Can the Rule of Law Be Restored by Violating Its Principles?: The Current Polish Debate

This publish issues one of many essential issues of transitional constitutionalism after a interval of democratic and rule of legislation backsliding: find out how to restore the precept of the rule of legislation? Are there circumstances when, throughout this restoration, the rules of the rule of legislation are allowed to be violated? For example, when the violation of the rule of legislation was an essential software to train arbitrary energy, as was the case earlier than the 1989-1990 East-Central European democratic transitions? Or is that this additionally allowed later if a democratically elected authorities violates the rule of legislation, and the newly elected authorities doesn’t have the certified majority essential to reverse such violations both within the structure or in certified majority legal guidelines by the earlier authorities majority?

The constitutional historical past of the regime adjustments in East-Central Europe after 1989 teaches us that every one of those nations used transitional constitutionalism, which means exceptions to the normal rules of constitutionalism, such because the rule of legislation.1) This occurred, as an example, after they launched transitional justice measures, like retroactive justice, lustration, reparations for confiscated non-public property, and entry to the information of the earlier secret police.  The distinctive constitutional options, such because the violation of the rule of legislation for the sake of restoring it have been used extra regularly in nations with a rupture kind of transition, like in Czechoslovakia and its successor states, the Czech Republic and Slovakia, or within the former German Democratic Republic (GDR), than in Poland and Hungary with negotiated transitions.2) The German and the Czech constitutional courts authorized the retroactive punishment of perpetrators not persecuted throughout Communism for political functions regardless of the expiration of the statute of limitation, whereas the Hungarian Constitutional Court docket in its determination 11/1992. (III. 5.) AB declared this method unconstitutional as a result of violating authorized certainty as an important requirement of the rule of legislation. The founding President of the Court docket, László Sólyom, famously argued within the reasoning of the choice that “The rule of legislation can’t be achieved in opposition to the rule of legislation.”3)

The October 2023 change of presidency in Poland could be thought-about even much less of a radical transition, as a result of though the earlier authorities led by PiS violated the rule of legislation entrenched within the nation’s 1997 liberal democratic structure, the autocratization course of was much less superior (than as an example in Hungary, which just about went again to the pre-1989 interval with solely partly free and truthful elections).4) Therefore, if we tie using transitional constitutional measures to extra limitless energy of the federal government, it’s even much less justified in Poland after 2023.5)

Reinstating Judicial Independence

The Constitutional Tribunal and their ‘judges-doubles’

As in Viktor Orbán’s playbook written after 2010, additionally in Poland after 2015, undermining the rule of legislation began with the dismantlement of constitutional evaluation by packing the Constitutional Tribunal. As of December 2024, all 15 judges of the Tribunal have been appointed by PiS, together with the brand new President picked earlier that month among the many present judges by President Duda, loyal to PiS. On the identical time the brand new coalition refused to appoint candidates for her and two different vacant positions because it regards the Tribunal in its present kind as illegitimate. Based on a 2021 judgment of the European Court docket of Human Rights the Tribunal can’t be thought-about a correct ‘tribunal established by legislation”.6)

On 13 September 2024, the Sejm, the decrease home of the Polish parliament, adopted a brand new Act on the Constitutional Tribunal and one other Act on provisions introducing the Act on the Constitutional Tribunal, which have been subsequently submitted to President Duda for his signature. On 7 October 2024, the President despatched the 2 acts to the packed Constitutional Tribunal for a evaluation of their constitutionality. Within the meantime, draft constitutional amendments associated to the functioning of the Constitutional Tribunal are being mentioned within the Senate, the parliament’s higher home.

