Illiberal constitutionalism and COVID-19 in Poland

Tímea Drinóczi,
Department of Constitutional Law, Faculty of Law, University of Pécs,

Agnieszka Bień-Kacała,
Professor UMK, Dr. Hab.,
Nicolaus Copernicus University,
Toruń, Poland

In 2021, only two countries – Hungary and Poland – display the characteristics of illiberal constitutionalism. After 25 years of the democratic transition of Poland, which brought fully-fledged constitutional democracy, it started to be downgraded to something else, which we call illiberal constitutionalism. This type of constitutionalism is based on a longing for a charismatic leader and specific national identity, combining individual freedom with non-liberal values. It distances itself from western standards of the rule of law, democracy, and human rights protection. Illiberal constitutionalism is viewed as the functioning of a public power that upholds the main constitutional structure but somehow lacks a normative domestic commitment to constraints on public power, even while, to a certain extent, it remains within the boundaries set by EU law and politics, as well as international minimum requirements. Illiberal constitutionalism is not the opposite of liberal constitutionalism and does not equate to authoritarianism; it departs from the former and tends towards the latter. Thus, constitutional democracy still exists, but its formal implementation outweighs its substantive realization. In the systemic settings, all elements of constitutional democracy, such as democracy, the rule of law, and human rights, are observable, yet none prevails in its entirety. Consequently, illiberal constitutionalism encompasses illiberal democracy, illiberal legality (the abused rule of law), and illiberalized human rights protection. In Poland, most of these changes are unconstitutional informal constitutional changes – which have been accelerated during the COVID-19 pandemic.

The presidential election illustrates the Polish illiberal democracy. The voting date was announced before the outbreak of the pandemic and set to 10 May 2020. The ruling majority wanted to organize the election at any cost. It seemed that the epidemic favored President Duda, who could still move around in his capacity as President, while other candidates were more restricted. Kaczyński announced that successful crisis management could not be undertaken without winning this election. Therefore, the parliamentary majority, during spring, did anything in its power to adopt laws that would be unequally and unfairly beneficial for them to win. The most worrying development was, however, that on 10 May, the vote was not held. On 6 May, the ruling camp decided not to proceed with the election without a formal legal ground, which they could not develop due to the many controversies and critical views of domestic and supranational and international actors. This move was also a result of a political agreement between Kaczyński and his allies. The new law on the presidential election, which was far from ideal but stayed more in line with the required standards than the earlier proposals, was passed and the election was organized in June and July 2020.

The phenomenon of illiberal legality can best be explained by how the Constitution 1997 was bypassed, i.e., informally changed, amid the pandemic only for mere political gain i.e., being able to organize the presidential election as originally planned. In mid-March, the Polish Government decided to declare a ‘state of epidemic’. However, “epidemic” is not mentioned in the Constitution, which otherwise has rules on emergencies, but human pandemic situations are only covered in two separate Acts (Act on the state of natural disaster and the Act on infectious diseases). The Government chose not to activate the available constitutional emergency regime, called ‘extraordinary measure’; instead, with the parliament’s help, it enacted a new statute-based regime to respond to the coronavirus pandemic. Under the constitutional emergency rules, a presidential election could not have been held. Still, under the new one, it became possible, along with the unconstitutional limitation of the freedom of assembly and the freedom of economic activity.

Illiberalization of human rights protection may be illustrated by the abortion bill read in the parliament during the first wave of pandemic and the CT decision of 22 October 2020. The CT de facto banned abortion during the second, more severe, wave of the pandemic. The judgment was published and became effective in January 2021. Both the decision and its publication caused mass protests. Before this CT decision (and even after it, as it was not published until January 2021), abortion was allowed in three circumstances: when the woman’s life or health is endangered; the pregnancy is the result of rape; there is a severe and irreversible fetal impairment. The root of the case may be traced back to 2016 when the Sejm rejected the liberalizing abortion law bill, “Save Women”. At the same time, the Sejm also considered the parallel bill “Stop Abortion”. The latter bill was dropped until April 2020, when the Sejm decided to proceed with it amid the pandemic. The legislative procedure was still pending, but the ruling majority decided to shut down the disagreement surrounding the issue without deliberation and discussion. Therefore, the CT was abusively and informally approached and pressured to decide on the law.

The constitutionalist nature of the Polish legal system rests on the fact of membership in the EU and the application of the EU law, however reluctant it is. It was challenged by the CT’s changed narrative: in April 2020, the CT ruled on the relations between Poland and the EU. As a result of series of judgments, the CT said that the SC had abused its competence to implement the CJEU judgment and wrongly and unconstitutionally emphasized its primary duty of loyalty to EU law and rulings of the CJEU, including the acceptance of their legally binding nature. These series of rulings are, therefore, a turning point in the relations between Poland and the EU as these rulings concern the foundations of the functioning of a Member State namely, the supremacy of EU law and EU law-friendly interpretation, and the recognition of the competence of the CJEU and the preliminary rulings procedure. Without recognizing these rules, it is not possible to operate within the EU legal sphere. The sovereignty of Poland and the supremacy of the 1997 Constitution, due to the arguments of the CT using them to stress Poland’s symbolical sovereignty, have become a barrier against EU law and EU competences.

The consequences of not only this position but all the abovementioned unconstitutional informal changes are deeply harmful not only to the Polish people but the Polish legal system as well – which, formally, still operates under the liberal and EU-oriented Constitution 1997.


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