January 25, 2022

On the rubble of the rule of law

This capture is a process rooted in the crisis of the liberal story in former communist nations. In some eastern European member states, liberalism and democracy have stopped to be deemed the foundations of the legal system. As the capture of the state progresses, the liberal understanding of the guideline of law is undermined together with the separation of powers, judicial self-reliance and the primacy of the Constitution.

The battle lines on the domestic front have actually been clearly drawn. The most current effort by the Polish executive to undermine the foundations of the European legal order by turning yet once again to the discredited mate formerly referred to as the Constitutional Court, and the choice by the latter that generally declares Polands aversion to continue as an EU member state, speak volumes about how far the brand-new doctrine has actually come considering that 2015 and how powerful a justification it provides.

In a liberal democracy, every institution is bound by law and accept controls enforced on it by other institutions, which should also act within the structure of the law. This principle should remain sovereign in any democratic state.

With all this a point of no return may have been reached.

The minimal success of the EUs and its institutions attempts to ensure that Poland adhere to Europes legal requirements can be put down first to an absence of political imagination and a will to defend the core of European combination; and second to a tendency to view the Polish scenario as a series of inapplicable occasions. Yet there is a common aspect: the constitutional capture of the state and its institutions. What has actually taken place to the Polish Constitutional Tribunal, to the typical courts, to the National Council of the Judiciary and to the Supreme Court are elements of a methodical takeover of the state by the executive.

Image through Wikimedia Commons

From text to context

If we talk about how to rebuild the guideline of law, we can take an institutional point of view. If we continue to focus specifically on the institutional combination of Polish democracy, we will repeat the error made in 1989. Generating a constitutional context needs far more than adding a couple of institutions or producing new procedures.

For Poland, the concern of how to operate in a community of countries moving towards integration was by no ways uncomplicated. Our failure to use our membership to raise requirements caused the breakdown of the paradigm that had shaped the transformations of 1989: the concept that liberalization and democratization were permanent. As a result, in 2015, we went into reverse.

The Spanish political thinker Juan Linz wrote over forty years ago that democracy is not consolidated up until it becomes the only game in town. For this to be so, conditions have to be met at three various levels: behaviourally– when every political star accepts the authenticity of the system; attitudinally– when citizens determine with the existing constitutional order; and constitutionally– when any modification to the existing order can happen just through due process and within a binding structure.

When we think about the worths that unify people in Poland, we need to advise ourselves that, after 1989, the country never ever ended up being a consolidated democracy. A large percentage of the Polish population is uninformed of what the 1997 constitution in fact includes.

EU to the rescue?

In Poland, we seem to have forgotten how our internal debate about fundamental worths equates into the European setting. We likewise have a tendency to ignore our unfamiliarity with the way guideline of law functions in other democratically governed states. Couple of keep in mind that, when the Paris Treaty was checked in 1951, the concept of a neighborhood of European states was underpinned by the shared presumption of specific constitutional fundamentals. These were what had actually led the signatories to unite, despite distinctions. They were not expressed in the form of a text, however were rather tenets emerging from a legal culture shaken to its core by the experience of totalitarianism and overall war. Now Poland is declaring that the rule of law indicates something different to it and that reaching an understanding with Europe on the self-reliance of the judiciary is therefore difficult.

Of all the European institutions, it was the EU Court of Justice that has clearly understood that we are dealing here not with yet another crisis of governance, but with the however of very essentials that brought fundamentals keep member states together. The ECJ judgment on Polands judicial reforms of 19 November 2019 and 8 April 2020 (to call however two) were a response to attacks on the preliminary ruling procedure, the process by which the ECJ hands down rulings to member states and a bedrock of European integration; to disciplinary proceedings against judges who carry out European law at home; and to gestures professing to secure the sovereignty of the Polish Supreme Court.

Today the European constitutional disaster sees the Commission becoming part of the problem, rather than a solution. Invite to EU politics in 2021 A.D.

Poland is positioning itself outside the Union and losing whatever little legal credibility it has actually left. Officially speaking, Poland remains in, given that there is no treatment in place to expel a Member State that breaks the foundations of the EU law.

Integrating core concepts developed by other EU member specifies with a Polish definition of the Union and its worths was bound to result in a clash. Why, then, has the EU just now begun to punish Polands behaviour because 2015, when the PiS went back to power?

The European Coal and Steel Community, and the European institutions that grew from it, all acclaimed the accomplishment of liberal democracy. In 1951, no one might have predicted that any private country may bring into question the liberal structures of the post-war European order. Now, Poland does so on an everyday basis. The facility on which the post-war European order was developed is failing to stand the test of time.

The rate of department

When institutions and laws come to serve politics, rather than holding power in check, a cornerstone of the post-war European order is lost. Do we stay in a European system governed by the rule of law, to which generations aimed after WWII, and thus acknowledge the precepts we accepted in 2004?

