Designed to Fail? How the Polish Constitutional Tribunal Became a Political Pawn

Abstract

The Constitutional Tribunal takeover by the Law and Justice party is a spectacular example of constitutional crisis. In a short period, without formally amending the Constitution, the Tribunal was transformed from a respected yet benevolent institution into a rubber-stamp body subordinated to the ruling majority. This article examines the exogenous and endogenous factors contributing to CT paralysis and its ultimate decline. It analyses the interplay between the CT resilience stemming from the said factors and the resistance of individual constitutional judges and other agents that attempted to counter the CT takeover. The exogenous factors include the unconstitutional actions of the PiS party, the consolidation of power, the lack of inter-institutional trust, the dominant constitutional culture, and the post-communist legacy that contributed to the weak societal entrenchment of the CT. Endogenous factors include the poor design of the judicial appointment process, the CT President’s abuse of competencies, and the weak societal responsiveness of former constitutional judges. The resistance actions tried to remedy weak resilience. We examine the internal agency of judges, both on-bench and off-bench and external support from the legal community and civil society. The article concludes with a reflection on the current political impasse, the future of the CT, and the consequences of its collapse for the Polish legal system in general and the ordinary courts in particular.