The preferred methods of constitutional interpretation

It should be expected that the populist approach to legal interpretation, and most of all constitutional interpretation, would be hostile to the idea of departing from the literal meaning of the law. Any such divergence would automatically raise suspicions as to the intention of the interpreter: the plain meaning can be understood by anyone, while considering the purpose or the context of a legal norm introduces an element of uncertainty and requires professional skills. In his Oxford speech, Morawski argued that the law should be as precise as possible and that the constitution must not be interpreted as a living instrument, for it is not the role of the Constitutional Court to create or to change the law.[1]

Rendering the law easily understandable to ‘ordinary folks’ clearly belongs in the populist basket of slogans, but arguably, there is more to it than mere rhetoric: this praise of literal interpretation is consistent with the more general approach of disregard for the constitution. As Paul Blokker puts it, the populists tend to collapse the distinction between ordinary and constitutional politics and to downplay the constitution’s status as a rigid, higher law. Blurring this distinction implies the rejection of the distinctiveness of constitutional interpretation, which by its very nature relies greatly on the judge’s reading and requires striking a fair balance between competing principles more often than happens with ordinary legislation. The alternative for the constitutional interpreter is to engage in a technical examination of isolated words and phrases, at the same time neglecting the existing case law and ultimately failing to sec the bigger picture.

It could be assumed then that the populist approach to constitutional interpretation would be based on textual canons and grammatical interpretation, while, as the Bible says, ‘anything else comes from the devil’. With regard to Poland, this intuition has proven to be right on many occasions. Indeed, the populist government quite often appeared to be very principled about holding on to the literal meaning of the constitution, especially when the party launched its assault on the independence of the judiciary.

It suffices to recall two examples from constitutional practice. One of the legal tricks invented by the Polish parliament to facilitate the packing of the Constitutional Tribunal was the introduction of a two-thirds majority requirement for adopting decisions on the unconstitutionality of laws, combined with two more requirements: that of sitting as a full bench for abstract cases and that of a quorum of 13 out of 15 judges. This was obviously supposed to force the Tribunal’s president to recognize three persons elected to seats which were not vacant at the moment of the election as legitimate judges. The argument of the government was that the Polish constitution stipulated that the judgments of the Constitutional Tribunal would be made ‘by a majority of votes’,[2] thus allowing parliament to decide freely, by means of ordinary legislation, whether it should be a simple or qualified majority. A similar attachment to literal interpretation of the constitution was demonstrated as soon as the populist government proceeded to pack the Supreme Court. Justifying the proposed amendment to the Act on the Supreme Court, it was argued that if the constitution stipulated that a statute shall ‘establish an age limit beyond which a judge shall proceed to retirement’ and no particular age limit was mentioned, it was entirely up to parliament to decide on this matter. Those who insisted that this paragraph needed to be read in light of the principle of judicial independence - and so by no means would the paragraph allow parliament to simply sack all the sitting judges with one vote, by lowering the age of retirement - would be dismissed as legal swindlers. Textual interpretation, entirely oblivious to the constitutional context and to the established interpretive practice, prevailed. The case became widely known as it was brought before the European Court of Justice - and, unsurprisingly, was lost by the Polish government.

Ironically, sometimes textual interpretation stands in your way and impedes your agenda. This may happen when you discover that the President of the Supreme Courts was appointed for a six-year term of office and cannot be simply removed together with other judges. This is where you

start speculating that maybe a six-year term is not really a term but a time limit and that it means ‘a maximum of six years’, so in fact it can be cut short by parliament if necessary.” Or let us take a look at the issue of the publication of the Constitutional Tribunal’s judgments by the government. They are required to be immediately published in the official journal,[3] an obligation which was never questioned in the past. Still, when the Tribunal did not conform to the new legislative measures adopted by the populist parliament and declared them unconstitutional, the government refused to publish the judgment on the grounds that it had been issued in breach of the law and that the obligation to publish judgments needed to be seen in light of the Tribunal’s constitutional position, thus giving the government the right to assess the procedural compliance of the judgment.

As this shows, the preferred methods of constitutional interpretation change over time, depending on what the populists want to achieve. If a fixed rule turns out to be their ball and chain, they just cut it off. There is hardly any consistency in this approach: rules can be invented, dismissed or reinvented if this is supposed to help achieve the desired interpretive result.

  • [1] Morawski (n 12). 2 Paul Blokker, ‘Populism as a Constitutional Project’ (2019) 17 International Journal of Constitutional Law 535, 545. 3 This new approach, of course, does not result from sheer ignorance. It is deliberately aimed at loosening the constitutional constraints, leaving more space for statutory regulation and in this way promoting what has been wittily called ‘statutory anti-constitutionalism’, i.e. a theoretical legal framework within which an unconstitutional result can be achieved by means of a series of statutory amendments; see Maciej Bernatt and Michal Ziotkowski, ‘Statutory Anti-Constitutionalism’ (2019) 28 Washington International Law Journal 487. In a much similar vein, Rosalind Dixon and David Landau describe the Polish populist strategy as ‘as a combination of subconstitutional legislation and aggressive reinterpretations of the constitution’. See Rosalind Dixon and David Landau, ‘1989-2019: From Democratic to Abusive Constitutional Borrowing’ (2019) 17 International Journal of Constitutional Law 489, 492.
  • [2] Cf. Art. 190(5) of the Polish Constitution. 2 The Venice Commission was right to note that the established reading which assumed that this provision required a simple majority had become part of constitutional practice and thus could not be altered by the ordinary legislator; see ‘Opinion on Amendments to the Act of25 June 2015 on the Constitutional Tribunal of Poland, adopted by the Venice Commission at its 106th Plenary Session (Venice, 11-12 March 2016)’ paras 81-82. 3 Cf. Art. 180(4) of the Polish Constitution. 4 Case C-192/18 Commission v Poland ECLI:EU:C:2019:924. 5 Cf. Art. 183(3) of the Polish Constitution.
  • [3] This interpretation waspromoted by Jarostaw Kaczynski, Konstytucja-wedlug-prezesa-Kaczynskiego---komentuje-Wojciech-Tumidalski.html accessed 14 April 2020. 2 Cf. Art. 190(2) of the Polish Constitution. 3 See ‘Poland - Opinion on the Act on the Constitutional Tribunal, adopted by the Venice Commission at its 108th Plenary Session (Venice, 14-15 October 2016)’. 4 These figures demonstrate a sharp decrease as compared to the previous years, in which the number of judgments always exceeded 100, reaching as high as 188 in 2015 (statistics available at accessed 14 April 2020). The reasons are twofold: the apparent rise of distrust in the Tribunal, mirrored in the declining number of submitted motions, and the lack of commitment of the Tribunal itself, which is nowdeciding fewer cases and holding fewer public hearings than before.
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