Lunch seminar with Miroslaw Granat

The Crisis of the Constitutional Judiciary? The Polish Case

Abstract:

After the fall of the communist regime in 1989, Poland underwent a successful democratic transformation. It seems that there are two ‘anchors’ of the democratic system of Poland. The first one is a 20-year-old constitution (the 1997 Constitution). The other one is Poland’s membership in the European Union. These pillars of democracy in Poland were undermined after 2015.

In 2015, after the presidential and parliamentary elections, some politicians began to question the fundamental role of the Constitutional Tribunal in upholding the principle of constitutionalism. They emphasized the role of the parliament and the sovereign (the nation) as subjects deciding on the shape of the legal system.

Is the ongoing crisis just a temporary problem of the Polish constitutional judiciary, or is it a symptom of more profound processes taking place in Central Europe? The Constitutional Tribunal has been deciding less cases and issuing less judgements. However, a greater issue is the change of Polish constitutionalism and the Constitutional Tribunal is the victim of this change. The politicians underline that the nation and the parliament expressing the will of the nation are the most important subjects. Thus, constitutionality of law can be reviewed in a different way. Namely, the parliament itself can decide on constitutionality of statutes by conducting their preselection. In such a case, the Constitutional Tribunal is no longer a point of reference for deciding on constitutionality of law.

How does constitutional law, especially the theory of constitutional review, reflect the changes in the position of the Constitutional Tribunal? In my view three changes are evident: 1) change in the understanding of ‘compatibility of law with the Constitution’, 2) acts that are clearly unconstitutional are in force and no one questions that (eg the Law on the Supreme Court and on the National Council of the Judiciary), 3) change in the understanding of constitutional identity of the 1997 constitution.

All interested are welcome to attend. Registration is not necessary.