The Act on the Introductory provisions to the Act on the Constitutional Tribunal offers with the query: what to do with judgments of the earlier Tribunal rendered by panels of judges that included unconstitutionally appointed members. It’s clear that the declaration in stating that selections of the Constitutional Court docket issued with the participation of individuals not authorised to adjudicate are invalid has been derived from the selections of the Constitutional Tribunal declaring the incompatibility of the election of three judges by the Sejm of the eighth time period (‘judges – doubles’) with the Structure. (In its judgment of 9 December 2015 (Okay 35/15), the CT held unconstitutional the provisions on the premise of which the Sejm of the eighth time period elected individuals to the Court docket in locations of the beforehand duly elected three judges. It follows, subsequently, from the judgment that the ‘judges-doubles’ by no means grew to become CC judges and their election was unconstitutional.) Thus, they need to not sit within the Constitutional Tribunal. However from this alone it doesn’t observe that the judgments rendered with the participation of the ‘judges-doubles’ could be invalidated by a declaration of the legislature as a result of the Structure doesn’t comprise any provision which authorizes the Sejm to take action.  Within the absence of such authorization, the legislation depends on the idea of non-existence borrowed from the civil procedural legislation. The legislation refers to Article 379 (4) of the Code of Civil Process, which reads: “The proceedings are invalid if the composition of the adjudicating courtroom was opposite to the legislation or if a decide excluded by legislation took half within the examination of the case.” In different phrases, this quote invoked within the reasoning of the legislation doesn’t check with the idea of non-existent judgment (sententia non-existent), however to invalidity. Which means that the civil process gives the chance for the events to use to a courtroom for the invalidation of a choice. The identical should occur with the selections of the Constitutional Tribunal issued with the participation of ‘judges-doubles’.7) Equally, the opinion of 6-7 December 2024 of the Venice Fee holds that the ex-lege invalidation of all such judgments with essentially ex-tunc impact is disproportionate to its intention, and subsequently doesn’t safeguard authorized certainty, and in addition doesn’t observe from the ECtHR judgments.8) In distinction, Kim Lane Scheppele contends that the Venice Fee on this opinion modified its thoughts and has prioritized merely formal nationwide legality over substantive judicial independence required by transnational legislation. Just like the Venice Fee, the OSCE Workplace for Democratic Establishments and Human Rights in its opinion produced with the contribution of this creator additionally beneficial reconsidering the ex-lege declaration that every one the judgments of the Tribunal rendered with the involvement of “individuals not entitled to adjudicate” are null and void.9)

The Nationwide Judicial Council of the Judiciary and the ‘neo-judges’

In 2017, PiS positioned the Nationwide Council of Judiciary (NCJ) – the physique chargeable for the nomination of judges – beforehand elected by judges, beneath the political management of the parliamentary majority. This transfer has had a critical impact on the independence of about 2.500 out of Poland’s 10.000 judges. The Act Introducing Amendments to the Act on the Nationwide Council of the Judiciary of Poland adopted by the Sejm on April 12, 2024, foresees the ex-tunc invalidation of all resolutions of the Council relating to the appointment of judges, implying round one quarter of all Polish judges appointed between 2017 and 2023 have been by no means legally appointed.

Based on the pressing joint opinion of the Venice Fee and the Directorate Basic Human Rights and Rule of Regulation “the wholesale blanket exclusion of such a big cohort of judges lacks particular person evaluation, and thus raises questions of proportionality”.10) Due to this fact, the opinion beneficial a case-by-case evaluation of the aim, results and circumstances of an early ending of the mandate. Kim Lane Scheppele has utilized her critique of preferring formal legality over substantive rule of legislation to this opinion as properly, though the Venice Fee made it clear that permitting the exclusion of sure judges based mostly on a case-by-case analysis is already an exception to the constitutional precept of the safety of judges’ tenure.

Conclusion

The method of restricted substantive rule of legislation and judicial independence, additionally supported by the Venice Fee and OSCE/ODIHR, for my part fulfills the requirement that deviations from the precept that the rule of legislation can’t be restored by violating its rules have to be distinctive, momentary and proportionally tailor-made. It takes under consideration the particular Polish scenario, the place the earlier authorities’s measures violating each the Structure and transnational obligations to implement the judgments of the Court docket of Justice of the European Union and the European Court docket of Human Rights aimed to make use of arbitrary energy, which warrants the momentary and proportional violations of sure rule of legislation rules, such because the irremovability of judges on this case. Exceptions like this must be made whereas offering constitutional ensures, akin to the best to attraction of the judges involved. That is all of the extra essential and well timed, as a result of after the latest lack of recognition, the brand new authorities began to make use of sure populist insurance policies, which sometimes could violate basic rights.