Is an early dismissal of the Polish Ombudsman constitutionally admissible? Gloss to the decision of the Constitutional Tribunal (Ref. No. K 35/16)

• Authors: Sebastian Kubas

Title variants

PL

Czy przedterminowe odwołanie Rzecznika Praw Obywatelskich jest zgodne z Konstytucją RP? Glosa do postanowienia Trybunału Konstytucyjnego K 35/16

• Languages of publication: PL

Abstracts

PL

In this gloss, I comment on the pronouncement published as the decision of the Constitutional Tribunal. It concerns an uncontroversial issue of obligatory discontinuation of the proceedings due to the withdrawal of an application. However, this unanimous decision also includes an extensive section marked as a dissenting opinion in which  criticism is presented of applicant’s conduct, that is, of the Commissioner for Citizens’ Rights (the Polish Ombudsman). It also contains an appraisal that the Commissioner betrayed his oath, which is a statutory condition for the dismissal of the Commissioner. I argue that such a dissenting opinion violates the law. I also provide arguments to show that the statutory condition of the Commissioner’s dismissal by way of betraying his or her oath is constitutionally inadmissible. The statutory oath formula contains idealizations that are impossible to fulfill. Using such a formula in the Sejm (a house of the parliament) as an assessment criterion of the Commissioner’s conduct would subject him or her to political responsibility. It has no basis in the Constitution’s text but also no basis in the constitutional pantext. An exemplary Commissioner should be a figure of eminent legal charisma. In the field of human rights, the Ombudsman serves as a loyal opposition to the political authorities helping to prevent the groupthink. The Ombudsman is also entangled in culture wars as far as human rights are concerned. The acceptance of Commissioner’s early dismissal on the basis of disapproval cloaked in the charge of betrayal of his or her oath would make it impossible for the Commissioner to perform his or her duties effectively and it would undermine the Commissioner’s mandate by motivating to avoid dealing with sensitive issues.

• Publisher: Uniwersytet Jagielloński, Krakowski Instytut Prawa Karnego Fundacja
• Journal: Constitutional Review
• Year: 2019
• Issue: 2

Dates

published

2019-09-21

online

2019-09-21

Contributors

author

Sebastian Kubas