Legislative inflation in Poland: bird’s eye view on three decades after the the1989 breakthrough

ABSTRACT

The phenomenon called legislative inflation is extensively used in public debate across jurisdictions – including new democracies attempting to overcome communist legal heritage. Typically, the phrase refers to the quantitative aspect – growth in the number, volume and frequency of amendments of primary and secondary legislation exceeding the natural demands of the technological progress and growing complexity of business relations. This paper attempts to provide a bird’s eye view of legislative inflation in Poland after the 1989 democratic breakthrough. As Poland is an example of successful democratic and market transition of the nineties, substantial redrafting of the legal framework during EU accession and populist right-wing governance, the results seem relevant beyond the domestic context. Documented patterns suggest that the search for driving forces behind the legislative inflation should shift from the parliament towards cabinet ministers and the bureaucratic apparatus under their supervision, the pace of legal text production justifies the search for a theoretical conceptualisation of how the law could govern societies unwilling and unable to familiarise themselves with its flow and to examine the impact of legal text production on society and the economy it seems useful to shift from the data on the text itself towards its actual impact.

KEYWORDS:

• Legislative inflation
• regulatory inflation
• volume of legal texts
• law-making process

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 The category is wider than primary legislation, including acts issued by executive bodies and independent regulatory agencies).

2 M. Safjan, Porażająca inflacja prawa, Rzeczpospolita, 8th August 2005 (3605).

3 The Journal of Laws (Dz.U.) is a Polish official journal for the promulgation of legal acts. The publication of the Journal is the exclusive competence of the Prime Minister. The Journal of Laws has been published continuously since January 1918, when the Regency Council issued a decree on proclaiming the law. Until the end of 2011, it was published on paper with a standardized page. Currently, the Journal of Laws is published only in electronic form and made available on a dedicated website (www.isap.sejm.gov.pl).

4 Polish government at that time see OECD (2002).

5 The phrase “universally binding law” is simply a translation of the Polish constitutional provision distinguishing law addressed to all subjects from so-called “internal law acts” like Parliament or Cabinet bylaw (binding MPs and cabinet members respectively).According to article 87 of the CONSTITUTION OF THE REPUBLIC OF POLAND of 2 April 1997: “The sources of universally binding law of the Republic of Poland shall be: the Constitution, statutes, ratified international agreements, and regulations.”

6 Similarly, in the case of written communication with the court, double notification of the recipient by the post office implies an assumption that he/she received the document, even if the delivery was unsuccessful.

7 Usually, but not always the same as the year of the legal act itself, defined by the date of the final vote over the legislation in the lower chamber of the parliament (Sejm) or by the date when the executive act had been signed by the Prime Minister or appropriate cabinet minister.

8 With respective coding composed with Journal of Laws designation (“Dz.U."), year (four digits), volume (traditionally with abbreviation "nr.”), and item number (traditionally with abbreviation “poz.”).

9 Dz.U.2004.281.2784.

10 If a given category of the international agreement requires Parliament's approval expressed in the form of passed law.

11 Typically for continental tradition, amendments are published only as changes in existing law. As their frequency and volume increases, it became increasingly difficult to keep track of the up-to-date text of the amended law. Thereby, after considerable amendments, a consolidated text – an up-to-date complete version of the amended law – is published.

12 This procedure is envisioned in the Constitution of 1997. Before that, Constitutional Tribunal verdicts declaring the unconstitutionality of laws were subject to parliamentary debate (they could be rejected with 2/3 constitutional supermajority), and it was upon the Parliament to nullify or amend law declared unconstitutional. In practice, the Constitutional Tribunal interpreted (in verdict W 6/93) that Parliament's inaction for more than six months lead to the automatic nullification of the unconstitutional provision, announced by the President of the Constitutional Court in the JoL. For the sake of clarity, both, such announcements and post-1997 verdicts were categorized jointly as Constitutional Tribunal verdicts.

13 In this procedure specific provisions can be eliminated – the President signs the law without them. Alternatively, the Constitutional Tribunal can declare unconstitutional provision key to the whole law, thereby killing it altogether.

14 Dataset compiled by authors under research project financed by the National Science Centre grant 2016/23/B/HS5/03542, carried out at Warsaw School of Economics and subsequently updated.

15 As observed by Trzaskowski (2013), “the phenomenon of legislative inflation – known also in “old” European jurisdictions, in the case of Poland was multiplied by the necessity to adopt acquis communautaire". To describe the accession-period practice of the Polish Parliament he even used the phrase "legislative race against time".

