On December 23, 2015, the Sejm—the Polish lower House of Parliament—passed a Bill to amend the Polish Constitution that will control the functioning of the Constitutional Tribunal. On the following day the Polish Senate passed the Amendment, and President Andrzej Duda of the ruling Law and Justice Party signed the Bill into law on the December 28.
This is a decision that has polarised opinions, with some arguing that this will hobble the rule of law and others arguing that this will curtail a dangerous court. Features of the new Amendment include the following:
First, there is a requirement that a two-thirds majority of sitting judges is needed to constitute a majority (and binding) decision.
Second, the quorum of judges is to be increased from 9 to 13 of the 15-man Tribunal. This particular requirement, since it mandates that more judges must sit on any given case, will significantly reduce the number of cases that can appear before the Tribunal.
And, third, the Amendment will require a mandatory latency period (a delay) of 6 months before the Tribunal can decide a case that has been referred to it. There is also a category of 3 months for cases of exceptional circumstances. While this may not appear particularly onerous, it should be noted that the previous latency period was only 2 weeks.
The question this Amendment poses is whether the rule of law is unduly hampered or whether the rule of law will be strengthened by restraining a potentially activist court.
Whether one agrees or disagrees with the social, economic, geopolitical or political policies of the Law and Justice Party is an irrelevant consideration. For, perhaps, the Tribunal has itself had a deleterious effect on the rule of law in Poland, thus possibly justifying the Amendment.
This must be borne in mind when deciding whether to decry the amendment or whether to applaud it.
The rule of law is not simply a principle that governments and the institutions of a State must never be above the law. This dilutes the rule of law to nothing more than a mere legal principle. But the rule of law is also a political ideal; a political ideal of legality that is qualified by other political ideals such as democratic participation, representative government, and national security.
A prime example of this is the fact that even constitutionally sound laws—passed according to appropriate legal procedures and, thus, the rule of law when strictly viewed as a formal receipt for legal-institution design—can violate other fundamental principles such as justice and equality for all. For example, Nazi Germany passed numerous laws that might not necessarily have violated the formal aspects of the rule of law, particularly the Nuremburg Race Laws of 1935 and the Decree on the Confiscation of Jewish Property, which regulated the dispossession of Jewish property.
According to Professor Jeffrey Goldsworthy, a well-known Australian constitutional lawyer and former President of the Australian Society of Legal Philosophy, ‘[i]f the rule of law can be reduced to a single core proposition, it is that laws should limit or control what would otherwise be arbitrary power’. Arbitrary power in this sense is not just legislative power but judicial power as well. The doctrine of Substantive Due Process advanced by the Supreme Court of the United States is a perfect—albeit disheartening—example of judicial activism, and arbitrariness.
So rather than condemning the recent Amendment in Poland off-hand, a more thoughtful analysis of the Constitutional Tribunal’s potential for, and possibly actual, arbitrariness is needed. Cautious deliberation is more prudent than simply rushing to judgement.