Constitutional Review as an Indispensable Element of the Rule of Law? Poland as the Divided State between Political and Legal Constitutionalism

1. Poland AD 2017 – The Divided State: A Snapshot Of The Current Situation

It seems, that as in Poland divide et impera becomes the maxim of the ruling party, the Polish state develops a divided identity. There is the divided Constitutional Tribunal with three illegitimate judges whose decisions might be objected by ordinary courts as invalid, and the divided Parliament which proceeds without the presence of the opposition parties or notwithstanding their protests. There is a divided academia, on the one hand supporting the current government with opinions how to solve the crisis and carry out other institutional reforms monopolizing the power, on the other strongly criticizing the ongoing measures as being in breach of the Polish Constitution. Further, there is the division among ordinary judges who may encounter a loyalty problem – either follow new decisions of the Constitutional Tribunal or try to apply the Constitution directly. There is also the Ombudsman who tries to stay neutral and intervene in all cases of potential human rights violations, including the rights of the members of the majority. Finally, there is a politically divided society, including those who are uninterested in politics, or those, who uncritically follow the government-led propaganda in the public media, and who are satisfied with the new redistribution policies rather than give the situation a critical thought.

Once a Musterkind among the new Member States of the European Union, Poland led by the Law and Justice appears deaf to the call of the European Commission to respect the rule of law. It is right on its way to diverge from the core of European values and bury the myth of its own national solidarity. At the same time, it has become a divided state between political and legal constitutionalism, which shows particularly in the constitutional crisis over the Constitutional Tribunal.

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