16 See famous proclamations: “the new state that we are building is an illiberal state, a non-liberal state” by V. Orban in Băile Tuşnad (26 July 2014) at the 25th Bálványos Summer Free University and Student Camp and “The day will come when we will succeed, and we will have Budapest in Warsaw” by J. Kaczynski, see https://www.ft.com/content/0a3c7d44-b48e-11e5-8358-9a82b43f6b2f. For a scientific description of this process in a wider context see (Lührmann & Lindberg, 2019).

17 See table 1 in V-Dem Institute (2021) Autocratisation Turns Viral DEMOCRACY REPORT 2021, https://www.v-dem.net/static/website/files/dr/dr_2021.pdf, pp. 19.

18 As it concluded, “Hungary and Poland have experienced the steepest declines ever recorded in Nations in Transit.” See chart, The Downturn Deepens, in Freedom House (2021) The Antidemocratic Turn NATIONS IN TRANSIT 2021, https://freedomhouse.org/report/nations-transit/2021/antidemocratic-turn, pp. 2.

19 M. Siems explicitly compared such efforts to the answer to “the Ultimate Question of Life, the Universe, and Everything” [“forty-two”] from Douglas Adams’ novel The Hitchhiker’s Guide to the Galaxy, see M. Siems (2005) Numerical Comparative Law: Do We Need Statistical Evidence in Law in Order to Reduce Complexity, 13 Cardozo J. Int'l & Comp. L. 521 (2005).

20 The party had been set-up in 2001. It is recorded in the Manifesto Project dataset with numerical code 92436. During the subsequent general elections, The Manifesto Project assigned L&J the following Right-left position [rile] scores: 2001: 4,672; 2005: -1,597; 2007: 9,804; 2011: 17,473; 2015: 10,812; 2019: 11,179. See: Volkens, A., Burst T., Krause W., Lehmann P., Matthieß T., Regel S., Weßels B., Zehnter L. (2021) The Manifesto Data Collection. Manifesto Project (MRG/CMP/MARPOR). Version 2021a. Berlin: Wissenschaftszentrum Berlin für Sozialforschung (WZB). https://doi.org/10.25522/manifesto.mpds.2021a. Timbro Authoritarian Populism Index classified L&J as “right-wing populism” party representing the ideology of “National conservatism”, see https://populismindex.com/data/ (accessed March 4^th 2022).

21 It was first such situation since the 1989 transition – for previous 25 years lower chamber of the Parliament was controlled by coalitions, typically composed on one of the big parties and a junior partner.

22 As declared by the Constitutional Tribunal in a verdict of Dec 3^rd 2015 (K 34/15).

23 This issue had been examined by the ECtHR in case Xero Flor w Polsce sp. z o.o. v. Poland.

24 That is also how they were explained by L&J chairman, see interview “Nie chcę większości w TK” in Rzeczpospolita daily, Jan 18th 2016.

25 For in-depth analysis of the crisis see Sadurski (2019).

26 See verdict of 14 July 2021 (P 7/20) and of 7 October 2021 (K 3/21).

27 https://www.europarl.europa.eu/news/en/press-room/20211015IPR15016/poland-constitutional-tribunal-is-illegitimate-unfit-to-interpret-constitution.

28 To use a phrase from Pech and Scheppele (2017).

29 Poland is a problem for the EU precisely because it will not leave, Charlemagne, The Economist, 16 October 2021.

30 Retired Constitutional Tribunal Judge, M. Wyrzykowski coined the phrase “war against the constitution”, see Wyrzykowski (2019).

31 Or “constitutional ‘catch-me-if-you-can’ cycle between the Polish government and the Commission” to borrow from Koncewicz (2018).

32 For a detailed analysis of the law-making process of the laws amending the Law on the Common Courts and the Law on National Council of the Judiciary, see Joński and Rogowski (2020).

33 To use phrase coined by prof. W. Sadurski, it was transformed “from an Activist Court” to the “Governmental Enabler”, see Sadurski (2018).

34 The dramatic phrase that the “CT had been practically abolished” can be found in the open letter of 22 retired CT judges printed in Gazeta Wyborcza daily newspaper 11 February 2020, pp. 15. See also: Wolny M., Szulek M. (2021) Narzędzie w rękach władzy. Funkcjonowanie Trybunału Konstytucyjnego w latach 2016–2021, Helsinki Foundation for Human Rights Report available at: https://www.hfhr.pl/wp-content/uploads/2021/08/TK-narzedzie-w-rekach-wladzy-FIN.pdf. An interesting example can be offered by the Penal Code amendment of 13 June 2019, plainly violating law-making rules established for the Codes, which was challenged by the President before the “new” CT, which declared the law null and void (see verdict of 14 July 2020, Kp 1/19). However, important changes introduced in that amendment were passed again as part of the anti-Covid legislative package of 19 June 2020 (Journal of Laws reference no. 2021.1072), and entered into force unchallenged (see section on Covid and legislative inflation).

