HFHR’s second opinion on proposed amendment to Constitutional Tribunal Act

The Helsinki Foundation has prepared another legal opinion on the Constitutional Tribunal Bill. The HFHR argues that the currently debated draft law not only is likely to paralyse the Constitutional Tribunal, but also negates the achievements of the 27 years of Polish political transition because it undermines the principle of a democratic state ruled by law and the principle of judicial independence.

“Works in a subcommittee and the Committee for Justice and Human Rights have clearly proven that the proposed changes most certainly are not a compromise between the three alternative drafts of the new law of the Constitutional Tribunal presented to the Sejm”, says Marcin Wolny, a member of the HFHR legal team.

The Committee worked exclusively on the original draft prepared by the Law and Justice parliamentary grouping. Once again, the Committee failed to take into account any of the opinions which argued that the draft is unconstitutional. Such opinions were presented by the Legislation Office of the Sejm, parliamentary opposition and non-governmental organisations.

The crucial modification introduced to the draft law is the new content of Article 68, which enables four constitutional judges to express an objection to the proposed wording of the Tribunal’s decision during deliberations of the Tribunal sitting en banc. This is allowed only in cases particularly important for the constitutional system of the state or the public order. However, in practice these two concepts will always ultimately be interpreted by the Constitutional Tribunal’s judges, which most likely will result in them invoking Article 68 whenever possible.

If an objection is lodged, deliberations are automatically adjourned for three months. Upon the passage of three months, deliberations are resumed but four judges may submit another objection: this time, apart from another three-month adjournment, an objection triggers the qualified two-thirds majority requirement for voting in a given case. If no qualified majority is secured, proceedings pending before the Constitutional Tribunal are discontinued.

In effect, it is possible that the Tribunal will in practice find itself in a limbo, unable to perform its constitutional role. This will lead to the elimination of a mechanism designed to protect constitutional rights and freedoms of individuals, which will directly affect the exercise of such rights and freedoms.

In its opinion, the HFHR also notes that the draft law does not follow the recommendations included in the opinion of the Venice Commission issued in March: among other things the newly proposed law keeps the provision that obliges the Constitutional Tribunal to hear cases in accordance with the first come, first serve rule. The draft law also introduces intertemporal rules according to which all cases in which pleadings do not need to be adjusted to new requirements and which have not been resolved by the Tribunal before the new law’s effective date should be decided within a year from the law’s entry into force. Remaining cases in which pleadings need to be adjusted to new requirements will be suspended for six months.

“All these factors lead the HFHR to believe that the discussed proposal constitutes yet another attempt at subjugating the Constitutional Tribunal to the executive. At the same time, the new law introduces mechanism that enable to prevent the Tribunal from the exercise its constitutional role. For these reasons the HFHR calls on the Polish Sejm to refrain from enacting the law in question”, the opinion reads.