The Polish constitutional crisis, also referred to as the rule of law and democracy crisis (Ash, 2016; Berendt, 2016; Schulz, 2016; Veser, 2015), centres primarily on the paralysis of the Constitutional Tribunal. The Constitutional Tribunal, a sole guardian of the Constitution, has found itself in a stalemate since autumn 2015 when the Law and Justice Party (PiS) came into power. The conservative Party has crippled the Tribunal by the non-acceptance of the three Tribunal’s judges elected by the previous Sejm (Lower Chamber of the Polish Parliament) and by the amendments to the Constitutional Tribunal Act, which effectively disabled its functioning. Such actions have provoked vociferous domestic and international reactions. For instance, it has triggered the following reactions: widespread protests around Poland, the creation of the Committee for the Defence of Democracy, criticism espoused by academics and NGOs, the ’debate about Poland’ in the European Parliament, the initiation of the unprecedented EU Commission procedure under 2014 Rule of Law Framework, and the unfavourable for the Polish government Venice Commission Opinion.
This article will try to illustrate one of the consecutive attempts of the Constitutional Tribunal to defend itself from the powerful influence, which the ruling political party has tried to put upon it. The recent judgment K47/15 of 9th March 2016 appositely summarises this attempt and presents the opposition of the Constitutional Tribunal to accept changes in the Act regulating its functioning. The uniqueness of this judgment is apparent, as for the first time the Tribunal refused to apply the Constitutional Act, as amended, which caused the ruling party to object to publish the judgment. That has caused a very perilous situation, leaving Poland with a dysfunctional institution, pivotal for the proper functioning of the rule of law and democracy in the country.
In the first part we will present the questioned legal basis for the delivery of the judgment K47/15, which is the major point that the ruling party (PIS) refers to. Subsequently, we will turn to the argumentation, which the Tribunal used to justify the delivery of the judgement. In the same part we will also include the Tribunal’s analysis of the constitutionality of the December 22, 2015 Act amending the Constitutional Tribunal Act. In conclusion, we will offer our point of view on the matter, supporting the independence of the Constitutional Tribunal. As long as we acknowledge that the Constitutional Tribunal in Poland is closely linked with politics (its members are chosen by the Sejm), we can hardly imagine that a Tribunal can be controlled, and in effect subordinated to any political party by making changes to the Act, which constitute the basis for its operation.
2.1 Judgment K 47/15. The questioned legal basis for the judgement.
In the judgment K47/15,the Tribunal scrutinised the joint motions of the Commissioner for Citizen’s Rights, the National Council of the Judiciary, the First President of the Supreme Court, and the group of Deputies regarding the constitutionality of the December 22, 2015 Act amending the Constitutional Tribunal Act (later ‘Amending Act’). The questioned areas pertained chiefly to the issue of independence of the Tribunal from the legislative, which changed its functioning among other things by rising the quorum requirement to thirteen (of fifteen) judges and majority requirement from simple to qualified (two thirds) in taking the decisions initiated by an application.
The ruling on the problematic matters is not dubious, but the procedure itself. Namely, the Constitutional Tribunal, while delivering the K47/15 judgment, did not obey the provisions introduced by the ‘Amending Act’ putting itself in a breach of Article 197 of the Constitution stipulating that ‘the organization of the Constitutional Tribunal, as well as the mode of proceedings before it, shall be specified by statute’. The judgment was taken by the panel of five judges and passed by the simple majority of votes, which disregards the requirement of thirteen judges quorum and two-thirds majority laid down by Article(s) 1.9 and 1.14 of the ‘Amending Act’. Moreover, the judgement was passed in contravention of the obligation of the Tribunal to deliver judgments in chronological order and no earlier than three or six months (in the situation of cases examined by the full bench) before the delivery of a notification to the parties concerned as prescribed by Articles 1.10 and 1.12 of the ‘Amending Act’ respectively. It is clear that the Tribunal would not be bound by these provisions after this judgment - if it declared them unconstitutional. However, it is doubtful what constituted the legal basis for the a priori non-application of the Constitutional Tribunal Act as amended on December 22, 2015, in view of the presumption of the constitutionality of statutes. Did the Tribunal act contrary to the law in this case and infringed the principle of legalism and Article 7 of the Constitution saying that ‘the organs of public authority shall function on the basis of, and within the limits of, the law’?