35 The Civic Legislative Forum of the Batory Foundation, Warsaw, monitors the law-making process in terms of transparency, openness to public consultation, use of anti-corruption measures and compliance with other legislative best practices.

36 Journal of Laws reference no. 2020.374 [Polish: Ustawa z dnia 2 marca 2020 r. o szczególnych rozwiązaniach związanych z zapobieganiem, przeciwdziałaniem i zwalczaniem COVID-19, innych chorób zakaźnych oraz wywołanych nimi sytuacji kryzysowych].

37 For a wider discussion of the Polish anti-covid measures introduced by executive acts and the evidence based behind them, see Paczocha and Rogowski (2011).

38 Journal of Laws reference no. 2021.1072.

39 Journal of Laws reference no. 2020.568.

40 Journal of Laws reference no. Dz.U.2020.875.

41 And as – in the absence of effective CT adjudication – had been established by the First Instance Administrative Courts and the Supreme Administrative Court, that heard appeals of the citizens and businesses fined for violating the restrictions, see for example SAC verdicts of Oct. 28th 2021 (II GSK 1448/21); Sep. 23rd 2021 (II GSK 939/21 and II GSK 844/21).

42 Introducing a state of emergency would result in the postponement of the presidential elections of 2020, most likely diminishing the chances of the right-wing candidate fighting for re-election.

43 As systemic we understood the eagerness to use the pandemic as an opportunity to permanently alter the legal system in a less liberal direction – a manoeuvre that would not be possible within the framework of – by definition – a temporary state of emergency.

44 Journal of Laws reference no. 2021.1536.

45 Journal of Laws reference no. 2021.2191.

46 Estimates based on the JoL page count and average reading time.

47 Indeed, the survey on legal awareness of the Polish general public pointed to a stunning lack of knowledge of basic issues including day-to-day operation within the legal system (like the consequences of filing of an appeal too late – only 34 per cent of the respondents answered that the court of appeal will not examine an appeal brought after the deadline). Asked about the limitation periods for civil claims, 85 per cent of the respondents answered that they know such an institution. Asked further, 41 per cent of them claimed that the defendant has to invoke it himself, while the other 40 per cent expected the court to verify it on its own. Even in relatively simple issues like delivery of the court documents, respondents were substantially divided. Also in the case of criminal cases – like digital piracy – respondents were unable to pick exact actions that violate the law (uploading but not downloading), see 2016 survey results available in https://zpp.net.pl/wp-content/uploads/2017/08/omt9ag_09.03.2016NiewiadomoprawnaPolakw2016.pdf.

48 To compare with contemporary normative understanding of this category, see Waldron J., The Rule of Law, The Stanford Encyclopedia of Philosophy (Summer 2020 Edition), Edward N. Zalta (ed.), available at: https://plato.stanford.edu/archives/sum2020/entries/rule-of-law/.

Additional information

Funding

Research funded under National Science Centre of Poland (NCN) grants No. 2016/23/B/HS5/03542 and 2019/35/B/HS5/02943.

Notes on contributors

Kamil Jonski

Kamil Joński graduated SGH Warsaw School of Economics. He worked on Regulatory Impact Assessments (RIA) in Polish Ministry of Justice (2012-2016) and on economic analysis of judicial system in MoJ's supervised Institute of Justice (2016-2017). Since 2017, employed at Polish Supreme Administrative Court. His research interests include judicial systems, public policy and law-making as well as consequences of political polarization and illiberalism. Works at numerous research projects financed by Polish National Science Centre, at Cracow University of Economics, SGH Warsaw School of Economics and Adam Mickiewicz University in Poznan.

Wojciech Rogowski

Wojciech Rogowski completed his PhD at the SGH Warsaw School of Economics, Poland, where he was an assistant professor in financial regulation for a decade. He focuses his research interest on regulatory governance, financial and fintech regulations, and institutional conditions for economic development. Now associated with the National Bank of Poland and Cracow University of Economics. Chairman of the Board of Founders of the Allerhand Institute in Krakow, an independent NGO working to improve the quality of law. He is co-editor (jointly with Adam Redzik and Arkadiusz Radwan) of the Allerhand Law Review - Glos Prawa (Oficyna Allerhanda).