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    We Have Not Relinquished Sovereignty – interview with judge Julia Przyłębska

    “Poland regained its freedom after 123 years of enslavement. We should take account of our historical experience and the memory of the causes behind the loss of freedom and independence. That experience commands us to resolve all disputes within our society. Following many years of servitude, the experiences of cruelty in the Second World War and years of Communism, Poland is rebuilding its identity, and Poles are beginning to acquire a feeling of self-confidence, to build up a sense of their own value. Meanwhile, outside forces are once again ordering us and dictating regulations against the will of society. In my opinion, discussing Polish matters outside of our borders, and enabling external interference in the shape of our independence, constitutes an obstacle to the building of a new, modern identity for Poles, one rooted in tradition and culture,” says Judge Julia Przyłębska, President of the Constitutional Tribunal.

    Katarzyna Gójska and Adrian Stankowski talk to 
    Judge Julia Przyłębska, President of the Constitutional Tribunal

    Madam President, for over four years now the position of the Constitutional Tribunal has been subjected to depreciation. Former presidents and judges of the Constitutional Tribunal, and recently the current First President of the Supreme Court, Mrs MałgorzataGersdorf, claim that the Constitutional Tribunal does not exist and has no power, and that you are not its President. 

    We have indeed seen a process of depreciating the Constitutional Tribunal for over four years. I would rather call it a media-based smear campaign conducted with the involvement of persons holding office of importance, who – bearing in mind the public functions they fulfil – should not express themselves in such a manner. The legal status is clear in this matter. Polish law does not anticipate institutions bearing names with prefixes such as “supposedly-” or “neo-”, and so on. By uttering such remarks, their authors are essentially depreciating first and foremost their own officesand their position as lawyers. The beginning of this process was the year 2015, when the [Constitutional] Tribunal’s President at the time illegally questioned the procedure for appointing judges at the Tribunal. After all, the Constitutional Tribunal had stated that it could not adjudicate on the matter of the legal effectiveness of resolutions passed by the Sejm of the Republic of Poland, because the passing of such a resolution is an act of executing the law, and not the making of it. The Tribunal’s position contained in the decision discontinuing the proceedings had put an end to the topic. However, President [of the Constitutional Tribunal] Andrzej Rzepliński granted himself the power to decide who was and who was not a judge of the [Constitutional] Tribunal, arbitrarily refusing to assign cases to three judges. One should recall that the process of appointing a judge at the Tribunal begins with the election of the said judge by the Sejm, then once elected the judge takes his or her oath before the President of the Republic of Poland, and then reports to the [Constitutional] Tribunal expressing his or her readiness to accept the responsibilities of a judge. The President of the Constitutional Tribunal has no powers for verifying this process or taking arbitrary decisions regarding a judge’s so-called admissibility for adjudicating. In this matter as in many others there lacked genuine and composed legal discourse that would have resolved any doubts regarding the legality of the election of the said three judges. However, you could say that it is highly probable that for certain persons and circles such substantive clarification of the matter was out of tune with the project of rocking moods in society, of sowing mayhem in the public sphere. Instead of civilised legal conversation there was discourteous political dispute conducted with much bad temper, including – sadly – by persons who, due to their status, should not have taken part. I have in mind in particular a few retired judges of the CT as well as judges in the system of justice. These persons categorically pronounced and continue to pronounce theses regarding the constitutionality of applicable normative acts, in a sense entering the role of the body exercising scrutiny over the hierarchical conformity of normative acts. There is no doubt, however, that according to the Constitution, the sole competent body in this matter is the Constitutional Tribunal. This was also declared not that long ago by the persons I have referred to; they changed their mind when they ceased to have influence in this institution.

    How, therefore, should one understand the recent remarks by President Małgorzata Gersdorf? 

