How can the Constitutional Tribunal be repaired? Sadurski: Removing the stand-ins isn’t enough, you have to go further
Professor Wojciech Sadurski, a constitutionalist, proposes his concept for repairing the Constitutional Tribunal. ‘The current Constitutional Tribunal is one hundred percent illegitimate,’ he argues. And explains why he thinks so, and how to remedy this if the opposition wins the elections.
The constitutional crisis in the Constitutional Tribunal started after the Law and Justice party (PiS) came to power in 2015. At that time, President Andrzej Duda appointed people elected by the Sejm, in which PiS had a majority, to places that had been properly filled by judges elected by the Sejm of the previous term.
In 2020, in the judgment in Xero Flor v. Poland, the European Court of Human Rights held that adjudication by defectively staffed benches of the Constitutional Tribunal constitutes a breach of the right to a court, which is protected by the European Convention on Human Rights. In December 2021, the European Commission initiated EU law infringement proceedings through the staffing and operation of the Constitutional Tribunal.
Academics, experts, civic society organizations, and certain political parties presented proposals for fixing the rule of law. Some of them applied to the Constitutional Tribunal.
In 2019, constitutionalist Dr. Michał Ziolkowski presented legal arguments in support of the possibility of dismissing Julia Przyłębska, whose term of office ends in 2024, from her position as president of the Tribunal.
In 2019, Professor Marcin Matczak and Dr. Tomasz Zalasiński prepared an analysis for the Stefan Batory Foundation, in which they presented preferred directions for change leading to the restoration of the correct operation of the Constitutional Tribunal.
The Left party presented a schedule for repairing the rule of law in 2019. At the end of 2021 the Strategy Institute operating with the Polska2050 [Poland 2050] party issued invitations to a discussion of the proposed options for repairing the Constitutional Tribunal.
In July of this year, the Stefan Batory Foundation’s Team of Experts presented proposals for changes in the Tribunal (see draft Act on the Constitutional Tribunal and draft Act on Provisions introducing the Act on the Constitutional Tribunal).
Now, Professor Wojciech Sadurski, a constitutional law scholar from the University of Sydney and the European Centre at Warsaw University, is presenting his concept in OKO.press and the Rule of Law in Poland in conversation with Dr. Anna Wójcik. We encourage comments and discussions.
Professor Sadurski: The whole of the Tribunal should be replaced
Anna Wójcik: You wrote in Gazeta Wyborcza that the Constitutional Tribunal is ‘to be zeroed out’. Such ideas have appeared in the public debate – usually with the reservation that all changes in the Constitutional Tribunal should be made by statute and not by dreaming about amending the Constitution. What makes your idea any different?
Professor Wojciech Sadurski: My conception goes down two tracks. The first track, regarding the statutory recognition of decentralized (dispersed) constitutional review and therefore, in a way, the bypassing of the Tribunal as a monopolist in this area, is much more important than the second track regarding the Tribunal itself and zeroing it out.
The postulate of spreading the control of the constitutionality of provisions of the law, which would be conducted in a binding manner by not one centralized body – namely the Constitutional Tribunal, as it has been in Poland to date – but by the ordinary courts on the basis of the cases being examined, with the possibility of bypassing the Constitutional Tribunal, has also already appeared in the expert debate.
The first part of my conception applies not so much to the introduction but the confirmation of decentralized review of constitutionality, as the legal basis for such review already exists. However, it is, unfortunately, not widely practised.
If we have learned anything in the last difficult years, it is that there are a lot of excellent judges in Poland who understand perfectly well what it means to apply the Constitution, as well as the European Convention on Human Rights and the EU treaties.
At the beginning of the period of the Third Republic of Poland, when the constitutional structure for judicial review was being designed, there were various doubts about and mistrust of ‘ordinary’ judges: that they would not be capable of doing this, that they were unprepared, insufficiently competent or not brave enough.
Recent years have shown that such fears and allegations are groundless. We have seen that many of the judges – and I say this even from the experience of the lawsuits against me – applying the Constitution directly are wise, competent, and brave.
All the constitutional grounds for this are in place. Nothing needs to be changed in the Constitution. Article 8, para. 2 of the Constitution not only authorizes, but even requires the control of constitutionality by every Polish judge, by providing that the Constitution is to be applied directly.
