The events that took place at the beginning of December 2015 would not seem out of place in a political thriller

 

— Marcin Matczak, lawyer and Associate Professor, University of Warsaw

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Prominent critic of Law and Justice Party denounces “assault on the rule of law in Poland” as “out of a political thriller”

09 March 2018

In a FLJS lecture at Wolfson College last night, Marcin Matczak, the renowned lawyer and professor at the University of Warsaw, strongly denounced the policies implemented in Poland in recent years that have served to undermine the independence of the judiciary.

Describing the escalating crisis in the country, the renowned lawyer and University of Warsaw professor accused the misleadingly named ruling Law and Justice party of having carried out a multidimensional “assault on the rule of law in Poland”, through a series of opaque negotiations and extraordinary eleventh hour measures that “would not seem out of place in a political thriller”.

Professor Matczak has been a vocal critic of governmental actions to undermine the rule of law through his work as an attorney representing NGOs in constitutional cases against the government. In his lecture, entitled Poland: From Paradigm to Pariah?, he attributed the current backsliding to authoritarianism in Poland to a unique alignment of historical, legal, and sociological factors in operation in the post-Communist country.

The moves to undermine the rule of law came to a head in June last year, when Parliament passed a bill which gave politicians full control over the appointment and promotion of judges. Huge street protests followed this “attack on the separation of powers”, yet President Duda, who did in fact veto the legislation, proceeded to engage in a power struggle with the Law and Justice party, wresting control of the judiciary though a series of presidential proposals, which included:

  • the removal of 40% of judges from the Supreme Court, including its President, thereby shortening her constitutionally enshrined term of office
  • the establishment of a new Supreme Court Chamber which will be responsible for assessing the validity of elections
  • the appointment of a new National Council of Judiciary whose judicial members will be, contrary to the Polish Constitution, elected by Parliament

The first cause of the constitutional crisis was identified as the specific nature of the post-Communist transition in Poland, in which the process of lustration, or bringing to justice of the servants of the Communist regime, was struck down by the Constitutional Tribunal.

 

The rule of law in Poland became a smokescreen for shady interests rather than the disinterested expression of an ideal

 

Such a move was manipulated by the government, which characterized the Constitution as an illegitimate tool to protect the privileges and ill-gotten gains of post-communist elites, coining the term “legal impossibilism” to argue that the principles of procedural justice had made it impossible to bring about “real, material justice”.

    Professor Matczak attributed the success of such moves in part to a certain immaturity evident in Polish legal culture, with its excessive reliance on formalism, along with the efforts of the political class to obscure its misuse of powers through selective constitutional interpretations and the veneer of legality: "the rule of law in Poland became a smokescreen for shady interests rather than the disinterested expression of an ideal".

    Such weaknesses in the legal defence mechanisms in operation were compounded, in Professor Matczak’s view, by the underlying social problems in operation in the country. These were identified as a crisis of liberal values in contemporary Polish society, in which a younger, aspiring middle-class needs to re-define itself after having prospered from the post-Communist transition and distanced itself from the struggle to resist the more overt coercive and oppressive forces of the past.

    The lecture opened a workshop the following day at which a roundtable of experts discussed the issues raised in greater depth, including the controversial Holocaust law, which criminalizes the act of accusing the Polish nation of crimes against humanity.

    A full transcript of the lecture is available below, along with a podcast of the lecture, and a series of policy briefs from the workshop will be published on our Publications pages over the coming months.