In 2023, we should have been celebrating the 41st anniversary of the establishment of Polish Constitutional Court. “Should” is used advisedly here because as is well known Poland no longer has a constitutional court. Undoubtedly, the technical question of how to rebuild the Court is important, yet we should also understand why its rebuild must be the first order of the day after the present dark days of total capture. Central to this is remembering what the captured institution(s) did for us, what it stood for as well as how it mattered to the functioning system of governance. These intangibles make up what I call here “European institutional memory.” I argue, in this respect, that the EU would do well to remember the central role constitutional courts have played in the particular form of constitutionalism that emerged in the aftermath of Europe’s experience with totalitarianism, and the laudable way in which the Polish Constitutional Court took up this task. Against this backdrop, the Court’s destruction should have been the EU’s primary concern from the start of Poland’s rule of law crisis and its rebuilding must remain a non-negotiable condition for Poland’s membership in the European legal order.
The Role of Constitutional Courts in Post-War European Constitutionalism
Europe’s experience with totalitarianism has arguably shaped its understanding of democracy as something more than the symbolic act of casting a vote at the ballot box. Democracy also entails respect for fundamental values and systemic principles like human rights, judicial independence, or minority rights. This fragile European post – war liberal consensus resulted in the European paradigm of „never again constitutionalism.” Trust was to be rediscovered by subjecting domestic political power to supranational checks and balances and conditioning its legitimacy on the continuous adherence to the core values of liberalism, values that transcend the desires of the moment. Human rights and institutions (in particular, courts) were given a special place in this system of supranational governance. Indeed, the member states of the First Communities (today the Union) themselves have recognized that human rights would be best protected by establishing four complementary safeguards: i) trust in the binding power of the law of integration that would commit the states to the common discipline; ii) the rule of law and the constitution as the supreme law of the land binding both elected officials/the holders of political power and the people iii) the establishment of independent constitutional courts to safeguard this framework; iv). mechanisms of supranational and international control whereby self-governing and sovereign states would hold each other to account according to principles of human rights, guarantees of democracy and openness to the world.
The role of constitutional courts and their unprecedented rise in the post-war era must be read and understood against this broader axiological context. The task of every constitutional court was to effectively protect the constitutional rights and freedoms of citizens and to strategically remind the ruling majorities of the limits they cannot cross in pursuit of their political agenda. The transient element of majoritarian politics and the irresistible pull towards “my way or the highway” are never too far away from the minds of an average politician. As such, the idea of the “rule of law” and the culture of constraint must be present in-between the election cycles to anchor the system amongst the momentary impulses of majoritarian politics. It is to this end that constitutional courts came to play, with variable success, a safeguarding and anchoring function alongside the supranational oversight post 1945.
Poland as a Case Study
Crucially, these were also the dreams and aspirations that drove the new democracies of Eastern Europe in 1989. In particular, the rule of law featured prominently in 1989 as one of the organizational paradigms of the reborn democratic Poland. Poles looked at the rule of law and European Communities as a gentle civilizer of the preceding lawlessness and as a check on unlimited state power, both hallmarks of prior communist rule. Yet, given the lack of liberal foundations in Poland, the process of absorbing the rule of law standards was anything but straightforward. It was thus the Polish Constitution Court that played a special role in bringing the rule of law standards to the surface and in holding the state authorities accountable. The period of 1989-1997 has been rightly considered as the most activist in the history of the Polish Constitutional Court, as it embarked on giving flesh to a vague and imprecise principles, while at the same time expressing the new axiology of the state. Confronted with the lack of a constitutional text (the new Constitution was not adopted until 1997), the Court itself had to reconstruct a “judicial constitution” that would reflect the new realities and minimize the lack of a constitutional text. There was simply no other option as the cases were coming in and had to be resolved in the best possible way. The Court was thus instrumental in spelling out some of the most paradigmatic principles that has underpinned the legal system of Poland after 1989. First, the principle of the preponderance of the Constitution (“constitution as the supreme law of the land”) and the Court’s power to exercise judicial review as a necessary procedural safeguard of this principle. Second, the exclusivity of the statute in regulating and defining the status of an individual. This is a direct response to the practice prevalent under the communist regime whereby citizens’ rights and obligations were governed by executive decrees. Third, all governmental action must remain executive in character and aimed at implementing statutes. In this way, the Court played a fundamental role in laying down Poland’s constitutional foundations and aligned them with the above -sketched basic paradigms of the post war European constitutional settlement. After 1997 the Court not only built on all this but also took upon itself to read 1997 in the light of impending Accession to the European Union.
