2016 Global Review of Constitutional Law

Poland imposed an obligation on the head of
state to accept such an oath immediately. Any
other interpretations of this article are bound
to be unconstitutional. Moreover, the Constitution
doesn’t provide for the President
to have a possibility of refusing to accept an
oath from the newly elected Constitutional
Tribunal judge, and the eventual concerns
raised by the head of state regarding the constitutionality
of the articles, on the ground of
which the election of Constitutional Tribunal
judges had been conducted, can be evaluated
solely by the Constitutional Tribunal. Despite
a lack of statutory articles which could
specify the term of accepting the oath it must
be understood that the President has to fulfill
his obligation immediately.
Articles regulating the appointment of President
and Vice-President of the Constitutional
Tribunal by the President of Poland were
ruled to be compatible with the Constitution.
According to the Constitution, the President
of the Republic of Poland is obligated to appoint
the President and Vice-President of the
Constitutional Tribunal among candidates
chosen by the General Assembly of the Judges
of the Constitutional Tribunal. The President
doesn’t have authority to freely choose
the candidates to be appointed to the aforementioned
posts. An obligation is imposed
on him to appoint one of the previously proposed
candidates for these posts.
Furthermore, the Tribunal held compatibility
with the Constitution of providing retired
Constitutional Tribunal judges with the formal
immunity, which indicates that the constitutional
judges can be held criminally liable
(excluding delinquencies) or deprived of
freedom only upon the consent of the General
Assembly of the Judges of the Constitutional
Tribunal. Retired judges of all types
of courts in Poland are entitled to such immunity.
This protection has a special meaning
for constitutional judges as their term of
office is relatively short. Accordingly, they
rule on compatibility with the Constitution
of the law adopted by politics and they solve
disputes over authority between central constitutional
public authorities, and in conse-
quence are more likely to be exposed for the
eventual repercussions coming from politicians
not satisfied with the Constitutional
Tribunal judgment.
On 9 December 2015 (case K 35/15), the
Constitutional Tribunal examined the applications
of a group of Members of Polish
Parliament, the Ombudsman, the National
Council of the Judiciary and the First President
of the Supreme Court, regarding the
amendment of the Constitutional Tribunal
Act. The statute introduces terms of office
in the exercise of the function of the President
of the Constitutional Tribunal with a
possibility of reelection. The Tribunal held
that the procedure of filling leading positions,
to the extent in which the amendment
provides for a possibility for reelection regarding
the position of the President of the
Constitutional Tribunal, gives the executive
authority room for unlawful interfering with
the activity of a Constitutional Tribunal. The
Tribunal agreed with the applicant’s charge
about the unconstitutionality of the statutory
provision, which provides for the person
elected to be a judge of the Tribunal to take
an oath before the President within 30 days
of the election. According to the Tribunal,
establishing such a time limit for taking an
oath violates the rule that the Constitutional
Tribunal judge must be allowed to take an
oath immediately after the election. A provision
was found as incompatible with the
Constitution as well, stating that “taking an
oath initiates the term of office of the Constitutional
Tribunal judge.” Such a solution-the
initiation of term of office of the Tribunal’s
judge to be made dependent on taking an
oath-would result in postponing the start of
a judge’s term of office, and would lead to
an indirect participation of the President in
the procedure of appointing a Constitutional
Tribunal judge, for which the Constitution
doesn’t provide. Another statutory provision
which was regarded unconstitutional provided
for the expiration of the existing President
and Vice-President of the Constitutional Tribunal’s
“term of office” after three months
from the amendment law’s entry into force.
The Tribunal held that the article in question
was, in fact, an unlawful interference of the
lawmaker with the judicial power sphere and
it violated the rule of the Tribunal’s independence
from other powers. The Tribunal
admitted that it is conceivable for the legislature
to change the length of the term of office
of both President and Vice-President, and
the voiding of a term of office that already
started to run impinges on the prerogative
of the President to appoint the President and
Vice-President of the Tribunal. The judgment
puts great stock in with provisions on the status
of the President and Vice-President of the
Constitutional Tribunal, in particular as regards
their terms of office are closely linked
with the principle of the independence of the
Tribunal as such. The legislature may depart
from the hitherto adopted solution and may
determine the length of the term of office in
the case of the President or Vice-President
of the Tribunal in a more fixed way. However,
amending Law constitutes interference
in the scope of the constitutional competence
to appoint the President and Vice-President
of the Tribunal, which is vested in the President
of the Republic of Poland. The Tribunal
agreed with the view presented by the applicants
that the legislature’s termination of the
terms of office of the incumbent President
and Vice-President of the Tribunal violates
the principle of the independence of those
authorities, and thus infringes Article 10 in
conjunction with Article 173 of the Constitution,
Article 194(1) and (2) as well as Article
7 of the Constitution.
On 11 August 2016 (case K 39/16), the
Tribunal thwarted yet another attempt at
court-packing when it examined the compatibility
with the Constitution of a new statute
of 22 July 2016 on the Constitutional Tribunal.
In this case, the Tribunal built on its
previous unpublished (case K 47/15) 4 and
unimplemented (K 34/15 and K 35/15) judgments.
In view of the repetitive nature (the
ruling party pressed ahead with the second
court-packing despite the fact that most of
the provisions were already declared unconstitutional
in K 47/15) of most of the claims
and duplicity of the subject-matter, the Tribunal
felt strong enough to decide the case
4
In this case, the Tribunal dealt with the amendments adopted on 22 December 2015 by the Sejm (lower house of the Parliament) to the Law on the Constitutional
Tribunal. The amendments aimed again at limiting the Tribunal’s review functions and debilitating its procedural capacities.
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