The Game of Appearances. The Facade Political Constitutionalism and the (Ab)use of Counter-majoritarian Institutions in Poland

Constitutional theory makes a distinction between two basic traditions of constitutionalism: legal and political. The distinction is closely related to the ongoing rule of law crisis in Poland. The PiS government uses the rhetoric of political constitutionalism to legitimize the gradual demolition of counter-majoritarian institutions (Constitutional Tribunal, Supreme Court, ordinary courts and Ombudsman). Nevertheless, the paper claims that it is just a game of appearances. The façade of political constitutionalism falls of when the counter-majoritarian institution is taken over. Then, the legal constitutionalism argumentation comes back and the shell of the old institution is (ab)used to enable and legitimize the democratic backsliding. The Constitutional Tribunal serves as the most glaring example of such a political abuse of a taken-over counter-majoritaritarian institution. Courts and Ombusman are next targets.