Challenges for Poland as a State under the Rule of Law

Marek Safjan speaking at the Freedom Games 2016 || Photo: Tomek Ogrodowczyk

There is no such thing (nor ever will be) as an ideal state under the rule of law. There existed, however, ideal visions of a just and well-governed state – eg. by Jean-Jacques Rousseau (see: Considerations on the Government of Poland, for the first time published in Poland in 1789) or in the works of the 17th-century British historian Bernard O’Connor (The History of Poland, published in London in 1689, which presented an idealized vision of Poland as a state where Lex est Rex). When describing a state under the rule of law, a negative definition has often been employed – it used to identify the features of governements that were undoubtedly contrary to the principles of the rule of law as such. Lon Fuller did precisely that in his work devoted to “internal morality of law” – by providing an example of a fictional ruler, king Rex, he has shown in what way a state under the rule of law should not be formed. Fuller has well identified all minimal and necessary features which when not followed, we cannot neither speak sensibly about the rule of law, nor about the very existence of law as such (such as introducing a law, prohibition of introducing retroactive laws, non-contradictory laws, possibility to execute the law, understandability, predictability).

The creation of a real form of a state under the rule of law was born in pain, as a result of a long historical process. It did not involve the trasfer of an abstract idea intro a political-legal reality, but was rather the consequence of a clash of fundamentally different interests and was aimed at establishing a framework for power that did not want to be limited in any way – it was therefore an attempt to limit autocracy by setting up the rules that would bind also the sovereign. Instituting a state under the rule of law was therefore nothing else but the creation of the rules of the game that all participants of public life agree to abide by, including the sovereign.

It is worth to mention several breakthrough moments in the process of forming the mechanisms of a state under the rule of law. It is said that the idea came to life with the adaptation of Magna Carta Libertatum in 1215 – an act enforced by the king of England, who – for the first time in the European history – recognized that an absolute rule of a king shall also comply with the law. And so the king committed himself to respect the law he introduced and to comply with the rulings of courts made in his name and therefore also to accept the verdicts which may not have been entirely compliant with his expectations or preferences.

In the history of Polish Republic such an act that introduces an obligation for the sovereign to comply with the law in force can be found in the famous Henrician Articles from 1573, which asserted also a principle enabling the Polish gentry to refuse the king’s orders and act against him, should he transgress any of the cardinal laws and liberties guaranteed by the act. In creating the mechanisms that would successfully guarantee the functioning of a state under the rule of law (thus the possibility to control the actions of a sovereign by an independent judiciary based on the supreme norms featured in the Polish Constitution).

A breakthrough in the history of the Western civilization was constituted undoubtedly by the ruling of the Supreme Court of the United States in the Marbury vs Madison case (1803), according to which for the first time the judiciary conducted an evaluation of a normative act from the perspective of constitutional principles. The hierarchical control of constitutionality of the law was many decades later theoretically developed and formed in Europe by Hans Kelsen – the founder of a modern concept of a constitutional court.

Finally, after having faced the World War II and the 20th-century crimes of totalitarisms, yet another indispensible component was added to the principles of a state under the rule of law – the Radbruchian theory of an unjust state, which states that in a state under the rule of law there cannot be a law that violates the fundamental, rudimental moral principles and justice and thus a law that shall be labelled as unjust. Statutory lawlessness therefore means that there is no obligation to submit oneself to such a law (or there even exists a necessity to disobey it!) if it clearly turns out that it is unjust. The theory of Gustav Radbruch can be considered as a key element for specifying the rule of a democratic state under the rule of law in modern constitutionalism.

This brief overview of several breakthrough moments in the process of forming a state under the rule of law enables us to make the following observations. First of all, the principle of a state under the rule of law in itself, in the form that emerged in Europe in the 13th century, includes a necessity to respect the law (abide by the law), but does not yet refer to its content. Secondly, the validity of this principle must assume an adequate control mechanism for respecting the law, especially the supreme law such as a constitutional norm. Thirdly, a modern principle of a democratic state under the rule of law includes also an obligation to abide by the current law that is in force without an adequate mechanism to control the content of the law as far as its hierarchical structure is concerned, thus in other words, to control the constitutionality of the law – be it by common courts or by a specialised body such as a constitutional tribunal.

