Constitutionalism in Poland

We analyse how constitutionally conforming interpretation (‘CCI‘) is understood in the Polish theory of legal interpretation and how it is applied by the Polish courts. Moreover, given that Poland has been in a state of turbulent constitutional crisis in recent years, we show how CCI evolved into a tool for defending the rule of law against the onslaught of the executive and legislative branches. This is partly achieved by analysing the altered perception of CCI within legal academia since the Law and Justice party came to power in 2015, and in particular, the tendency to use CCI as a tool to decentralise constitutional review and circumvent a subjugated and submissive Constitutional Tribunal. We also attempt to determine whether this change in perception has influenced the decisions of the courts. This last aim is realized by a quantitative analysis of Polish case law that scans the linguistic corpus of court decisions and by measuring the frequency with which judges employ CCI.

A characteristic feature of the rule of law crisis in Poland is that laws have been enacted which impart to lawlessness the form of binding legislation and which blur the distinction between a legal order and disorder. In the process, actions violating the Constitution, particularly the judicial make-up, have been accorded constitutional guarantees. Thus, a subsequent removal of these changes might be questioned as unconstitutional. It is therefore imperative to consider the question of whether the Constitution begets the right to violate guarantees contained therein with a view to defending the Constitution. The goal is to determine if there exist such constitutional values that would allow equating practices which invoke the Constitution with actual violations of the Constitution. The paper attempts to identify the premises and limits to citing a state of constitutional necessity for the purpose of removing the consequences of constitutional crisis and restoring the rule of law.

Polish Constitutional Tribunal (CT) legitimacy is examined in context of constitutional crisis of 2015-16 that ended up with it's hollowing-out. The unique dataset composed of the individual data collected during three waves of representative, nationwide surveys (2004, 2007 and 2016) had been complied, and answers aggregated using PCA to form legitimacy scales. On top of that, questions related directly to the 2016 crisis had been examined to gauge how CT legitimacy affected crisis perception. It turns out that (i) as political polarization grows, individual characteristics became less and less relevant as partisanship crowds out nuances (ii) charismatic leader can effectively erode CT legitimacy among his followers (iii) link between CT legitimacy and the attitudes towards the crisis is significant, but far from perfect. Such ambiguity can explain why people sincerely holding specific values are nevertheless keen to turn blind eye on their fellow partisans, threatening those values.