On Sunday, judge of the Constitutional Tribunal Krystyna Pawłowicz called on social media for Justice Minister Adam Bodnar “to abandon plans to violate the Polish constitution.” She referred in this way to the ministry’s plans for judges appointed by the neo-National Council of the Judiciary. The first president of the Supreme Court, Małgorzata Manowska, also commented on the proposals.
Minister of Justice Adam Bodnar wants changes to the Regulations on the operation of common courts. The proposed regulations will mean, among other things, that judges appointed by the politicized National Council of the Judiciary will not be able to deal with applications for the exclusion of a judge appointed under the same procedure. The idea attracted criticism from the club PIS. The new National Council of the Judiciary also reacted sharply to it.
A judge of the Constitutional Tribunal commented on the case on Sunday on the X website Krystyna Pawłowiczformer MP from Law and Justice.
“I call on the new Minister of Justice, Adam Bodnar, to abandon his plans to violate the Polish constitution. You are breaking your recently taken oath ‘to be faithful to the provisions of the Constitution and other laws of the Republic of Poland’. The constitution is implemented by acts of the Sejm, not by acts of the administration,” we read in the entry.
First president of the Supreme Court on “obvious and blatant unconstitutionality”
The First President of the Supreme Court also commented on the proposed changes in her position of December 17 Małgorzata Manowska.
As we read, “The First President of the Supreme Court, as the constitutional body managing the Supreme Court, which, pursuant to Article 183(1) of the Constitution of the Republic of Poland, supervises the activities of common courts in the field of adjudication, draws attention to the obvious and gross unconstitutionality of two proposed provisions in the Regulations of office. common courts, which constitute in particular a violation of: judicial independence; independence of the judiciary and the constitutional hierarchy of sources of law.
The position emphasized that “the Constitutional Tribunal has repeatedly found statutory provisions inconsistent with Article 179 of the Constitution of the Republic of Poland, which could serve as the basis for examining an application for the exclusion of a judge due to the fact that his appointment was defective.”
Art. 179. Judges are appointed by the President of the Republic of Poland, at the request of the National Council of the Judiciary, for an indefinite period.
As noted, “the Constitutional Tribunal emphasized that ‘it is impossible to imagine any criminal, civil or administrative procedure under which a court, a specific panel of judges, could assess the correctness of the appointment of other judges. Such powers are neither in the provisions of the Constitution nor in the provisions statutory’ (judgments in cases P 22/19, P 13/19, P 10/19)”.
“For the same reasons, the proposed § 43(1a) of the Regulations on the Office of Common Courts, which provides for the exclusion of a significant category of judges from the assignment of the cases indicated therein, is inconsistent with Article 179 of the Constitution,” emphasized the First President of the Supreme Court.
She also recalled that Article 92(1) 1 of the Constitution of the Republic of Poland “provides that regulations are issued on the basis and for the purpose of implementing an act, and therefore, under no circumstances, may they change it.”
“Meanwhile, the proposed § 43(1a) of the regulation, which is the Regulations on the operation of common courts, is inconsistent with the provisions of the Act on the Organization of Common Courts, which in Article 47a § 1 and § 2 stipulates that cases are randomly assigned to judges and deputy judges in within individual categories of cases, and this allocation is equal, unless the act – and only the act, not the act implementing it – provides for exceptions in this respect,” we read in the position of the First President of the Supreme Court.
According to her, the proposed paragraph 118a of the Regulations on the operation of common courts “not only goes beyond the scope of statutory delegation under Article 41 § 1 of the Law on the System of Common Courts, violating Article 92(1) of the Constitution of the Republic of Poland, but above all constitutes a clear violation of Article 178 section 1 of the Constitution of the Republic of Poland, which states that judges in the exercise of their office are independent and subject only to the Constitution and laws.
“Therefore, it is inadmissible to oblige judges, by way of a regulation, to take into account certain normative content in the judgments they issue and the justifications they prepare, regardless of the norms in question,” the position reads.
As noted, “§ 118a of the regulation submitted by the Minister of Justice violates Article 178(1) of the Constitution and the principle separation of powers (Article 10 of the Constitution of the Republic of Poland), “constitutes a drastic interference in the sphere of judicial independence, which was unknown even to the judicial system in the period of the Polish People’s Republic, when ‘guidelines for justice and judicial practice’ were issued, abolished in 1989 with the fall of communism.”
“It should be emphasized that even in the period of the Polish People’s Republic, such guidelines were adopted by the entire chamber or by the General Assembly of Supreme Court Judges, and not imposed by an act of the executive power. Even the communist regime did not dare to influence the content of judgments of common courts by way of an executive act. Minister of Justice,” Manowska said.