“Directly” means by the Constitution per se, as an autonomous and the supreme act of law, not intermediated by statutes. This should be read in conjunction with Article 178, para. 1, which states that judges (not judges of the Constitutional Tribunal, but judges of the ordinary courts) are only subject to the Constitution and the statutes. As one can see, the Constitution is mentioned first. It is only a matter of practice, which in my opinion is unfortunate, about which I had already written in my book ‘Rights Before Courts’, that in Poland, as well as in many other post-communist states, constitutional tribunals have usurped a monopoly on constitutional review of laws. But the constitutional provision that the Constitutional Tribunal has the competence to do something does not mean that it has the exclusive competence to do it.
The result of the so-called ‘war of the courts’, which took place in the early 1990s, was that the constitutional courts in our part of Europe fully rejected the right of the supreme courts, among others, to review the constitutionality of laws on their own. Instead, in the case of constitutional doubts, they required the courts to conduct a so-called ‘specific control’ only, namely to refer a legal question to the Tribunal.
Since the courts already have the right to control the constitutionality of laws, perhaps the solution is to encourage them or give them courage rather than change the law?
I believe there should be a return to the idea of dispersing the review of constitutionality, and the call for such a return should be emphatic. Not through some kind of tolerance or suggestion, but by way of a statutory change, in order to encourage judges to do so, to send them a strong signal that this is expected of them. A statutory change will not, therefore, change the current legal status (it is not ‘constitutive’, to put it in legalese), because such dispersed review stems directly from the Constitution, but it will give judges additional incentives to practice it.
I am in favor of the following provisions being introduced into two statutes – the Act on the Structure of Ordinary Courts and the Act on the Supreme Court:
‘Judges who acquire reasonable doubts as to the constitutionality of a statute which they were to apply in a particular case during the course of their judicial activities:
- shall treat the statute as if it were invalid and shall apply the Constitution directly, or
- shall stay the proceedings and refer a legal question to the Constitutional Tribunal’.
I would also add the words ‘Pursuant to Article 8, para. 2 in conjunction with Article 8, para. 1 of the Constitution’ at the beginning of this provision. These are articles about the direct applicability and supremacy of the Constitution over all laws. I would also add ‘in connection with Article 178, para. 1’, namely that judges are subject to the Constitution and statutes, in this order.
I think this would be strong statutory support for judges. There are, after all, several precedents. For example, the judgment of the Court of Appeal in Wrocław in 2017 regarding evidence obtained in breach of the law, namely the ‘fruit of a poisonous tree’. But there are very few examples of this.
Perhaps because, in the current legal situation, judges believe that dispersed control of constitutionality is inconsistent with our constitutional system. Because they are not taught this. Because they do not see many such cases around them. Therefore, a statutory change – not a constitutional change, I emphasize – is useful here.
You are proposing a far-reaching change in the model of controlling constitutionality which has been in force for a quarter of a century. Are you not worried that such new statutory provisions will give fodder to those who are talking about ‘juristocracy’? Will this not lead to chaos – different judges interpreting the constitutionality of the same laws in different ways? Or will the people appointed as judges in a process involving the National Council of the Judiciary elected on the basis of the principles that were changed by PiS present their own interpretation of constitutionality?
These are serious concerns, but I do not think they are devastating. As far as the judges appointed by the neo-NCJ [National Council of Judiciary] are concerned, in a way, this is a matter that is external to my concept. One way or another, this problem will have to be regulated, whether we introduce decentralized review or not.
As for the fear of juristocracy, namely excessive power of judges, I would like to point out that decentralized, or in other words concrete review of the constitutionality of statutes is of a much more restrained nature than abstract and centralized control conducted by the Tribunal. It can only take place in the case of actual lawsuits. Therefore, neither a judge nor any politician can act here on their own initiative. A judge has to wait for an impulse from specific litigants and has a whole range of opportunities not to conduct such a review, for example, if they consider the constitutionality of a given statute to be beyond doubt. After all, this is ultimately a discretionary matter, and we are always dealing with a degree of judicial discretion.
In conclusion, my answer is that, in my proposal, judges will always have a choice; if they think a provision is unconstitutional, they will still be able to act in the traditional way, namely, to approach the Constitutional Tribunal with a question.