    Similarly to the former CT President, by utilising the “need of the moment” the incumbent First President of the Supreme Court is usurping the authority to question the legality of the functioning of various entities of the Constitutional Tribunal, its President, and its judges. Her recent public remarks, containing – among other things – comparisons of the judge’s robes to an apron, are lowering a serious debate to an infantile standard. I view that as a manifestation of powerlessness in factual legal argumentation. 

    Yet President Małgorzata Gersdorf goes much further in her remarks, maintaining that no constitutional court exists in the Polish legal order.

    Above all the formulation of an opinion of that nature should have been preceded by reflection regarding the legality of her own status. In the light of the applicable provisions of the Constitution, the grounds for Professor Gersdorf’s discharging of the function of President of the Supreme Court are not indisputable, but I shall say no more on that matter.Furthermore, and once again referring to the Constitution, such a claim has no bearing to reality. Recent years have sadly shown that the absolute foundations of the state of law, of the principles of interpretation [of law], and even of ordinary common sense, are being undermined increasingly often. The Constitutional Tribunal is functioning, is issuing judgments. Even if there have been fewer of them in recent years, by no means at all does that mean that the judges are not working. The issuing of a judgment by the Tribunal demands profound reflection and detailed, substantive analysis. The adjudicating bench must reach a position that is supported by a majority of the judges. 

    But the opposition calls the judges “doublers”.

    I treat such comments as absurd and scandalous, since their goal is to depreciate in the media the status of the Tribunal’s judges. All of the judges were elected in keeping with the applicable law. Unfortunately some people live in the virtual reality of media comments, while the real world is the reality of the everyday work of the Constitutional Tribunal and the judgments that are made here. 

    That depreciating of the [Constitutional] Tribunal’s position also comes in the form of encroaching upon constitutional matter belonging solely to the Tribunal. Here I have in mind both the most recent ruling reached in the Labour Law Chamber of the Supreme Court, questioning the existence of the National Council of the Judiciary, as well as the creation of an alternative quasi-constitutional tribunal next to the Marshal of the Senate.

    I understand that those who came up with such conceptions were guided not so much by the letter of the law as by a principle formulated beforehand by the former president of the Constitutional Tribunal, Andrzej Rzepliński, recently called the “doctrine of the need of the moment”. The former president [of the Constitutional Tribunal] frequently referred to the said principle. When the Constitutional Tribunal was clearly required by statute to conduct proceedings with the full bench, he gave “force majeure” as justification for assigning a five-person bench. Observing Mr Rzepliński’s activity in the media and listening to his opinions, I wondered when hewould begin adjudicating singlehandedly and conclusively “on behalf of the rule of law”, as the one who has sole access to it, regarding all legal and official acts as well as the adjudications of tribunals and courts. 

    In the current situation there really is an attempt to usurp the powers of the [Constitutional] Tribunal. One should therefore recall the provision in Article 188 of the Constitution, which determines that the Constitutional Tribunal adjudicates on matters of the conformity of acts and international agreements with the Constitution. Furthermore, pursuant to Article 193 of the Constitution, any court may submit a question of law to the Constitutional Tribunal regarding the constitutionality of a normative act. 

    So what therefore is the effect of a ruling by the Labour Law Chamber of the Supreme Court, as a legal transaction? 

    Rulings by the Supreme Court never did have the value of the provisions of law, and therefore generally applicable force. The guidelines of the system of justice and judicial practice functioning in the Polish People’s Republic were of a particular character. But that institution was not retained in the legal system of the 3rd Polish Republic. As such the resolutions of the Supreme Court always apply to individual, specific cases, and only through their authority can they influence how bodies or persons applying the law understand the provisions. Nevertheless, formally, pursuant to the law, they are only binding for the bench that asked the question of law. If a resolution is granted the quality of a legal principle, it is also binding for other benches of the Supreme Court until the principle is amended or repealed. Therefore, a resolution of the Supreme Court does not have generally applicable power such as has a provision of a statute or a judgment by the[Constitutional] Tribunal. Moreover, observation of the judicial practice at the Supreme Court indicates that the SC benches do not always abide by the legal principles, and apart from that the said judicial practice is far from uniformity. As such, I would not overrate the significance of this resolution, including from the point of view of the functioning of the Supreme Court, and least of all bearing in mind the Polish legal system in general. It is not a ruling of the Constitutional Tribunal, which holds generally applicable power, but only a resolution by the SC in a specific case.

