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Poland: New Legislation May Hobble Constitutional Court

(Jan. 5, 2016) On December 22, 2015, the lower chamber of Poland’s Parliament, the Sejm, passed controversial legislation amending the Law on the Constitutional Court that critics fear will paralyze the functioning of the Court and harm governmental checks and balances.   It was passed by the upper chamber, the Senate, on the same day.  (Alexis Wheeler, Poland Passes Controversial Law to Weaken Top Court, PAPER CHASE (Dec. 24, 2015); Ustawa z dnia 22 grudnia 2015 r. o zmianie ustawy o Trybunale Konstytucyjnym [Law of 22 December 2015 Amending the Law on the Constitutional Court], Sejm website.) The Law and Justice (PiS) party, a conservative party that won power in October, put forward the changes; the PiS now “holds an overwhelming majority of positions in the Polish government including the lead in both parliamentary houses and the presidency.”  (Wheeler, supra; Poland Elections: Law and Justice Party Can Govern Alone, BBC NEWS (Oct. 27, 2015).)

Under the amending legislation, in order for the Constitutional Court (also called the Constitutional Tribunal) to render a decision, at least 13 of the Court’s 15 judges must be present and there must be a two-thirds majority vote. Formerly, a ruling in most cases could be made with only five judges present, or with at least nine for important cases, and a basic majority.  (Wheeler, supra; Marcin Goettig, Polish Parliament Passes Contentious Amendment to Top Court Law, REUTERS (Dec. 22, 2015).) Under the amended legislation, there will also be a longer waiting period, of three to six months, for a ruling to be made from the time a decision is solicited.   Previously, a two-week period was prescribed.  (Wheeler, supra.)

The vote to adopt the legislation has been described as “a twist in a constitutional crisis that Poland entered” after PiS legislators appointed five judges to the Constitutional Court “in a move the opposition said was illegal.” (Goettig, supra.)  According to PiS MPs, passage of the amendment was necessary “to clear up the situation” after the Constitutional Court ruled earlier in December 2015 that a previous amendment to the Law on the Constitutional Court passed by the Parliament in June had partially violated the Constitution. Id.)  Although the main functions and prerogatives of the Constitutional Court are set forth in the Constitution, which the PiS lacks the power to change, the Law on the Constitutional Court prescribes the details of the Court’s organization and the way it issues opinions.  (Id.; The Constitution of the Republic of Poland of 2nd April, 1997, arts. 188-197, Sejm website.)

Criticism of the Amendments

In an opinion it sent to the Parliament in mid-December, the Polish Supreme Court criticized the December amendments to the Law, contending they were aimed at “hampering or preventing the Tribunal from performing its duties” and asserting that the Tribunal’s role in the system of government “is one of the few guarantees preventing a dictate of the majority” and that “it was hard to imagine how any state without an institution checking whether laws are consistent would fulfil the standards of a modern democracy.” (Goettig, supra.) 

The Helsinki Foundation for Human Rights (HFHR), based in Warsaw, issued a statement stressing that “paralysing the Constitutional Tribunal will significantly increase the number of individual complaints filed to the European Court of Human Rights.” (Id.)  The Foundation has been monitoring the legislative process concerning the Law on the Constitutional Court and the process of appointment of the Court’s judges. (Constitutional Tribunal Act – The Monitoring of Legislative Amendments, HFHR website (Nov. 24, 2015).)

In early December 2015, a coalition of nine organizations, including the HFHR, had sent a letter to the European Commission for Democracy through Law (“Venice Commission”) of the Council of Europe, describing the recent developments affecting the status and composition of Poland’s Constitutional Court. While acknowledging that the provision in the Law on the Constitutional Court that had enabled the previous Parliament’s appointment of the five judges “is most likely unconstitutional,” the letter stated that “the actions taken by the new Sejm in order to invalidate effects of the law violate fundamental principles enshrined in the Constitution, and in particular the principle of a democratic state ruled by law.”  (Letter to Venice Commission on Changes to Constitutional Tribunal, HFHR website (Dec. 9, 2015).)