Can the Rule of Law Be Restored by Violating Its Principles?

This post concerns one of the crucial problems of transitional constitutionalism after a period of democratic and rule of law backsliding: how to restore the principle of the rule of law? Are there circumstances when, during this restoration, the principles of the rule of law are allowed to be violated? For instance, when the violation of the rule of law was an important tool to exercise arbitrary power, as was the case before the 1989-1990 East-Central European democratic transitions? Or is this also allowed later if a democratically elected government violates the rule of law, and the newly elected government does not have the qualified majority necessary to reverse such violations either in the constitution or in qualified majority laws by the previous government majority?

The constitutional history of the regime changes in East-Central Europe after 1989 teaches us that all of these countries used transitional constitutionalism, meaning exceptions to the traditional principles of constitutionalism, such as the rule of law.¹⁾ This happened, for instance, when they introduced transitional justice measures, like retroactive justice, lustration, reparations for confiscated private property, and access to the files of the previous secret police.  The exceptional constitutional solutions, such as the violation of the rule of law for the sake of restoring it were used more frequently in countries with a rupture type of transition, like in Czechoslovakia and its successor states, the Czech Republic and Slovakia, or in the former German Democratic Republic (GDR), than in Poland and Hungary with negotiated transitions.²⁾ The German and the Czech constitutional courts approved the retroactive punishment of perpetrators not persecuted during Communism for political purposes despite the expiration of the statute of limitation, while the Hungarian Constitutional Court in its decision 11/1992. (III. 5.) AB declared this approach unconstitutional because violating legal certainty as a crucial requirement of the rule of law. The founding President of the Court, László Sólyom, famously argued in the reasoning of the decision that “The rule of law cannot be achieved against the rule of law.”³⁾

The October 2023 change of government in Poland can be considered even less of a radical transition, because although the previous government led by PiS violated the rule of law entrenched in the country’s 1997 liberal democratic constitution, the autocratization process was less advanced (than for instance in Hungary, which almost went back to the pre-1989 period with only partly free and fair elections).⁴⁾ Hence, if we tie the use of transitional constitutional measures to more unlimited power of the government, it is even less justified in Poland after 2023.⁵⁾

Reinstating Judicial Independence

The Constitutional Tribunal and their ‘judges-doubles’

As in Viktor Orbán’s playbook written after 2010, also in Poland after 2015, undermining the rule of law started with the dismantlement of constitutional review by packing the Constitutional Tribunal. As of December 2024, all 15 judges of the Tribunal were appointed by PiS, including the new President picked earlier that month among the current judges by President Duda, loyal to PiS. At the same time the new coalition refused to nominate candidates for her and two other vacant positions as it regards the Tribunal in its current form as illegitimate. According to a 2021 judgment of the European Court of Human Rights the Tribunal cannot be considered a proper ‘tribunal established by law”.⁶⁾

On 13 September 2024, the Sejm, the lower house of the Polish parliament, adopted a new Act on the Constitutional Tribunal and another Act on provisions introducing the Act on the Constitutional Tribunal, which were subsequently submitted to President Duda for his signature. On 7 October 2024, the President sent the two acts to the packed Constitutional Tribunal for a review of their constitutionality. In the meantime, draft constitutional amendments related to the functioning of the Constitutional Tribunal are being discussed in the Senate, the parliament’s upper house.

The Act on the Introductory provisions to the Act on the Constitutional Tribunal deals with the question: what to do with judgments of the previous Tribunal rendered by panels of judges that included unconstitutionally appointed members. It is clear that the declaration in stating that decisions of the Constitutional Court issued with the participation of persons not authorised to adjudicate are invalid has been derived from the decisions of the Constitutional Tribunal declaring the incompatibility of the election of three judges by the Sejm of the 8th term (‘judges – doubles’) with the Constitution. (In its judgment of 9 December 2015 (K 35/15), the CT held unconstitutional the provisions on the basis of which the Sejm of the 8th term elected persons to the Court in places of the previously duly elected three judges. It follows, therefore, from the judgment that the ‘judges-doubles’ never became CC judges and their election was unconstitutional.) Thus, they should not sit in the Constitutional Tribunal. But from this alone it does not follow that the judgments rendered with the participation of the ‘judges-doubles’ can be invalidated by a declaration of the legislature because the Constitution does not contain any provision which authorizes the Sejm to do so.  In the absence of such authorization, the law relies on the concept of non-existence borrowed from the civil procedural law. The law refers to Article 379 (4) of the Code of Civil Procedure, which reads: “The proceedings are invalid if the composition of the adjudicating court was contrary to the law or if a judge excluded by law took part in the examination of the case.” In other words, this quote invoked in the reasoning of the law does not refer to the concept of non-existent judgment (sententia non-existent), but to invalidity. This means that the civil procedure provides the opportunity for the parties to apply to a court for the invalidation of a decision. The same must happen with the decisions of the Constitutional Tribunal issued with the participation of ‘judges-doubles’.⁷⁾ Similarly, the opinion of 6-7 December 2024 of the Venice Commission holds that the ex-lege invalidation of all such judgments with necessarily ex-tunc effect is disproportionate to its aim, and therefore does not safeguard legal certainty, and also does not follow from the ECtHR judgments.⁸⁾ In contrast, Kim Lane Scheppele contends that the Venice Commission in this opinion changed its mind and has prioritized merely formal national legality over substantive judicial independence required by transnational law. Similar to the Venice Commission, the OSCE Office for Democratic Institutions and Human Rights in its opinion produced with the contribution of this author also recommended reconsidering the ex-lege declaration that all the judgments of the Tribunal rendered with the involvement of “persons not entitled to adjudicate” are null and void.⁹⁾

The National Judicial Council of the Judiciary and the ‘neo-judges’

In 2017, PiS placed the National Council of Judiciary (NCJ) – the body responsible for the nomination of judges – previously elected by judges, under the political control of the parliamentary majority. This move has had a serious effect on the independence of about 2.500 out of Poland’s 10.000 judges. The Act Introducing Amendments to the Act on the National Council of the Judiciary of Poland adopted by the Sejm on April 12, 2024, foresees the ex-tunc invalidation of all resolutions of the Council regarding the appointment of judges, implying around one quarter of all Polish judges appointed between 2017 and 2023 were never legally appointed.

According to the urgent joint opinion of the Venice Commission and the Directorate General Human Rights and Rule of Law “the wholesale blanket exclusion of such a large cohort of judges lacks individual assessment, and thus raises questions of proportionality”.¹⁰⁾ Therefore, the opinion recommended a case-by-case assessment of the purpose, effects and circumstances of an early ending of the mandate. Kim Lane Scheppele has applied her critique of preferring formal legality over substantive rule of law to this opinion as well, although the Venice Commission made it clear that allowing the exclusion of certain judges based on a case-by-case evaluation is already an exception to the constitutional principle of the security of judges’ tenure.

Conclusion

The approach of limited substantive rule of law and judicial independence, also supported by the Venice Commission and OSCE/ODIHR, in my view fulfills the requirement that deviations from the principle that the rule of law cannot be restored by violating its principles must be exceptional, temporary and proportionally tailored. It takes into account the specific Polish situation, where the previous government’s measures violating both the Constitution and transnational obligations to enforce the judgments of the Court of Justice of the European Union and the European Court of Human Rights aimed to use arbitrary power, which warrants the temporary and proportional violations of certain rule of law principles, such as the irremovability of judges in this case. Exceptions like this need to be made while providing constitutional guarantees, such as the right to appeal of the judges concerned. This is all the more important and timely, because after the recent loss of popularity, the new government started to use certain populist policies, which occasionally may violate fundamental rights.