President signed new Constitutional Tribunal Act into law

On Saturday, 30 July, President Andrzej Duda signed the new Constitutional Tribunal Act into law amid significant backlash from the legal profession and non-governmental organisations. After the Act was passed in the Sejm, members of the Helsinki Committee in Poland joined the HFHR Board and issued a position statement in which they stated that the new piece of legislation “betrays the trias politica principle and paves the way towards a constitutionally unrestricted dictatorship of the parliamentary majority”.

Let us remind our readers that in late April a group of Law and Justice deputies tabled a draft of the new law on the Constitutional Tribunal in the Sejm. In June 2016 works started on the Law and Justice bill, another deputy-sponsored bill and a bill submitted by a group of citizens. Ultimately, the Sejm worked mainly on the draft law proposed by the ruling majority.

The new Constitutional Tribunal Act introduces a number of provisions that may paralyse the Constitutional Tribunal’s works. The most controversial of such provisions is the article that introduces the so-called “blocking mechanism”. During deliberations of the Tribunal’s full panel, four judges may raise objections against a proposed ruling, which results in a three-month adjournment of adjudication of a case. This veto mechanism may be applied again once. Other provisions state that if a case is heard by the full panel, a hearing must be adjourned if the Prosecutor General fails to appear despite having been effectively summoned.

Under the new Act, all judges appointed by the Sejm and sworn in by the President are to immediately assume their responsibilities. In practice, this means that the President of the Constitutional Tribunal will need to assign cases to the judges appointed in December 2015 to already occupied posts on the Tribunal’s bench.

The procedure of publication of judgments is also changing. Under the newly adopted law, a publication will be ordered by the Prime Minister at the motion of the President of the Constitutional Tribunal. Moreover, the Act stipulates that all judgments of the Constitutional Tribunal issued before 20 July are to be published unless they have been entered in violation of law or apply to laws that have already lost binding force. This means that the judgment of 9 March 2016, in which the Constitutional Tribunal held that the December amendment to the Constitutional Tribunal Act was unconstitutional, will remain unpublished.

Some cases that the Tribunal accepted for adjudication will be suspended. The new Act adjourn for six months the cases brought before the Constitutional Tribunal by parliamentarians, the Commissioner for Human Rights, President of the Republic, President of the Supreme Court, President of the Supreme Administrative Court, and the National Council of the Judiciary of Poland.

At the stage of legislative works, the HFHR presented two legal opinions on the Act’s proposal. The Foundation argued that the new law was “yet another attempt at subjugating the Constitutional Tribunal to the executive” and noted that “the new law introduces a mechanism that enables to prevent the Tribunal from the exercise its constitutional role. For these reasons, the HFHR called on the Polish Sejm to refrain from enacting the law in question.