Polish Constitutional Tribunal goes down with dignity

The Polish Constitutional Tribunal’s last stand ?

On 11 of August 2016 the Polish Constitutional Tribunal (“Tribunal”) decided case K 39/16 in which it disqualified, for the second time in the span of 5 months, court-packing provisions contained in the Law of 22 July, 2016 on the Constitutional Tribunal. Separation of powers, judicial independence and effective functioning of the constitutional court were again the keywords that informed the analysis. In K 39/16 the Tribunal built on its previous unpublished (case K 47/15) and unimplemented (K 34/15 and K 35/15) judgments in which it had already dealt with the court-packing. This case law reminds Martin Shapiro’s argument about the consequences of the choice made by the constitution makers to resort to a court as a conflict resolver. Such choice entails the acceptance of „the inherent characteristics, practices, strengths and weaknesses of that institution … and some law making by courts and a certain capacity for judicial self-defense of its law making activity. The issue of whether such law making and self-defense are somehow antidemocratic or antimajoritarian is uninteresting. If the demos chooses the institution, it chooses the judicial law making and judicial self-defense“[1]. After this most recent case, though, the clock is ticking on the Tribunal and this time the self-defense by way of courageous judicial pronouncements might not be enough to survive.

The order emphasized that most of the provisions in the new Law replicate these already found to be unconstitutional in the judgment of 9 of March 2016 (case K 47/15). Therefore, in view of the repetetive nature of most of the claims, the Tribunal felt strong enough to decide the case by way of a reasoned order, rather than a judgment. The Tribunal reiterated that its rulings must be published immediately in the shortest possible time given the circumstances of each case ...

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