Constitutional Drift – Exploring the Deeper Roots of Polish Constitutional Crisis

Abstract

The paper intends to explore the roots of Polish ‘constitutional crisis’ by utilising the concept of constitutional drift. The paper argues that while Polish 1997 Constitution contains provisions that would enable for interpreting it by using the lenses of Sciulli’s societal constitutionalism (which we call the ‘societal imaginary’), such opportunity was disregarded by more dominant liberal and communitarian imaginaries present in the political and constitutional discourse. The latter contributed to fostering a governance structure that strengthened the executive (the cabinet) at the expense of all social actors whose rights are strongly embedded within the Constitution – social partners (trade unions and employers’ organizations), civil society (NGOs), and professional selfgovernment organizations (associations of professions of public trust). The executive marginalised these actors in law- and policy-making by using the arguments of protection of public interest and requirements of Europeanization – which we show are false and which we define as a case of constitutional drift. Overall, we explore that the processes similar to those happening to the juridical power after 2015 in Poland, had been happening to other competitors to power prior to 2015, and that constitutional crisis should be seen as a relatively late phase of the constitutional drift resulting from overlooking possibilities granted by societal imaginary.

Keywords: rule of law crisis in Poland, constitutional drift, societal constitutionalism, European integration, social dialogue