Another essential point of the contract is a dedication to carry out any ruling the Court makes. For this dedication to be credible, it is stated that implementation needs to happen not just ex post (after the judgement has actually been provided) however likewise ex ante (while it is still assumed and predicted). Only then does the political community and the common market make sense.

Its an act including a pseudo-constitutional court that queries whether the European initial judgment procedure complies with the Polish Constitution and undermines some of the most cherished tenets of the European legal order. Parliament is making new efforts to take over what is left of judicial independence and to annoy efforts by Polish courts to appeal to the ECJ.

European law uses a genuine opportunity of challenging the law, justice and state would choose to see its EU dedications as an useless bit of paper.

Of all the European institutions, it organizations the EU Court of Justice that has clearly understood that we are dealing here not with yet another crisis of governance, but with the crisis of very essentials that extremely fundamentals keep member states together. The ECJ ruling on Polands judicial reforms of 19 November 2019 and 8 April 2020 (to name however 2) were a reaction to attacks on the preliminary ruling treatment, the process by which the ECJ hands down judgments to member states and a bedrock of European combination; to disciplinary proceedings versus judges who implement European law at home; and to gestures purporting to protect the sovereignty of the Polish Supreme Court. The spirit of European combination liberates EU citizens from constrictions imposed by an all-powerful national state, however it is also always based on compliance with rulings issued by the ECJ.

Choice time

Polands subscription of the Union is no certainty. Or have we actually forgotten that as little as sixteen years ago we needed a visa to go into the EU?

Who would have thought of that, sixteen years after Polands accession, people would require to be reminded of these things? Today we are living in a nation without checks and balances, in which the state can do anything.

The EU opens up brand-new possibilities; Law and Justice presses residents into the confines of a state structure. European law uses a real opportunity of challenging the state, justice and law would choose to see its EU commitments as an useless bit of paper.

The language matters here. The EU is not requiring Poland to do anything. It is merely carrying out the arrangements of the Accession Treaty that entered into force in 2004 and which Poland has actually willingly accepted to be bound by. The European courts are unbiased and independent arbiters that help settle disputes that specific states are not able to fix on their own. Confidence in this process has been a condition of Polands membership of the Union from the start. Within the EUs legal system, the judgments of the ECJ are protected, to an unusually high degree, from disturbance by specific member states.

My argument here represents a Polish residents action to the poisoning of hearts and minds by uninformed narratives about a dubious Europe stated to be conspiring versus Poland, threatening its sovereignty, and revealing disrespect for its distinct identity. It is important for Polish citizens to increase above a perspective in which the here and now predominates, without asking how the here and now will affect and change their lives in years to come.

In Poland, public conversation on Europe as a community of nations, and on the worths which the peoples and states of the continent share, must end up being an immediate priority. Let us vote for it and for Polands contribution to it.

Polands citizens are stumbling over the rubble of the rule of law. In the paranoid story of Law and Justice celebration, Poland is the selected nation besieged by enemies hatching plots versus the country. Combination is a procedure, not an equation that presupposes a dispute between sovereign states and a subordinating Union.

Few remember that, when the Paris Treaty was signed in 1951, the notion of a neighborhood of European states was underpinned by the shared presumption of particular constitutional fundamentals. Invite to EU politics in 2021 A.D.

Polish people who care about Europe, and about Poland within Europe, need to not allow the basic underpinning of European combination and law to be gotten rid of. The autocratic legalism of Law and Justice has shown us how a caught state works. Today there can be no doubt that we are watching a determined staging of how to control the law and institutions and how to ruin the law and organizations when they withstand.

All nations are bound by European law equally and unconditionally, not just when it fits them. The European Court is an unusually egalitarian area: Germany has a single vote, as does Luxemburg. The dream of the Founding Fathers was that law not war would end up being the gadget to fix up and frame the varied interests of Member States and ensure that never ever again would be etched in the material of the European continent.

Attacks on the ECJ marginalize Poland in the Union and might ultimately push the country out. If that were to occur, Polish citizens would once again become second-class residents in Europe, denied of the protection that European law and the Court of Justice offer to nationals of other member nations. Polexit would imply a return to a world in which Polish citizens bathe in the reflected glory of the state, while staying obedient to its will. European law puts the people of Europe in the overlaps between two systems. They no longer belong exclusively to areas defined by the borders of their own country state. The spirit of European integration liberates EU citizens from constraints imposed by an all-powerful nationwide state, but it is likewise always based upon compliance with rulings provided by the ECJ.

When one member nation fails to satisfy its obligations, the others are not permitted to take unilateral action. They can not close their borders and decline entry to the radical states residents or its items. Rather, member states must follow due procedure, wait for a ruling and after that follow it. This is because, when joining the Union, all prospective member states sign a contract with crucial specifications concerning recognition of the ECJs competences and its jurisdiction.