But I would like to emphasize why this idea is so important now: because we have to accept the situation that a judge will consider that the Constitutional Tribunal is not reliable and independent, as is the case these days. This is, after all, the political starting point of all of these considerations: why should a judge who considers in her conscience, in her assessment for good reasons, that the Constitutional Tribunal has ceased exercising review of constitutionality appropriately, be forced, or restricted to only that path which, today, is a hopeless one?
In the constitutional sense, the Tribunal has ceased operating. Statistics show that judges have essentially stopped asking constitutional questions of the Tribunal for obvious reasons. And we need to understand and respect these reasons.
Therefore, my proposal arises from a certain realism, and not because I want to somehow enhance the power of judges. We currently have a situation of power over the judges in Poland, not the power of judges, so there is nothing to fear here.
So how does this compare to the ability of judges to ask preliminary questions of the CJEU?
Asking questions for preliminary rulings is, in a sense, functionally equivalent to submitting legal questions to the Constitutional Tribunal. It is different, of course, because it concerns a correct interpretation of EU law, and not of the Polish Constitution. And the responses, namely the judgments of the CJEU in response to the questions of preliminary reference, are not articulated in a categorical manner, but in a hypothetical manner. They provide the referring court with criteria for assessing the facts, but this assessment of the facts, and therefore whether a given situation or a given provision is consistent with the correct interpretation of EU law, already rests with the referring court. In other words, it is something like ‘if you find that X, then you must accept Y’.
If, for example, you consider that the NCJ was set up in a such and such way, then you should accept that the NCJ does not meet the requirements of a judicial institution – as, indeed, the Court of Justice of the EU has said. But the fact that this is the case must be established by the referring court after receiving the preliminary ruling in the case.
In the case of a legal question submitted to the Constitutional Tribunal, the situation is different. The Constitutional Tribunal answers categorically: yes, this act is unconstitutional, or this act is constitutional. If the Constitutional Tribunal, when an independent Tribunal still existed, had answered the court in Gdańsk that the statute introducing the European arrest warrant was unconstitutional, the case would have been over. That court could no longer proceed any further and assess the constitutionality of the European arrest warrant on its own. The control of constitutionality has led to a constitutional amendment.
The idea of the dispersed control of constitutionality has been regularly returning to the debate for several years – precisely because of the lack of confidence in the current Constitutional Tribunal. But lawyers are cautious about this. For example, in January 2020, Dr. Marcin Szwed of the Helsinki Foundation for Human Rights pointed out that the control should only be applied if the unconstitutionality does not give rise to any doubts in the light of the case law of the Constitutional Tribunal, the established views of the legal doctrine, or international standards. In other words, it should rather be a special case. Should the applicability of this control be somehow limited?
Of course, judges must be bound by both international standards, in particular the European Convention and the EU treaties, and by the interpretation of the Polish Constitution, including the case law of the Constitutional Tribunal from the period when it was an actual tribunal. But being bound in this way, like being bound by any vague concepts, does not have a strong determinative effect.
In my proposition, this is all contained in the words ‘reasonable doubt’. The critique can be raised that this is a subjective notion because what is reasonable for you may not be for me. Therefore, if you and I were to find ourselves in judicial situations, we would react differently. But that is perfectly normal, in any system.
It seems to me that the notion of ‘reasonable doubt’ is not excessively nebulous. I believe judges should not be more constrained in this matter. If I were a legislator, or if I were a politician in charge of law reform, I would encourage, rather than discourage, judges from reviewing constitutionality. I would create incentives for them, not counter-incentives. And all these additional criteria you mentioned, which are to be imposed on them, each of which is quite vague anyway, would only make the judge feel more constrained from doing something that we should be encouraging.
Of course, a judge who – I don’t know – feels timid to some extent or reluctant in this respect, perhaps for good reasons, would not have to review the constitutionality of the provision himself. He would be able to submit a legal question to the Constitutional Tribunal.
But we should also remember that any ruling by a judge on constitutionality will be subject to the normal appellate review and a higher instance can overturn his arguments. Unlike the judgments of the Constitutional Tribunal, it is not final.
