Reviving a Corpse
The Case of the Polish Constitutional Tribunal
On a cold night of 25 November 2015, several activists and lawyers spontaneously gathered in front of the Polish Parliament to protest against the ongoing dismantling of the independence of the nearby Constitutional Tribunal. I am among them. Like my colleagues, I am convinced that this is a fundamental moment for the rule of law in Poland. It will only get worse later.
Eight years later, our fears have sadly proved to be correct. The political co-optation of the Constitutional Tribunal has eliminated its role in Poland’s checks and balances. The judges, although associated with the ruling party, are conflicted and some of them refuse to rule, the number of proceedings has fallen dramatically, and the Tribunal’s authority has all but disappeared. It is not enough now to pick it up, shake it off, straighten it out, and put it back to where it was in 2015. Instead, if the opposition wins the election, it must rebuild an institution that is both an effective constitutional player, capable of checking the government and a trustworthy and reliable avenue for Polish citizens to assert their constitutional complaints.
Resurrecting A Flawed Institution
The current Constitutional Tribunal enjoys, to put it mildly, low public confidence. It is viewed positively by just over 20% of citizens and negatively by over 40%. The worst rating since the beginning of this millennium was given in 2021 when 60% of the public rated it badly [p.7]. Compared to the previous measurement in 2016, 6 years later, trust in the institution has fallen by as much as 13 percentage points, while distrust increased by 14 points. This is a measure of decline, likely linked to the fact that the Tribunal is often seen as acting in the ruling party’s interests.
For example, its decision to restrict the right to an abortion caused great public indignation, with there being massive street protests. Some suggested that the government made this unpopular change at the hands of the Tribunal in order to shrug off its responsibility and criticism of abortion law change. Yet, it also backed the government’s narrative regarding the primacy of Polish law over EU law, even going as far as ruling that Article 6 of the European Convention on Human Rights was incompatible with the Polish Constitution insofar as it allowed to question the legal status of judges elected by the improperly appointed National Council of the Judiciary. At the same time, the Tribunal has also definitely decreased its activity. In 2022, it issued 14 judgments. This is the least in 24 years. More verdicts were issued by the CT even during the COVID-19 pandemic: 24 in 2020, 19 a year later.
At the same time, the positive ratings of around 40-50% expressed before 2016 should hardly be considered a success. Notably, while we can’t compare problems that the Tribunal faced before 2015 with the ones from 2023, it would be intellectually dishonest to paint it as having a flawless record. In particular, the Tribunal was historically criticized for its undue and excessive formalism that rendered it an ineffective avenue of redress for citizens with constitutional complaints. Thus, in rendering a complaint, the individual could only challenge the provision based on which the lower court had, at first instance, ruled on the freedoms, rights or duties of the individual. This restriction led to the de facto impossibility of challenging a provision that was the source of unconstitutionality simply because it was not referred to in the operative part of the decision of the public authority or the lower court. As a result, a citizen, feeling wronged by the state, would send in good faith a complaint to the Tribunal, which often already at the so-called pre-court stage refuses to proceed with the case.
Another problem pertained to the limitation on the scope of cases that employers’ organisations or trade unions could refer to the Tribunal. Again, the Tribunal’s restrictive interpretation meant that anything not directly related to employee-employer relations was rejected at the pre-court stage. This means that situations in which the right of the members of an employers’ organization were violated due to an excessive restriction of economic freedom went unchecked. An example is the discontinuance in 2004 of a constitutional complaint by the Polish Confederation of Private Employers against selected provisions of the Copyright and Related Rights Act. The Tribunal reasoned that according to the scope of its legitimacy under art 191 of the Constitution an employers’ organisation is not entitled to refer to it a proposal for legislation relating to economic activities outside the sphere of labour relations. As such, it simply ignored the constitutional arguments the Confederation brought forward to challenge the Act’s abolition of the regulation of the “statutory licence” for cable network operators without preserving the appropriate vacatio legis.
Given the Tribunal’s track record of disappointing citizens’ constitutional complaints and letting constitutional violations persist, it is hardly surprising that the Polish public might not have been as eager to defend an institution that has not served them well.
Restoring the Rule of Law without Violating It
These examples should be born in mind when considering how to rebuild the authority of the Tribunal. Yet, given the changes that have occurred since 2015, we must also find a solution to the bigger challenge of restoring the rule of law itself. The options available in this regard will differ, depending on whether the opposition takes full political power including the presidency, or whether it gets a small majority in parliament. Irrespective of the precise electoral outcome, we must agree on the principle that the rule of law must be restored not by legal violence, but precisely by legal and democratic means.
