The “emergency constitutional review” and Polish constitutional crisis of constitutional self-defense and judicial empowerment
Authors: Koncewicz Tomasz 
Published: March 2017

Courts that owe their existence to democratic institutional choice must act prudently, or the choice may be withdrawn” and the Polish Constitutional Tribunal is no exception. On balance, its jurisprudence of 30 years respected the choices made by the principal or, using M. Shapiro’s words, the Tribunal acted prudently and has built credibility and legitimacy incomparably greater than that of other Polish public institutions. Yet, the current attack on the Tribunal is not premised on the dissatisfaction with the overall performance or particular acts of the Tribunal, but rather strikes at its very existence and the very premiss of judicial review. We are not dealing with some hasty decisions of the majority being the result of the transient dissatisfaction with the Tribunal’s case law. If this was the case, we would not have reasons to sound off the alarm as political tinkering with the unwanted decisions taken by constitutional courts happen all the time and everywhere. It forms part of more larger and sophisticated plan aimed at debilitating possible pockets of resistance and independence, curbing democracy, the rule of law and the division of powers. In this paper I will argue that when the demos indeed chooses independent judges and courts as dispute resolvers and subjects them only to the Constitution and statutes (art. 173 and 178 of the Polish Constitution), the rule of law (art. 2 of the Constitution), elevates the Constitution to the status of the supreme law of the land (art. 8 of the Constitution), makes the separation of powers with checks and balances as one of the cornerstones of the Republic of Poland (art. 10 of the Constitution) and the judgments of the Tribunal universally binding and final (art. 190 of the Constitution), and, last but not least, inserts direct application of the constitution into the Constitution itself (art. 8(2)), the demos must then accept that courts will be ready to take these systemic features seriously and rule against the whimsical and instrumental politics of the day. It is now beyond dispute that there is a gradual constitutional coup d’état in Poland whereby the Constitution is being modified through legislative sleight of hand. In these extraordinary constitutional circumstances, the constitutional review by the ordinary courts is simply a necessary and urgent response to the relentless and no-holds-barred politics of the parliamentary majority of the day. The response must has at its core self - defense of the constitutional essentials mentioned above. Judges cannot simply stand by and watch the legal order torn apart in the name of “the people”. They must defend the Republic and uphold the law. This is exactly what they are sworn to do. Nothing less, nothing more. The government’s persistent refusal to publish judgments of the Tribunal brings to the fore a more general question of whether the constitutional integrity, rule of law and systemic coherence of Polish legal order, might be secured through legal means other than centralised constitution- al review? Below I will argue in favour on “emergency constitutional review” exercised by the ordinary courts. Such review is defended on the ground of constitutional self-defence and judicial empowerment that must be resorted to in the name of constitutional essentials and constitutional integrity. The emergency review is to make make sure that, despite the emasculation of the review functions of the Tribunal and its ensuing paralysis, the Constitution remains the supreme law of the land.