The Law and Justice Party referred to the judgment as a private meeting of judges and not an official sitting of a Constitutional Court and announced that it will not publish it (Ziobro, 2016). This,in fact, means that the judgment cannot be binding in other similar cases, and that the only party that will refer to it is the Tribunal itself. Although judgments of the Constitutional Tribunal are final and applicable in other cases (Article 190.1 of the Constitution), they also shall be published immediately, in order to produce such effects (Article 190.2). The non-fulfilment of this, at first sight, not important, and one may say ceremonial procedure (publishing the judgment), happened for the first time in almost ‘thirty years of democracy’ in Poland. On one hand, it violated the well-worn constitutional conventions, referred by the Judge Marek Zubikin K34/15 as established European and international standards, and on the other hand triggered a serious legal conundrum.
2.2 The reasoning of the Tribunal
The Tribunal’s judgment K 47/15 can be considered as unprecedented for two reasons. Firstly, it decided for the first time to set aside certain provisions of the Constitutional Tribunal Act, which form the basis of its operation. Secondly, it supplemented the disregarded provisions of the Act with the direct invocation to the Constitution and the Constitutional Tribunal Act notwithstanding the ‘Amending Act’. The Tribunal substantiated its reasoning in the following way:
1. The omitted parts of the Constitutional Tribunal Act brought in by the ‘Amending Act’ were indeed the parts that constituted the subject of the scrutiny. In the Tribunal’s view, it is not allowed for the regulations to be the basis and the subject of scrutiny in the same time.
2. The invocation to Article 195.3 of the Constitution that stipulates that ‘Judges of the Constitutional Tribunal, in the exercise of their office, shall be independent and subject only to the Constitution’ and the employment of this principle in exchange for challenged parts introduced by the ‘Amending Act’ does not expressly undermine the presumption of constitutionality of statutes.
3. The Tribunal was compelled to proceed in that way, as Article 5 of the ‘Amending Act’ of December 22, did not prescribe any period between the promulgation of the law and the time the law takes effect (vacatio legis). In other words, it provided that the Amending Act comes into force on the same day. Such premise, if not based on a vital state interest, not only is in conflict with the idea of confidence in state and public organs (Vertrauensschutz)- by letting the people get acquainted with the introduced law, but what is of crucial importance, also eliminates any form of its control before its entry into force.
The elimination of the possibility of control during the time between publication of the act and its entry into force is dissonant with Article 2 of the Constitution- ‘Poland is a democratic state ruled by law’ and Article 188.1 empowering the Constitutional Tribunal to control constitutionality of statutes- considering that several important bodies announced objections. It became clear that the legislator’s intention was to circumvent the law and hamper the work of the Tribunal.
Having established a legal basis for the method of operation (modus operandi) in the case, the Tribunal concluded that the Constitutional Tribunal Act as amended on December 22, 2015 (Amending Act) is overall not in conformity with the Constitution due to the flaws in the legislative process. Additionally, although not required to do so, the Tribunal employed the principle of teleological interpretation of the statutes and turned to explain which particular changes brought about by the ‘Amending Act’ conform/or not to the Constitution. The Tribunal resolved as follows:
1. It rebutted from the beginning the accusation of the prohibition of being a judge in its own case (nemo iudex in causa sua) as not applicable. There is namely no other organ responsible for the analysis of the constitutionality of statutes than the Constitutional Tribunal. No law provides that the Act of the Constitutional Tribunal is of a different, special nature or that it should be exempt from such analysis.
2. In the same time, it emphasised the general importance of the Constitutional Tribunal Act. According to the Tribunal, the wording of the Act after December 22 amendments, i.e. Article 80.2 of the aforesaid Act, requiring the examination of the cases in regard to their arrival date cannot be considered as an absolute principle. For the reasons that the Constitutional Tribunal judgements are final and of a universally binding application (Article 190.1 of the Constitution) and that the Constitution does not foresee any mode of control or undermining of the ruling due to the procedural flaws, it is very important that any potential doubts as to the basis of its adjudication (the operational provisions of the Constitutional Tribunal Act) are examined prior to the application of the material aspects. It flows from the tenet that the Tribunal’s clear-cut intension was to explain whether the foundations of the foresaid Act are sound. This was done in order to avoid future complications, if it turned out that it examined the cases, which arrived before, operating on the basis of the flawed law.
Additionally, it held that the ‘temporal restrictions’ introduced by the legislature on December 22 hinder the independence of courts and tribunals guaranteed by the Article 173 of the Constitution and fall short in drawing a distinction between the time needed for the examination of a case and the number of cases that arrive at the Tribunal. The legislator assumed that all cases are comparable and require the same time for their examination, which is wrong as the cases vary due to their specifics and the matter of urgency. A good example is Article 224 of the Constitution which makes clear that ‘If the President of the Republic has made reference to the Constitutional Tribunal for an adjudication upon the conformity to the Constitution of the Budget or interim budget before signing it, the Tribunal shall adjudicate such matter no later than within a period of two months from the day of submission of such reference to the Tribunal’.
