Istnieją różne metafory, którymi można opisać państwo polskie w formie, w jakiej wyłoniło się ono z rządów PiS w latach 2015-2023. Jednym z nich jest „pole minowe”. Inny może odnosić się do „pułapek” lub „zasadzek”. Najpopularniejszym słowem w języku polskim jest przymiotnik „zabetonowany„, który tłumaczy się [po angielsku] jako „zabetonowany„, ale być może lepiej brzmi „scementowany” lub „stwardniały”. Wszystkie one mają na celu uchwycenie sytuacji w Polsce, w której zmiana władzy nie jest regularnym przejściem z jednego rządu do drugiego. Dzieje się to raczej w sytuacji głębokiego zakorzenienia – w dużej mierze za pomocą środków ustawowych, ale niezbyt podatnych na łatwe zmiany ustawowe – resztek ancien régime’u – pisze prof. Wojciech Sadurski w opublikowanym w Verfassungsblog.de obszernym komentarzu w języku angielskim.
Hercules or Sisyphus? On the legacy of statutory lawlessness in post-autocratic Poland
A letter from Princeton
There are various metaphors which can be used to describe the Polish state as it has emerged from Law and Justice party (PiS) rule 2015-2023. One is “minefield”. Another may refer to “traps” or “ambushes”. The most popular word, in Polish, is the adjective “zabetonowany” which translates as “concreted” but perhaps “cemented” or “hardened” sound better. They all are meant to capture the situation in Poland in which alternation of power is not a regular transition from one government to another. Rather, it occurs in a situation of deep entrenchment – largely by statutory means, but not open to easy statutory changes – of the remnants of the ancien régime.
In turn, the tasks that the new government, presided over by Donald Tusk faces, evoke familiar figures of Greek mythology. A heroic-positive prefiguration of Hercules performing his fifth labor: cleaning up the Augean stables. A dispirited and pessimistic analogy would be to Sisyphus. Either way, it’s a hard job, so spare a thought for the indefatigable Minister of Justice, Adam Bodnar, and take your pick.
Three types of traps
The Polish transition is unlike any regular transfer of power within democratic rules of alternation after regular elections. It is not an instance of “transitional constitutionalism”, as in post-communist and other post-authoritarian regime changes. It is not the latter because the challenge is not to “invent” a new system replacing the bad old regime. But neither is it the former (regular transfer of power) because of the “minefield”, “traps” or – to put it more legally – various entrenchments of remnants of the authoritarian period: remnants which disable the new government from effective reforms within the existing constitutional framework.
Those entrenchments have been established by statutes – PiS had not enjoyed, in contrast to Orban’s Fidesz in Hungary, a supermajority which would allow it to change the text of the Constitution. But with PiS’s anointed President Andrzej Duda, in office until late 2025 (the end of his second term, with no right to seek reelection), having the power to veto statutes, those statutory “traps” are de facto entrenched with near-constitutional force. The Presidential vetoes of statutes are overridable by a supermajority which the democratic coalition currently does not have. In addition, the President and parliamentarians of PiS may use the “Constitutional Tribunal” (inverted comas deliberate, for reasons explained below) which, staffed entirely with PiS nominees, will invalidate any statute the PiS minority in Parliament does not like.
The “landmines” are multiple and basically infect (to change the metaphor) almost every important aspect of the governance of Poland. To simplify, I will divide them into three categories, though I should warn that the taxonomy is far from comprehensive, and characterization of any given “trap” as one or another category is arbitrary: each can be represented as, at the same time, “institutional”, “personnel” or “procedural”. But such a classification may clarify the picture. In order to save space, I will provide only one representative example for each category, but with the provison that they are a legion:
- Institutional traps. The central body of the system of justice, the National Council of Judiciary (Polish acronym: KRS), crucial in all decisions concerning appointments, promotions, demotions and discharges of judges, was restructured in 2017 so as to guarantee the PiS majority exclusive control over 23 out of 25 members of the Council. With a term of office statutorily guaranteed until 2026, the KRS (or, as its critics call it, neo-KRS) can keep maintaining the PiS-established erosion of judicial independence by resisting any attempts to undo any nominations and appointments for PiS loyalists in the judiciary.
- Procedural traps. The second-most important official in the public prosecution system (the first being the Prosecutor General, ex officio the Minister of Justice) is the National Prosecutor (Prokurator Krajowy). Under a PiS-enacted statute of 2016 the National Prosecutor is appointed by the Prime Minister on the recommendation of the Minister of Justice/Prosecutor General, and with consideration of the (non-binding) opinion of the President. However, President Duda maintains, consideration of his opinion is a prerequisite for a valid appointment, and abstains from issuing any opinion.