    At this point it is worth posing the question as to why the ruling of a court, an individual decision in an individual case, is attributed in public debate and in the media with the quality of almost divine origin, not up for discussion or appraisal, solely to be obediently carried out, while a statute – an act of law on the basis of which and within the confines of which state bodies, and therefore also courts, are supposed to function – is frequently treated as a meaningless scrap of paper which one may – or may not – acknowledge. If, in the public sphere, respect is demanded for court rulings, then it is due all the more so for legal acts which the said rulings only put into effect. This obvious truth should be taken into account when sprouting opinions about some law or other being unconstitutional or incompatible with EU law. 

    Within the last few days the Vice President of the Federal Constitutional Court of Germany, Stephan Harbarth, spoke of the special role of Germany legal culture.

    There is no such thing as a special role of any culture. All cultures are on a par. That of a small nation such as the Lithuanian people, or larger nations such as the Polish, German or French. We frequently emphasise that we are a community of values. Exactly! Of numerous values. And our European task is to find a common denominator while fully respecting the existing differences and identities. Searching for higher or less worthy cultures is certainly not a good solution. Just like all member countries of the EU, the European Union too is a connection of different states with different cultures and diversified constitutional identities.  It doesn’t matter whether it’s the German, Portuguese or Polish legal culture. 

    Until recently the Vice President of Germany’s Constitutional Court was an active politician.

    It is not my view that a former politician cannot become a judge. The problem is rather when a judge becomes a politician. After all, a judge’s independence is their own decision, and means breaking free of all influences and dependencies at the moment of taking office, and above all when adjudicating. The disciplinary provisions covering judges concern special and extreme cases. After all, in no group of people is everybody ideal. Montesquieu, recently quoted repeatedly in public debate, wrote that whether a judge is truly independent depends on the judge alone, as every judge holds such instruments – from immunity to other guarantees – that they can be independent, and it is their duty to mould this independence by themselves.

    And that also applies to a politician, until recently a member of the German parliament? 

    Most definitely, as long as they make the effort to acquire that independence. But the Vice President of the Constitutional Court in Germany has not ceased being a politician, and is using arguments not befitting a judge. Any judge speaking out in public should particularly weigh their words. Regretfully the Vice President’s remarks contain arrogant reflections regarding the political situation in Poland, and dishonest comparisons concerning the appointing of judges in Poland and in Germany. We should refrain from such appraisals of the situation in other countries, and in particular in relation to sovereign decisions.

    Let’s go back to Poland, where the opposition together with some lawyers has forged the theory of so-called dispersed constitutional scrutiny, according to which it is every judge’s duty to conduct constitutional scrutiny of both law itself and the manner in which another judge is appointed.

    That opinion is unconstitutional and incompatible with the hitherto prevalent position in doctrine and judicial practice. It undermines the Constitutional Tribunal’s exclusive jurisdiction for reviewing the hierarchical conformity of acts of law. A court with doubts regarding the constitutionality of a provision on the basis of which it would be required to adjudicate may submit a question on this matter to the [Constitutional] Tribunal. This is determined by Article 193 of the Constitution. The Constitution does not anticipate the role of the [Constitutional] Tribunal being taken over in this matter by the Supreme Court, by the Supreme Administrative Court, or by the ordinary courts. Besides, please imagine the enormous legal chaos that such a concept would cause in practice. Some courts would apply it, others would not, while in those applying it the judicial decisions would not be uniform, since in the practice of the ordinary courts that is virtually impossible. Therefore in certain cases a specific provision would be applied, while in others – it wouldn’t. Quite how this reflects the idea of legal security and fair adjudication is rather a rhetorical question. 

