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It all started with the destruction of the Polish Constitutional Court (hereinafter to referred as “the Court”) in 2015-2016. After 30 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 rightwing populist government and succumbed to it and transformed into an enabler for, and the servant of, political masters.
The time has come to move beyond what happened to the constitutional review in Poland, though and place it in the wider context. In this paper I want to move beyond the hitherto dominant perspective of “here and now” and lawyers’ fixation on the boat, and instead focus more on the journey and important lessons the journey might teach us and enhance the understanding of ‘our boats’. The argument will be made that the Polish case (“the boat”) is much more than just an isolated example of yet another recalcitrant government. There is an important European dimension to what has transpired in Poland over the last two years. To understand what happened in Poland and why, one has to take a longer view and revisit not only the 2004 Accession, but also the 1989 constitutional moment and „negotiated transition” that followed. The constitutional debacle in Poland must be but a starting point for more general analysis of the processes of the politics of resentment and constitutional capture that strike at the core of European principles of the rule of law, separation of powers, and judicial independence. With the benefit of hindsight, we now know that the disbelief about the destruction of the Polish Constitutional Court (and earlier, the Hungarian Constitutional Court) was an opening act to the total subjugation of all independent institutions of the state. With no independent constitutional court left to guarantee effective compliance with the national constitution, Polish ruling party has engaged in a multi-pronged take – over of the whole of the national judiciary to enable the executive and legislative branches of the government to systematically interfere in the structure, composition and daily functioning of the judicial branch.
The capture of the state and its institutions by way of carefully crafted legalistic schemes goes on, now with the assistance from the captured constitutional court. We enter the new brave world of “subversive jurisprudence” where judicial review is instrumentalized, weaponised and and unleashed on the adversaries of the majority of the day.