Chess-Boxing Around the Rule of Law – Polish Constitutionalism at Trial

Abstract

The 2015/16 dispute over composition and organisational design of the Constitutional Court in Poland (Pol. Trybunał Konstytucyjny – Constitutional Tribunal) involved two major political parties (Law and Justice – PiS, and Civic Platform – PO) taking partisan stance and involving into political rent-seeking, though with varying revolutionary zeal and different levels of subtlety in their attempts to by-pass or outrightly trespass constitutional constraints. The article provides factual and analytical coverage of the constitutional crisis resulting from the conflict that arose around the Constitutional Tribunal. It also presents nuances of the course and dynamics of the conflict as well as its immediate run-up, including the role of the Tribunal and its justices themselves. The paper provides analytical take on the legal and political nexus underpinning and propelling the conflict, as seen against the background of the societal divide and a “tribal” nature of the split among the people of Poland with regard to their appraisal of the socio-economic order that emerged from the Round Table Talks of 1989.

Keywords: Constitutional Court, Constitutional Tribunal, judicial review, rule of law, constitutional crisis, Polish constitutionalism, midnight judges, court packing