Let us return to the changes in the Constitutional Tribunal. President Przyłębska’s term of office ends relatively soon, in 2024, while the people who have been properly appointed to the Constitutional Tribunal may still be its members until 2029. From a legal point of view, it seems clear that people elected to places already occupied cannot be members of the Constitutional Tribunal, as this leads to a breach of the European Convention on Human Rights. But how do you justify the premature removal of judges who are its legal members from the Constitutional Tribunal? After all, the rule of law cannot be restored in an illegitimate manner.
Since you started with dates and the schedule, let us start with this and with the hypothesis that the parliamentary elections in 2023 are won by the democratic opposition (because, obviously, if it does not win, all our plans are pointless anyway, ending up in a drawer for future years). According to the law, the people who have occupied places that were already filled, namely the ‘stand-ins’ will be removed from the Constitutional Tribunal; this is obvious.
Therefore, at the beginning of 2024, 12 of the 15 Constitutional Tribunal judges will have been appointed by the PiS parliamentary majority. At the beginning of January 2025, this will be 10, and at the beginning of January 2026, it will be 8. This arises from the schedule of the terms of office of the current judges.
PiS will have a majority in the Constitutional Tribunal until 28 June 2026, when Andrzej Zielonacki, the eighth of the judges appointed by PiS, will leave and, from then on, it will be possible for a majority of judges appointed by the new parliamentary majority to exist. Even if it were to be accepted that the repentant Judge Pszczółkowski [appointed by PiS in 2015] would continue to vote honestly, rather than as he is told by PiS, the change in the Tribunal’s majority would arise on 20 December 2025, when Judge Michał Warciński leaves.
In summary, the review of the dates shows that a hypothetical new parliamentary majority appointed in 2023 will keep facing a PiS majority in the Constitutional Tribunal up to the end of December 2025. Therefore, it will be possible for a group of PiS MPs to overturn all statutes for at least two years, by submitting such requests to the Tribunal.
Are you not convinced by the suggestion of a possible change of direction by the Constitutional Tribunal judges?
Of course, I am familiar with the view that these judges, who have been properly elected by PiS are so flexible and opportunistic that, when a new coalition comes to power, they will suddenly start to support it.
I do not share these views. I believe, firstly, that these people are not necessarily opportunistic cynics, but rather fanatics. And secondly, they will have every incentive to remain in the service of PiS. Because if they switch to the democratic side we still won’t believe them, whereas PiS will hate them, while if they continue to side with PiS, then their party, even though it will be in the parliamentary opposition, will still be powerful and won’t let any harm be done to them.
Therefore, if the democratic parties win the 2023 elections, there will be a strong veto factor against democratic laws. A veto by the president and the majority in the Constitutional Tribunal.
But I would like to emphasize: that it is not this factor on which my idea of ‘zeroing out’ the Constitutional Tribunal was based.
I would be prepared to agree, perhaps reluctantly and with some regret, with the orthodox supporters of the rule of law understood as obedience to the letter of the law and not necessarily to the spirit of the law, that we still will have to suffer for these 2–3 years. To grit our teeth and remain virtuous. To have the moral satisfaction that they were the ones who breached the Constitution, and we will not breach it, even if this means that we will be unable to overturn the whole statutory dismantling of the Constitution for three years; well, in practice, we will not be able to do anything. But that is not the reason for my concept of ‘zeroing out’.
Just the reason for my concept of zeroing out is not my totally negative assessment of the functioning and the whole of the case law of the present tribunal. I have written about this many times and will not reiterate it.
Nor is the reason for my proposal a general assessment that the Tribunal has become an enthusiastic helper of the authorities and has therefore stopped performing its fundamental, constitutional function of controlling the executive and legislative authorities. It is therefore a façade and not a tribunal.
Finally, the scandalous behavior of individual members of the tribunal, including Julia P., their secret dealings with the authorities, the rigging of benches, the manipulation of the schedule of judgments, and various outrageous behaviors are not the bases of my proposition.
So what factor determined that you are in favor of the concept of ‘zeroing out’ the Constitutional Tribunal? The Batory Foundation’s think-tank proposed a more moderate solution.
