29 April 2024

Rebuilding the Rule of Law

Three Guiding Principles

The victory of the opposition in the parliamentary elections in Poland in 2023 followed by the formation of a coalition government paved the way for the rebuilding of the rule of law after a period of its systematic violation during the 8-year rule of PiS. The first four months of the new government have already shown that this process will not be easy. However, certain actions aimed at rebuilding the violated standards have already been taken. In this post, I would like to draw attention to three goals and values ​​that should be among the guiding principles in the process of rebuilding the rule of law in Poland. These include legalism, legal certainty, and building citizens’ trust in public institutions.

Legality

It is a truism that restoring the rule of law cannot be based on breaking the law. However, the current situation in Poland makes it difficult to determine when a particular action violates the law. Firstly, one may wonder whether the new authorities are bound by unconstitutional laws enacted by their predecessors. Secondly, the question arises whether the political situation, including the risk of presidential veto of laws, and the objective need to implement constitutional and international standards justify alternative actions which would normally be unacceptable. Thirdly, due to the de facto paralysis of the Constitutional Tribunal and irregularities in the appointment of a significant part of the Supreme Court, in many cases there will be no independent body that could decide in a manner accepted by all what is permissible and what is not.

Furthermore, as the current authorities do not have the necessary majority to amend the Constitution, the process of restoring the rule of law must be conducted within the framework established by the Constitution. However, this does not require adopting a highly formalistic approach to the application of the Constitution. Because constitutional provisions are often formulated in a general manner and use vague terms, they are subject to interpretation. This allows for taking account of the fact that the legal situation after PiS’ rule often deviates from the constitutional standard. To restore this violated standard, certain actions must be taken that would normally be unacceptable.

Nevertheless, the discussion about what is permissible in the process of restoring the rule of law cannot end with the statement that extraordinary circumstances may justify extraordinary measures. It cannot be assumed that the goal of restoring the rule of law sanctifies all actions of the authorities. Every authority, including the liberal-democratic one, tends to expand its powers and requires certain limitations to be imposed on it.

Therefore, it is important for all actions taken in the process of restoring the rule of law to have a proper legal basis – even if not in clearly worded provisions, then in a rational interpretation of the law. It is necessary to avoid creating dubious interpretations prepared ad hoc to justify actions that their proponents consider beneficial or necessary. This kind of practice can be dangerous as it poses the risk of treating the Constitution instrumentally and can lead to the creation of dangerous precedents that another political option may refer to in the future.

For this reason, I have serious doubts about the excessive and overly liberal application of the concept of “non-existence” in current legal discourse in Poland. The concept implies that legal acts burdened with some fundamental legal flaws are devoid of any legal effects, without the need to formally invalidate them. In the past, the concept of non-existence was mainly reserved for civil law acts, and for rulings and decisions burdened with the most serious and obvious legal defects. However, it is currently used much more broadly.  It is now applied, for example, to appointments of so-called neo-judges or judgments of the Constitutional Tribunal issued in panels involving unlawfully elected judges. Even entire state organs such as the National Council of the Judiciary are sometimes deemed “non-existent”.

The concept of non-existence makes it easier to bypass certain constitutional limitations. If a particular individual is not a judge, they do not benefit from irremovability. Similarly, if an entity is not a legal organ, we do not have to respect its tenure or implement its decisions. The problem is, however, that in many cases the concept of “non-existence” is based on unclear foundations. It is not known what the grounds for non-existence are or who could determine them. This leads to unpredictable consequences. For example, by accepting that a certain body does not exist, all its actions are also presumably non-existent. Yet this runs into the difficulty that in many cases these actions or decisions might have been recognized and implemented by state bodies, producing various legal consequences.

Moreover, the concept can also be easily abused to achieve aims irreconcilable with the rule of law. After all, election of so-called “double judges” of the Constitutional Tribunal by PiS in 2015 was also based on the argument that the election done by the Parliament of the previous term was devoid of legal effects.

Legal Certainty

The principle of the rule of law is based not only on legality but also on legal certainty. Therefore, when undertaking specific measures aimed at rule of law restoration, the authorities must consider how to avoid the risk of legal chaos. As one of the goals of restoring the rule of law is to restore individuals’ access to justice, remedial actions should not impose further obstacles thereto.

It is thus necessary to carefully consider the consequences of all potential remedial actions. Regarding Wojciech Sadurski’s proposal to extinguish the Constitutional Tribunal due to its loss of legitimacy, I share Marcin Matczak’s doubts about the effects of such a decision. The only legal and effective method to “extinguish” the Constitutional Tribunal would require the adoption of a constitutional amendment. A draft of such amendment has already been prepared by the Minister of Justice, although its adoption is unlikely due to the requirement of a very high qualified majority. Any attempt to extinguish the Constitutional Tribunal via a resolution of the Sejm would not only be contrary to the Constitution but also likely ineffective. The Sejm lacks the competence to extinguish constitutional organs by resolution. Moreover, because a resolution can only be an act of internal law and is thus not universally binding, many lawyers would likely treat it as a mere political declaration. In such a scenario, it would be unclear if it possessed any legal consequences and how it could be enforced in practice. Moreover, there is a risk that even if the government considered such a resolution binding, other organs, particularly the President, would not.

