Rules for appointing the President and Vice-President of the Constitutional Tribunal K 44/16
“The challenged provision as such, in the part comprising the word ‘three’, does not infringe constitutional requirements for the efficiency, diligence and effectiveness of the selection procedure. It is a correlation between the number of candidates proposed for the President of the Republic to choose from, the number of votes allocated to the judges of the Tribunal during the selection process, and the rules of the said process that directly affects the scope of competence granted to the General Assembly of the Judges of the Tribunal as well as the possibility of fulfilling its constitutional duties by the said Assembly,” stated the Constitutional Tribunal.
On 7 November 2016 at 12.30 p.m., the Constitutional Tribunal sitting as a bench of five judges considered the application filed by a group of Sejm Deputies with regard to rules for appointing the President and Vice-President of the Constitutional Tribunal.
The Constitutional Tribunal adjudicated that:
1) Article 16(1) of the Constitutional Tribunal Act of 22 July 2016, in the part comprising the word ‘three’, is consistent with Article 194(2) in conjunction with Article 10, Article 173, and Article 197 of the Constitution and with the Preamble to the Constitution.
2) Article 16(7), second sentence, of the Act referred to in point 1 – construed as not referring to the adoption of a resolution by the General Assembly of the Judges of the Tribunal to provide the President of the Republic with the list of candidates for the positions of the President and Vice-President of the Tribunal – is consistent with Article 194(2) in conjunction with Article 10, Article 173, Article 197 of the Constitution and with the Preamble to the Constitution.
The ruling was delivered by a majority vote.
Moreover, the Tribunal decided to discontinue the proceedings as to the remainder.
The decision was unanimous.
Due to refusal of three judges of the Tribunal to participate in the hearing, and the resulting lack of a possibility of issuing a ruling by the full bench of the Tribunal (Art. 26(1)(1)(e) of the 2016 Act), and at the same time – bearing in mind the calendar specified by statute for selecting the said candidates – due to the necessity to urgently determine the case, the President of the Tribunal ordered that the case be considered by an adjudicating bench composed of five judges in compliance with general rules (Art. 26(1)(2)(a) of the 2016 Act).
When commencing the adjudication process, the Constitutional Tribunal drew attention to the fact that on the date when the Constitutional Tribunal Act of 22 July 2016 entered into force, the Constitutional Tribunal Act of 25 June 2015 ceased to have effect. Also, the Tribunal took account of the fact that, in its judgment of 11 August 2016 (ref. no. K 39/16), some provisions of the 2016 Constitutional Tribunal Act were ruled to be inconsistent.
At the moment of the public delivery of the Tribunal’s judgment ref. no. K 39/16, with regard to the provisions ruled to be inconsistent with the Constitution, the presumption of the constitutionality of those provisions was overturned. Therefore, as of that moment, the provisions could not be applied in proceedings before the Tribunal. Considering that the proceedings in the present case were instituted by the application of 12 August 2016, i.e. already after the public delivery of the Tribunal’s judgment in the case ref. no. K 39/16, as well as after the publication of the 2016 Constitutional Tribunal Act in the Journal of Laws, but before the entry into force of the said Act, Article 83(1) of the 2016 Act was applied in the present case.
The principle of the direct application of the new law, which is expressed in Article 83(1), does not undermine – as adjudicated in the case ref. no. K 39/16 by the Tribunal – the effectiveness of procedural steps taken before the entry into force of the 2016 Constitutional Tribunal Act.
The Constitutional Tribunal stated that the statutory requirement of three candidates to be proposed by the General Assembly of the Judges of the Tribunal for each of the aforementioned managerial positions, so that the President of the Republic could then choose from those candidates a new President and Vice-President of the Tribunal, does not infringe the constitutional higher-level norms for the review. Article 197 of the Constitution authorises the legislator to regulate “the organisation of the Constitutional Tribunal”, which also implies the organisation of the organs of the Constitutional Tribunal, including the said General Assembly. The Constitution does not explicitly indicate the proper number of candidates for the positions of the President and Vice-President of the Tribunal. Relying on the interpretation of Article 194(2) of the Constitution, adopted in the Tribunal’s judgment ref. no. K 34/15, the Tribunal stated that if the only constitutionally admissible approach was to have the said General Assembly propose two candidates for each of the said positions, then the constitution-maker would have stipulated so explicitly. Also, the Tribunal deemed that, since the linguistic interpretation of Article 194(2) of the Constitution leads to the conclusion that the constitution-maker permits the introduction of the requirement of two or three candidates, it is inadmissible to increase that number, due to the principle of the separation of powers, as well as the principle of the independence and separateness of the judiciary. The legislator’s choice should be regarded as a constitutional exception which may not be subject to any extension in the legislative process by the legislator or in the process of the application of law by other, even constitutional, organs of the state. According to the Tribunal, the challenged provision as such, in the part comprising the word ‘three’, does not infringe constitutional requirements for the efficiency, diligence and effectiveness of the selection procedure. It is a correlation between the number of candidates proposed for the President of the Republic to choose from, the number of votes allocated to the judges of the Tribunal during the selection process, and the rules of the said process that directly affects the scope of competence granted to the General Assembly of the Judges of the Tribunal as well as the possibility of fulfilling its constitutional duties by the said Assembly.
