Whatever works: Constitutional interpretation in Poland in times of populism

Wojciech Brzozowski

Introduction

The anatomy of constitutional populism is a matter of ultimate concern to so many public law scholars these days that even approaching this topic requires a great deal of boldness. With so many existing contributions on the democratic retrogression, how can one hope to shed a new light on the issue? Yet, when I was asked to prepare the Polish chapter to this volume on constitutional interpretation in times of populism, I thought to myself that the experience of Poland in this respect was, sadly but truly, unique and worth sharing.

The aim of this chapter is to find the answer to a classic Shakespearean question: is there a method in their madness? This time, however, the issue is not the political or legal technology of coming to power and holding on to it, so successfully deployed by the populist movements in Central Europe and elsewhere. In this respect, we know very well that there actually is a method in their madness - which, by the way, is not really madness after all, but rather a meticulous master plan - and that the populists tend to take pages from the same playbook, whoever may have written it first. They do indeed follow a very similar pattern when dealing with any constraints on state power and eliminating any checks upon the political branches of government, or limiting the rights of the political opposition and anyone who is not satisfied with the populist rule. We know this very well; in Poland, we know this all too well.

In fact, the question is much more demanding this time. Does constitutional populism bring any new quality, good or bad, to the art of legal interpretation? Has it developed any entirely new theories, doctrines or methods of interpretation which could be seen as a contribution to the legal science, or even as an alternative to the art of legal interpretation as we know it?

It is high time these questions received proper answers. For some time now, I could not help noticing the growing consternation among many Western scholars over their sense that they have failed to fully understand this phenomenon and have possibly missed something important from the recent developments in global constitutionalism. Such anxiety is only occasionally revealed in conference papers but is likely to spread rapidly in the

conversations de couloir. Let me voice these doubts: Is this some new emerging theory which has not yet received sufficient attention but is inevitably going to transform contemporary constitutionalism? Isn’t it our responsibility to comprehend it at all cost, even if we do not like what we learn? And when we understand the true nature of it, will it be possible to tame populist constitutionalism, like a wild animal which may not know how to behave with people but ultimately shares the same basic needs and instincts? In other words, and less metaphorically, can the populist interpretation be understood, and should legal science come to terms with it? In academia, this is inevitably the right approach to any emerging issue. Many great minds have been making attempts at understanding the contribution that populism brings to constitutional studies.^[1]

In this chapter, I will not seek any general explanations which would hold true for any populist regime. I am not even sure if such explanations actually exist. Instead, I intend to add the missing puzzle piece to help the readers see the bigger picture - my puzzle piece depicting the Polish experience against the bigger picture of illiberal constitutionalism, as tar as constitutional interpretation is concerned. I will start with some preliminary comments regarding the methodology and the criteria for assessment in order to ensure a sounder footing for the study (Section 11.2). Subsequently, I will examine four aspects of recent constitutional practice which should be helpful in determining what is specific about constitutional interpretation in Poland in times of populism (Section 11.3). Then I will proceed to explore the potential reasons for adopting this specific approach (Section 11.4). In the last part, I will attempt to answer if populist constitutionalism can be seen as ‘new constitutionalism’ (Section 11.5).

• [1] For a critical analysis of these attempts, see Kriszta Kovacs and Gabor Attila T6th, 'The Age of Constitutional Barbarism’ (VerfassunSskl°^> 7 September 2019) www.verfessungs-blog.de/the-age-of-constitutional-barbarism accessed 14 April 2020 (citing Armin von Bogdandy and Mark Tushnet). 2 Bojan Bugaric, 'Central Europe’s Descent into Autocracy: A Constitutional Analysis of Authoritarian Populism’ (2019) 15 European Constitutional Law Review 597, 598.