Although PiS is reportedly disappointed by Andrzej Duda's not adequate combat attitude, we can already see that we are facing a very hard co-habitation. And the hard cooperation of the president and the government majority is not the only systemic problem, What we will face in the coming years. We inactive have the PiS hacked, operating outside any framework provided for him in the constitutional order of the Constitutional Court and the problem of neo-Judges in the strategy of universal justice.
In this situation, calls for a "constitutional resettlement" appear. But there are 2 problems. Firstly, in the current political polarisation conditions, they stay completely unrealistic. Second, they frequently come down to legalization. institutional lawlessness left by the PiS.
The removal from the TK of the judges-dublers and the resolution of the dispute over whether Julia Przyłębska is simply a president of this institution will not, after all, make the Court, dominated by the PiS denominations – completely devoid of predisposition to sit in a constitutional court – start to execute the function envisaged for him in the Constitution.
At the same time, the more hard co-habitation, the louder the questions will be about whether our strategy was optimally constructed – especially the relation between the president and the Sejm majority. There are many reasons to answer that question in the negative.
Hybrid Failed
The Polish political strategy looks like the constitution's creators are incapable to decide whether they want a presidential strategy or a canclerian system, a parliamentary cabinet, and they chose a hybrid awkwardly combining the characteristics of both.
So we have a president from a direct democratic choice – which gives him an exceptionally strong democratic legitimacy – who is not the head of the government. It has atomic option in the form of a veto for which a qualified majority of 3 fifths is needed. No government majority since the adoption of the current constitution has had adequate swords in the parliament to do so. At the same time, the President, even in the field of abroad policy, does not truly have the tools to make his own policy.
Unless, at the same time, he's the leader of a camp with the majority in the parliament. However, specified a situation would argue with the anticipation of voters that the president should represent “all Poles” and be more than a organization leader.
As a result, we have a situation in which, on the 1 hand, the president is almost overpowering in the function of a brake government, but completely powerless as the creator of state policy, and on the another hand, a government with even a very strong democratic legitimacy is incapable to implement its policy, unless his word coincides with the presidential word from another camp, geared to obstruction. This means that it is not adequate to win parliamentary elections in Poland to prosecute its policy. Even in more consensual political systems, with more mature than our political class, specified a systemic structure is an invitation to a paralysing state of conflict.
If we were to open a discussion about a fundamental law, it would be wise to shift the Polish political strategy either towards a consistently parliamentary-office or presidential one. The first one, preferably. The strong Prime Minister liable to Parliament, having the chance to implement the programme on the basis of which he was elected, is the best possible constitutional solution. The best-designed democracies are parliamentary systems, frequently with only 1 chamber of parliament, do not request a breaker in the form of a presidential veto to work well.
This strategy has not worked in the last 8 years.
On the another hand, it is the current strategy construction that we owe to the fact that PiS did not go as far as Jarosław Kaczyński wanted between 2015 and 2023. Andrzej Duda reported at least 3 crucial vetoes: in 2017 on the Regional Chambers of Auditors Act – which would radically reduce the financial autonomy of self-government and in fresh years on lex TVNwhich could radically reduce freedom of speech in Poland, and twice on lex Czarnek.
However, it is worth remembering that these were important, but exceptions. president Duda, with the strong braking tools the constitution gives him, did very poorly as its guardian. This is best seen in the area of the “reform” of the PiS judiciary. In 2017 Duda vetoed 2 of the 3 laws prepared by Ziobra – on the National Judiciary Council and ultimate Court. However, he signed a third, about the strategy of common courts that enabled Ziobrze to revolution staff in courts. Duda later prepared his versions of the SN and KRS laws, mostly replicating the disastrous solutions from Ziebra projects. The President's office is the origin of the politicized neo-KRS, the institution in which most of the problems with the regulation of law crisis in Poland are concentrated. besides from the Presidential Palace came regulations forming the non-court Chamber of SN.
The president with a strong "brake power" only somewhat halted the process of constitutional decay in the last 8 years. Today, his power prevents the Coalition on October 15 from implementing a policy that received clear, strong democratic support, perpetuates the continuation of institutions spatologized by the Law and forces the ruling camp to search for a frequently heavy creative explanation of the laws of roads allowing bypassing the presidential veto.
In the context of European policy and the fresh powers which the president gives in this area the late adopted law of competence, he may besides await us with a repeat of the "war for a chair", which took place between Donald Tuski and Lech Kaczyński on who can represent Poland at EU summits.
Is presidential veto a good guardian of the Constitution?
One may besides wonder if it is actually the presidential veto that is the best guardian of the constitution and the barrier to the excess populist majority, which aims at gradually dismantling the strategy of liberal democracy.
Because the question of the President's sense of having a strong veto is truly another message: how to defend constitutional order from the regulation of his enemies, who, though they did not gain a constitutional majority, want to make a systemic revolution?
It may seem that this function should be exercised by a constitutional court whose primary competence is to control whether the authority implements its democratic mandate within the limits set by the Constitution. Of course, in Poland besides the constitutional court failed in this role. Court under the direction of Julia Przyłębska – the judges who are in the TK with her – are even little powerful present than president Duda. The Law and Justice has shown how easy it is to hack this institution and disable its primary function – control of the constitutionality of the actions of power.
Today, the authority has accepted the rule that, due to the judges of the doubles and a number of another shortcomings of the Court, its judgments are considered to be inconclusive. However, it would be fatal if the demolition of the Court of Justice in writing resulted in a state in which the State operates de facto without an effective constitutional court. due to the fact that it is not apparent that the specified departure of written judges at the end of their word of office and the choice of fresh judges will heal the situation in the Court.
This institution needs a deep constitutional correction today. It would surely be appropriate to rise the threshold of the majority essential for the Sejm to elect justice TK to 3 fifths. This will force a more constructive choice if Members cannot agree, the right to elect a justice could go to the legislature or the Court itself. Nor should the provisions let them to go consecutive to the Court from the parliamentary benches or from the position of their closest associate lawyer general and minister of justice.
How to defend liberal democracy from its enemies?
The parliamentary-office strategy with a strong Prime Minister and an operationally resistant constitutional court would form a deal that, on the 1 hand, would defend against the paralysing state with a co-habitation scenario, clearly specify who is liable for the full of politics, let the government majority to implement the demands it received in the election and, on the another hand, have the tools to force it to take place within the limits of the law.
Perhaps we request more extremist constitutional solutions to defend democratic-liberal institutions from being intercepted by hostile forces. possibly you should have tools to deal with parties openly outside the constitutional order before they take power.
However, all specified solutions carry certain risks. Protecting liberal democracy from hostile populism must be careful not to suppress the completely democratic component of the system, not to close the channels expressed by the social discontent and will of the political people. This dilemma is very real and if the right side of the political scene in Poland will not go through extremist revolution and the process of deradicalisation, it will be a real challenge for Polish democracy. It is possible that it will not be able to face him without beginning a discussion about the Constitution.
Although the proposals made by the Confederacy present are ridiculous, the discussion of the fundamental bill is waiting for us sooner or later, even if there is no space for it in the cleaning mode after the Law and Justices. The left side should besides be prepared for it. So that the revision of the Constitution would not, for example, lead to the removal of social regulations specified as the right to housing. The rules on the relations between the state and the Church were formulated at a time erstwhile society was in a completely different place, and present there is simply a field for revision that would be most beneficial to the left. Let us so prepare to discuss in which direction we would like to improvement the basic law.