As she emphasized, “judges know what regulations apply in the Republic of Poland.” “This also applies to international agreements and European law, which are applied by courts on the principles set out in the Constitution,” added the First President of the Supreme Court.
According to her, “the Minister’s instructing judges in this regard is not only a violation of judicial independence, but also a manifestation of disrespect and a lack of tact.”
Manowska noted that “the constitutional framework for the application of European law in the Republic of Poland has been extensively clarified in the jurisprudence of the Constitutional Tribunal, in particular in the judgment of May 11, 2005 K 18/04 and the judgment of November 24, 2010 K 32/09, to which subsequent case law of the Constitutional Tribunal is continuously referred to. “It contains the only permissible directives for the application of European and international law by judges, who are not bound in this respect by instructions from the Minister of Justice, who also serves as the Prosecutor General,” we read in the position of the First President of the Supreme Court.
“The greatest concern is raised by the fact that the new Minister of Justice begins his term of office by submitting draft normative acts which, under the pretext of respecting the international obligations of the Republic of Poland, aim to violate the foundations of the constitutional order of the Republic of Poland, including the principle of separation of powers and judicial independence as well as the constitutional hierarchy of sources of law,” she said. .
“What’s more, it does it in a way that the executive power has not dared to do so far, even in the period of the Polish People’s Republic, ‘when fundamental freedoms and human rights were violated in our homeland’ (Preamble to the Constitution of the Republic of Poland),” added Manowska.
MS: the act on the National Council of the Judiciary introduced an unconstitutional procedure for judges-members of the Council
On Friday, the Minister of Justice, Prosecutor General Adam Bodnar submitted a draft amendment to the Regulation on the Operation of Common Courts for inter-ministerial consultations, as stated in a press release on the ministry’s website.
“The proposed regulations will mean that applications to exclude a judge due to the method of appointing him to a judicial office will not be recognized by judges appointed in the same manner. This solution will prevent the participation of persons appointed by the National Council of the Judiciary established by the Act on the National Council of the Judiciary of December 8, 2017. in considering this type of applications. These judges will not be included in the allocation of cases through the Random Case Assignment System,” we read.
The Ministry explained that “the proposal to change the regulations is due to the fact that the Act of December 8, 2017 on the National Council of the Judiciary introduced an unconstitutional procedure for electing judges-members of the National Council of the Judiciary.” “As a result, this key body guarding the independence of courts and judges has lost its independence, and the procedure for appointing and promoting judges by the Council and the President of the Republic of Poland has become defective,” the Ministry of Justice said.
As it was emphasized, “this was confirmed by a number of judgments of Polish courts and international tribunals.”
“The case law of the European Court of Human Rights has repeatedly indicated that the composition of the National Council of the Judiciary established by the Act of December 8, 2017 is inconsistent with Article 187 of the Constitution of the Republic of Poland. The Council is not independent of the executive and legislative power, and the judges appointed by it are not independent and impartial, because their appointment was in violation of this procedure,” wrote the Office of Communication and Promotion of the Ministry of Justice.
1. The National Council of the Judiciary consists of: 1) the First President of the Supreme Court, the Minister of Justice, the President of the Supreme Administrative Court and a person appointed by the President of the Republic of Poland, 2) fifteen members selected from among judges of the Supreme Court, common courts, administrative courts and military courts, 3 ) four members elected by the Sejm from among Deputies and two members elected by the Senate from among senators. 2. The National Council of the Judiciary elects a chairman and two vice-chairmen from among its members. 3. The term of office of elected members of the National Council of the Judiciary is four years. 4. The structure, scope of activity and mode of operation of the National Council of the Judiciary as well as the method of electing its members shall be determined by law.
The primacy of EU and international law
In the ministry’s opinion, “the second important issue included in the draft amendment to the regulation – Regulations on the operation of common courts – concerns the obligation to take into account the priority and direct application of EU and international law when preparing judgments and judges’ justifications.”
“This is due to the fact that in the last few years the hierarchy of legal sources and the separation of powers in Poland have been disrupted. Legal changes have been introduced limiting the independence of the judiciary and enabling disciplinary proceedings against judges applying EU law and international conventions in their jurisprudence,” we read.
As assessed, the amendment to the regulation “is the first element of restoring standards in the Polish judiciary.” “However, the repair process requires further actions, including restoring the independence of the National Council of the Judiciary by amending the Act on the National Council of the Judiciary and amending the Act on the System of Common Courts, which will restore the role of judicial self-governments in nominating and promoting judges,” it was announced.
Main photo source: Wojciech Olkusnik/East News