A core issue, in this respect, pertains to how to redress the political disfigurement of the Tribunal’s current membership. Some of the sitting judges are so-called understudies (or doubles) because they took the places of those judges who were lawfully elected in 2015. With them, the situation seems clear: they have no right to continue holding their place and can only come to the Tribunal building as an audience. Others might have been legitimately elected but have, to put it mildly, undermined the dignity of the office. It is not even a matter of taking part in issuing peculiar verdicts as in the case declaring article 6 of the ECHR incompatible with the Polish Constitution. Instead, they have manipulated the Tribunal’s composition and delivered favorable rulings for the government’s agenda.
If elected, should the opposition repeat what Law and Justice MPs did on that cold November night in 2015 and recall every current judge by a Sejm resolution and appoint new ones? While the objective might be to appoint better and more independent judges, such a move would violate fundamental principles of the division of power and the protection of judiciary independence. Many support this move. They cite the exceptional circumstances, and the fact that the rule of law must be fought for, including with means that might violate it. This ignores that it would clearly set a dangerous precedent for each successive government, such that with each new term parliament and government, politicians might feel emboldened to change the composition of the constitutional court. There is also the further risk that the current judges of the Constitutional Tribunal, removed in this way, will return from Strasbourg a few years later clutching a verdict stating that Poland has violated Article 6 of the Convention and claim they were victims of “democratic” oppressors.
Visions for a New Constitutional Tribunal
A Team of Legal Experts operating at the Stefan Batory Foundation (in particular Prof. Sławomir Patyra and Dr. Tomasz Zalasiński) have tried to come up with a reform proposal that addresses both these challenges. In particular, they did not limit themselves to developing a concept to restore the rule of law, but also considered the Tribunal’s successes and failures over the last 30 years. They agreed that an entirely new draft law on the Constitutional Tribunal should be created to tackle the issues connected with the Tribunal’s excessive formalism, the outsized role played by the President of the Tribunal, and others. A separate draft includes introductory provisions to address the problem of transitioning from a quasi-institution devoid of authority to a constitutional court enjoying respect and operating based on the rule of law.
Their core assumption was that the draft legislation must comply with the current Polish Constitution (as well as all international, binding legal documents). This is a realistic stance, both because the opposition is unlikely to gain the necessary majority to amend the Constitution, and even if they did, the last thing Poland and its polarised society currently need is a debate about the fundamental rules of the state.
The authors make the further assumption, based on a ruling by the then still independent Tribunal that the so-called “doubles” and those who took their place ought to be automatically removed from the bench. For the remaining judges who have misappropriated the dignity of a judge, disciplinary proceedings conducted within the Constitutional Tribunal should be initiated. To this end, they propose that retired judges of the court should also be included in the conduct of disciplinary proceedings. This will introduce a greater deal of objectivity and simplify proceedings that are supposed to involve those currently sitting on the Tribunal’s bench. The change is intended to be permanent to render future disciplinary proceedings more effective [p. 9 of the draft law on the Constitutional Tribunal].
According to the draft introductory provisions, judgments of the Constitutional Tribunal issued with the participation of “doubles” shall be deemed invalid and do not produce legal effects as provided for in Article 190(1) and (3) of the Polish Constitution. The draft also introduces the obligation to repeat all procedural actions in which persons not authorised to adjudicate participated. In the name of the rule of law and building trust in the Tribunal, this measure must avoid that citizens whose cases have been brought before the Tribunal over the last 8 years will suffer. For this reason, the draft stipulates that with regard to constitutional complaints and legal questions, the invalidity of a judgment of the Constitutional Tribunal does not entail consequences for the validity of rulings issued in individual cases. This exception applies when following a judgment of the Constitutional Tribunal, issued with the participation of the “doubles”, court proceedings have been resumed or a judgment or administrative decision has been issued in an individual case.
Moreover, to reduce the Tribunal’s President outsized role in determining if and how it chooses to resolve complaints, the draft of Law on the Constitutional Tribunal recommends granting greater powers to the Assembly of all judges. This would render the management of the Court’s work more collegial. To ensure greater transparency in the functioning of the constitutional court, the draft also recommends the adoption of a principle of openness for all hearings, and to include a public hearing phase with the participation of non-governmental organisations when selecting judicial candidates. To address the Tribunal’s perceived problems from before 2015, the draft also suggests strengthening the principles of active legitimacy of Civil Society Organisations and to broaden the scope of the constitutional complaints [art.35 of the draft law on the Constitutional Tribunal].
Conclusion
The attack on the Tribunal was like the first brick taken out from the rule of law wall. As such, its “renaissance” must be on the top of the agenda once the new democratic government is elected. Any reform that is undertaken must, however, not just ensure that the rule of law is restored without legal violence, but also redesign the Tribunal so it serves Polish citizens effectively. Because you will only defend the rule of law if you feel that institutions are governed by law, common sense and empathy.