HFHR comments concern the draft submitted on 29 June 2007 by a group of “Law and Justice” party deputies. That recent proposed amendments to the Law dated 1 August 1997 on the Constitutional Tribunal (Dz.U. [Journal of Law] of 1997, No. 102, pos. 643 as later amended; hereafter the “Law”) appear in the public discourse what may have negativ impact on Tribunal´s constitutional mission.As such, HFHR deem it necessary to express its position. (9-JUL-07)
POSITION
Warsaw, 6 July 2007
Mr. Ludwik Dorn
Speaker of the Sejm
of the Republic of Poland
Dear Sir:
The Helsinki Foundation for Human Rights would like to present its position regarding the recent proposed amendments to the Law dated 1 August 1997 on the Constitutional Tribunal (Dz.U. [Journal of Law] of 1997, No. 102, pos. 643 as later amended; hereafter the “Law”). Our concern with the proposed amendments arises from our view that the Constitutional Tribunal is of fundamental importance for the functioning of a democratic state with the rule of law which respects individual rights and freedoms. As such, we deem it necessary to express our position whenever proposals appear in the public discourse that may negatively impact that Tribunal´s constitutional mission.
Our comments concern the draft submitted on 29 June 2007 by a group of “Law and Justice” party deputies. The proposals engender our reservations for several reasons.
1. The drafters propose the Constitutional Court reviews cases in the order they are received.
In our view, this may seriously impair the significance of Tribunal decisions. The time it takes the Constitutional Tribunal to review cases can have material impact on the stability of the legal system. Certain laws challenged before the Tribunal have irrevocable effects that sometimes seriously impinge on individual rights and freedoms. To cite the example of the Law dated 18 October 2006 on disclosing information on and content of state security service documents from 1944-1990 (i.e. the vetting law), if the proposed regulation were to take effect, it would require a review of the case at least 15 months later, when the majority of the challenged law´s effects had already materialized. Furthermore, when a given regulation includes within its scope a great number of individuals and situations, a prolonged wait for Constitutional Tribunal decisions undermines security in legal turnover and lack of legal certainty – a situation particularly dangerous from the perspective of civil rights and freedoms.
2. The proposal would require all matters to be reviewed by the full panel of the Constitutional Tribunal. Additionally, though the current full panel consists of nine judges, the proposal would increase that number to at least 11.
Implementing this amendment would be another step toward weakening the Constitutional Tribunal´s position, adding to the harm already caused by numerous statements made by government representatives. Requiring a full panel to review all matters would significantly limit the number of decisions of particular import for Constitutional order, including those concerning basic rights. By issuing decisions as smaller panels in other cases, the Tribunal guarantees a review of all cases within a reasonable time, including those concerning less complex legal issues.
The above postulates threaten to paralyze the Constitutional Tribunal and add at least 15 more months to the waiting time for a decision. There is no evidence suggesting decisions issued by panels of three or five judges are of lower value. The proposal seems to ignore the fact that a series of cases reviewed by the Tribunal concern one or a few simple legal issues, the resolution of which certainly does not require a review by all the judges.
Moreover, increasing the number of judges on the Constitutional Tribunal panel multiplies the risk that the Court would not be able to adjudge a given case at all if exclusion of a high number of judges would prevent the composition of a full panel. This concern is all the more justified as judges include numerous individuals who took part in adopting laws submitted for the Tribunal review.
3. According to the proposal, the President of Poland would appoint the Constitutional Tribunal´s president and vice president once every three years out of three rather than two candidates submitted by the Constitutional Tribunal Judges´ General Assembly. Furthermore, reelection would now be possible for these two positions. Currently, a term of the President of the Tribunal ends along with the judicial term, without the possibility of reelection.
Significantly increasing the power of the head of state in appointing Constitutional Tribunal judges intimates a misunderstanding of the President´s role as an individual “responsible for observance of the Constitution” (art. 126 par. 1 Polish Constitution). In the context of this proposal, it is a misconstruction of presidential duty. That duty does not include restricting the Constitutional Tribunal´s independence and autonomy – something to which the referenced proposal would lead. The proposal provides the president with an instrument to pressure judicial behaviour as it allows far more presidential power in appointing key positions in the Constitutional Tribunal. As if that were not enough, adding the possibility of reelection opens the road to pressurizing a current President and Vice President of the Tribunal using the threat of refusing their reelection. The inability to reelect Constitutional Tribunal judges currently constitutes a pillar of their independence. We feel this principle should extend not only to the election of Constitutional Tribunal judges but also to the procedure of appointing its President and Vice President.
If it was the drafters´ intent to further protect the Tribunal from political pressure, the proposed solutions remain inadequate. In fact, they move toward incapacitating the Tribunal and weakening its ability to control the authorities. If the drafters of the proposal truly want to secure the Constitutional Tribunal against political influence, they should instead review the mechanism for electing Constitutional Tribunal judges (by increasing the number of votes necessary for selection) or change the form of submitting candidates to make this procedure more transparent and subject to greater public scrutiny. Instead, the proposed changes not only move in the opposite direction, but lead to the weakening and even marginalization of an institution that has so many times provided a bulwark against official acts violating individual rights and freedoms. From our perspective, this seems especially dangerous and, as such, we have decided to present our position.
Kind regards,
On behalf of the Helsinki Foundation for Human Rights,
Marek Antoni Nowicki
President of the Board