My proposal is based on very legalistic considerations. It is related to a very strict commitment to the ideal of the rule of law. Therefore, I believe that, even if we were to disagree with the Tribunal on the merits of its rulings, with a proper tribunal, we would have to grit our teeth and live with it, somehow.
The problem is – and this is the basis of my proposal – that the tribunal stopped being legitimate on 8 February 2017 in the sense in which the Constitution defines it. That was the day that the first ruling involving a stand-in was made.
Stand-ins had formally been in the Constitutional Tribunal earlier, but President Andrzej Rzepliński did not assign them to any bench. This changed at the beginning of 2017.
I highly appreciate the proposal presented by the Batory Foundation’s think-tank, but I disagree with it to the extent to which it limits itself to taking only three stand-ins out of the Tribunal, and only making the others an offer to retire. Because I believe that there cannot be such a thing as a tribunal that is illegitimate or illegal to a level of three-fifteenths – because there are three stand-ins in fifteen judicial positions.
Either it is legitimate or it is not legitimate, because it is a collective body, so legitimacy is raised with respect to the whole body.
As an illustration: if I ‘marry’ a person who is not authorized to enter into marriage, it cannot be said that one person is legitimately married and the other is not. In this case, the marriage is not half invalid, but is invalid from the beginning, as a whole.
Similarly, the involvement of stand-ins in the work of the Constitutional Tribunal is poisoning the whole of the Constitutional Tribunal.
Can it not simply be accepted that the judgments issued with the involvement of stand-ins do not exist in the legal sense?
I believe that all judgments since Julia P.’s tribunal started to have stand-ins among its members are tainted with illegality. But my proposal is less about individual judgments and more about the institution as a whole.
Why do I believe that all people employed as judges in the Constitutional Tribunal are illegitimate? For two basic reasons.
Firstly, by agreeing to participate in benches that also include stand-ins, properly elected judges have violated their duties and tarnished the dignity of a judge. This applies to all the correctly elected judges who are members today because, after all, several rulings were issued by the full bench of the Constitutional Tribunal, and therefore with stand-ins, all the judges present agreed to that. They did not protest, so they betrayed the dignity of a judge. Nobody can be a judge if they so drastically tolerate blatant lawlessness in their institution and play out a certain game as if nothing had happened.
Secondly, even more important than the presence of the stand-ins is the absence from the Constitutional Tribunal of three properly elected judges: Judges Roman Hauser, Andrzej Jakubecki, and Krzysztof Ślebzak [elected by the Parliament in 2015]. The fact that they were properly elected and then illegally and persistently ignored by the President [who refused to take an oath of office from them] means that whoever assigns judges to particular panels was deprived of the ability to appoint proper judges who could perhaps, through voting, deliberation, etc., have changed the course of judgment. We do not know this, but this unconstitutional lack of three judges infects the whole of the Tribunal with illegitimacy.
I, therefore, believe that, for these two reasons, firstly, the ‘individual’ one, namely the disciplinary misconduct of all the current judges, and secondly, the more ‘collective’ one, namely the contamination of the whole institution in a manner that is inconsistent with its legal membership, make the whole of the current Constitutional Tribunal, in this membership, illegitimate.
The Constitutional Tribunal is illegitimate not to a level of three-fifteenths, but fifteen-fifteenths, namely a hundred percent.
Therefore, the problem with the membership lies not only with the stand-ins, who must obviously leave immediately but also with everyone else.
The Batory Foundation’s experts are giving the legal judges of the Constitutional Tribunal the opportunity to resign and retire.
That is a very generous proposition. In my opinion, it is insufficient. The stand-ins in the Constitutional Tribunal are like a spoonful of tar in a barrel of honey: they contaminate the whole of the Tribunal. That is why the whole of the Constitutional Tribunal should be replaced, except for the three judges who were elected properly, namely Judges Hauser, Jakubecki, and Ślebzak. They are waiting and should be immediately included in the Tribunal.
In the Constitutional Tribunal, which is healed in accordance with your concept, there will be three judges who were correctly elected in 2015 before PiS came to power. There are 15 places. What about the rest? Are they to be elected on the basis of the old Act on the Constitutional Tribunal? Does a new Act need to be passed?
The election of the missing twelve is primarily determined by the Constitution, not by statute. A Tribunal of three judges does not constitute a quorum even for judgments requiring a five-member bench. The election of the remaining twelve will be a priority.
