Polish Constitutional Tribunal Under PiS: From an Activist Court, to a Paralysed Tribunal, to a Governmental Enabler
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After the electoral victories of 2015, PiS transformed the CT from an effective, counter-majoritarian device to scrutinise laws for their unconstitutionality, into a powerless institution paralysed by consecutive bills rendering it unable to review new PiS laws, and then into a positive supporter of the enhanced majoritarian powers. In a fundamental reversal of the traditional role of a constitutional court, it is now being used to protect the government from laws enacted long before PiS rule. Whatever else constitutional courts around the world are expected to do, there is no doubt that their first and primary function is to ensure adherence to a constitution and its protection against legislative majorities. In Poland, the Tribunal became a defender and protector of the legislative majority. This changed role, combined with general distrust of the CT and concerns about legitimacy of its judgments, explains also the extraordinary drop in the number of its judgments. For all practical purposes, the CT as a mechanism of constitutional review has ceased to exist: a reliable aide of the government and parliamentary majority has been born.
KeywordsPoland Constitutional tribunal Constitutional review Judicial review Populism
I am very grateful to Dr. Michał Marek Ziólkowski for his excellent research, and to Bojan Bugaric, Adam Czarnota and Martin Krygier for their very helpful comments on the manuscript.
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