From Legal to Political Constitutionalism? On Paradoxes Surrounding the Practice of Constitutional Adjudication in Newly (Re)Emerged European Democracies

    • Ghent October 2019
    • Presentation speakers
      • Adam Cebula, Faculty of Christian Philosophy, Cardinal Stefan Wyszyński University, Warsaw, Poland


    In a recent symposium on the s. c. constitutional crisis in Poland, a case was made for considering the s. c „judicial review” (replacing the constitutional court by individual members of the judiciary in evaluating the constitutionality of laws passed by the Parliament) as a means of defense against the supposedly unconstitutional „capture” of the Polish Constitutional Tribunal by the country’s ruling majority. The move was presented as “an instance of judicial meta-resistance”, fully justifiable in a situation in which “defending constitutional integrity and values is more important than hair – splitting over the separation of powers” as “the latter should be understood as an instrumental for the realization of the former, and when necessary, adapted to the exigencies of the times (Koncewicz, 2017).” A fervent proclamation of an unswerving commitment to the idea of constitutional supremacy, the view in question entails an exceptionally reverential understanding of a constitution as such (as well as the body corporate of its potential defenders). In order to critically examine such an approach it is necessary to juxtapose it with the description of the socio-political realities surrounding both the passing of the constitution as well as the subsequent functional significance of this foundational legislative act. Considering the complex circumstances of a constitutional crisis is especially insightful in the case of EU member states experiencing a relatively quick, and thus more or less turbulent – even if nominally peaceful – transition to democracy from the system of a totalitarian oppression. In my paper I point out, in the first place, the highly politicized process of the creation and adoption of the constitution of the Republic of Poland – a country in which the restoration of a democratic order followed a period of over 40 years of a ruthless communist regime. Far from being a pure expression of the spontaneous, meta-political “will of the people”, the constitution of the post-communist Poland adequately reflected and – at least in some important respects – effectively preserved, the unduly privileged position of a number of social groups, their extended dominance being deeply anchored in the officially transformed structures of the communist state apparatus. There can be no denying that one of those groups comprised the members of the communist Poland’s judiciary: immune from any form of scrutiny regarding their performance during the totalitarian regime, the Polish judges were smoothly “taken over” in 1989 by the newly established Third Republic. If one adds to this a dubious foundation (if not a complete lack thereof) in the text of the constitution of the proclaimed “meta-resistance” measures to be taken by the judiciary, what remains for their proponents is a direct resort to a form of legally ungrounded judicial activism. Without presenting a convincing argument for the existence of a meta-political anchoring of the constitution, as well as its accessibility to the would-be defenders of the constitutional regime, the rationale in question turns out to be question-begging. Intellectually challenging as it is, the only plausible alternative to it may require entering (or perhaps realizing one has never sailed outside) the unchartered waters of political constitutionalism.