This is where I very much like the proposal of the team of the Batory Foundation’s think-tank involving the extension of the group of people who can initiate the presentation of candidates for the office of judge of the Constitutional Tribunal. I would also add that the faculties of law of the Polish universities should be included in this group. It is important for this procedure to be transparent, and subject to public scrutiny, as stated by the Batory Foundation’s think-tank. But we should note that the new election procedure proposed by the Batory Foundation requires an amendment to the Constitution, including with regard to changing the required majority in the Sejm. In the near term, including 2023, this is rather unrealistic. Right now, twelve judges of the Constitutional Tribunal will need to be elected according to the current rules.
What about the validity of the judgments issued by the Constitutional Tribunal?
All judgments that have been passed, regardless of whether it was a full bench, a five-judge bench with stand-ins or a five-judge bench without stand-ins, are invalid because of the unlawful modification of the pool of judges that can be drawn upon to fill the benches.
We can, of course, make some compromises here to protect citizens. For example, the compromise proposed by the Batory Foundation’s think-tank, states that the validity of judgments issued as a result of citizens’ complaints or legal questions by “ordinary” judges that have already decided certain administrative or judicial decisions in favor of citizens should be maintained.
I would opt for such a compromise because my proposal is not fundamentalist and has the objective of protecting citizens’ rights, including the right to an independent court. It is rule-of-law based and legalistic.
As the Constitutional Tribunal is contaminated because of the presence of the stand-ins – it is this presence and the absence of properly elected judges that infects the whole of the Court with illegality.
What about the liability of these 15 for the period of membership and adjudication in the Constitutional Tribunal?
I believe that Julia P., precisely because of her function or the position asserted by her as President of the Constitutional Tribunal, committed a continuous official crime, according to Article 231 of the Penal Code. It can be broken down into very specific actions.
For example, the illegal manipulation of benches, about which, after all, OKO.press has written many times. In 2018, OKO.press also published an appeal from the so-called old judges of the Constitutional Tribunal plus Judge Pszczółkowski; later there was a letter of protest from several judges and stand-ins, including the stand-in Wyrembak. It is very easy to prove the illegal manipulation of benches to make the verdict comply with the expectations of the authorities.
As for the individual judges, I would be much less rigorous here: I would say that they have certainly committed very serious disciplinary offences, defaulting on their own duties, their oath and the dignity of a judge of the Constitutional Tribunal, participating without protest in deliberations or in an institution in which unauthorized personnel also participates. These offences definitively undermine their judicial mandate.
But I am relatively uninterested in what happens to these judges individually. That is not up to me. I would even recommend far-reaching forbearance, especially as some of these people are already well advanced in years. I don’t wish that they somehow be especially harassed. Their liability is not the subject of my conception and, in fact, I am not particularly interested in it.
Let’s assume that your concept comes into effect and we have a new Constitutional Tribunal. Will the judges exercise their statutory right to control constitutionality at all? Perhaps they will be afraid or not know how to do it? Up to the time of the rule of law crisis, judges in Poland rarely asked questions of the CJEU for preliminary rulings, although they had the right to do so.
It is very doubtful that what you are predicting would happen. But even if it does, then so be it. Perhaps the law will be so perfect, especially the law amended by the new majority, that there will be no doubts of a constitutional nature.
But I think there always will be. Watching the impressive judges, especially from the Iustitia and THEMIS associations, I see that the judges have gained a sense of their dignity, integrity, and honesty.
Even if the Constitutional Tribunal were to be fully credible, if questions can be submitted to it effectively, after all, the judges will still have the courage and intelligence to pronounce themselves what is unconstitutional and to pass judgments directly on the basis of the Constitution.
Let us remember that, after all, this will not be the last word, including on the matter of constitutionality, because the case will go to an appellate review and the higher court will also consider complaints against precisely that ruling.
But even if the judges do not take advantage of this new possibility – we citizens still do not lose anything, we only gain. Because we will, at least potentially, extend the supremacy of the Constitution to the whole of the judiciary, which the authorities – any future authorities – will not be able to control and submit to their will as easily as was done with the Tribunal.
The interview was published in Polish at OKO.press on 28 July 2022.