When commencing the evaluation of the constitutionality of the provision that authorises a judge of the Tribunal to cast only one vote for one of the candidates proposed in the selection process, the Tribunal noted that the provision might be interpreted in various ways. Where it is possible to have a number of different interpretations of a provision, the provision should be interpreted in accordance with the Constitution. What constituted a starting point for interpreting the challenged provision in a way that would be consistent with the Constitution was the constitutional notion of “candidates proposed” (Art. 194(2) of the Constitution), which is autonomous in character, and may not be interpreted by referring to statutory notions; nor may it be regarded as identical with any statutory notions. It is no accident that relevant provisions of the Constitution mention ‘proposing’, whereas relevant statutory provisions concern ‘selecting’ candidates.
The Constitutional Tribunal deemed that the proposal of candidates referred to in Article 194(2) of the Constitution, which is to be put forward by a competent assembly, should have the form of a resolution; for the resolution to be valid, it must be adopted by a majority of voting judges of the Tribunal. In the opinion of the Tribunal, the constitutional status of the judges of the Tribunal, and in particular their equality when it comes to exercising the office, requires that every single vote cast in the procedure referred to in Article 194(2) of the Constitution be assigned the same significance and individual character. This may be guaranteed either in the course of just one round of voting in which every judge of the Tribunal has as many votes as there are candidates, or in the course of separate rounds of voting with regard to each of the candidates, where each of the voting judges may have only one vote.
Taking account of the wording and meaning of Article 194(2) of the Constitution, the Constitutional Tribunal drew a distinction between the following two groups of candidates: those within the meaning of the statutory provisions (“candidates selected”) and those within the meaning of the provisions of the Constitution (“candidates proposed”). The first group comprises candidates listed on the ballot who have received the largest number of votes (within the meaning of Art. 16(2) and (7) of the 2016 Act). These are candidates selected by the General Assembly, and later they are to be chosen from, within the constitutional sense. The other group comprises the candidates selected by the General Assembly that are proposed for the President of the Republic to choose from and appoint a new President and Vice-President of the Tribunal. These judges have been selected from among the judges of the Tribunal who have received the largest number of votes, and who were proposed by judges of the Tribunal.
The said distinction corresponds to two steps taken by the General Assembly of the Judges of the Tribunal, which is held for the purpose provided for in Article 194(2) of the Constitution. The first step consists in selecting candidates within the meaning of the statutory provisions, and it is taken on the basis of Article 16(2), first sentence, and Article 16(3)-(7) of the 2016 Constitutional Tribunal Act, as well as relevant provisions of the Tribunal’s rules of procedure.
Candidates selected in the course of that procedure are not candidates within the constitutional sense, since – by mathematical and logical necessity – voting by casting one ballot paper including many candidates, with the assumption that each voter has only one vote, makes it impossible to select candidates who would be supported by a majority of voting judges of the Tribunal. The other step of the General Assembly is taken directly on the basis of Article 194(2) of the Constitution, Article 16(1) of the 2016 Constitutional Tribunal Act, as well as relevant provisions of the Tribunal’s rules of procedure. The outcome is the appointment of “candidates proposed”, as explicitly stated in the Constitution. The Tribunal deemed that candidates within the meaning of the Constitution are only those candidates who have been supported by a majority of voting judges of the Tribunal, as only such candidates may be regarded as supported by the General Assembly. When interpreting Article 194(2) of the Constitution in conjunction with Article 10, Article 173 and the Preamble to the Constitution, the Tribunal stated that, within the meaning of the Constitution, the candidates may be selected in the course of separate rounds of voting with regard to each of the candidates, where each of the voting judges may have one vote and may cast that vote for only one candidate, or in the course of just one round of voting in which every judge has as many votes as there are candidates.
In the current legal system, the procedure the result of which is explicitly indicated in Article 194(2) of the Constitution has two stages and comprises the selection of candidates (regulated by statute and relevant rules of procedure) and the proposal of selected candidates (regulated by the Constitution and relevant rules of procedure).
When providing an interpretation of the challenged provisions that would be consistent with the Constitution, the Tribunal stated that ‘selection’ and ‘proposal’ are separate activities of the General Assembly of the Judges of the Tribunal, which are complex and sequential in character, as well as are purposefully determined in the Constitution itself.
At every stage, it is necessary to guarantee the independence and separateness of the General Assembly of the Judges of the Tribunal and to avoid dysfunctional solutions.
Article 16(2), first sentence, and Article 16(3)-(7) of the 2016 Constitutional Tribunal Act refer solely to the stage of selecting candidates which precedes the constitutional stage. Detailed rules for casting votes, preparing ballot papers, carrying out a vote, as well as rules to be applied in case of no majority of votes at the stage of proposing candidates, were implicitly assigned by the lawgiver to be regulated by the General Assembly of the Judges of the Tribunal.
Presented in the judgment in the present case, the interpretation of the provisions of the 2016 Constitutional Tribunal Act makes it possible to reconcile the content of those provisions with the constitutional requirements for guaranteeing the separateness of the General Assembly of the Judges of the Tribunal, the proposal of representative candidates to be chosen from by the President of the Republic, as well as the efficiency, diligence and effectiveness of the procedure.
The presiding judge of the adjudicating bench was the President of the Constitutional Tribunal, Judge Andrzej Rzepliński, and the judge rapporteur was Judge Stanisław Rymar.
