Unlawful Law[1]

Ewa Siedlecka, the ‘Polityka’ weekly, No 40/2019 (1 October, 2019)

 

Law and Justice spoke about the country from the plywood. We’re just living in it. We have the illusion of the rule of law and reality of unlawful law. Democratic and control institutions and the law enforcement apparatus have become dummy.

Marian Banaś became the head of the Supreme Audit Office[2], despite the fact that the dummy secret services knew about his business arrangement with pimps. And despite the fact that the dummy Central Anticorruption Office[3] knew about his failure to show income from this business in property declarations. He received security certificate, i.e. access to state secrets. The Chancellery of the Sejm, taken over by Law and Justice, removed his property declarations from the official website of the parliament.

There is no politically independent body that could investigate the possible Law and Justice violation of tax and political party financing regulations in the light of the party’s relationship with Srebrna and the Lech Kaczyński Institute[4].

There is no body that could consider the notification of a crime allegedly committed Minister of Justice – Prosecutor General Zbigniew Ziobro filed by the Association of Prosecutors Lex Super Omnia[5]. Ziobro for two years paid public prosecutors from the National Prosecutor’s Office housing allowance without legal basis, thus damaging the state’s finances of over 2.3 million. Each prosecutor in Poland is subject to Zbigniew Ziobro, who may, according to unlawful (because violating the independence of the prosecutor) law ruin his/her career. The National Prosecutor’s Office has already threatened Lex Super Omnia activists with criminal liability for false notification of a crime. The issue of spending money on lump sums could be investigated by the Supreme Audit Office, but the head of the Supreme Audit Office is Marian Banaś. All safeguards of democracy have been turned off to ensure the security of executive.

Judge Tomasz Szmydt, associated with the hatter group ‘Kasta’, will return to adjudication because no disciplinary proceedings have been initiated against him. The prosecutor’s office did not secure his devices – telephones, computers – on which evidence could be found. The same situation is the other dozen or so judges whose names or nicknames appear in the ‘Kasta’ group and on the ‘KastaWatch’ TT account. There is no evidence – no problem. They can adjudicate, be presidents of courts, members of neo NCJ. We don’t imprison for doing good – former Deputy Minister of Justice Łukasz Piebiak, who was called ‘the chieftain’ by the members of ‘Kasta’, wrote to the hatter Emilia. Law and Justice so efficiently fought „legal imposibilism” that the state stopped working. Law and Justice works instead of the state.

For the first year, Jarosław Kaczyński’s party adopted laws that were unconstitutional. Then the law enacted by Law and Justice ceased to contradict constitution, because the miraculous healing was carried out by the Constitutional Tribunal taken over by Law and Justice, interpreting the constitution depending on the needs of political power.

Law and Justice believes that it has the legitimacy to break the constitution, because his power comes from a sovereign who is above the constitution. This is a reference to the early 20th-century concept of political decision-making of the German philosopher Carl Schmitt. It is based on the assumption that executive can trample on the order that is harmful to the state in order to create a new order – a kind of a revolution made by the authorities, not the people.

Law and Justice carried out such a revolution. Except that what was created in the sphere of law can hardly be called order. It is rather chaos, regulated by ad hoc political will: we will or will not comply with the judgment of the CJEU. We will recognize or not the national court’s judgment. We will implement the investigation or not. We will check the assets or not, etc.

The process leading to the state of lawlessness and impunity implemented by Law and Justice consists of four elements (stages): establishing unlawful (as contrary to democratic standards) law, implementing it through often unlawfully taken over offices and institutions, using these offices and institutions to break the law and to ensure impunity. The takeover of judicial power and independent control bodies is crucial for the operation of this technological sequence.

Take over, annul

Unlawful law was used to take over control bodies. But it began with unlawful actions: the refusal of President Andrzej Duda to swear in the judges legally elected to the Constitutional Tribunal. Then the Sejm[6] unlawfully annulled the resolutions of the previous Sejm appointing these judges.

Before the Law and Justice took over the Constitutional Tribunal, it tried to paralyze the Tribunal by passing a law which forced it to judge cases according to sequencing rule[7], only in the full composition, or forbade judging for half a year. These changes were assessed by the Venice Commission as violating the principle of the Court’s independence and the right to court. If the Constitutional Tribunal issued a judgement, Prime Minister Beata Szydło did not direct it for publication. It is a crime of failure to comply with statutory obligation, but the prosecutor’s office released her from responsibility, as it recognized that the prime minister had the right to assess whether the judgement had been passed legally or not.

