High and mighty
"We call upon those who will apply this Constitution for the good of the Third Republic to do so paying respect to the inherent dignity of the person, his or her right to freedom, ... and respect for these principles as the unshakeable foundation of the Republic of Poland." - Preamble to the Constitution.
Media headlines have suggested the Constitutional Tribunal is locked in an ideological power struggle with the current government. Every day a new headline appears calling for the sacking of one minister or another, charging that his or her actions are unconstitutional, and that the only honourable thing to do in the circumstances is resign. The truth, however, is that the tribunal is simply doing what it is supposed to do - defending the Constitution against attack. Regardless of what some politicians may claim, the tribunal is not a political tool of the right or the left, but as the Constitution clearly states, "a separate power independent of the other branches of power." This is a powerful distinction.
Before we consider what the tribunal has been doing to cause all this turmoil, a little background is necessary. Here is a court composed of 15 judges appointed by the Sejm for staggered nine-year terms. It is empowered to adjudicate upon the constitutional validity of government bills awaiting presidential signature, existing laws, disputes between government departments and agencies and international treaties. Most recently, as in the case of the highly controversial Tax Abolition Act, the President, at his sole discretion, may submit a proposed law for review prior to signing it into law. If the President chooses not to refer a proposed law, the judges are denied jurisdiction. However, once a bill is signed into law by the President, other parties, state officials, including the prime minister, the justice minister or at least 50 members of the Sejm or 30 members of the Senate, may petition the tribunal for a constitutional review. Additionally, citizens who consider they have been harmed in some way by a law may appeal directly.
Now, let's begin with the ruling by the tribunal declaring the Tax Abolition Act unconstitutional. This act had already been approved by the Parliament and was awaiting the President's signature when the tribunal issued its ruling. The act would have granted to those taxpayers who had concealed or under-reported their true income during the period of 1996 to 2001 an opportunity to come clean and report their true income in exchange for a favourable tax rate of 12%, well below the existing tax rates, not to mention penalty interest. A second part would have forced all taxpayers to declare in minuscule detail all their personal assets to the tax authorities.
In the case of the Tax Abolition Act, the tribunal was able to review the government-approved bill before it became law only because the President exercised his constitutional rights. Apparently, the President instinctively considered elements of the act were amiss on constitutional grounds. He could just as easily have chosen not to refer it. Moreover, if the President had later decided that it was acceptable after referring it to the tribunal, but ahead of a formal ruling, he could have rescinded his request for review, which would have stopped the tribunal from proceeding any further.
The tribunal's finding that the Tax Abolition Act was indeed unconstitutional is not surprising. It was based on the provisions of the Constitution, but the implication is plain enough that a little bit of human nature played a part as well. The 15 judges sitting on the tribunal pay taxes. It clearly rubbed them the wrong way that they were looking at a proposed law designed to reward others for not paying their taxes. The chapter and verse is there clearly enough in the national constitution. "Everyone shall comply with his responsibilities and public duties, including the payment of taxes, as specified by statute" (Art. 84). Apparently, the drafters of the act at the Ministry of Finance had not taken the trouble to read the small print. The clear inference is that Aleksander Kwaniewski thought the same.
What exactly did the tribunal say? In a nutshell, it declared the Tax Abolition Act to be unconstitutional due to unequal treatment of the taxpayers - on which grounds it had been under heavy political fire from the start - declaring that it was more advantageous to those persons who have not paid their legal share of taxes as compared to those honest taxpayers who have obeyed the law, thereby violating article 32 of the Constitution which clearly states: "all persons shall be equal before the law" and "all persons shall have the right to equal treatment by public authorities." Additionally, the tribunal ruled for good measure in respect of new tax-snooping proposals, that the provision requiring the declaration of all assets to be an intrusion of personal privacy. In this respect, the key article in the constitution is 51, which declares that "public authorities shall not acquire, collect nor make accessible information on citizens other than that which is necessary in a democratic state ruled by law."
In addition to being empowered to consider laws before they enter into force, the tribunal has another powerful weapon, namely to adjudicate on existing laws. A year ago the judges struck down a section of the Civil Code and in a benchmark ruling declared that section 418 blatantly violated the Constitution, and limited the meaning of section 417. Art. 77 of the Constitution protects an individual's right "to compensation for any harm done to him by any action of an organ of public authority contrary to the law." Between them the two articles in contest established several hurdles that an aggrieved citizen would have to overcome in order to seek compensation for an injury caused by a government official. The court ruled that these additional requirements imposed upon the citizenry were counter to the meaning and spirit of its original succinctly clear protection of a citizens' rights against government, stating unequivocally the "clear lack of consistency (between Section 418 and the Constitution) could be eliminated only by striking the provision from the law."
