Unconstitutional capture and constitutional recapture. Of the rule of law, separation of powers and judicial promises

This paper argues the Polish case is much more than just an isolated example of yet another government going rogue. There is an important European dimension to what has transpired in Poland over the last 20 months. To understand what and why has happened in Poland, one has to take a longer view and revisit not only 2004 Accession, but also 1989 constitutional moment. The constitutional debacle in Poland must be but a starting point for more general analysis of processes of the politics of resentment and constitutional capture that strike at the core European principles of the rule of law, separation of power, and judicial independence. The question then arises as to whether political exigencies could bring about self re-imagination on the part of the courts so as to make them protectors of the constitutional essentials in such emergency situations. In other words, could the capture of the state and institutions be countered by judicial recapture? The Polish example is instructive here and shows how existing mechanisms open important legal avenues to strike back at the capture. Yet embarking on such a recapture must be linked not only to the normative and technical (the question here would be: “does the system contain enough to build a good legal case for exercising such powers?”), but also to the mental (with the uneasy question “are judges willing and ready to use these mechanisms to protect the democracy?”). I believe that even a symbolic act of resistance in the pursuit of a judicial promise is crucial here as it builds institutional memory and legacy that goes beyond a disappointment and failure “here and now.” For the system to regain its liberal credentials, the courts and the public must have something tangible to fall back on. I call this act of resistance a “symbolic jurisprudence,” as it reminds us that survival of the system must be anchored in a long-term fidelity that goes beyond and transcends the “here and now.”