Remarks on the Dispute over the Constitutional Tribunal in Poland

Abstract

Where a system of constitutional judicial review is in place, the concept of democracy is understood as rejecting claims about an unlimited will of the sovereign as the source of state authority, and confining democracy to such manifestations of the majority will which enjoy Constitutional legitimacy – meaning that they are in compliance with the version of a human rights culture that has been inscribed in the Constitution and which is embraced by Constitutional judges when delivering their adjudication. Following the recent parliamentary and presidential elections, the political significance of the Constitutional Tribunal has increased enormously. Only the Constitutional Tribunal is capable of preventing the centre of political power (which governs over the legislative and executive branches) from pursuing its plans. According to parliamentary majority in order to change Poland and fulfil commitments to the electorate, the ruling party had to see to it that the Tribunal’s make-up is pluralistic. Otherwise, all their efforts would be exposed to destruction by the Constitutional Tribunal. This way of thinking, though, implies that the Constitutional Tribunal can be changed in an ordinary law in such a way as to render it incapable of opposing the ruling majority. Regarding the ongoing Constitutional crisis over the Constitutional Tribunal, a scenario involving the observance of the basic law does not appear to be a likely one – unless such scenario leads to the expectation, however mistaken, that political gains can thus be scored and that the operation of the Constitutional Tribunal will no longer pose a threat to plans of the parliamentary majority.