The Government is Destroying the Judicial Power

by Marek Safjan*

The government is threatening judges with sanctions if they comply with the judgments of the Constitutional Tribunal. This means that our country is on a slippery slope to disregarding the rule of law.

The principle of the separation of power is a prerequisite to the rule of law.This is the foundation of democracy, a specific minimum, which means there is a defined scope of action governing the legislative, executive and judicial power. This was different during the communist period, in which the separation of powers was not respected and the highest authority was the Sejm [the lower chamber of the legislature] as the representative of the proletariat (i.e. the Polish United Workers Party). The separation of powers in a democracy results in a mutual respect of competences defining the areas of each power’s activity. Neither the legislative power, nor the government can change court judgments, courts cannot create laws and make administrative decisions, the government cannot interfere in the course of court proceedings, etc. The principle of the separation of powers is described in constitutional law textbooks as the basis for the fundamental function of the rule of law. Since the Magna Carta, 800 years ago, public authority subordination to court judgments is an important element of the European legal culture. The king agreed that he is not above the law, but subject to the law and that he respects the judgments of independent courts limiting his power. This is also the reason why last year, across Europe, celebrations commemorating the 800th anniversary of the Magna Carta took place as a reminder of its contribution to the formation of our European tradition. In our country, for unknown reasons, the anniversary went practically unnoticed. It seems such a pity to miss an opportunity to recall the important truths about the nature of the rule of law, which has been, for some time, far from obvious and increasingly questioned.

Breaking with the rule of thirds [the separation of legislative, judicial and executive  powers]

The symbolic moment challenging the rule of thirds, was the now-famous speech by the Marshal Senior of the Sejm, who talked of the will of the people over the rule of law, a direct break with the principle of the rule of thirds, to justify the decisions of the legislative power that had no basis in the Constitution, specifically the acts which annulled the appointment of the judges of the Constitutional Tribunal. Their ineffectiveness and an unconstitutional character was later confirmed by the Constitutional Tribunal’s judgement. Further acts destroying the separation of powers were the suspension of the publication of the [Constitutional] Tribunal’s judgment of 3 December 2015 concerning the selection of judges by the previous legislature, and the president’s refusal to take the oath from the selected three judges. An attempt to take over the judiciary by the legislature was the Act of 22 December 2015, which not only resulted in the paralysis of the constitutional court but also, among other things, imposed the order in which constitutional cases are to be judged (which in itself was an unprecedented move). It also made it possible to interfere with the independence of the courts by enabling the President of Poland and the Minister of Justice to bring disciplinary proceedings against the judges of the Constitutional Tribunal. The Constitutional Tribunal’s judgment, stating that the Act was entirely unconstitutional was not considered by the executive power, which in itself is a clear violation of the basic principles of the separation of powers and is undermining the Constitution. The refusal to publish the Constitutional Tribunal’s judgement is certainly a part of the “revolt” of the executive against the judiciary power.

Minister Ziobro’s threats

Successive actions of the executive power, which constitute a violation of the separation of powers are extremely disturbing and move our country away from democratic standards. The Minister of Justice (in Radio 3 interview from 23 March 2016) accused the President of the Constitutional Tribunal of incompetence, questioned the legality of the Constitutional Tribunal’s judgement and its independence, and threatened of “legal consequences” if the judgment is applied in court proceedings. These are statements and threats directed at judges who decide to recognise the Constitutional Tribunal’s judgement, referred to by the government as an “opinion”. The minister did not rule out disciplinary actions against judges who will apply the constitutional principle of the Constitutional Tribunal’s judgements being final and binding. This statement is particularly worrying and surprising, and indicates that our country is on a slippery slope when it comes to respecting the principles of the rule of law. I’m surprised that there is no reaction to such statements from the legal profession. The Minister of Justice formulated a thesis – for the first time in the history of the rule of law – according to which, the judges who respect the law and therefore act in accordance with their constitutional duty may be subject to disciplinary action. This statement has several dimensions. Firstly, this is an overt attempt to put pressure on the independence of judges, on their prerogatives and their constitutional status. Secondly, the minister is replacing judges in defining what the law is and deciding what the basis for a judgment is. This is the most direct encroachment on judicial power imaginable. Thirdly, this is a blatant violation of the Constitution, particularly its Article 178 paragraph 1, which states that constitutional judges, when holding their office, shall be independent and subject only to the Constitution and its articles. It’s a dramatic situation – and I deliberately use this phrase – when one has to be reminded of self-evident and rudimentary law principles in the context of the actions of the Minister of Justice, who is also the Prosecutor General.

Prosecutor General and the President of the Constitutional Tribunal

Another equally drastic manifestation of the violation of the separation of powers and the independence of the judicial power is an investigation by the prosecutor’s office in connection with the decision of the President of the Constitutional Court to judge the so-called Recovery Act without taking into account the contested procedures. For the first time in history, a prosecutorial investigation is initiated in relation to court rulings of the highest judicial authority. You do not need a legal analysis to see a clear violation of the principle of the separation of powers in our country. A thesis of the Minister of Justice that the prosecutor’s office has a duty to investigate reports submitted by its citizens, is not in the least convincing. The reports had already been studied and the initiation of permitting him to check whether the President of the Constitutional Tribunal is following the correct case procedures. The thesis directly questions and challenges the Constitution and the rule of law. *Prof. Marek Safjan – Former Judge and President of the Constitutional Tribunal. Since 2009 Judge of the Court of Justice of the European Union. Translated from the Polish. Source: Gazeta Wyborcza, Komentarze i opinie, 4/04/2016,

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