Source: Gazeta Wyborcza daily, March 14th 2007.
Original author: Ewa Siedlecka
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The Constitutional Tribunal decided yesterday, that the statue punishing the publicly elected local governments members with reclaiming their seats for not having produced a financial statement in time provided, is against The Constitution Of The Republic Of Poland. Before the sentence was given, the prime minister threatened: ‘We have to seriously consider some new model of functioning of the Tribunal.
Does this sentence mean they will keep their seats? It is not clear. Probably, however, administrative courts that will deal with local officials’ appeals to Palatines’ decisions regarding taking their mandates away, will take this sentence into account. The sentence affects 765 people of local governments, including the mayor of Warsaw Hanna Gronkiewicz-Waltz of opposition Citizens Platform Party (PO).
The Tribunal started to give out its verdict at 3 p.m., althouth the tension was rising from the morning. In a radio interview the prime-minister suggested that Gronkiewicz-Waltz is in league with the Tribunal, because in her latter to the Palatine of Masovia ‘she revealed that she knows what legal arguments the Tribunal will take into account‘.
He repeated that suggestion just before the verdict: ‘If the reasoning presented in the letter to the Palatine of Masovia was applied, it would mean that Hanna Gronkiewicz-Waltz is informed about about Tribunal sentences in advance. That would be another argument for a serious discussion about a new form for the Tribunal’.
The prime-minister also said that he hopes ‘the Tribunal will not use any circus tricks’. However the verdict was not pleasing for him.
Tribunal has decided that it is against The Constitution to punish the members of local councils and mayors with a loss of seat, not only in case when they did not produce their financial statements in time, but also when they did not produce them at all.
– ‘The sanction of the loss of mandate, applied only to achieve the financial transparency of the people in power is permissible. However applying it to those, who were slightly late with their financial reports, is not necessary to achieve that aim. And it breaches the constitutional rule of proportionality’ – said judge Ewa Łętowska in the name of the Tribunal.
She also pointed out to the unclear procedure of taking away the mandates: – ‘If you use such a drastic sanction, procedures should be very precise’.
The Tribunal has also decided that the obligation of producing financial report of the official’s spouse is unconstitutional. This was the ground, for Palatine of Masovia’s decision to take away Hanna Gronkiewicz-Waltz’s seat.
Here, as The Tribunal said in its verdict, the rule of proportionality was also breached. As well as the rule of decent legislation, as the act does not clearly say when is the deadline for producing spouses’ financial report.
The verdict takes effect with the day of being published in The Journal of Laws. However it does not mean that administrative courts or local governments can ignore it until then.
– ‘As far as local governments are concerned it would have been best if they postponed any decisions in these matters until the verdict comes into effect’ – Ewa Łętowka told journalists after the trial.
– ‘The Courts however will do as they think is right. However from the moment of this verdict, this act is no longer under the supposition of constitutionality’.
What does that mean? The courts have to obey The Constitution, and therefore they can deny applying the statue which is colliding with it, although the statue was in force in the moment of local elections.
Five judges of the Tribunal have taken part in the trial, two of which – Teresa Liszcz and Zbigniew Cieślak – were chosen for this office by Sejm three months ago with the votes of Jaroslaw Kaczynski’s ruling Law and Justice Party (PiS). None of the judges has issued votum separatum.
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Editorial comment of Gazeta Wyborcza.
Author: Jarosław Kurski
This was not the first time, when prime-minister makes disdainful remarks on the Tribunal. We remember his words ‘Disgusting, cowardly opportunists’, ‘unimpressive group of wisemen’, ‘lie-elites‘ of plotters who settle their own interests.
This time prime-minister talked about ‘circus tricks’. He insinuated that the Tribunal is plotting together with Hanna Gronkiewicz-Waltz. He threatened that ‘we need to seriously think about a new form for the the Tribunal’. It all happened an hour before the sentence. You cannot describe prime-minister’s words different, than as an attempt to pressurise an independent constitutional court. Not a first attempt. Prime-mister is making us used to his breachings of legal culture of the state. We cannot agree to that.
Yesterdays sentence is the triumph of the rule of law. If it was up to PiS, Hanna Gronkiewicz-Waltz would have stopped being mayor long ago.
Thankfully the prime-minister does not have enough power to execute his threat and “reforem” the Tribunal. The Tribunal is protected by The Consitution. No one has won with it, and lets hope it stays that way.
Professor Andrzej Zoll, former Ombudsman, comments for Gazeta Wyborcza:
Mr prime-minister has been devaluing the Tribunal for a very long time. Such pressure, threatening is, using his words, anti-Polish. I think that anywhere in Europe such remark would have cost a prime-minister his job. I do not expect such a reaction in Poland.
I know that the Tribunal will not surrender to pressure. independent Tribunal is the only hope, that we will not end up as a totalitarian state.
Professor Marek Safjan, former Chairman of the Constutional Tribunal, comments for Gazeta Wyborcza:
Well, I cannot say I am surprised with these remarks, as they match the tone which we have heard from the prime-minister from a long time. You can see some elements of pressurising the Tribunal in it. I am convinced however, that the judges are immune to that, like thay have been until now.
The fact that the sentence was in accordance with a certain, possible to be foreseen, legal argumentation, means only as much as the actions of the Tribunal are transparent. That there are no ‘circus tricks’ only clear, obvious and predictable argumentation.
However the threat of ‘reshaping the construction of the Tribunal’ it is really dangerous, as a reaction to the fact that Tribunal’s sentences are not in accordance with the wishes of executive power. This is a hit in the basics of the rule of law.
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