Articles for category: AAA General

The Great Yes or the Great No

As we gear up for the most consequential elections in Poland since 1989, the situation on the ground after 8 years of the paranoid polarizing and no-holds-barred politics, forces all those concerned about the future, to ask where Poland is heading. On 14 October 2023, we must understand that POLEXIT is much more than a mere dispute over institutions, rule of law, judicial independence, etc. What is at stake now is incomparably greater. It is the defense of a certain way of life, values and belonging to a community of law and values, a civic Poland in Europe and Europe in civic Poland and finally of “Me and You” as part of Europe.

13. Oktober 2023

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Obstinate Choices

Denmark is currently going through a full-blown intelligence scandal. It includes charges of illegal activity lodged by the Danish Intelligence Oversight Board (TET) against the Danish foreign intelligence service (FE), as well as a range of criminal cases brought against the former head of FE, a former minister of defence, and a former intelligence officer on charges of leaking classified information. In this post, I argue that these scandals can best be understood through the lens of a series of obstinate choices made by the Danish government and its representatives. Seemingly, because key decision-makers lacked trust and got fed up with leaks, the situation was handled aggressively from the start, as a matter of principle. I explain the complex scandal but focus on specifics only in the case against former minister of defence, Claus Hjort Frederiksen, as his case is the most clear-cut and observable for outsiders.

13. Oktober 2023

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The Distorted Body

Ensuring the integrity of elections is a foundational concern for any democratic state. Yet, it faces a grave challenge in Poland, emanating from the Chamber of Extraordinary Control and Public Affairs of the Supreme Court. Created in 2018 following controversial changes to the national judicial system and tasked with reviewing the validity of parliamentary elections, the Chamber fails to meet the essential criteria of an independent court. Confirmed by rulings of the European Court of Human Rights and the Supreme Court itself, the Chamber’s flawed origin and staffing, dependent on political influence and in departure from established rules of law, undermines its capacity to authenticate the fairness and legitimacy of elections. This echoes beyond Poland’s borders as well, since the Chamber’s defective status fails to meet European standards of effective judicial protection, thus raising concerns in the context of European integration. This blog delves into the Chamber’s position, examines its role in validating electoral process and its impact on the democratic legitimacy of Poland’s Parliament.

13. Oktober 2023

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Reviving a Corpse

The political co-optation of the Constitutional Tribunal has eliminated its role in Poland’s checks and balances. The judges, although associated with the ruling party, are conflicted and some of them refuse to rule, the number of proceedings has fallen dramatically, and the Tribunal's authority has all but disappeared. It is not enough now to pick it up, shake it off, straighten it out, and put it back to where it was in 2015. Instead, if the opposition wins the election, it must rebuild an institution that is both an effective constitutional player, capable of checking the government and a trustworthy and reliable avenue for Polish citizens to assert their constitutional complaints. 

13. Oktober 2023

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To Void or Not To Void

One of the most critical challenges in the process of restoring the rule of law in Poland after the period of ‘Law and Justice’ rule will be regulating the situation in the Constitutional Tribunal. After the unlawful election of three judges by the Sejm in November 2015 and the subsequent recognition of their judicial status by the new President of the Constitutional Tribunal, Julia Przyłębska, the Constitutional Tribunal lost its independence and authority. Instead of defending the Constitution and the rule of law, the Constitutional Tribunal often legitimizes controversial Government actions and openly questions the European standards. Rebuilding the Constitutional Tribunal's authority and restoring its proper functioning will undoubtedly be a challenging task. It must involve at least two actions: firstly, the removal of improperly elected individuals from adjudication and secondly, the regulation of the consequences of their judgments. In the following brief text, I will specifically address the latter issue, based on the report published by the Helsinki Foundation for Human Rights in June 2023.

13. Oktober 2023

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A Hidden Success

Following the EU General Court’s dismissal of the complaint of WS and other asylum seekers against Frontex in its ruling on September 6, 2023, scholarly commentary has largely expressed disappointment. However, a more optimistic way of reading the judgement is also possible. By declaring the lawsuit admissible, the court confirmed that factual misconduct by Frontex can be addressed with action for damages claims – and this in itself is a major step forward in the system of fundamental rights protection in the European Union.

13. Oktober 2023

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Ruling by Bullying?

On September 8th, the Fifth Circuit Court of Appeals of the United States partially upheld a decision that found several public officials had coerced social media companies into censoring speech protected by the First Amendment. Americans call this area of the law jawboning, in reference to the jawbone that is moved when we talk, which is the mechanism through which pressures of these sorts are exerted. It is an extremely complex area of law, in part because distinguishing when public officials cross that fuzzy legal line depends on assessing the nature actions that happen in private settings in light of vague and ambiguous criteria. In this piece, I explain why the occurrence of jawboning might be an inevitable feature of modern administrative governance, and outline both the unique challenge that underpins any attempt to legally regulate it as well as the urgency of doing so.  

12. Oktober 2023

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Judicial Transitology

The rule of law crisis in Poland consists of several elements – undermining the independence of courts, politicization of disciplinary proceedings against judges, and lack of legal certainty. None of them, however, raises so many doubts and concerns as the status of judges appointed or promoted upon the request of the politically captured National Council of Judiciary (NCJ). In this blog post, we analyse the diverse composition of the group of judges appointed or promoted upon the motion of the NCJ from 2018. We also discuss the relevant jurisprudence of national and international courts and the current state of debate concerning this problem and possible solutions.

12. Oktober 2023

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The Election’s Aftermath

Reenergized by the former liberal prime minister and EUCO president Donald Tusk, Poland’s democratic forces are well positioned to deliver a stunning upset on Sunday. If this indeed materializes, we must resist the temptation to think of the critical post-election days and weeks as a regular democratic transfer of power. Instead, what will happen should be understood as an inherently perilous collapse of an authoritarian regime. Several legal and constitutional provisions are capable of being weaponized by the ruling PiS party to thwart the peaceful transfer of power.

12. Oktober 2023

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The French Republic’s (In)Divisibility

On Thursday 28 September 2023, French President Emmanuel Macron called, in front of the Corsican Assembly, for Corsica to be given ‘autonomy within the Republic’. The French government and Corsican elected representatives have six months to produce a text which, if approved by the Corsican Assembly, will serve as the basis for an amendment to the French Constitution. Nonetheless, the political reactivation of an old constitutional principle might get in the way. In particular, conservative parliamentarians can be expected to invoke the principle of the indivisibility of the Republic in the constitutional amendment process. Despite the principle’s long-standing presence in republican constitutional history, we argue that it cannot serve as a constitutional argument against Corsican autonomy, both because the Constitution allows amendments despite contradictory principles and because it has always tolerated a certain degree of divisibility.

11. Oktober 2023

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