For few years now, the situation in Poland has been a contribution to the discussion on the foundations of constitutional democracy, the rule of law and the extent of the obligations of MS to comply with the principles on which the EU is based. We will explore how institutions created as counter-majoritarian shields of constitutional democracy change their role becoming servants of parliamentary majority and to determine the influence of EU law on the situation in MS. Firstly the current practice of the Polish CC will be examined from the point of view of above mentioned function. Secondly, will analyse the battle currently conducted by judiciary for protection of independence of judiciary: the cooperation between Polish courts and the CJEU though preliminary ruling procedure on the one hand and governmental suggestion of contradictions between the Polish Constitution and EU law and it’s references to the Constitutional Court on the other.
It is often hypothesized that we can witness the return of both legal and political populism because in the last few decades classical constitutionalism has diverged from the origins of democracy, namely from the will of the people. The political elites have lost touch with the ordinary people, moreover the counter-majoritarian institutions of liberal constitutionalism has helped to strengthen this effect – goes the statement.
If that was true, it would be just natural that the newly emerging populist governments – such as the current government of Hungary – works hard on restoring the direct connection between the people and the political decision-makers. In my presentation I aim to examine whether we can witness such a trend in Hungary and if the people’s opportunity to influence the political decision-making has been extended. To achieve this, I will focus on the new rules on public referendum and the changes of the rules on political campaigns before elections.
The new constitution of Hungary, entered into force on 1 January 2012. The governmental forces gaining a two-thirds constituent majority at the 2010 elections envisaged a new role for the Constitutional Court. According to the official reasoning, the aim of the transformation was to give more emphasis on the subjective protection of fundamental rights in the individual cases and abolish the possibility that anyone could turn to the Constitutional Court in order to ask for the annulment of a piece of legislation deemed unconstitutional.
What is more, the ordinary judicial decision became subject to constitutional review. Such introduction of the German type constitutional complaint was a significant step in completing the illiberal constitutional turn by alienating the CC from the constitutional control of the Governemnt’s legislative majority to the constitutional control of the judiciary.
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.