The rule of law crisis in the time of the COVID-19 pandemic

16 December 2020

The COVID-19 pandemic has led to serious health and economic emergencies all over the world. Moreover, it has also affected democratic institutions and the rule of law. On the one hand, the pandemic has been exploited by local strongmen and authoritarians in many places to consolidate their power and justify human rights’ violations. On the other, it has been a test for the resilience of democracy, and there are even some hopes for an upcoming democratic recovery.

These consolidation and abuses of power have been also visible in Poland, where the rule of law has been under attack for almost five years. After taking control of the Constitutional Tribunal and the National Council of Judiciary, the Law and Justice party has managed to include the Supreme Court on the list of judicial institutions controlled by the ruling party’s nominees. The pandemic has been also connected with a rapid and large-scale production of new laws, which together with a weakening of transparency have contributed to growing legal chaos in times of huge uncertainty. At the same time, the government has continued to use the captured CT to push through their political agenda in many spheres, and to weaken constraints on its powers.

The goal of this report is to analyse the key developments related to the rule of law and the legal system in Poland during the COVID-19 pandemic. We discuss the legal context related to the emergency laws from the point of view of the Constitution (Part 2), and explain why they were not used, while describing the preparations for the presidential elections (Part 3). Moreover, we analyse examples of the restrictions to civil rights and liberties which were introduced without a proper legal basis, and show how the Supreme Court was captured by the ruling party during the pandemic and the Constitutional Tribunal was abused to strengthen Law and Justice and its political agenda (Part 4).

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