- Personnel traps. Court-packing of the top courts, mainly in the Constitutional Tribunal and the Supreme Court (and, to a lesser degree, the National Administrative Court), is the clearest example of this type of landmine. With judicial appointments notoriously difficult to revoke (as they normally should be), these apex courts have been “cemented” or “concreted” with PiS loyalists. They now include 100 percent of the membership of the constitutional court and just over 50 percent of the supreme court.
Remember: these are just single representative instances of legal landmines: the field is full of them. Taken together, they render the position of the new government particularly unpalatable. To respect the laws promulgated by the old government establishing these traps would make any significant steps forward virtually impossible. To ignore them, exposes the government to the predictable objection that it engages in the same rule of law violations as the currently ruling politicians accused their predecessors of, in 2015-2023. After all, can you restore the rule of law system while violating the very rule of law you profess?
Radbruch’s legacy
In 1946, the great German legal scholar Gustav Radbruch published an article which became canonical for post-authoritarian thinking about the rule of law, on the rift between statutory lawlessness (gesetzliches Unrecht) and supra-statutory law (übergesetzliches Recht). I am far from comparing the “statutory lawlessness” of the Third Reich to that of the PiS regime. But, toutes proportions gardées, the idea that a statute may not be the last word on which law is legitimate and should be considered valid, is ubiquitous and confronts us in any context in which the powers that be use formally legal means in an arbitrary, uncontrolled and repressive manner.
“Positivism”, Radbruch argued, “with its principle that ‘law is law’, has in fact rendered the German legal profession defenceless against statutes that are arbitrary and criminal”. This type of positivism is being marshalled in Poland these days to accuse the government of breaching the rule of law. But if the rule of law is properly viewed as the rule of “supra-statutory law”, as Radbruch wisely urged, the substance of the rules to follow is determined by the Polish Constitution and European law, rather than by those statutes which were enacted precisely with the aim of incapacitating the democratic successors of authoritarians. The Polish Constitution contains sufficient resources to set aside those legal traps: Article 8 provides for supremacy and direct effect of the Constitution. This idea, more generally, is reflected in the very title of an article by two Polish legal scholars of a younger generation, Maciej Bernatt and Michał Ziółkowski: “Statutory anti-constitutionalism”. Statutes may be an instrument of anti-constitutional revisions when the main institutional guardian is de-activated.
Which brings us to the problem of the Constitutional Tribunal, which is the mother of all legal landmines in Poland: with the complete colonization of the Tribunal by PiS, no impartial institutional arbiter exists in a system, originally designed with a Kelsenian constitutional court at its epicenter. I have long argued – also in this blog – that Polish decision-makers should bite the bullet and extinguish the Tribunal as it now exists because it has lost any pretense to legitimacy. I will not rehearse my arguments here – nor evoke the counterarguments by my critics, whom I respect but with whom I obviously disagree. What I need to emphasize, though, is that without such extinguishment (or, at the very least, without creation of a tight cordon sanitaire around the Tribunal, with principled non-compliance with its judgments), the government and the legislative majority will keep falling victim to the multiple traps, ambushes and landmines set deliberately by their predecessors.
The rule-of-law dilemma
“Pursuing the rule of law system while violating legal rules” is a maxim which sounds unwholesome. “Obeying the rule of the constitution while violating individual statutory provisions” is a more palatable proposition, especially if we incorporate the EU treaties and the European Convention of Human Rights into the meaning of the constitution, as we should. Giving effect to a constitution without a constitutional court is not a contradiction in terms. It simply draws a necessary conclusion from the de facto non-existence of a constitutional court, and places the constitutional responsibility on the lawmakers, the elected government and regular courts.
As John Morijn has recently admitted in this portal, “[T]he infuriating reality is that entrenchment [in Poland] has occurred and often cannot be easily undone overnight except through draconian measures that may themselves (…) be in strong tension with the rule of law that needs saving”. Infuriating indeed. But antithetical to the rule of law? A state such as Poland post-15 October 2023 does not have the luxury of restoring the system of democracy and the rule of law while faithfully following the letter of statutes enacted by the autocrats. Rather, something like Andras Sajó’s “militant rule of law” may be needed. Making sure that it will not become self-perpetuating will be the main challenge for the democratic reformers. But that is not the problem that Polish democrats face right now; not just yet.
Wojciech Sadurski
