On the Experiences of a Constitutional Court in an Illiberal Democracy. Incapacitated but Necessary

Abstract

The chapter draws attention to the changes in the Polish constitutional jurisdiction which took place in 2020. In particular, the chapter discusses the effects the degradation of the Constitutional Tribunal has on the doctrine of liberal constitutionalism and on judicial review of legislation in Poland. As to the first aspect, the paradox of the position of the Constitutional Tribunal in Poland is that despite its degradation, it is still a necessary institution for the government to achieve its goals. Pseudo-disputes over authority indeed show that the Tribunal can be a valuable tool in the hands of populist politician. Therefore, it is not enough to talk about the degradation of the position of this court—as is the case in the doctrine. As a second point, this degradation is prompting ordinary courts to taking over the function of constitutional review. Despite government objections to such jurisprudence of ordinary courts, a seed of constitutional review exercised by courts has been sown which may push the system towards a decentralised review.

This chapter has been written as part of the research programme NCN 2018/31/B/HS5/02667 “Konstytucyjność prawa bez sądu konstytucyjnego.”