Retired Constitutional Tribunal Judges on ‘lex Tusk’: This act of exceptional evil violates the principles of the rule of law, human and civil rights
‘We cannot remain silent in the light of such an intensity of ill will and such a gross violation of fundamental human and civil rights. It is also our duty, which arises from our judicial conscience and our knowledge of the law, to point out that cooperation with the commission according to the principles of this unprecedented act constitutes a violation of values that are dear to our traditions and respect for the common good,’ wrote the retired judges of the Constitutional Tribunal.
Declaration of the retired Constitutional Tribunal judges in connection with the enactment, signature and entry into force of the Act on the State Commission for Investigating Russian Influence on the Internal Security of the Republic of Poland in 2007–2022
The signature of this Act by the President of the Republic of Poland gives rise to the greatest concern about the state of our country, its systemic condition and its ability to face the most important challenges of the rule of law, especially in the face of the war being waged across our eastern border.
The destruction of the rule of law started with the President’s refusal to take the oath of office from three judges of the Constitutional Tribunal who had been properly elected in the autumn of 2015. Soon afterwards, the government refused to promulgate several dozen rulings of the Tribunal. Further activities have brought about a complete loss of authority of this institution in the eyes of national and international public opinion; this is confirmed by rulings of the International Court of Human Rights and the Court of Justice of the European Union.
Over the past seven years, the fundamental principles of the rule of law arising from our Constitution, as well as international and EU laws that are binding on Poland, have been challenged by the ruling party. As retired judges of the Constitutional Tribunal, we have been repeatedly and continuously highlighting the normative acts that grossly breach the Constitution.
Today, we particularly emphatically draw the public’s attention to the law cited in the introduction, which has just entered into force. It is an unconstitutional act, falsely assuming the form and shape of a statute, the title of which conceals the real intentions and objectives of eliminating the people specified in advance in its justification from participation in public life. The clear premise is to create a feeling of fear in anyone who has had or may have had any contact with representatives of the Russian state in any form.
This act of exceptional wickedness breaches the principles of the rule of law, fundamental human and civil rights: the right to a trial in a court, the presumption of innocence, the right to a defence and the right to proceedings in at least two instances; it does not respect the principle of the separation of powers, fundamental principles of the rule of law of such fundamental importance as the prohibition of retroactivity of the law, the prohibition of punishment for an act that was not punishable at the time it was committed, the requirement of correct legislation and the principle of protection of confidence in the state and the law. The future members of the commission that is established by this ‘act’ are already exempt from liability in advance for their acts within this body, which constitutes a breach the principle of the operation of public authorities within the limits and on the basis of the law, as well as the principle of equality of citizens before the law.
This bizarre act, which was inspired by the lawlessness of totalitarian states, was enacted, signed and promulgated, as if the people doing this could not care less about their oath of fidelity to the Constitution and were oblivious to ‘the bitter experiences of the times when fundamental freedoms and human rights were violated in our homeland’ (preamble).
We cannot remain silent in the light of such an intensity of ill will and such a gross violation of fundamental human and civil rights. It is also our duty, which arises from our judicial conscience and our knowledge of the law, to point out that cooperation with the commission according to the principles of this unprecedented act constitutes a violation of values that are dear to our traditions and the respect for the common good.
31 May 2023