Consideration of legal certainty is also necessary in regulating the effects of judgments of the Constitutional Tribunal issued by panels involving unlawfully elected judges. Declaring all of these rulings “null and void” could lead to the revival (with retroactive force!) of provisions previously eliminated from the legal system. However, the greatest threats to legal certainty arise in the context of regulating the status of so-called neo-judges. There are already over 2400 such individuals, which constitutes 25% of the total staff of the Polish judiciary. To declare all these appointments invalid would pose clear risks to the efficiency of the judiciary. Even more problems will arise with regulating the status of the judgments issued by them, of which there are already thousands, if not millions. When considering how to address both problems, it is therefore necessary to determine the consequences of any action taken. This requires understanding, inter alia, how many neo-judges there are in individual courts and departments, how many of them would be completely removed, and how many transferred to lower positions, how vacancies can be filled, whether temporary filling of vacancies by secondments is possible, etc. It is also crucial to analyse the impact of the adopted concept of regulating status of this group of judges on the legal force of the judgments issued by them.

Building Citizens’ Trust in Public Institutions

For the process of rule of law restoration to be truly effective in the long term, it must also involve building citizens’ trust in public institutions. This is especially important with regards to the judiciary, as it has been most affected by the actions of PiS. Therefore, it is necessary to consider how proposed remedial actions may affect the level of this trust.

One of the greatest threats associated with restoring the rule of law is arousing the perception (both within society and the political elites) that the actions are motivated simply by politics and the will to replace “their people” with “our people”. In such a situation, the long-term goal of rebuilding the rule of law could not be achieved. Instead, another dangerous phenomenon would likely occur, namely the consolidation of a system of spoils, where each subsequent government purges institutions under the pretext of “cleaning up” after their predecessors.

To build citizens’ trust in public institutions, all actions taken in the context of restoring the rule of law ought to be directed towards serving the public interest. This might include increasing the efficiency of the judiciary, reducing the risk of political pressure on judges, and ensuring the selection of judicial personnel based on meritocratic criteria. As such, when deciding the content of laws or appointments to public positions, authorities should not be guided by the desire to seek revenge against their predecessors or the related wish to satisfy the expectations of those who showed bravery during the PiS rule.

The question of how much an individual’s “fight for the rule of law” should matter when deciding on appointments to public positions arose in a recent debate concerning the process of appointing the director of the National School of Judiciary and Public Prosecution, an institution that trains candidates for judges. The competition announced by the Minister of Justice was won by Judge Wojciech Postulski. While he undoubtedly demonstrated extensive knowledge and rich international experience in matters concerning training judges, his victory was met with dissatisfaction from some judges.  They argued that the position of a director of the National School should be given to a person more deserving in the fight for the rule of law rather than Postulski who had spent recent years working abroad. However, as Krzysztof Izdebski has pointed out, while compromised individuals (and Postulski surely is not one of them) should not lead public institutions, competence should be the primary criterion for appointment, rather than heroic achievements in the fight for the rule of law. I strongly agree with this stance. Prioritizing competence in appointments is essential, not only to ensure the effective management of public institutions but also to prevent the perception that state positions are rewards for courageous behavior during the PiS rule.

The quality of the legislative process in which reforms aimed at restoring the rule of law will be adopted can also influence the restoration of citizens’ trust in public institutions. Therefore, it is crucial to conduct broad social consultations and seek the opinions of international bodies.

In this context, the discussions in Poland also raise the issue of the role of judges in the process of legislative changes. International and constitutional standards do not prohibit judges from speaking out on issues essential to the functioning of the judiciary. On the contrary, due to the expertise of judges, consulting their opinions can very often positively influence the quality of the law. However, judges and their associations ultimately represent only one point of view, which may or may not coincide with the broader public interest. It would therefore also be wrong to assume that due to their brave attitudes during the period of PiS rule, independent judges should have a special position in deciding on the shape of the judiciary. Proposals formulated by them must be subject to public discussion and the same assessment regarding their general effectiveness and impact on the right to a fair trial, judicial accountability etc., as any other draft laws.

Conclusion

The process of rebuilding the rule of law can be effective only when authorities balance a range of values ​​so that there is a real restoration of integrity and efficiency in the functioning of public institutions, rather than deepening legal chaos and a consolidation of the “spoils system.” To achieve this goal, it is necessary to correctly identify existing problems and their scale based on reliable data. The selection of appropriate measures to solve them should be preceded by a detailed analysis of their effects. Moreover, the quality of decision-making processes should not be underestimated as it can influence not only the quality of actions taken but also their perception by society.


SUGGESTED CITATION  Szwed, Marcin: Rebuilding the Rule of Law: Three Guiding Principles , VerfBlog, 2024/4/29, https://verfassungsblog.de/rebuilding-the-rule-of-law/, DOI: 10.59704/794ecd417ad8ac53.

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