elections. Eventually, the government did not introduce any extraordinary measures and the presidential elections were held.
The linguistic method of interpretation has also allowed populists to cherry-pick from other legal systems to support their position. For example, one of the arguments offered within the context of the interpretation of Article 187 says that the same solution is present in the Constitution of Spain (as regards the composition of the General Council of the Judiciary) or that in Australia and Canada judges of the highest courts are appointed by the Prime Minister, who acts independently in this regard. While this is true, these solutions are grounded in the laws of these countries. This illustrates the utility of spotlight interpretation, which “enables” the interpreter to freely select solutions from other legal systems: on the one hand, legal acts are passed that implement a certain interpretation, and on the other hand, the government cherry-picks comparative examples that support their interpretation.
The third feature of spotlight constitutional interpretation is related to its subject matter. Thus, it is deployed vis-à-vis particularly important provisions, i.e. those that define the “critical infrastructure” of the judiciary or the state system. For example, the interpretation of Article 187 served to undermine the independence of the courts, the interpretation of Article 190 served to incapacitate the Constitutional Tribunal, and the interpretation of Article 232 was used in order to avoid the introduction of extraordinary measures. These interpretations paved the way for the adoption of laws which were burdened with serious allegations of unconstitutionality, e.g. the law on the National Council of the Judiciary or the so-called remedy laws on the Constitutional Tribunal in the years 2015-2016.
Finally, spotlight constitutional interpretation because it is limited to the linguistic method, gives rise to interpretative confusion. This is convenient for the government. It obscures the picture of the key provisions of the constitution and spreads a sort of interpretative “fog”, which means that “all interpretations” of a given constitutional provision are possible or “come into play”. For example, the judgments of the Constitutional Tribunal may be final, but they may also be non-final. In this way, both the shamelessness of these interpretations as well as violations of the constitution by the legislator are “covered up”. All in all, however, the results of these interpretations, even though they clearly violate the constitution, become acceptable interpretations of a given provision.
Spotlight constitutional interpretation has been a useful tool for proponents of illiberal constitutionalism by introducing changes that are not formally possible through ordinary amendment procedures. It operates as a form of “precision ammunition” by targeting sensitive spots in the Constitution that slowly create an avalanche of consequences that paralyze the legal system. One example of this is the creation of the so-called understudy judges in the Constitutional Tribunal or the new National Council of the Judiciary and its neo-judges. It introduces anarchy in constitutional interpretation and paves the way for a sham rule of law. As such, even though spotlight interpretation is only applied selectively, its effects are destructive for the legal system as a whole.