“The Constitution is the guide which I will never abandon.” The words of George Washington. Or, if you prefer something more modern, there is Gerald R. Ford: “Our constitution works. Our great republic is a government of laws, not men.” Of course, Poland is not the United States and the Polish constitution is different from that of the United States, but many of principles embodied in both are universal. In Poland some men in, or close to, government now question the Polish constitution preferring, it appears, government by their men to others’ laws.
President Andrzej Duda marked Constitution Day, a public holiday to commemorate the adoption of Poland’s constitution of 3rd May 1791 – two years after the US constitution came into force, which lasted 14 months until the partition of the country – to suggest that the Polish constitution be re-examined. Duda said that the country’s current constitution was a “constitution of a time of transition” adding that it “should be examined, a thorough evaluation carried out and a new solution drawn up.” The president said that this should be done in consultation with Polish society, trade unions, NGOs, members of the Polish parliament and senators.
These remarks, if not echoing, were certainly in tune with those of governing Law and Justice party leader Jarosław Kaczyński who the previous day – Flag Day – had said that his party aims to change the Polish constitution. He said that the constitution needs to be examined every 20 twenty years and was not next year, twenty years since the adoption of the constitution following the end of the communist era, a good time to do so? For good measure, he criticised the courts which have opposed the recent reforms of the operation of the Constitutional Tribunal.
On 9th March, the Constitutional Tribunal rejected as unconstitutional measures which affect how the Tribunal functions, while last week Poland’s Supreme Court adopted a resolution stating that the Tribunal’s rulings should be respected even if, as is the case now, the prime minister fails to publish those rulings. Publication is the normal requirement for rulings to become valid. Needless to say, this did not find favour with Jarosław Kaczyński, who accused the Tribunal of “rejecting” a compromise. “We will not permit anarchy in Poland, even if it is promoted by the courts,” he said.
The Civic Platform (PO) opposition disagrees. PO’s Sławomir Neumann said that there could be no discussion regarding amendments to the constitution until Law and Justice starts to respect the current one, while MEP Kamila Gasiuk-Pihowicz of the Nowoczesna party accused Kaczyński of “Himalayas of hypocrisy.” Outside Poland, the European Commission is carrying out an examination into the rule of law in Poland and on 11th March, the Council of Europe’s human rights watchdog, the Venice Commission, urged the government to publish the rulings of the Constitutional Tribunal.
Thus, what started out as a tit for tat spat between opposing politicians as to the political balance of the Constitutional Tribunal now has the potential to develop into something more serious. The government’s drive – at a speed exceeding the legal speed limit you might well think – to accrue power in the hands of the Poles who are not of “the wrong sort” while simply ignoring the Constitutional Tribunal, risks undermining the rule of law.
The whole point of a constitution, in a modern democratic state at least, is both to ensure that governments act within the law, and to put the protection of the fundamental rights of the citizen beyond the tampering of whichever group of politicians happens to enjoy a majority at the time. By all means look again at Poland’s constitution, but this should be an exercise conducted with the skill and wisdom of the Founding Fathers to achieve a lasting benefit for all Poles, not to satisfy a single group which seems to regard any constraint as unacceptable and unpatriotic.
If this were some dry academic question for constitutional lawyers, one might be able to overlook it. But with the attempts to control the media, new powers for the police, brown shirts on the march, and the increasing sotto voce anti-foreigner tone (albeit not instigated by the government) the government needs to be unequivocal in its commitment to democratic values and the rule of law. For if confidence in Poland as a safe place in which to work and invest is dented, Poland’s impressive economic achievements of recent years and will be undermined to the detriment of all, not least the government’s own core supporters. That would be a shame. To paraphrase Wilde’s Lady Bracknall, to lose one constitution is unfortunate, to lose two looks like carelessness.