Russia’s Meddling in the EU Demands Urgent Attention
21 February 2024
Poland’s new government has taken steps to re-establish the rule of law but is meeting resistance from President Andrzej Duda and the politically captured parts of the judiciary, especially the Constitutional Tribunal, packed with politicians affiliated with the opposition Law and Justice Party.
As a political compromise with the president seems elusive, the stand-off threatens to push Poland into a deadlock, fuelling a narrative that the country may slip into an ungovernable “dual legal system”, where political decision-makers, state institutions and law enforcement would arbitrarily decide which court verdicts and rulings to obey.
Visegrad Insight has invited a panel of distinguished constitutional and governance opinion leaders to offer their views on how serious the argument is that Poland has a dual legal system.
In short, the argument about the dual legal system is not serious.
The judicial bodies controlled by the former ruling coalition have not just been politically captured; they have ceased to be judicial bodies. For instance, it is not only wrong but irresponsible to refer to the body masquerading as Poland’s Constitutional Tribunal as the country’s “top court” when it has been legally established that this body is irregularly composed and “infected with illegality“.
Similarly, the European Court of Human Rights (ECtHR) and Polish courts have established that every judicial appointment made since 2018 is inherently defective due to the involvement of an unconstitutional body, the subjugated National Council of the Judiciary.
This means that every individual appointed by the Polish President to every Polish court of last resort cannot lawfully adjudicate due to the grossly irregular nature of their appointments. In this context, it is worth stressing that the Polish President is the only head of state to have been found to have acted in blatant defiance of the rule of law by both the ECtHR and the CJEU.
In short, there is no dual legal system in Poland. There are lawful courts and judges facing illegal obstructionism from a number of individuals masquerading as judges and bodies masquerading as courts. To speak of a dual system is to irresponsibly normalise gross illegality.
In my opinion, this is a false argument. There is no “dual legal system”. There is lawlessness inherited from the previous government and the rule of law, which needs to be restored in Poland.
During the last eight years, almost all legal and democratic institutions in the Polish constitutional system, including the main courts and tribunals, were captured politically in a violent breach of the Polish Constitution and the EU Treaties. It was a core idea of the autocratic political project run by a party ironically called … Law and Justice.
Its aim was obvious – to gain absolute control over the Polish legal system and society as a whole and put the ruling party officials above the law. This coup d’etat failed largely thanks to judicial resistance in various forms as well as civic resistance expressed in numerous demonstrations in defence of the Constitution.
But eight years of pursuing an unconstitutional, authoritarian project left Poland with a real legal minefield. “De-mining” the Polish legal system is difficult but not impossible.
We have a road map resulting from numerous, consistent and precedent verdicts of the European Court of Human Rights and the EU Court of Justice (CJEU), which result from preliminary inquiries filed by Polish judges resisting what they perceived as breaches of national and EU law, as well as the EU Commission’s infringement cases against Poland.
Those judgements are part of the Polish legal system according to our Constitution. Their legal strength is higher than the authorisation of unconstitutional regulations. Those judgements serve us as the proverbial thread of Ariadne, leading us out of the labyrinth. We need to be innovative and courageous, but we will succeed.
We are dealing with legal dualism in Poland, although some argue that we are dealing with law and lawlessness. This is correct in terms of values and the compliance of laws with the Polish Constitution or international standards. But such a narrative is hardly practical.
The fact is that daily problems are hitting both the world of politics and individual citizens. A good example is the way the case of Mariusz Kaminski and Maciej Wąsik [ex-ministers sentenced for abuses of power] was handled – contradictory decisions on their parliamentary mandates were made by two different chambers of the same Supreme Court.
Specific decisions are also taken by the Constitutional Tribunal, which, according to many – including the government – has no legitimacy to do so. Nevertheless, some people recognise these decisions as binding.
In addition to this, the conflict around the national prosecutor’s office has arisen, and nothing is certain. It is difficult to speak of the stability of law in Poland. We can even speak of a dualism of governments. It is no secret that Jarosław Kaczyński, leader of the opposition Law and Justice, influences the Constitutional Tribunal and some prosecutors and judges all the time.
At the same time, the government has great difficulty in restoring the status quo ante. With a president who has announced the contestation of all laws passed by the parliament, Prime Minister Donald Tusk simply has to act on the edge of legality. Which in turn is closely watched by the European Commission.
Such a situation represents a huge risk for Poland and the EU itself. If this were to continue for many months or years, Poland would be plunged into internal disputes and the instability of the legal environment, which in turn could affect investment.
Not insignificant is the reaction of the European Commission, which may withhold funds. We will certainly be able to say goodbye to dreams of having more influence on EU policy. We will not be seen as a reliable partner.
Poland symbolises the herculean task of re-democratising one country after years of autocratic rule.
The present stand-off between Prime Minister Tusk and President Duda only represents the tip of an iceberg of the ongoing re-establishment of the rule of law in Poland, with many more levels of government experiencing the co-existence of the old and new power.