How Doing Nothing Kills the Promise of European Institutional Memory
Against this backdrop, the EU’s inaction in light of the destruction of the Polish Constitutional Court is particularly shameful. All we got was the diplomacy of indignation, letters of concern from the European Commission and appeals for more good – faith dialogue. Moving forward, such a naivete and dereliction of the duties under the Treaties must not be repeated. The destruction of the Court and now the usurpers’ hostile interpretations amounting to a factual POLEXIT should have been always on top of the Commission’s list of non – negotiable things to be remedied by Polish government. Yet, it took the Commission 6 long years to finally understand how the captured constitutional court and weaponized judicial review in any member state become an authoritarians’ best and handy ally in their crusade against the very legal foundations of the Union. Political justice has struck this time at the core of EU law … And yet despite all this the Commission seems to be still willing to listen to Polish government’s dishonest attempts to have the European funds released, while the latter at the same time takes full advantage of the tool of oppression that judicial review in Poland has become. Letting this government off the hook again after all it has done to the rule of law in Poland, would make the lofty and powerful rhetoric behind “never again” rings hollow.
Poland’s Crisis as a Litmus Test for the EU
In 2023, the European public (and for that matter Polish citizens as well) and the decision- makers must never forget about the Court and the role it has played in shaping the rule of law post-1989. This civic memory (domestic and supranational) plays a key role in any attempt to rebuild constitutional review in Poland. Unfortunately, the passage of time and the ephemerality of human memory are not on our side. As life goes by, we tend to domesticate the illegality and accept it as business as usual. What has been clearly unconstitutional yesterday becomes with time hazy, encased in nuances, caveats, etc. understood only by lawyers. At the end of the day nobody remembers and comprehends how the initial illegality has happened and how it has tainted the legal system. Indeed, it might be the case that today only few citizens remember what has really happened to the Polish Constitutional Court. This destructive collective oblivion and indifference of ours allows the current government to triumph. Therefore, repeating and explaining what should be the lawful state of affairs and what we have lost in the Court are the least we can do to make sure that the lawlessness will not become our new way of life.
By now the lessons of the capture should have taught us that the independent and legitimate institutions come and go in the blink of an eye. We must not let the hostile takeovers of institutions be accompanied by civic oblivion and indifference. In 2023, such remembering takes on a truly existential dimension for the future of “an ever – closer Union among the peoples of Europe”. You cannot be serious about the rule of law in Poland and Europe without putting the future of Poland’s Constitutional Court firmly on the European agenda. There is no point in having a Disciplinary Chamber of the Supreme Court “reformed” while the hostile and unconstitutional body that once was the Court is still in place and thrives. The European funds must remain frozen in spite of the dishonest reform of the Supreme Court, as long as there is no unconditional restoration of the Court’s judicial review powers. Without standing firm on these points, the Commission subverts the aims of Europe’s “never again constitutionalism.” If the European Union of Law and Values (on this also here) is to stand for anything at all, it must remember and never forget what it was born out of, and the role constitutional courts have played in preventing it from occurring again.
As such, the message sent to the Polish government (and to any like – minded would – be offender(s)) must be unequivocal: Only if you respect the independence of your constitutional court can you belong to our supranational community of law. The Polish example shows that there can be no middle ground here both for historical and axiological circumstances of the European project. Commissioners Jourova, Reynders and others must consider this before engaging in a new round of allegedly good faith dialogues and negotiations with the Polish arsonists and before adopting yet another set of futile and detached from reality recommendations and advice.