WEBINAR 8: HUNGARY & POLAND - The Façade of State Organs in Contemporary Autocratic Regimes: The Case of the Polish Parliament
Piotr MIKULI
23 November 2020
Background
One of the characteristics of the current form of authoritarianism is that legal institutions or procedures are not merely abolished. On the contrary, they are abused, and their real meaning is altered. Kim Lane Scheppele rightly argues that authoritarians deploy the law to achieve their own aims. This central tactic of these authoritarians was described already in 2008, among others, by Tom Ginsburg and Tamir Moustafa (Rule by Law: The Politics of Courts in Authoritarian Regimes). Legal institutions originally intended to protect and preserve the rule of law have been distorted into institutions designated to rubber stamp decisions already taken by a contemporary satrap. In Poland, many constitutional institutions have been politically captured without formally changing their names and competences (The Constitutional Court and the National Council of the Judiciary are often perceived as the best examples of this phenomenon; see, for instance analysis by Marcin Matczak).
In this blog entry, I will present institutional, legal and practical examples of parliamentary freezing in Poland in the years 2015–2020, using three approaches: 1) the issue of the contrast between legal and political constitutionalism: undermining parliamentary debates falsifies the thesis shaping the latter in Poland; 2) the issue of parliamentary functions, mainly the control function: suppressing the opposition leads to the practical disappearance of these functions because certain legal and constitutional tools are usually used by opposition deputies; and 3) the dogmatic and practical approach: presenting a classification of those mechanisms that have been used to make the parliament an institution essential to rubberstamping the ruling party's decisions (made outside parliamentary debates).
Legal versus Political Constitutionalism: Misleading Assessment
The first approach seems a little faded nowadays, as the real face of the Polish and especially Hungarian autocrats’ intentions has become known (see Paul Blokker). At the very beginning of the Law and Justice party (PiS) ruling, arguments concerning a shift from legal to political constitutionalism were part of scholarly discussion. Some observers perhaps hoped or were even convinced that the change may involve the prevalence of political discourse at the expense of purely legal analyses of constitutional provisions, which could be connected with the limitation of the judiciary's role, including the constitutional court. As we know, tendencies to criticise judicial review are as old as constitutional justice. Public and scholarly arguments that strong courts and judicial review limit democracy are frequent in developed, stabilised states with rule by law.
However, straightforward attacks on legal and political institutions removed all illusions, which was proven very well by Wojciech Sadurski in his excellent book Poland's Constitutional Breakdown. The aim is only to concentrate power and limit the elementary control of its arbitrariness. They adore referring to the rebuilt rule of law, but as Justice of the German Federal Constitutional Court Susanne Baer rightly stated recently, ‘what they mean when this is looked at in detail is law as a means of their power to crush those they dislike’.
To grasp this issue, I would like to develop here that there is the need to define a notion of ‘facade activity’. In this context, by ‘façade,’ I mean depriving a state organ/body of their real competences, especially in relation to a checks and balances system understood in its wide sense, as a necessary element of the contemporary state ruled by law. However, institutional capture takes place not without reason. In the intentions of authoritarians, a hijacked organ must consolidate their power while the current state apparatus is still in formal operation. ‘Façade’ here means the loss of immanent independence, which is necessary to fulfil a given state body’s assigned constitutional role.
Thus, the material aspect is the most important here. Obviously, from a clearly formal perspective, a captured organ may not be a façade at all; conversely, it may be practically effective, especially if it uses its competences in a way hostile to the constitution's normative content. In this sense, for instance, both constitutional court and parliament remain even more vital, as they used to be. They may even invoke legal results, which could not be achieved previously when they acted inside their constitutional scope of power. In this context, I cannot fail to mention the last ruling of the Polish Constitutional Tribunal concerning the ban of abortion in case of irreversible damage to the foetus, which means, in practice, the end of legal abortion in Poland (see Tomasz Koncewicz). It confirms that the ruling camp is ready to support "judicial" activism, when with it, their political interests may be pursued, or their political views will be clearly expressed by a puppet court.
Twilight of the Parliamentary Scrutiny Function
Explaining the marginalisation of the parliament’s constitutional role involves considering the perception of the above-mentioned adjective, "façade". One of the main (apart from the legislative) functions of parliament is its scrutiny (control) function. It may be understood per se and comprises typical instruments in the parliamentary political regime such as a vote of no confidence, MPs’ questions, investigative powers of parliamentary select commissions, etc. However, the control function is also strictly connected with law making, as the law in contemporary democracy should balance various interests and clashes of arguments to find the best possible normative solution. Since the PiS party took power, parliamentary debates practically disappeared, becoming, in their minds, an unnecessary element of the procedure.