As Antonio Gramsci famously depicted, the crisis lies precisely in the fact that the old is dying and the new cannot be born; in this interregnum, a great variety of morbid symptoms appear.
Paradoxically, the electoral victory by the opposition is only making that crisis more evident today. To get better, it will have to become worse.
This is because to re-establish the rule of law is not a risk-free endeavour, as this inevitably entails testing the outer boundaries of the legal system with significant political consequences.
To free Poland from the legacy of the past regime it will take not only time but also society experiencing unprecedented levels of polarisation. For this, the Polish government will need both legal bravery and political survival.
There are no two legal orders in Poland. There are also no two laws of gravity or two currency systems in the country.
The constitutional system in Poland had been subjected to regular dismantling, almost devastation, in recent years. At the same time, it was ignored that the Polish legal order is part of the legal system of the European Union.
European tribunals had to remind those in power about the defects of their actions, such as subordinating the Constitutional Tribunal to political power or transforming the National Council of the Judiciary. To no avail.
The Poles have a tradition of being pioneers on a European scale. Over the last five decades, we managed to establish a powerful independent trade union under communism, achieve a peaceful transfer of power, and join the European Union.
The current government, elected with record voter turnout, has very strong legitimacy. Expectations that it will implement change are equally strong. Therefore, which may worry legalists, the authorities want to act effectively.
The Polish government is once again faced with a pioneering dilemma: “Can the rule of law be restored by means that are not entirely lawful?” A lawyer will not give a clear answer to such a question.
The government’s actions so far (including the takeover of public television and changes in the national prosecutor’s office) will end up in the courts. That is why their independence is so important.
The entire European Union should draw conclusions from the Polish lesson. First of all, we focus on expanding the narrative about the rule of law. Article 2 of the treaty is intended to be alive and well-known by citizens and governments alike.
Poland suffered a serious democratic deterioration under the Law and Justice rule. The V-Dem report placed Poland ahead of Hungary and Turkey ahead of Hungary, Turkey and full-fledged autocracies in terms of their speed of autocratisation in 2021.
Therefore, the new government has clear constitutional obligations to get Poland out of the constitutional and statutory trap that was created by the [PiS leader Jarosław] Kaczyński regime. This means that public authorities are obliged to find ways and methods that will lead to the restoration of the rule of law.
The Tusk government is at the very beginning of this process, and the former political elite and their nomenclature are clinging to their positions. That leads to this difficult situation that I would not call legal dualism but a transitional condition from a semi-consolidated democracy into a re-established democracy.
The new government uses the instruments at its disposal in the applicable legal order. It uses methods that are supposed to lead to the intended result, i.e. ending the pathology at state institutions and restoring the constitutional rule of law. In my opinion, laws passed by the Kaczynski regime cannot be an obstacle to restoring the constitutional order that was overturned as a result of the unconstitutional actions.
There is no dual legal system in Poland. Rather there is one legal system and one illegal system. The illegal system is comprised of the political lackeys illegally appointed by Law and Justice (PiS) in its effort to establish party political control over the judiciary.
These people are not legal judges, and the bodies they dominate – like the Constitutional Tribunal – are not courts under EU law, ECHR law, or Polish constitutional law.
To be sure, the new Polish government faces a major challenge in restoring the rule of law given the ongoing effort of President Andrzej Duda, a PiS loyalist, to block the restoration of judicial independence in Poland.
But the Polish government and Justice Minister Adam Bodnar must persist and take all possible measures to oust illegally appointed “judges” and to circumvent Duda’s nefarious strategies to maintain PiS’ stranglehold on Poland even after its defeat at the ballot box. Of course, PiS partisans will cry foul, but their cynical complaints should be ignored.
We have cohabitation under specific systemic conditions: after eight years of deliberate destruction of previously achieved democratic standards by the previous PiS government and its supporters. It is desirable and necessary to sort out the systemic situation and end the discussion on “legal dualism”.This discussion is a consequence of the attempts by PiS to permanently put state institutions under party control, with the active involvement of President Andrzej Duda. The new government, which wants to restore the rule of law standards, is facing hurdles and traps set up by the previous one.
I disagree with the idea of “legal dualism” because changes implemented by PiS regarding judicial independence and media freedom were not conforming to the constitutional standards and standards of the European Union law and European Convention on Human Rights as confirmed in numerous judgements of the EU Court of Justice and the European Court of Human Rights.
PiS captured and hijacked the Constitutional Tribunal in 2016, and independent centralized constitutional review of these changes was impossible. That’s why Polish citizens reached out to European tribunals to ask for an assessment of these changes: Polish judges were asking preliminary reference questions to CJEU, and regular citizens and companies lodged applications to the European Court of Human Rights requesting it to assess if the Polish state breached their human rights. People in Poland should no longer be worried about constitutional issues when they go to court.
They also should have trust in independent institutions checking on the legislation passed by the governing majority. That’s why reforming the judiciary and regulating the situation concerning the Constitutional Tribunal, in line with CJEU and ECthR judgment, is of utmost importance.
*This survey was updated on 9.2.2024 to include Anna Wójcik’s opinion.
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