    The First President of the Supreme Court has announced the verification of so-called new judges by the “old” Chambers of the Supreme Court. Is such activity within the constitutional order? 

    I shall refrain from commenting, since it is a matter of the constitutionality of provisions which are to be appraised by the [Constitutional] Tribunal. In the context of the recent problems with the functioning of the Disciplinary Chamberand the questioning of the status of a judge by other judges, several questions of law have been submitted to the Tribunal. One of these cases will be heard during proceedings on 13 February this year, and until that time all institutions – including the Supreme Court – should refrain from taking any measures whatsoever. 

    The European Commission has announced the submission of a request to the Court of Justice of the European Union for the interim measure of suspension of the functioning of the Disciplinary Chamber of the Supreme Court. Should Poland recognise such a ruling if made?

    This issue may also become the matter of future rulings by the Constitutional Tribunal, and as such I shall not word an appraisal. However, at this point one should appeal for honest debate in the European Parliament, such that instead of hurling insults, untruths and half-truths one could seriously consider whether the European Union can, via its organs, shape the legal system of a member state, and do so in such an area as the judiciary, and whether in a moment from now a motion might not be submitted for the so-called freezing of the functioning of one of the domestic parliaments. 

    Where in all this confusion is the concern for citizens who have gone to court seeking justice?

    I would like to quote the words of the late President Lech Kaczyński, who emphasised when proffering judge nominations, that a judge must have humility – because they receive great power over people, and in addition a judge should realise that he or she is not God, and as such is not infallible, and does not represent a power above the other powers. 

    In that case should the third branch of power, just like the first two, have democratic legitimacy?

    Rulings in Poland are made in the name of the Republic of Poland, and as such the judges too must receive their mandate from the sovereign, meaning from the people. They are not private courts or arbitrations. Courts are a part of the public power, and as such the judicial power should originate, at least indirectly, from the citizens. This is part of what democracy means, that society is what constitutes the source of all public power. 

    The paradox is that this separation of the judicial class from the will of the sovereign is actually presented as a model solution.

    Such conceptions are indeed appearing in the public space. And the interesting thing is that this experiment would be conducted in a trailblazing manner only in Poland. It’s a shame that the representatives of other European countries are not starting by introducing the propounded solution at home. It is worth recalling, for example, that the system of judges being appointed by the head of state upon the request of the minister of justice, sometimes called the “German” system today, also functioned in the 2nd Polish Republic. Against such a background, all remarks from abroad or from Polish judicial circles regarding the one rightful solution for Poland should be more restrained. Of course the National Council of the Judiciary currently has constitutional standing, and legislative solutions must respect that.

    How would you appraise the responsibility of those Polish politicians and lawyers who convey extremely critical assessments of the situation in Poland outside of Poland, to external bodies? How would you assess their loyalty to the Polish state?

    I would prefer not to speak up on that matter, leaving any appraisal to the Poles. Anybody taking such office or accepting a parliamentarian’s mandate swears loyalty to Poland, because it is from that Polish sovereign that their mandate derives.

    And should a high-standing official of the Polish state be aware that their words may be used by another state for purposes against the interests of Poland? 

    Yes, they should weigh their words and their opinions, while also taking into account the sensitivity deriving from the historical specificity. Poland regained its freedom after 123 years of bondage. We should take account of our historical experience and the memory of the causes behind the loss of freedom and independence. That experience commands us to resolve all disputes within our society. Following many years of servitude, the experiences of cruelty in the Second World War and years of communism, Poland is rebuilding its identity, and Poles are beginning to acquire a feeling of self-confidence, to build up a sense of their own value. Meanwhile, outside forces are once again ordering us and dictating regulations against the will of society. In my opinion, discussing Polish matters outside of our borders, and enabling external interference in the shape of our independence, constitutes an obstacle to the building of a new, modern identity for Poles, one rooted in tradition and culture.

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