Introduction

In Poland, significant changes have occurred since 2015, consisting of the gradual dismantling of the existing system of checks and balances and the subordination of judiciary power to executive power.¹ Due to the fact that the current parliamen­tary majority has ignored the text of the constitution and the previous jur­isprudence of the Constitutional Tribunal, this is referred to as constitutional breakdown? constitutional crisis? rule of law crisis?democratic backsliding?populist backsliding⁶ as well as statutory anticonstitutionalism? These academic and jour­nalistic terms aim to conceptualise Poland’s gradual departure from the paradigm of liberal constitutionalism.⁸ While critics of this phenomenon point out that the

1 Cf.

2 W. Sadurski, Poland’s Constitutional Breakdown, Oxford University Press 2019.

3 Among many: M. Matczak, The Clash of Powers in Poland’s Rule of Law Crisis: Tools of Attack and Self-Defense, Hague Journal on the Rule of Law 2020, M. Matczak, Poland: From Paradigm to Pariah? Polish Constitutional Crisis - Facts and Interpretations, http s://ruleoflaw.pl/poland-from-paradigm-pariah-polish-constitutional-crisis-facts-and-in terpretations/; Aleksandra Kustra, Poland’s Constitutional Crisis. From Court-packing Agenda to Denial of Constitutional Court’s Judgments, Torutiskie Studia Polsko-Wlos- kie/Studi Polacco-Italiani di Torun, vol. XII 2016, pp. 343-366.

4 Among many: A. Kustra-Rogatka, Country Report. Poland Rule of Law Overview, https://democracy-reporting.org/ua/dri_publications/country-report-the-rule-of-la w-in-poland/.

5 Among many: W. Przybylski, Explaining Eastern Europe: Can Poland’s Backsliding Be Stopped? Journal of Democracy 2018, vol. 29, issue 3, pp. 52-64.

6 W. Sadurski, How Democracy Dies (in Poland): A Case Study of Anti-Constitutional Populist Backsliding, Sydney Law School Legal Studies Research Paper no. 18/01 (2018).

7 M. Bernatt, M. Ziolkowski, Statutory Anti-Constitutionalism, Washington Interna­tional Law Journal 2019, vol. 28, pp. 485-525.

8 For more on this phenomenon cf. Tom Ginsburg, Aziz Z. Huq, Mila Versteeg, The Coming Demise of Liberal Constitutionalism? The University of Chicago Law Review, 2018, vol. 85, no. 2, pp. 239-255.

DOI: 10.4324/9781003200666-9 use of the salami-slice strategy leads to a gradual transformation of the political system towards authoritarianism,^[291] supporters of the changes consider them a necessary systemic correction, finding legitimisation in the will of a sovereign nation.^[292]

The purpose of this chapter is to assess the systemic changes that have affected the first target of the Law and Justice [Pol: PiS] government - the Constitutional Tribunal. A comparative analysis of the government’s actions aimed at dismantling the existing tripartite division of power proves that the primary target are counter­majoritarian institutions that mainly include constitutional courts. Typically, two strategies are used: court-packing or curbing, sometimes used simultaneously. In the case of the Polish Constitutional Tribunal, the first step involved undermining the social authority of the Constitutional Tribunal. Then, a court-packing strategy was applied, and after a period when the judicial activity of the Constitutional Tribunal was effectively frozen until the President of the Constitutional Tribunal position was filled with someone favourable to the government, the Polish con­stitutional court once again began to issue rulings on politically controversial cases, legitimising the unconstitutional actions of the parliamentary majority.^[293] An ana­lysis of the political role and jurisprudence of the Constitutional Tribunal after 2015 will be made from a specific theoretical perspective that aims to answer the question posed in the title: are we witnessing an illiberal turn or a (counter-) constitutional revolution?

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