EN
The draft under review introduces into the Polish legal order the notion of a “person not authorised to adjudicate” in the Constitutional Tribunal, which is unknown to the Constitution of the Republic of Poland, and a modification of the constitutional status of judges of the Constitutional Tribunal by retroactively changing their capacity to adjudicate. The Sejm, by granting itself the right to declare invalid the rulings of the Sejm on the election of judges of the Tribunal, thereby undermines the independence of judges of the Tribunal, since its judges may be deemed by the legislator as not authorised to adjudicate. The principle of separation of powers precludes the exercise of judicial power by Parliament by derogating by law from the judgements of the Constitutional Tribunal in violation of its constitutional distinctiveness. Granting the legislator the right to decide on the effects of Constitutional Tribunal rulings may lead to the transformation of the Tribunal into a consultative body. The provisions of the draft, which require the repetition of all procedural actions performed in proceedings before the Tribunal with the participation of “persons not authorised to adjudicate”, are inconsistent with the principle of diligence and efficiency in the work of public bodies expressed in the preamble of the Constitution of the Republic of Poland. These provisions imply the arbitrary overruling of pre-judgement efforts undertaken not only by the Tribunal, but also by the participants in the proceedings, including other state authorities. They constitute a disproportionate interference, as a result of which the good sacrificed, i.e. judgements invalidated without individual assessment, in violation of the Constitution of the Republic of Poland, is less important than demonstrating the efficiency of the legislator. The provisions of the draft, which invalidate judgements of the Constitutional Tribunal without analysing their content and the consequences of their invalidation, and also introduce the requirement to repeat procedural actions performed before the Tribunal, threaten the stability of the legal order and the effectiveness of the functioning of the Tribunal, and thus constitute a threat to the protection of the rights guaranteed by the Constitution of the Republic of Poland. At the same time, they are inconsistent with the principle of rationality of the legislator, which – in accordance with the jurisprudence of the Constitutional Tribunal – constitutes the starting point for the control of constitutionality of the law.