Position of the First President of the Supreme Court,Małgorzata Manowska, PhD, in connection with cases of judicial undermining of appointments of Judges
22 October 2021
I express my full support for the judges whose rulings have recently been overturned or otherwise disregarded by certain judges appointed to office before 2018 in gross breach of the Constitution of the Republic of Poland, doing so under the guise of allegedly defective judicial appointments made at the request of the National Council of the Judiciary of the current term.
I also stand in solidarity with the judges who have been ostracised in the judicial community under the same pretext. I consider it unacceptable to stigmatize them, attack them and undermine their authority. These judges undoubtedly deserved to be promoted for their good professional preparation and their hard everyday work. It is not they who should be ashamed, but those judges who, usurping the role of the legislator, are undermining the foundations of the Polish justice system.
The organization of the administration of justice in Poland is regulated exclusively by the provisions of the Polish Constitution, the content of which is clarified by the judgments of the Constitutional Tribunal and by statutes and the generally applicable acts of law issued on the basis of these provisions. A judge cannot arbitrarily undermine the existence of bodies empowered by the Polish Constitution, as this would breach the principle of the tripartite separation of powers.
Article 178, para. 1 of the Constitution of the Republic of Poland strictly links the independence of judges with their subordination to the Constitution and statutes. Therefore, a person who receives an appointment to the office of judge solemnly swears to observe the provisions of the Constitution and the statutes. Issuing judicial decisions that disregard or otherwise ignore the provisions of the Constitution and statutes promulgated in the Journal of Laws and not repealedor judgments of the Constitutional Tribunal constitutes a breach of the judicial oath. I take the same view of the harassment involving the refusal to rule with certain judges.
A judge’s political activism, understood as the ability to decide that a given norm is not binding, or should be binding in a different wording, leads to a violation of the rule of law, even when it is done under the guise of its defence. A judge who is unable or deliberately unwilling to act in accordance with his oath should leave the service.
Judicial service is an area of activity for lawyers just like other important professional, political and social activities. It does, however, impose obvious limitations that any person seeking judicial appointment and holding judicial office must take into account. Judges must remember that they have a powerful weapon in the form of the interpretation of the law, for the application of which they are responsible, and must not abuse it. When judges disregard the Constitution and other generally applicable legislation, this can lead to judicial tyranny, the consequences of which are borne by ordinary citizens.
These acts of tyranny are committed, among others, by people appointed to the office of judge on the basis of a procedure,the unconstitutionality of which, beyond all reasonable doubt, was found by the Constitutional Tribunal in judgment SK 56/07 of 27 May 2008 and in judgment K 12/18 of 25 March 2019. These people often knew before accepting their nominations that the procedure under which they were presented for appointment before 2010 was unconstitutional. Meanwhile, the constitutionality of the new method of selecting judicial members of the NCJ was not only never challenged in the operative part of any judgment of the Constitutional Tribunal, but was further confirmed by judgment K 5/17 of 20 June 2017.
It is not difficult to imagine the chaos and anarchy that could prevail if judges appointed to office after 2018 start to consider that the rulings of judges, who were appointed on the basis of a procedure formally declared unconstitutional in the procedure provided for by law, are defective or non-existent.
I therefore appeal to the judges to exercise restraint and not succumb to the temptation to usurp authority, which neither the Constitution nor the statutes have given to judges. Pride is the enemy of service!
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