An Eye for an Eye: Law as an Instrument of Revenge in Poland

In contemporary societies, the law may serve different functions: a channel for public discourse, a tool for co-ordination, or indeed an instrument of coercion. In contemporary Poland, constitutional law has recently acquired a novel function – an instrument of revenge.

Those following Polish affairs will already have spotted a strange symmetry in the current constitutional crisis arising from the actions of the Polish ruling party, PiS. The saga revolving around the appointment of three anti-judges (Cioch, Morawski and Muszyński) to the Constitutional Tribunal (CT) in December 2015 offers a case in point.

For a year, the right of these three figures to sit on the CT was questioned not only by the majority of Polish constitutional lawyers, but challenged by its (now) former President, Andrzej Rzepliński. Immediately after Rzepliński’s term of office ended, the three anti-judges were introduced to the CT panel by his replacement, the PiS-appointed Julia Przyłębska.

However, packing the court with their own judges was not sufficient for PiS: a month later their Minister of Justice Zbigniew Ziobro, acting as the Prosecutor General, filed a tit-for-tat motion questioning the right of three other judges (Rymar, Tuleja, and Zubik) to sit on the Court, in effect signaling: “You question our judges, we question yours”.

Who can tell that the questioning of the three anti-judges' appointment was based on two CT verdicts from December 2015 and supported by the Venice Committee, while Ziobro’s motion rests on a conjured procedural triviality? Certainly not the confused general public, who have consequently lost interest in this apparently abstruse legal dispute.

The tit-for-tat strategy has recently been redeployed by PiS and now jeopardizes the Supreme Court. As readers of this blog know, in January, the Warsaw Court of Appeal referred a substantial prejudicial question to the Polish Supreme Court ...

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