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The Capture of the Polish Constitutional Tribunal and Beyond: Of Institution(s), Fidelities and the Rule of Law in Flux

In: Review of Central and East European Law
Author:
Tomasz Tadeusz Koncewicz The Program in Law and Public Affairs, University of Princeton, Princeton, NJ, USA; Department of European Law and Comparative Law; Faculty of Law and Administration, University of Gdańsk, Gdańsk, Poland< tomaszk@princeton.edu>

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History might have stopped for the Polish Constitutional Court in 2015–2016. After thirty years of building an impressive resume as one of the most influential and successful European constitutional courts and living proof of ‘the rule of law in action’, the Court has fallen under the relentless attack of a right-wing populist government and succumbed to it. This paper moves beyond the hitherto dominant perspective of ‘here and now’ and lawyers’ fixation on ‘the boat’, and instead focuses more on the journey and important lessons the journey might teach us and enhance the understanding of ‘our boat’. The Polish case (‘the boat’) is much more than just an isolated example of yet another government going rogue. An important European dimension colors what has transpired in Poland over the last twenty months. To understand what has happened in Poland and why, one has to take a longer view and revisit not only its 2004 accession, but also its 1989 constitutional moment. The constitutional debacle in Poland must be but a starting point for a more general analysis of the processes of the politics of resentment and constitutional capture that strike at core European principles of the rule of law, separation of powers and judicial independence.

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