Call to consider a request for the constitutional review of an amendment to the Courts Act

The Sejm has adopted the amendment to the Courts Act. This is one of the key laws adopted by the 2007-2011 Sejm. The Helsinki Foundation for Human Rights has serious reservations as to the quality of the legislative works on this draft law and calls the President to consider asking the Constitutional Tribunal (TK) to review the proposed amendment.
The works on the amendment started in May 2009 when the Ministry of Justice presented the outline of the law. ‘So far the Court Act has been amended over 40 times’, says Artur Pietryka, coordinator of the Legislative Process Monitoring in the area of the justice system. He adds: ‘We were surprised by the fact that the government decided to amend this law instead of drafting the new Court Act from scratch’.

Following the presentation of the outline of the project, the Ministry of Justice submitted the draft law to public consultation. Those engaged in the consultation process were many, such as members of the National Council of Judiciary and the Association of Polish Judges ‘Iustitia’, presidents of courts of all instances, associations of prosecutors and trade unions. The Ministry of Justice informed that nearly 300 judges expressed opinions and remarks on the draft law, some of which were included in the draft amendment.

A corrected version of the draft law once again underwent public consultation. Yet, this time the only parties to the consultation process were: the National Association of Judicial Assistants, the National Association of Court Referendaries, the Association of Polish Judges ‘Iustitia’, the President of the Supreme Court and the National Council of Judiciary. The Helsinki Foundation for Human Rights observed that the public consultation process was run chaotically. The draft amendment was simultaneously consulted by several entities. Hence, there was confusion about which versions of the amendment were final and consequently whether the submitted remarks referred to the sections already verified by some other organisation or to the original wording of the text.

‘In our opinion, public consultation is a critical stage of the legislative process’, says Adam Bodnar, Vice-President of the Board of the Helsinki Foundation for Human Rights. He adds further: ‘Public consultation, if properly conducted, may have a great impact on the final wording of draft laws and help to arrive at a satisfactory compromise. But this can be achieved only where a wide range of stakeholders are involved.’

In November 2010 the draft law was submitted to the Sejm. Already at that stage it was evident that the proposed amendment had some flaws and that the government would be proposing further far-reaching modifications during the ensuing legislative process.

In January 2011 the public hearing of the draft law was carried on. As previously, it was well known at that time that a number of changes would be introduced to the bill at the committee stage. Yet, the invited organisations were unaware of what direction those changes would go and, hence, their statements of opinion pertained to the bill still under review. It turned out later on that not all the remarks made were of significance in the light of further changes.

Given the number of critical reviews of the legal community and the far-reaching scope of projected changes, the works on the bill proceeded at a rapid pace.  The Helsinki Foundation for Human Rights is also critical of a notorious practice of deputies leaving the meetings. It led to the situation where the reasons for the changes proposed by the entities participating in the public consultation were delivered to a virtually empty hall.

The Act was adopted by the Sejm on 18 August. ‘In Poland there is an ongoing debate over the quality of law. However, the works on the amendment to the Court Act are a good illustration of how much still needs to be done to achieve a satisfactory outcome of the legislative process’, says Adam Bodnar and adds: ‘Any defects in the functioning of Polish courts, including these resulting from defective legislation, may negatively affect the exercise of the judicial power and the manner in which the courts decide on our rights and duties’.

The Helsinki Foundation for Human Rights has urged President Bronisław Komorowski to consider asking the Constitutional Tribunal for a constitutional review of the amended Court Act. The Foundation believes that all the formal mistakes made during the legislative process may result in the Act being unconstitutional.