In violation of Article 61 of the Constitution, the judgments of the courts create the possibility of avoiding transparency and create restrictions that have neither a constitutional nor a statutory basis. Courts have allowed for great discretionary power, so the sense of responsibility for the way the law is created has not been generated in the young Polish democracy for individual authorities.

The judiciary cannot disregard the guarantees that the Constitution gives to citizens, including Article 61. In a young democracy the transparency of law-making is more important than in an established one.

Where there are no precise rules of law-making, access to information about how specific legislations are created should be guaranteed. This seems obvious in the country where Rywin’s Gate* took place. And yet, despite this lesson, we have created in Poland a system in which the members of the government and the President of the Republic of Poland can make the law as they wish, uninterrupted by the sovereign. We regretfully assert that the blame for this state of affairs is that of the administrative courts.

Let us illustrate our message with the two hot topics of this summer and autumn: the so-called reform of the judiciary and the bill on the transparency of public life.

Unneeded civic oversight

Let’s begin with the bill on the transparency of public life. The fact that it is due to come to life was known since January 2017. Back then, minister Mariusz Kaminski told wpolityce.pl that:

A bill on the transparency of public life is being prepared. This project will refer to declarations of assets of all public officials.” He also mentioned regulating the legal status of whistleblowers.

He restated this again in August.

The project finally came out in October and turned out to be much broader in scope. In addition to the announced areas, it included procedures for accessing information and abolished the laws governing this matter, and also included new proposals to control lobbying. Our concern was the issue of regulating the right to information. We were wondering how did it happen that a key role in the right to information case is to be played by people involved in special forces units. We wanted to know the origins of, among other things, the idea of incurring payment for disclosure of information and how the “persistency” category was created.

Unfortunately, the justification of the law does not tell us much. But somebody created those regulations. Did he/she have any thorough analysis at hand? Have there been any expert meetings? Have they been recorded? We have not received an answer relating to this issue. Knowing the jurisprudence of the administrative courts, we are aware that we do not have a chance to find out, anyway. In any case not immediately, and this means that the information will not be useful in our actions.

What makes us think so? In one of our requests years ago, when we tried to find out how the regulations restricting the right to information were created in 2011, we wanted to know the contents of the emails of the advisers of Prime Minister Tusk on this matter. In 2012, the Supreme Administrative Court found that social supervision at this stage of law-making would be detrimental. In the justification of the judgment of the Supreme Administrative Court (I OSK 666/12) one can read:

The decision-making process does not require social supervision at its every stage. It is justified to argue that such supervision could interfere with its conduct, since each of the proposals would be socially and prematurely judged. In the meantime, taking into account the contents of the draft, it is necessary to eliminate, in an atmosphere of deliberation and calm, irrelevant solutions, ones threatening constitutionally protected goods or the non-functional ones. It would be an inaccurate accusation to say that adopting such a view is a way to exclude the social supervision of the drafting of a legislative act. When a project like this becomes official, it is submitted to the public by the body that created it and is subject to social consultations and the public may have an impact on its content.

Another ruling will in turn apply to the draft law on the Supreme Court from July 2017. This was a parliamentary project (paper 1727) of which it was quite obvious that it was written by the Ministry of Justice. In a lawful state the cheating of the public should not occur. Unfortunately, the public opinion, in its judgments, can only rely on suspicions, and any “traces” of what was happening in the Ministry of Justice will remain internal. It is also the fault of the Supreme Administrative Court, which on the opinion of expert-constitutionalists on the OFE act (referring to de-privatisation of social security system) has given the President of the Republic of Poland the opportunity to recognize them as internal documents (I OSK 2130/11).

Those are [the opinions – ed.] internal documents for the collection of information that can be used in the future in the decision-making process. It must be added that the opinions and expertise do not directly relate to the future activities and intentions of the obligated entity, but only exist to broaden the knowledge and information of the subject. It would therefore be pointless to subject this process to strict social supervision and it would hinder the internal process of shaping the positions of agreement and the clash of opinions about the state of affairs, its assessment and possible need for change”, the Supreme Administrative Court said.

