„What is Going on in Poland is an Attack against Democracy“

The governing Law and Justice party recently has announced that it intends to draft a new constitution for Poland. What do you make of that?

There has been a Law and Justice draft for a new constitution in 2010, but that has been withdrawn and the party never tried to put it back on the table. Since then I have heard only soundbites and slogans, never anything coming close to anything like a coherent idea about what this new constitutional project would be. My feeling is, they won’t do it. The political costs of putting on the agenda the issue of a new constitution would be for them too high. They will pursue that idea only if there is a political payoff, if they need it as a diversion from the economic and diplomatic costs of their policy. Other than that, they will not give themselves the headache to take on such a big project that would only attract the attention of all their critics. They just don’t need it.

Why not?

Because what they have been doing over the past months was already a de facto change of the constitution. That is why I think that the way of describing what is going on in Poland is basically a constitutional coup d’état.

That is a strong word…

Yes, and I am using it not to vent my anger and be emotional but rather in a very technical, descriptive sense. A de-facto change to the constitution without following the amendment procedure but through sub-constitutional laws is what I call a constitutional coup d’etat. The principle of supremacy of the constitution is that you cannot change the constitution by simple statutes. Constitution controls statutes, not the other way around.

And that is what the Law and Justice government has been doing since it came to power in 2015?

Yes. The most blatant example is the law on the Constitutional Tribunal, of course ...

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