PiS repeats like a mantra before various European Union bodies the argument that the judicial nomination system they have created as well as the new model of the National Council of the Judiciary are similar to those functioning in many European states, and thus the entirety of proceedings before the Court of is nothing more than a discriminatory campaign of political harassment aimed at Poland.
A few facts emerging in recent weeks demonstrate, however, that the PiS-developed institutions are something entirely new, because they are immersed in the specific political and legal “culture” of the Law and Justice party, which Europe finds incomprehensible.
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W tekście „Państwo PiS poza granicą kulturową Europy” prof. Jerzy Zajadło wyjaśnia ustrojowy kontekst odmowy przez Sejm wykonania wyroku Naczelnego Sądu Administracyjnego.
Example 1 – when asked whether it is possible that lists of support for candidates to the National Council of the Judiciary are comprised mainly of signatures of the other candidates, the spokesman for the Ministry of Justice answers with disarming honesty: “So what?”
Example 2 – A Secretary of State in the Ministry of Justice, getting tongue-tied in a web of legal nonsense, declares it absolutely normal that a judgment of the Supreme Administrative Court may be subject to administrative review by the Personal Data Protection Office.
Example 3 – a member of the National Council of the Judiciary admits triumphantly that he signed his own name in support of his candidacy, something he considers entirely normal.
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I think that many Poles remain unaware of the decision taken by the President of the Personal Data Protection Office that essentially suspends the verdict of the Supreme Administrative Court, and if they are aware, the majority of them who are not trained in the law have no real grasp of its deep systemic implications.
In turn, those lawyers lending their support to the “good change” will continue to unashamedly spout their legal nonsense.
Meanwhile, the situation is one of exceptional gravity – Law and Justice has aimed almost its entire arsenal at the justice system, but now has unsheathed one more weapon: administrative review of the substance of judicial verdicts.
This represents not only the quintessence of the ignorant and anti-constitutional cynicism that characterizes the ruling party, but it is also a departure from a certain political and legal culture that establishes the roles of the legislative, the executive and the judiciary.
Philosophers long ago observed a certain phenomenon – some notions are difficult to define positively (philosophia positiva) but are far easier to define negatively (philosophia negativa).
In the philosophy of law, a typical example is the notion of justice – we do not definitively know what justice is, but we do know what appears to us in a specific case to be an injustice.
If we apply this conclusion in an attempt at characterizing the state created by PiS, we are faced with a similar situation – it is difficult for us to provide a concrete definition of what this hybrid is, but it is far easier for us to say what it is not.
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What the PiS state is not
First of all, despite all appearances, it is not a democratic state.
While Law and Justice consistently invokes democratic legitimacy stemming from the election in 2015, the manner in which the party wields power has turned their electoral majority into a caricature of democracy.
It would be problematic to claim that the manner in which the two chambers of the Polish Parliament function is a model of representative democracy. In fact, just the opposite – there are numerous examples of how the legislative process has nothing in common with democratic procedures for enacting law and has been transformed into a total farce.
Second of all, it displays absolutely no pretence of being governed by the rule of law.
This is, of course, not because there is no law at all, but rather because the law is treated instrumentally and applied selectively to serve the interests of one party rather than those of the state.
There is a wealth of examples demonstrating that the real law-making decisions are not made within the framework of constitutionally defined state structures, but rather in an extra-constitutional nexus of political power.
This is also where the ultimate decisions are taken regarding the real content of some acts involving the application and interpretation of law.
Third of all, if we consider equality before the law to be a fundamental component of justice, then this state is not a just one.
This is merely a simple consequence of the instrumental and selective approach to law that we have already discussed. It began with a questionable act of clemency by the president, followed by an avalanche of cases in which supporters were relieved of responsibility, while political opponents were prosecuted.
This is coupled with the privileged position of the institutional Church, in direct contradiction to the idea of the secular state, marginalisation of the opposition in violation of the principles of democracy, and discrimination against minority groups in violation of fundamental human rights.
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Fourth of all, it is not a state based on the tripartite separation of powers.
Not only because power has been concentrated in the executive, while parliament has been reduced to a façade and the judiciary is subjected to constant attempts at political subjugation in order to negate its independence, but also because the constitutional structure of the state apparatus remains in the continual shadow of the final decisions being taken by the nexus of political power.
Fifth of all, it is not an honest state.
While a number of desirable social programmes have been initiated, their mechanism does not allow us to say definitively to what extent they are in fact a component of a drive for social justice, and to what extent they constitute a populist propaganda manoeuvre designed to ensure future success at the poles.
Behind this façade, there are certain events that call into question the honesty of the authorities – such as the scandalous distribution of state funds among their supporters, aggressive and deceitful propaganda of public media, concealing from public opinion facts that are inconvenient for the authorities.
Sixth of all, it is not a pro-European state.
From the very beginning of the party’s time in power following the election in 2015, Law and Justice has been steering the Polish state on a collision course with the European Union under the guise of protection national interests. This is accompanied by undermining the fundamental European axiology and the pretence of dialogue with European Union bodies, exposing us to potential negative economic, political and legal consequences.
Seventh of all – and most importantly – it is no longer a state based on its constitution.
PiS does not hide its disdain for the Polish Constitution of 1997, and has made breaches of its provisions along with undermining of the axiology it expresses a permanent feature of the party’s rule.
By reducing the Constitutional Tribunal to the status of a puppet institution, PiS has essentially neutered the Constitution of its oversight functions.
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Turning the constitutional order upside down
There are more examples, but let us borrow from the religious rhetoric so readily employed by PiS and limit ourselves to those seven cardinal sins.
Since Law and Justice’s seizure of power after the 2015 election, we have observed a series of both random and planned incidents crossing what had seemed in every case to be the final line, and which, taken together, have contributed to the negative image of the state under the rule of Law and Justice.
The situation involving a verdict of the Supreme Administrative Court being subjected to review by a component of the executive may seem on the surface to be merely yet another episode, an instrumental trick of the law allowing for the ruling party to ignore a troublesome decision by an independent court.
But if we take a closer look, it reveals itself to be in its essence something more – perhaps a preview of how the entire constitutional order will be turned upside down.
I refer not only to the Polish political order set out by the provisions of the 1997 constitution, but in a more general sense the European constitutional culture that has emerged and developed over centuries.
While this tradition’s sources are located mainly in the age of the Enlightenment, its roots can be found much deeper. After all, it was over 2000 years ago that Cicero said:
“The magistrates are the ministers for the laws, the judges their interpreters, the rest of us are servants of the law, that we all may be free.”
Jerzy Zajadło – professor, philosopher of law, head of the Chair of Theory and Philosophy of the State and Law, Faculty of Law, University of Gdańsk, recipient of the Edward J. Wende award (2017) for promoting rule of law-based legal culture in Poland, member of the Programme Board of the Wiktor Osiatyński Archive, an initiative to monitor, document and explain rule of law crisis in Poland.
The text was translated by Matthew La Fontaine. The English translation originally appeared at Rule of Law in Poland, a joint initiative of the Wiktor Osiatyński Archive, FOR Foundation and Helsinki Foundation for Human Rights in Warsaw.