Piotr Ł.J. Andrzejewski*
Leader of the Legal Sources Sub-committee of the
Constitutional Committee of the Polish Parliament
(on the scope of competencies of the Constitution Tribunal)
Certain constitutional norms within the Polish legal system are by nature indeterminate within the scope of interpreting adherence of relevant sub-constitutional norms of the legal system. The Polish Constitution of April 2, 1997 stripped the Constitutional Tribunal (CT) of its power to determine the generally prevailing legal interpretation of constitutional stipulations (unlike the Citizens Project of the constitution by the NSZZ SOLIDARNOŚĆ and the Office of Centro-right wing and Independence Oriented Alliance of June 22, 1994).
The CT controls the cohesion of a prevailing legal statutory norm, limited in manner to the formal appeal made with respect to its constitutionality as reflected in specific constitutional norms (ius strictum). The Sejm, assessing the constitutionality of its actions, is not subject to such limitations.
Thus, the CT is authorized and obliged to interpret constitutional norms only within the aspect of assessing whether or not the norm of statutory law subjected to its control, universally applicable in the scope of the appeal, is cohesive with the accepted standard of constitutional norms.
Competencies of the CT include judicial function regarding:
1) conformance of laws and international agreements with the Constitution,
2) conformance of laws with ratified international agreements, whose ratification required previous approval expressed by law,
3) conformance of law provisions, issued by central government entities, with the Constitution, ratified international treaties, and legislation,
4) conformance of goals and activity of political parties with the Constitution,
5) constitutional complaints, as described in article 79 section 1 (article 188 of the Constitution).
Verdicts of the CT are universally binding and are final only in the scope of the competencies that have been granted.
The CT does not make verdicts/statements out of its own initiative, and responds to complaints/appeals that it receives.
The Sejm (the Lower House of Parliament) performed a full authentic interpretation for the fulfillment of the process of selecting candidates as judges of the CT with regards to the requirements for the validity and effectiveness of their nomination. It was determined that statutory requirements of the nomination were not met. As a consequence, the nomination was deemed legally ineffective, and the process was repeated in the case of three judges, and additionally for two more judges as a result of the breach of the previous Sejm’s competency within this scope.
Individual decisions, resulting from the autonomous constitutional competence of the Sejm on the election of members of the Tribunal, adopted through legislative action of the Sejm – do not fall within the judicial competence of the CT.
Authentic interpretation by the Sejm of its own resolutions, with regards to their fulfillment of conditions for their validity, and the consequences of their content, belongs to the Sejm, regardless of the principle of accusatorial procedure.
Within the parameters of its own competences, the Sejm is obligated to control, primarily or subsequently, whether or not the nomination of candidates for CT judges fulfills statutory requirements as a condition sine qua non for its validity and to induce the legal ramifications enabling their nomination process within the Sejm.
The Constitutional Tribunal Act of June 25, 2015 (No. 2015.1064) established the position of the Sejm Presidium (Bureau) under the condition that it is supported by signatures of at least 50 Members of the Sejm in order to nominate a candidate for judge of the CT (art. 19 sec.1 of the Constitutional Tribunal Act from June 25, 2015). The provision of the Act amended the preceding requirement to nominate candidates for judges of the CT by the Presidium or by at least 50 Members of Sejm, resulting from the prevailing legislation (the subordinate Art. 30 of the Rules of Parliament) that was in effect until the ratification of said Act of June 25, 2015.
As a result of overriding the Ruling regulation with an Act, the latter specified irrefutable conditions for the application made to the Sejm gathering for nominating a candidate as a CT judge. Only an application fulfilling all the requirements may be considered legal and commence the process of selecting a candidate for a vacant seat.
Fulfillment of this requirement, as a condition for the legality of the selections of the candidate for the position of CT judge, was not investigated by the Tribunal, as this was not the subject specified in the appeal for judicial control of the CT. However, a review of this requirement was performed by the Sejm, and it was determined to not have been fulfilled and therefore invalid, resulting in the elimination of the legal consequences. (Resolution of the Sejm dated …).
The Sejm was entitled and obliged to commence the process of nominating five CT judges, in order to reach the complete number of fifteen.
