Constitutional Court in the Abusive Constitutionalism

Abusive constitutionalism is based on the pretense of continuation of constitutional government. However, it is based on the concentration of power and rejection of courts’ autonomy. The control over a Constitutional Court is instrumental in this respect. Its capture includes two steps: first, the neutralization of “old” CC, second, its personal and political absorption.
The “new” CC may display the same formal characteristics as the old one. However, its political role becomes entirely different: “new” CC acts an as ally of the political leadership and offers a constitutional support for its measures (including the European area).
This creates tension between formal legality and systemic legitimacy. “New” courts are not endangered species. They play a crucial role in the illiberal form of constitutionalism. But, just like the abusive constitutionalism has no place in the spectrum of constitutional systems of government, also the “new” CCs may easily lose their institutional identity

Polish Constitutional Court and the Reproductive Rights

Thirty years after the democratic transition, reproductive rights – in particular access to the abortion – remains the battleground of hyper-polarized identity politics. During that period, Constitutional Tribunal developed rather conservative line of jurisprudence, with two landmark decisions: of May 1997 (K 26/96) and October 2020 (K 1/20). The former declared unconstitutionality of the amendment allowing abortion due to the personal difficulties – on the grounds of rule of law principle. The latter, issued by the “new” CT, declared unconstitutionality of the provision allowing abortion in case of permanent damage of the fetus (including lethal ones). Although both judgments had been criticized in the liberal circles, the October verdict ignited wave of unprecedented street protests (Woman’s Strike) and introduced “CT issue” to the daily debates of ordinary people. Paper discusses “old” and “new” CT jurisprudence on reproductive rights in its legal, political and social dimension.

Mind the Gap: Polish Constitutional Courts’ Perception Before and After 2015 Constitutional Crisis

The general public’s attitude towards the Constitutional Tribunal before 2015 had been characterized by (i) low awareness and (ii) high propensity to give it the benefit of the doubt. As a consequence, it enjoyed very high ratio of positive to negative opinions, despite the fact that nearly half of the respondents failed to form any categorical opinion on its performance. In this profile it resembled other technocratic governance institutions like the Monetary Policy Council, Supreme Audit Office or Ombudsman. However, as constitutional crisis of 2015 erupted, both characteristics changed substantially. Unaware public shrunk, and goodwill disappeared – with negative opinions dominating positive ones. In that respect, ‘new’ CT became similar to the purely political bodies like chambers of the parliament. Drawing on representative CBOS surveys carried out over 2012-2021, paper documents this shift, disaggregating it into the bubbles of conservatives, liberals and undecided.