The principle of a democratic state under the rule of law assumes therefore limiting the legislator him-/herself, who must comply with the supreme norm, hence: the constitution. The legislator, chosen democratically and legitimized to impose laws cannot act arbitrarily, must respect basic laws and his/her actions with regard to compliance with the constitution are subject to control of independent judiciary. The very existence of independent judiciary, a result of a tripartite separation of power, is thus at the core of a state under the rule of law. The whims of a democratically elected legislator in a system constructed in this manner will meet a blockage in the form of the principle of the balance and separation of powers. Only by such an assumption can a state under the rule of law efficiently protect the rights and liberties of minorities and protect them from the abuse of the parliamentary majority. It can be therefore easily observed that creating any theory of a modern state under the rule of law based on the principle of the will of the people as a sovereign, expressed by the means of an actual parliamentary majority and eventually determining the content of the law, is a contradiction of a democratic state under the rule of law.

The current constitutional crisis in Poland is a sign of an especially dangerous form of violatng the principles of a state under the rule of law. It is about an open, embedded in the governing’s party ideology denouncement of abiding by the law and atributting to the executive power and the parliament the highest attributes of control and decision making at the same time disregarding the most important authority of the third power, namely the Constitutional Tribunal. It was therefore neither a personal conflict with the former president Andrzej Rzepliński, nor a dispute over the technical procedural regulations – as the government wishes it to be perceived. It is a dispute over the very existence of a state under the rule of law. If the arguments of the ruling party are to be accepted and the rulings of the Constitutional Tribunal were to be passed and executed, we must clearly state that a new era has started.

In none of the European countries (except for Belarus) has it ever so happened that a constitutional court was destroyed just because the governments is not pleased with its rulings. In the case of the constitutional crisis in Poland, the government does not even try to hide the true nature of its actions, openly admitting that it does not intend to respect the court’s rulings because it believes it to be incompatible with the law. In this way, the separation of powers vanishes and the ruling party with the parliamentary majority becomes the initiator, executor and end-controler of the law. Such a situation has nothing to do with a democratic system of a state under the rule of law.

An additional danger is posed in this situation by the fact that the government changes – if we were to use the discourse of an everyday political narrative – the sense and meaning of respective terms, expressions, rules and words. For a big part of public opinion such a strategy can lead to gaining support for further completely illegal actions of the government with regards to the constitutional system. That is what has been going on since the very first days after the current government came to power and when first disputes over the Constitutional Tribunal occurred.

During one of the first parliamentary sessions of this term, when a debate on appointment of constitutional judges was taking place, MP Kornel Morawiecki stated that the will of the people is more important than the law. Standing ovation and enthusiasm of a part of the MPs evidently proved that a new era indeed is coming – the age when the law is moved into the background and the willingness to act, the political will embodied by the parliamentary majority is to have the decing vote. Thus the ideology of Carl Schmitt – the ideologist of nazism – has been brought to our minds. In the discussion on the next acts destroying the Constitutional Tribunal, the basic argument (provided by MP Stanisław Piotrowicz) was that it is, after all, about reviving the constitutional order (what resembles a little the infamous statement by a French minister of foreign affairs after the collapse of the November Uprising: “There is now order in Warsaw”), while it is perfectly clear that it is about violating the constitutional order and imposing new rules contradictory to the supreme act.

The government likes to say about the Constitutional Tribunal’s rulings: “It is a personal opinion of the judges so there is no problem with announcing the ruling, since what is referred to as a ruling is actually no such thing”. The government says about each public appearance of the judges in defence of the Constitution and a stance of the Constitutional Tribunal: this is politics and a contradiction to tripartite division of powers because the judges are not allowed to take part in a political debate. The attempt to call a General Assembly in order to appoint a new president of the Tribunal in compliance with the Polish Constitution and the Tribunal’s ruling was referred to by the government as “violating the legality principle”. The rulings of the president of the Constitutional Tribunal dealing with trials are qualified as abuse of power and a criminal offence in the understanding of criminal law, which is to become evident due to filing criminal action against these “illegal actions”. Public opinion every day is faced with a massive amount of sheer lies and primitive propaganda related to the functioning of the third power and a state under the rule of law, what, in turn, creates around the constitutional dispute an impression of a battle between legal establishment and those who try to bring back justice and the rule of law. A great part of the society must have gotten confused quite a while ago as to what are the next amendments and new acts devoted to the Constitutional Tribunal all about.

