Iudex in causa sua

c507cc24-07d7-4971-93f0-1ac269c2f61aIn a decision in which, deciding on its own rights and prerogatives, it appears to play the role of judge and party at the same time, the Polish Constitutional Tribunal has found that the new law, adopted in autumn, through which its margin of action is severely constrained through new procedural rules, is unconstitutional.

This is a new step of escalation in the conflict between the Tribunal and the national-conservative Government.

Given that the decision is in Polish and no translation has so far been provided, we abstain from commenting it in detail.

As a more general comment, however, we would point out that none of the procedural rules that stand in question (e.g. that the Tribunal can decide only with at least 13 of its 15 Members present, or that it has to hear cases in the order of incoming applications, or that it can find violations of the Constitution only with a two-thirds majority of judges) seems per se sufficient to come to the conclusion that universally accepted rule-of-law standards have been violated. What appears, however, problematic, is another point: that apparently the Polish Constitution allows the procedures of the Constitutional Court to be changed by a simple majority vote in the Parliament. If that is the case, then indeed it would mean that any government (not just the current national-conservative one) could swith on and switch off the constitutional control as it pleases, thereby rendering the fundamental idea of an independent Constitutional Court nugatory. But then that systemic problem would lie within the Constitution itself rather than with the laws that were enacted last autumn.

On the other hand, the Government is not wrong in pointing out that with this decision the Constitutional Tribunal has violated a very fundamental legal principle: nemo iudex in causa sua – no one is allowed to be the judge of his own case.

It appears that the Tribunal and the Governments are at loggerheads, and both are, to some extent, in the wrong.