Farewell to the Polish Constitutional Court

The Law of July, 7th 2016 on the Polish Constitutional Court (hereinafter to referred as “the Law”) leaves no doubts that the parliamentary majority lead by Law and Justice party (PiS) is not holding back and is determined to see its plan through to make sure that Polish Constitutional Court (“the Court”) is finally tamed and incapacitated. By way of a statute, the 1997 Constitution is picked to torn to pieces and its provisions short-cut at every corner. The Law signals the death knell for the Court. The institution once recognized as powerful, efficient and independent from whatever powers that be is left at the mercy of the politicians, and unable to effectively wield its power of judicial review. Most importantly, the Law will make it impossible for the Court to provide an effective check on the excesses of parliamentary majority.

When read in the light of the previous case law of the Court (in particular the judgments of: December, 3rd, 2015 ((case K 34/15)); December, 9th 2015 ((case K 35/15)) and March, 9th, 2016 ((case K 47/15)) and in the Opinion of March, 11th, 2016 of the Venice Commission (no. 833/2015), the Law reintroduces the provisions that were already either disqualified by the Court as unconstitutional, or criticized by the Venice Commission.

Reading the Law[1]. Constitutional Tragedy’s Final Act

It is clear that the PiS decided to engage in a tactic of waiting game, hoping that EU faced with Brexit will let this time Poland off the hook. Many of the Law’s provisions are verbatim repetitions of the old Law that the Court had struck out as unconstitutional in its judgment on March, 9th 2016. There is no doubt that PIS is neither interested in implementing the opinion of the Venice Commission, nor following clear constitutional commands as interpreted by the Court. The Law leaves the Court toothless and vulnerable to outside pressure ...

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