Any external criticism of the government’s ideas dealing with reviving the constitutional order is treated as an act against the interests of our state or as an unsubstantiated intervention in “our Polish matters” that is aimed at limiting our sovereignty. What is actually a discourse Poles were very familiar with already in our past, and which – as it seemed – has ended in 1989. The enemies of our state who take action against Poland are now in consequence: the European Commission, the Council of Europe and the Venice Commission, as well as the European Parliament – since all of these institutions have expressed their deep concern due to the violations of the principles of a state under the rule of law and international treaties ratified by Poland – and, after all, respecting the international obligations is one of the key elements of a state under the rule of law.

A curious thing: according to the narrative of the government, not only all the key legal groups (including the most respectable in the eyes of the third power institutions such as the National Council of the Judiciary or the Supreme Court) are wrong when it comes to evaluating the constitutional crisis. The opinions of the key legal corporations also do not matter. Finally, the opinions expressed by the presidents of the key European constitutional courts – from the president of the European Court of Justice to the presidents of the constitutional courts in France, Italy and Austria, to the president of the German Federal Constitutional Court. Everyone is mistaken, the truth lies always with the current parliamentary majority, which executes the will of the sovereign in line with this narrative. The role of authorities was taken over by Professor Krystyna Pawłowicz, Professor Kamil Zaradkiewicz and the former prosecutor in the Polish People’s Republic – Stanisław Piotrowicz.

For many years no such a fundamental polarization of opinion that would make a rational discussion completely impossible has taken place in our country. With utmost anxiety shall we observe the way in which the the several decades of achievements of the Constitutional Tribunal are being destroyed, which not so long ago was referred to by President of the Austrian constitutional court Gerhard Holzinger as one of the most successful examples of a constitutional court in Central Europe after the collapse of communism. The success of the Polish Constitutional Tribunal is first and foremost related to the judges it is composed of. Meanwhile, starting with November 2015, the process of selecting new judges breaches even the minimal principles of good constitutional practices and transparency, by this undermining the authority of judiciary. The unknown and not discussed widely candidacies were presented at a late-night session and then the selected candidates were sworn in (in November 2015) at night by the Polish president. It is worth to mention that the candidates of the ruling majority were not even willing to answer the most basic questions related to their previous and future activities and, in consequence, it was nothing like any formerly known procedure of appointing the Constitutional Tribunal judges.

The process of destroying the Constitutional Tribunal has reached its final stage and its final act is a new act allowing the president to appoint as a temporary president of the Tribunal one of the judges, despite the fact that after the end of term of President Rzepliński there still remains its Vice-President – Professor Stanisław Biernat. The office of the vice-president is a constitutional post and thus appointing as the leader of the Constitutional Tribunal by the Polish president anyone else than the current vice-president (until the appointment of a new president of the Tribunal takes place) is simply yet another blatant violation of the constitutional norms.

It is therefore beyond any doubt that along with the end of term of President Rzepliński and the appointment of the new members of the Constitutional Tribunal, with legally chosen judges, the history of the Constitutional Tribunal in Poland will get suspended for some time, to say the least. The Tribunal, which operates with members chosen in a non-constitutional manner, loses its legitimacy.

Now, the only possible way to control the constitutionality of the law in Poland will resort to a dispersed control exercised a casu ad casum by common courts, the Supreme Court and the Supreme Administrative Court. It is crucial that during this time the legal community – not only the judges, but also lawyers and counselors – consolidates its efforts to ensure the safeguarding functions of the judiciary.

We shall therefore clearly state that all lawyers who are resposnible for the destruction of the Polish state under the rule of law, who create theoretical basis for illegal decisions and procedures, and who agree to participate in the process of destroying the constitutional judiciary, must be aware of the fact that the history will hold them accountable for that and judge them accordingly. Sometimes, it is symbolic gestures and actions that influence the way other communities respond. These may become an important point of reference for all those individuals who want to give testimony of truth, favor values to oportunism. In January 1982, after the martial law was introduced, one of the outstanding Professors of the Warsaw University, Tomasz Dybowski, refused to shake hands with Professor Sylwester Zawadzki – the then Minister of Justice – addressing him in the following manner: “for me, you are no longer a professor”. Now, it is high time to bring such gestrures back. Noone can destroy civic society as long as it is aware of its value and is able to defend its rights.

The article was originally published in Polish at:

Translated by Olga Łabendowicz

Marek Safjan