In the next verdict the court also excluded the access to information regarding the names of the authors of the opinions in the “OFE case” (I OSK 2499/13).

While in the governmental process there are, since recently (2013), quite strict rules of law making described in the Rules of Procedure of the Council of Ministers, this is not entirely regulated in the case of the President of the Republic of Poland. Article 118 of the Constitution of the Republic of Poland states that he has legislative initiative and that is where the regulations end.

A few years ago, President Bronisław Komorowski submitted to the Sejm a draft law on the Constitutional Tribunal (paper 1590). We would not have taken the floor if it was not for the fact that the law was almost entirely written by the Constitutional Tribunal itself. The constitution does not grant it such privilege, after all. Not without reason – the Tribunal is meant to control the constitutionality of legal acts. We have requested access to the documents sent to the President. The Tribunal did not want to make them available, arguing that these were internal documents. This argument appeared throughout the entire court case with the Constitutional Tribunal. When the National Administrative Court ruled that the citizens have the right to receive the draft (I OSK 2213/13), we have already received the contents from the President himself. And it was a finished bill (the one prepared in Constitutional Tribunal), which, after a few changes, went straight to the Parliament.

Currently – as the ePaństwo Foundation has learned – President Andrzej Duda conducts “consultations” with the President of the Law and Justice party on the regulations regarding the Supreme Court and the National Council of the Judiciary which have already been submitted to the Parliament. Will citizens be given the chance to receive information about what is going on in regards to this process, given the existing jurisdiction? This is a new situation, but there is a good chance that although it is evident that the democratic process is being circumvented, we will not get to know anything.

In violation of Article 61 of the Constitution, the judgments of the courts create the possibility of avoiding transparency and create restrictions that have neither a constitutional nor a statutory basis. Courts have allowed for great discretionary power, so the sense of responsibility for the way the law is created has not been generated in the young Polish democracy for individual authorities.

There are judgments and there is political culture

Had it been realized before (and the courts have confirmed this in the case law) that documents containing proposals of legislative changes, expert opinions, and legal advisers’ names should be public information, today we would be in a different position. The law creates political culture. In countries that are just beginning to distinguish between good and evil, good and effective laws on transparency are much more important than in established democracies. Our law guarantees citizens access to information. Thus, we see tremendous responsibility resting with the courts regarding the enforcement of regulations. This is not a solely critical text. We are counting on self-reflection and recognition of the problem.

If we recognize that the Constitution of the Republic of Poland is an expression of the common aspirations of the Polish people, then the judiciary cannot disregard the guarantees which it provides to the citizens, including Article 61. Firstly, because the primary role of this authority is to bring the law into effect. Secondly, because by giving itself the power to deprive citizens of the rights enshrined in the Constitution, it makes them seek help elsewhere, becoming easy prey for populist politicians.

The original text before adjustments giving context to the international reader was published on November 14, 2017 in “Lawyer” – a supplement to the Daily Legal Newspaper

Translation by: Paweł Hnatyszyn

* Rywin’s Gate: The scandal started at the end of 2002. The leading daily “Gazeta Wyborcza”, owned by the media corporation Agora, published an article in which one of the most powerful film producers , Lew Rywin, was accused of attempted trading in influence. The chief editor of the newspaper, Adam Michnik, recorded a proposal madeby Rywin to Agora on introducing provisions beneficial for Agora to the law regulating media concessions. Rywin claimed that this proposal is supported by Prime Minister Leszek Miller (from the post – communist party, Democratic Left Alliance (SLD)). It was finally verified that only second-line politicians from the Alliance were involved in this case. It is probably one of the most recognised scandals in the history of Poland after 1989 and a symbol of opaque law-making leading to state capture.