3. By the same token, the Tribunal rejected the constitutionality of Article 87.2 of the amended Act of the Constitutional Tribunal, which specifies that a case cannot be heard earlier than three or six months (full bench cases) before the delivery of notification to the parties in the case. The Tribunal again assessed these provisions as arbitrary and dysfunctional, finding no sound justification for adjourning cases, which might be ready earlier for hearing. It constitutes, therefore, an unfound interference in the Tribunal’s sphere, violating Article 173 of the Constitution, and blatantly contradicts the duty of the examination of a case without unnecessary delay by the court, which referred to the Tribunal with the question of law.
4. As to the duty of adjudicating in the full bench, which comprises a minimum of thirteen judges and demands a two-thirds majority in the cases initiated by an application, enshrined in Article(s) 44.1, 44.3,and 99.1 of the Constitutional Tribunal Act, as amended on December 22, the Tribunal took also a negative approach. It pointed out that the aforementioned postulates fail to assure rectitude and efficiency of the functioning of courts and tribunals in that they neither guarantee independent and impartial nor efficient (without unnecessary procrastination) examination of a case. The engagement of the judges in one case precludes a parallel examination of another case.
The arguments espoused by the legislator that the increase in a number of the adjudicating bench reflects the higher quality and the objectivism of the rulings is therefore highly controversial. It directly undermines the credibility and professionalism of adjudicating bench of five judges and puts in question the recognised method of ruling in a single judge formation widely employed in administrative, civil and criminal procedures in Poland. The previous system of the adjudicating bench composed of five judges seems to be well-balanced and envisages the possibility of the replacement in case of an illness or abstention from a case in which a judge cannot sit, which is hardly convincible as far as the adjudicating bench composed of 13 judges is concerned. Referring to the obligation of the Tribunal to pass a judgement by two-thirds majority in cases initiated by an application, as envisaged by the amended Art 99.1 of the Constitutional Act, it contradicts Art 190.5 of the Constitution, which similarly stipulates that the ‘Judgments of the Constitutional Tribunal shall be made by a majority of votes’.
The actions orchestrated by the Law and Justice Party (PiS) clearly affect the proper functioning of the Tribunal. Significant from the legal point of view were the changes introduced by the December 22 Act amending the Constitutional Tribunal Act (‘Amending Act’), in the result of which the Tribunal was forced to adjudicate on the basis of unconstitutional provisions. The Party tried first to place out with the Tribunal’s cognition the flawed Act by its entry into force on the same day after President’s signature and subsequently set legal traps regarding its functioning by introducing requirements of a two-thirds majority and a quorum of thirteen judges while producing a judgment initiated by an application.
The unprecedented steps taken by the Tribunal in order to re-establish an efficient way of proceeding must be acknowledged, even though they, prima facie, may not run in compliance with law - in this case with Article 197 of the Constitution stipulating that ‘the organization of the Constitutional Tribunal, as well as the mode of proceedings before it, shall be specified by statute.’ In addition, though it seems incompatible with Article 8.2 of the Constitution, which excludes a direct invocation to the Constitution if the problem matter is regulated by other provisions - in this case, Art 197. The Venice Commission confronted with situations where there is no applicable law in relation to Constitutional Tribunals always recognised their pivotal importance as parts of solid democratic states and opined in favour of effectiveness of this institutions. In the Romanian case (CDL-AD(2006)006) in 2006, the Venice Commission held that the lack of required quorum due to the recusals cannot lead to ‘inability of the Court to take a decision’.
It took a similar approach in the Albanian case (CDL-AD(2009)044), where, in its third party opinion for the Constitutional Court of Albania, stated that the Albanian Constitutional Court is competent to examine the law, which affects the judges of the same Court, providing that: ‘the authorization of the Court derives from the necessity to make sure that no law is exempt from constitutional review, including laws that relate to the position of judges.’ The reason for the decision of the Constitutional Tribunal and the Venice Commission should be advocated as it would seem ludicrous to accept the opposite assumption as to which any government would be capable of effectively hindering the Tribunal’s role.
By Sava Jankovic & Sumeet Jalgaonkar
This article was originally published in issue 4.2 of the magazine, which can be accessed here.