The judges then went on to redefine the meaning of section 417, which up until that point had been used by the government to avoid financial responsibility for injuries caused to individuals by the acts of government officials unless such officials were first adjudged to be at fault. They ruled that the imposition of this additional requirement was also counter to the Constitution and justified their ruling by the explicit statement, of enormous significance in human rights, that public officials were accountable to the citizenry, as they held a "special, servitude-like role responsible for protecting the freedom and rights of the public." In order to bring a claim, the tribunal held that a citizen who suffered an injury only need prove that the government official acted against the law, as opposed to actually proving blame.
Another power vested in the tribunal is the power to act as mediator in disputes arising out of one government agency encroaching upon the authority of another. A recent test came in the summer, for example, when it was asked to adjudicate on the separate responsibilities of the two houses of the legislature, the Sejm and the Senate. In this instance, the Sejm had adopted legislation and submitted it to the Senate for approval, rejection or amendment, according to constitutional article 121. The Senate decided to attach amendments to this legislation, believing that it was within its power to do so. A group of deputies later objected to the amendments, arguing that the changes were not related to the legislation, and were in effect an attempt to circumvent the legislative process by attaching unrelated bills to its legislation. Such political tug-of-wars are a constant feature of bicameral legislatures.
The judges took the side of the deputies, ruling against any pretext for "legislative shortcuts." Citing article 7 of the Constitution, the Tribunal declared "the organs of public authority shall function on the basis of, and within the limits of, the law." In justifying its ruling, the tribunal reasoned that if the Senate was allowed to attach unrelated amendments to the Sejm's legislation, the entire balance of authority between the two bodies would be at jeopardy. Moreover, the tribunal concluded that if the Sejm failed to reject the amendments, the Parliament would be free to alter the Constitution itself.
So, what do these decisions tell us about the future activities of the Constitutional Tribunal? Simply put, these recent decisions bode well for the future of constitutional rights and democracy. If history is a reliable guide, the tribunal will actively enforce the rights of all citizens on an equal basis, as evidenced in its ruling against the Tax Abolition Act, will continue to hold government officials accountable for their actions as it did in striking Section 418 from the Civil Code, and will ensure that governmental authorities and agencies act strictly within the scope of their power. In other words, the Constitutional Tribunal will do exactly what it is mandated to do, protecting the Constitution by providing the last line of defence against attack.
Media headlines have suggested the Constitutional Tribunal is locked in an ideological power struggle with the current government. Every day a new headline appears calling for the sacking of one minister or another, charging that his or her actions are unconstitutional, and that the only honourable thing to do in the circumstances is resign. The truth, however, is that the tribunal is simply doing what it is supposed to do - defending the Constitution against attack. Regardless of what some politicians may claim, the tribunal is not a political tool of the right or the left, but as the Constitution clearly states, "a separate power independent of the other branches of power." This is a powerful distinction.
Before we consider what the tribunal has been doing to cause all this turmoil, a little background is necessary. Here is a court composed of 15 judges appointed by the Sejm for staggered nine-year terms. It is empowered to adjudicate upon the constitutional validity of government bills awaiting presidential signature, existing laws, disputes between government departments and agencies and international treaties. Most recently, as in the case of the highly controversial Tax Abolition Act, the President, at his sole discretion, may submit a proposed law for review prior to signing it into law. If the President chooses not to refer a proposed law, the judges are denied jurisdiction. However, once a bill is signed into law by the President, other parties, state officials, including the prime minister, the justice minister or at least 50 members of the Sejm or 30 members of the Senate, may petition the tribunal for a constitutional review. Additionally, citizens who consider they have been harmed in some way by a law may appeal directly.
Now, let's begin with the ruling by the tribunal declaring the Tax Abolition Act unconstitutional. This act had already been approved by the Parliament and was awaiting the President's signature when the tribunal issued its ruling. The act would have granted to those taxpayers who had concealed or under-reported their true income during the period of 1996 to 2001 an opportunity to come clean and report their true income in exchange for a favourable tax rate of 12%, well below the existing tax rates, not to mention penalty interest. A second part would have forced all taxpayers to declare in minuscule detail all their personal assets to the tax authorities.
In the case of the Tax Abolition Act, the tribunal was able to review the government-approved bill before it became law only because the President exercised his constitutional rights. Apparently, the President instinctively considered elements of the act were amiss on constitutional grounds. He could just as easily have chosen not to refer it. Moreover, if the President had later decided that it was acceptable after referring it to the tribunal, but ahead of a formal ruling, he could have rescinded his request for review, which would have stopped the tribunal from proceeding any further.
