Conclusions

An analysis of the changes that have taken place in the Constitutional Tribunal since Law and Justice took power in 2015 leads to the conclusion that this typi­cally counter-majoritarian institution has radically changed its role.

In formal terms, the shifts that have occurred in the Constitutional Tribunal since 2015 are a manifestation of ‘illiberal constitutionalism’, one of whose key elements is ‘packing and paralysing the constitutional court’. ⁰ The rulings of the Constitu­tional Tribunal from 2019-2020 presented in this chapter prove that there has already been an ‘illiberal turn’ in the Constitutional Tribunal itself. This body has resumed adjudication on cases with a strong political context. Apart from the issues related to the formal shortcomings of these decisions (with the participation of so- called ‘stand-in judges’), the content of the analysed judgments proves that an illiberal turn has indeed occurred.

The conceptualisation of the shift that took place in the Constitutional Tribunal after 2015 as an ‘illiberal turn’ concerns both the formal level (the shortcomings in the procedure for appointing Constitutional Tribunal judges, the participation of ‘stand-in judges’ in adjudication panels, the flawed procedure of appointing the President of the Constitutional Tribunal, the manipulation of Constitutional Tri­bunal adjudication boards) and the legitimisation of violations of the constitution by the parliamentary majority.

Nevertheless, the definition of changes in the Constitutional Tribunal after 2015 as an ‘illiberal’ turn does not exclude the question of the legitimacy of the ‘new’ jurisprudence of the Constitutional Tribunal as an element of the constitu­tional revolution (in a broader sense, going beyond the paradigm of the strictly legal constitutionalism). It is in this context that one must consider whether Poland currently faces a constitutional moment and the new jurisprudence of the Constitutional Tribunal may be considered judicial higher-law making. The

100 T. Drinoczi, A. Bien-Kacala, Illiberal Constitutionalism: The Case of Hungary and Poland, German Law Journal 2019, vol. 20, p. 1141.

101 R. Wodak, Entering the ‘post-shame era’; The rise of illiberal democracy, populism and neo-authoritarianism in Europe, Global Discourse 2019, vol. 9, no. 1, pp. 195-213. legitimacy of these questions - particularly in the context of Poland - is confirmed by one of the academic interpretations of Bruce Ackerman’s constitutional theory formulated by Sujit Choudhry. He claims that: some of Ackerman’s constitutional moments are, in reality, moments of con­stitutive constitutional politics, the very character of which leads to constitu­tional failure and breakdown. As a consequence, Ackerman should be read not as a theorist of constitutional change proceeding through mass democratic mobilisation.

crisis.

As noted by M. Zioikowski, the emphasis on the sovereignty of the parliament and its privileged position among the organs of the public authorities, which is characteristic of Law and Justice rhetoric, is in contradiction with the concept of dualistic democracy, and only through a dualistic concept of democracy can we speak of a constitutional moment.^{1 3} It is also worth adding that Law and Justice, referring to the fundamental assumptions of political constitutionalism, distorts them. The identification of the essence of constitutionalism with the idea of dynamic self-determination of the political community, characteristic of political constitutionalism, should not, however, be confused with the permissibility of making so-called systemic adjustments beyond the current constitutional frame­work. Political constitutionalism presupposes a consensual vision of politics, and sees the constitution as a set of rules and institutions that enable emerging con­flicts to be managed.^[377] [378] [379]

Moreover, the concept of the constitutional moment assumes that a constitu­tional change does not break the continuity of the system, and thus represent a complete revolution. That is also why, in order to apply the concept of the con­stitutional moment to Polish historical and political conditions, one must accept the legacy of constitutionalism from the period of transformation.^[380] However, the Law and Justice rhetoric is based on criticism of the Polish political transition and the postulate for refabricating the political foundations of the state. Finally, in reference to Ackerman’s concept, one should not omit the crucial point that a constitutional judiciary must exist independent of the supreme authority. The independence and impartiality of the constitutional judiciary is an inherent part of the debate on amending the constitution.

The changes that have occurred in Poland since 2015 should really be con­ceptualised as an illiberal, counter-constitutional revolution. Its aim, despite maintaining the nominal continuity of the system, is to destroy the essence of the current constitution. The role of the Constitutional Tribunal in this ongoing pro­cess is complex. Initially, it was the object of criticism and direct political attack, which led to the undermining of its social authority. Subsequently, a parliamentary majority led to the takeover of this institution. The Constitutional Tribunal thus captured became an actor in a gloomy political spectacle. As an active entity par­ticipating in the counter-constitutional revolution, the Constitutional Tribunal post factum legitimises violations of the Constitution perpetrated by the parliamentary majority and acts as a governmental enabler.

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