Quality of Law Tribunal

18 November 2011. Seminar on monitoring the quality of law at the Chancellery of the President of Poland. Our expert, Otylia Trzaskalska-Stroińska, director for business regulation at the Ministry of Economy and Grzegorz Wiaderek, President of INPRIS, delivered opening comments. Discussion followed. One of the ideas was to set up a Quality of Law Tribunal.

by Filip Wejman

The Chancellery of the President of Poland runs a program on good governance: Sprawne i Służebne Państwo (read more about the program in Polish, and in English).

The Chancellery of the President cooperated with INPRIS on preparing the seminar on November 18 (read more about the seminar in Polish). It is up to the Chancellery to report about the many excellent comments offered by other participants, so below I outline only my own proposal, in order to open it up for critique.  Please treat it as nothing more than a contribution to the brainstorm.

Idea:

Set up a specialized court where laws can be challenged for their deficient quality.

Features of the Tribunal:

• citizens and organizations have standing to challenge laws at the Tribunal;
• the challenge is that the law represents deficient quality;
• deficient quality means that the law is unclear, outdated, dead, unenforceable, overly bureaucratic, unnecessarily complicated, based on inaccurate or outdated evidence, or that it practically contravenes other laws, excessively interferes with free markets, produces inherently incoherent case law, or it is predictably unstable (requiring frequent amendments) etc.
• the opposing party - who defends the law under scrutiny - is a government agency or the parliament;
• citizens or organizations can intervene in favor of the law;
• the decision of Tribunal is not formally binding on anyone, it does not formally remove the law from the system;
• decisions of the Tribunal have credibility and political clout, because of (1) openness and high public visibility of the proceedings, (2) quality of analysis, (3) involvement of prominent figures who sit on the panel;
• Justices of the Tribunal: selected members of the Supreme Court, selected members of the Constitutional Court, the Ombudsman, members of the government, leaders of opposition parties in Parliament, leaders of prominent NGOs and business organizations;
• the Tribunal can appoint and hear its own experts on law, economy, social or natural sciences;
• the Tribunal holds public hearings, web-casted live; jurisprudence of the Tribunal, all the briefs, expert opinions, transcripts of hearings, are published and searchable on the web.

Comments:

There is a widespread perception in Poland that our laws and regulations represent deficient quality. There is also a volume of high quality, independent analysis which shows concrete flaws. The reservoir of ideas is developed on every day basis by consumers, businesses, academia, NGO’s, political organizations, specialized media. But this knowledge often lacks a channel for communication to grasp public attention, or it fails to impress political decision makers. 

In Poland, efforts to cut red tape, or to improve quality of law, sometimes make just another bureaucratic exercise with different agencies leaving ever thicker and sophisticated reports at the doors of other agencies, without much action resulting. This proposal is an attempt to supplement (not substitute) existing methods with the momentum produced in litigation. Public, fair and adversarial dispute resolution is a terrific machine for unlocking information, focusing attention, and educating the public.

I think one of the reasons for the current failure is that we don’t have a forum or tool that would combine several features at the same time:

• give voice to social or economic interests which are affected by quality of law;
• be open as to standing for citizens and organizations, even if there is no “legal” interest involved;
• allow for structured discussion;
• produce clear cut conclusions;
• warrant credibility of findings as to the subject matter;
• focus mainstream public interest around the results.

The Tribunal could serve as such tool.

It should apply highly adversarial procedure. 

Its visibility and political significance would depend on the participation of first class thinkers and political heavy-weights.

The Quality of Law Tribunal should draw from the jurisprudence of the Constitutional Tribunal. Quality of law is part of the constitutional standard applied by the Constitutional Tribunal. But the decisions of the Quality of Law Tribunal would be merely political facts, so the review applied by this court could be more expansive than that of the Constitutional Tribunal. Because of the formally non-binding character of its judgments, the Quality of Law Tribunal could be allowed to show less deference to the lawmaker as regards the subject matter of law, policy decisions, and the political will behind the law.

The institutional and procedural design of the Tribunal would have to strike the balance between the open character of the court and manageability of caseload. It is hard to predict right now whether the volume of litigation would constitute a problem, but this is plausible, and would definitely require attention at the conceptual stage.

An important role can be played by the Academia in organizing interdisciplinary student workshops that challenge laws as part of clinical curriculum.