The tribunal's finding that the Tax Abolition Act was indeed unconstitutional is not surprising. It was based on the provisions of the Constitution, but the implication is plain enough that a little bit of human nature played a part as well. The 15 judges sitting on the tribunal pay taxes. It clearly rubbed them the wrong way that they were looking at a proposed law designed to reward others for not paying their taxes. The chapter and verse is there clearly enough in the national constitution. "Everyone shall comply with his responsibilities and public duties, including the payment of taxes, as specified by statute" (Art. 84). Apparently, the drafters of the act at the Ministry of Finance had not taken the trouble to read the small print. The clear inference is that Aleksander Kwaniewski thought the same.
What exactly did the tribunal say? In a nutshell, it declared the Tax Abolition Act to be unconstitutional due to unequal treatment of the taxpayers - on which grounds it had been under heavy political fire from the start - declaring that it was more advantageous to those persons who have not paid their legal share of taxes as compared to those honest taxpayers who have obeyed the law, thereby violating article 32 of the Constitution which clearly states: "all persons shall be equal before the law" and "all persons shall have the right to equal treatment by public authorities." Additionally, the tribunal ruled for good measure in respect of new tax-snooping proposals, that the provision requiring the declaration of all assets to be an intrusion of personal privacy. In this respect, the key article in the constitution is 51, which declares that "public authorities shall not acquire, collect nor make accessible information on citizens other than that which is necessary in a democratic state ruled by law."
In addition to being empowered to consider laws before they enter into force, the tribunal has another powerful weapon, namely to adjudicate on existing laws. A year ago the judges struck down a section of the Civil Code and in a benchmark ruling declared that section 418 blatantly violated the Constitution, and limited the meaning of section 417. Art. 77 of the Constitution protects an individual's right "to compensation for any harm done to him by any action of an organ of public authority contrary to the law." Between them the two articles in contest established several hurdles that an aggrieved citizen would have to overcome in order to seek compensation for an injury caused by a government official. The court ruled that these additional requirements imposed upon the citizenry were counter to the meaning and spirit of its original succinctly clear protection of a citizens' rights against government, stating unequivocally the "clear lack of consistency (between Section 418 and the Constitution) could be eliminated only by striking the provision from the law."
The judges then went on to redefine the meaning of section 417, which up until that point had been used by the government to avoid financial responsibility for injuries caused to individuals by the acts of government officials unless such officials were first adjudged to be at fault. They ruled that the imposition of this additional requirement was also counter to the Constitution and justified their ruling by the explicit statement, of enormous significance in human rights, that public officials were accountable to the citizenry, as they held a "special, servitude-like role responsible for protecting the freedom and rights of the public." In order to bring a claim, the tribunal held that a citizen who suffered an injury only need prove that the government official acted against the law, as opposed to actually proving blame.
Another power vested in the tribunal is the power to act as mediator in disputes arising out of one government agency encroaching upon the authority of another. A recent test came in the summer, for example, when it was asked to adjudicate on the separate responsibilities of the two houses of the legislature, the Sejm and the Senate. In this instance, the Sejm had adopted legislation and submitted it to the Senate for approval, rejection or amendment, according to constitutional article 121. The Senate decided to attach amendments to this legislation, believing that it was within its power to do so. A group of deputies later objected to the amendments, arguing that the changes were not related to the legislation, and were in effect an attempt to circumvent the legislative process by attaching unrelated bills to its legislation. Such political tug-of-wars are a constant feature of bicameral legislatures.
The judges took the side of the deputies, ruling against any pretext for "legislative shortcuts." Citing article 7 of the Constitution, the Tribunal declared "the organs of public authority shall function on the basis of, and within the limits of, the law." In justifying its ruling, the tribunal reasoned that if the Senate was allowed to attach unrelated amendments to the Sejm's legislation, the entire balance of authority between the two bodies would be at jeopardy. Moreover, the tribunal concluded that if the Sejm failed to reject the amendments, the Parliament would be free to alter the Constitution itself.
So, what do these decisions tell us about the future activities of the Constitutional Tribunal? Simply put, these recent decisions bode well for the future of constitutional rights and democracy. If history is a reliable guide, the tribunal will actively enforce the rights of all citizens on an equal basis, as evidenced in its ruling against the Tax Abolition Act, will continue to hold government officials accountable for their actions as it did in striking Section 418 from the Civil Code, and will ensure that governmental authorities and agencies act strictly within the scope of their power. In other words, the Constitutional Tribunal will do exactly what it is mandated to do, protecting the Constitution by providing the last line of defence against attack.