Normative tools that manifest parliamentary scrutiny can be effective, especially in parliamentary cabinet regimes, when just the political opposition uses them. In this context, one should remember the political division of powers, which is not less important than organisational and functional division within the constitutional apparatus of public authorities. Instead of a sharply defined distance between the parliament and the government, a clear distinction between the ruling camp and the opposition seems to be a guarantor of checks and balances. Modern governmental systems have evolved towards a combination of the division of the state’s legal spheres of action between certain bodies, with the political division of power (influence) between political camps.
Parliamentary debates are directed to fulfil the parliamentary scrutiny function, precisely because the ruling camp has a majority. Any flaws and ambiguities in the proposed regulations can have a chance to become known especially thanks to MPs, who do not belong to the majority camp, as they are interested in contesting ideas and plans of the parliamentary majority. However, the ruling party decided to deny this immanent feature of parliamentary deliberations due to normative as well as practical measures. The consequence: making both chambers of parliament (until 2019) a machine for making laws which, if at all, had been discussed earlier, only within the ranks of their own political caucus.
The above-mentioned solutions can be divided into several categories; however, the presented divisions are not exhaustive. Particular elements may be qualified to various groups. The first category comprises those instruments which already existed in the parliamentary law, though they began to be applied excessively. Amongst them, one can identify the possibility of setting the time limit for MPs wanting to give the floor at the debates concerning particular bills. In the previous term of the Sejm (2015−2019), the practice of limiting MPs’ statements within debates at parliamentary committees to up to one minute (literally, 60 seconds) became the standard.
Another example of the hostile construction of the existing parliamentary rules of procedures involved using the parliament speaker's management powers to speed up parliamentary legislative procedures to pass a bill in a version convenient to the ruling camp. Three readings of parliamentary bills ceased to be the opportunity to elaborate the best wording of new provisions but turned out to be for PiS just an obstacle on the quick path to achieving the ruling party's political goals. This must have led to the passing of incoherent and often reciprocally contradictory statutory provisions, which have to be corrected later, often more than once. For instance, it recently happened that a bill was amended before it became a signed statute. In these circumstances, it is clear that all this does not constitute merely undeniable flaws in the legislation process, but obvious insults.
The second group of anti-parliament measures is composed of the set of provisions introduced as amendments to the existing rules of the parliamentary procedure of the Sejm (first chamber). They include a scope of detailed disciplinary rules serving to intimidate opposition deputies, such as a possibility to name a given comportment of an MP as ‘violation of the dignity of the chamber’ by the Speaker and a number of financial penalties which may be imposed for any acts, which according to the Speaker, can be considered a disturbance of parliamentary work. Another negative amendment involved, for example, limiting a debate on a Senate resolution concerning the bill, through an introduction of a provision that only the MP-rapporteur is entitled to present remarks concerning the Senate's standpoint, but not anyone else.
A different classification of all the described legal and controversial practical solutions may refer to political and even psychological assessments. Since some may be even understandable from a praxeological perspective, just to put their foot down (by speeding up the legislative process), many of the other measures may be treated only as a revenge, showing the will to crush political opponents in a spectacular way. Removing the right to speak or exclude deputies from a plenary sitting is often of symbolic meaning. It is supposed to be part of a broader humiliation campaign including the degradation of those who have an opposite view, taking away their dignity and slapping them in the face. It was not without reason the PiS leader and now the deputy prime minister, Jaroslaw Kaczynski, cried out towards opposition MPs: “Treacherous mouths! You are all knaves!” or, just recently, “You are criminals!”
Legislative Rollercoaster and the Continuing Constitutional Crisis
Political and legal acts which could be observed in the previous Sejm’s term of office are being continued in the present term. The slight majority of the opposition gained in the 2019 elections made the Senate the place where at least some concurrent arguments may be presented to a wider public and discussed in a civil manner. In this sense, the Senate in practice, to an extent, must have overtaken the scrutiny function of the first chamber, despite the fact that, according to the Constitution, the Sejm, not the Senate, should exercise control over the executive's activities. Nevertheless, as the majority in the first chamber usually rejects the Senate's amendments, the Senate's systemic role is more symbolic. The pandemic crisis deteriorated the quality of the legislation much more. Unfortunately, there is not much hope for a quick improvement. The fading Polish parliament with no doubt is one of the many symptoms of, using Wojciech Sadurski's words, Poland’s constitutional backsliding.
Piotr Mikuli is a professor at the Jagiellonian University in Krakow and head of the Chair in Comparative Constitutional Law. His research interests include constitutional review, constitutional principles and the role of courts and judges. He is the author and co-author of a number of publications dealing with Polish and foreign constitutional issues, among others he is a co-author of the monograph Ministers of Justice in Comparative Perspective published by Eleven International Publishing in 2019.