INPRIS is a legal think tank

Quality of Law Tribunal - first comments

1 December 2011. The following text addresses the proposal to establish the Quality of Law Tribunal which was outlined by Filip Wejman on 18 November 2011. Text provides initial comments and thoughts.

by Wojciech Jarosiński
read Filip Wejman's proposal here.

(1) Standing

Issue: whether civil servants, who prepared the bill, will be willing to defend their work in the Tribunal?

Concerns:

  • civil servants are underpaid and may not be willing to undertake an additional activity of preparing a defence in the Tribunal
  • civil servants work 8h per day and may find it difficult to spare some time in order to prepare a defence
  • a litigation may appear intimidating for the authors of a bill, especially when it is a controversial or publicly disputed proposal

Suggested solutions:

  • set a successful defence treshod as a prerequisite in the career path of civil servants by amending the Civil Service Act (Dz.U. of 2008 vol. 227 item 1505)
  • civil servants could be paid for a defence of their bills in the litigation in analogy to the reimbursement which lawyers receive in a litigation
  • perhaps it should be a responsibility of legal departments of respective institutions to defend bills crafted within those institutions

Issue: what measures should be implemented to prevent a frivolous litigation:

Suggested solutions:

  • set a quality threshold, i.e. litigation could be open only for NGOs and academia or
  • set a quantity threshold, i.e. a prerequisite to form a pool of 10 claimants (similarly to the Class Action Act, Dz.U. of 2010 vol. 7 item 44)
  • set a substantive threshold

(2) Enforcement (a factual matter)
The aim is to make impact by providing high quality information. Therefore, the issue is to find and use an effective channel of communication of the Tribunal's awards as well as briefs and motions which were used in the litigation.
Should those documents be published in

  • BIP of respective institutions responsible for producing the bill under litigation
  • website of the Tribunal
  • a new periodical established to serve only the Tribunal
  • an existing periodical

(3) Additional ideas
The Tribunal could rule on the quality of implementation of the EU law. Tribunal's jurisdiction in that area could comprise:

  • the quality of translations
  • the quality of implementation