Once completed, this time without error and in line with regulations, the nominees were sworn in by the President – the Chairman of the Constitutional Tribunal refused to allow the new members to perform their judicial rule, by contesting the electoral/nomination process performed by the Sejm, delegitimizing their oath which had been the condition sine qua non to their judicial capability.
In his actions, The Tribunal Chairman rejected the constitutional principle of legality and the rule of law in the functioning of state authorities determining that public authorities operate on the basis of and within the boundaries of law (Art. 7 of the Constitution of the Republic of Poland).
The opposition, within and outside of the Parliament, losing its monopoly of 8 years in the elections of October 25, 2015, took advantage of the position of the Chairman of the Constitutional Tribunal, to incite tumult and social unrest caused by the spread of misinformation that the newly elected representation of the Polish nation and state were acting in contradiction to the Constitution and therefore posed a threat to the democratic functioning of the country. This type of action of the Chairman of the Tribunal, violating the democratic rule of law, should result in full legal accountability.
In the Polish legal system, the competencies of the Legal Tribunal, as an organ monitoring statutory law with the content of constitutional norms and specific competencies outlined in Art. 188 of the Constitution, comprise a closed sphere of jurisprudence (numerus clausus).
The broadening of these competencies in the Constitutional Tribunal Act of June 25, 2015 (Dz.U. z 30. 07.2015, nr 1064) in art. 50 section 2 pt.3 in the first sentence, increases the competencies to the subject of control in the form of reviewing these competencies to adopt a normative act or the method of its release [publishing] – clearly broadens the constitutional competencies of this branch of system control to more than analysis of consistency, completeness, and integrity of the legal system, but increases it to the method of functioning of the legislative body itself within the framework of its inherent powers of legislative action.
The above mentioned broadening of the competencies of the CT should be supplemented with a constitutional legislative norm, otherwise it can be deemed inconsistent with the Constitution itself. Additional competencies of authorities are not to be assumed.
Authorities assessing the constitutionality of the performance of a legal norm they are using is not within the scope of the CT, but rather of the common courts and of the State Tribunal, and is subject to corrective monitoring by the President (art. 126 of the Constitution art. 8 par. 2) and by the Sejm in the scope of authentic interpretation of their internal documents, individualized and electoral.
The position of the CT expressed regarding this issue, as with the interpretation of the Constitution for the analysis of the consistency of the contested legally prevailing sub-constitutional norm – executed by an entity that is entitled to do so – is an opinion that does not invoke per Se, by itself, obligatory legal consequences for entities applying the law in the scope of their own exclusive and autonomous competences.
A legal norm that has been ruled against by the Tribunal as inconsistent with the Constitution is no longer legal basis for judicial and executive action from the moment it has been ratified by the CT (announcement or date of postponement of publication specified ad limite in the statement made by the CT).
The Constitution does not stipulate power for the Constitutional Tribunal to universally interpret its norms.
Statements of the CT are universally binding only in the scope of the competency of restoring compliance and consistency of legal norms within their prevailing system.
The CT does not possess monitoring competency with respect to the activity of legislative, executive, or judicial bodies; it only has competency with respect to the content of norms functioning in the prevailing system of the legal state, abolishing their functioning in the same system of prevailing law with respect to content that it deems is contradictory to the Constitutional norm – individualized, uniformly defined legal norm both constitutional and statutory. Therefore, the CT is referred to as the “negative legislator”. The CT cannot dictate solutions to the legislative and executive authorities. Moreover, it is not authorized to provide a binding opinion of the constitutionality of resolutions and independent decisions regarding the autonomous privileges of legislative, executive, and judicial authorities. This particularly pertains to individual, internal procedures of individualized Regulation Acts of the Sejm, of nominating, proceedings, and selections of candidates for vacant seats in other governing bodies.
The Constitutional Tribunal, by assuming the role of judicial assessment of individual decisions of the Sejm in the scope of the nominating process, relating to the designation of future judges to reach the quorum of 15 CT members as specified by the Constitution, has breached its powers of jurisprudence.
These types of appeals should not be received for interpretation; whereas if interpretation is achieved by the decision-makers called for this purpose, the case should be closed.
*) Piotr Łukasz Juliusz Andrzejewski, lawyer, activist in democratic opposition during Communist Poland (PRL), senator (I, II, III, IV, VI and VII Senate), member of the Constitutional Tribunal.