All so-called the remedial acts concerning the Tribunal were unlawful – in full or in part and that is how the independent (at that time) Constitutional Tribunal ruled on them. The authorities’ reaction to the repeal of these laws was the immediate adoption of subsequent ones. The game lasted until the end of the term of office of the President of the Constitutional Tribunal Andrzej Rzepliński. And then another unlawful law of the Law and Justice party manipulated the election of the president and vice president of the Constitutional Tribunal, which was a violation of the constitutional autonomy of the Tribunal. And appointed as the temporary President of the Constitutional Tribunal Julia Przyłębska launched the procedure of electing a president two weeks before the election regulations came into force. The President of Poland ignored this fact and appointed them for functions. Being taken over the Tribunal ruled that it could not examine whether the election of the President of the Constitutional Tribunal had been carried out in accordance with the law. That is: no one can examine this.

In the role of the President of the Constitutional Tribunal, Julia Przyłębska systematically violates the Act on the Constitutional Tribunal, manipulating the composition of the bench, which was confirmed in writing by Mariusz Muszyński acting as Vice President several times. The Tribunal’s judgments are partly issued with the participation of judges-doubles, i.e. unlawfully. So they are not judgements. But they are applicable.

By unlawful law, Law and Justice took over the civil service: it dismissed the management and abolished competitions. Managerial functions in the civil service are currently filed with nominees of the ruling camp. Requirements for candidates have been lowered. The requirement that the candidate has not belonged to a political party in the last five years has been abolished. This is a breach of art. 153 of the Constitution: The civil service corps operates in order to ensure professional, reliable, impartial and politically neutral performance of the state’s tasks.

The establishment of the National Media Council was also unlawful, which marginalized the constitutional body, namely the National Radio and TV Council, also taken over by the Law and Justice. In turn, the National Media Council sanctions the activity of public television, which has become a propaganda tube of power. However, Law and Justice sits everywhere where complaints can be directed.

Parliament adopted a law giving the prosecutor’s office under government control, which ensured impunity for violations of the law and the rule of law. After nearly four years, we can conclude that the practice of prosecutor’s office violates the constitutional right to court. For example, the right of an Austrian businessman whose report on Jarosław Kaczyński regarding fraud – ordering the service and not paying for it – has been in the investigation phase for eight months, which according to the law can last up to 30 days. For such exceeding the deadline, the prosecutor should be responsible under the workers’ or disciplinary regime. Instead, the prosecutor was promoted. The Venice Commission assessed that the concentration of power over the prosecutor’s office and the courts in the hands of a member of the government has negative consequences for their independence from the political sphere, and thus for the principle of separation of powers and the rule of law in Poland.

Move aside and replace

Another unlawful institution taken over is the National Council of the Judiciary – strategic from the point of view of Law and Justice taking over judicial power and abolishing the actual separation of powers. The Venice Commission, the European Network of Councils for the Judiciary and the Advocate General of the Court of Justice of the EU stated that both the interruption of the term of office of judges sitting in the National Court Register and the election of new ones by deputies violate the standards of independence of courts and the right to an impartial court.

The unconstitutional so-called Surveillance Act, expanding surveillance beyond control. The Venice Commission assessed that the lack of judicial control over surveillance, inter alia on the internet is a threat to privacy. An anti-terrorism law was also adopted, which removed foreigners staying in Poland (and by the way those who contact them) from the law protecting their privacy, which is contrary to the protection of privacy and equality before the law.

The term of office of the First President of the Supreme Court, Małgorzata Gersdorf, was shortened unlawfully and a quarter of the judges of the Supreme Court were forced to retire. The EU Court of Justice declared lack of conformity of this law with the Treaty on EU.

The European Commission has started a procedure to appeal to the CJEU disciplinary provisions for judges. They threaten judicial independence. How these provisions work in practice can be seen after prosecuting judges purely for the content of their judgments, for lectures on the constitution or for using the ‘CONSTITUTION’ logo. And even for referring to the CJEU for preliminary rulings. The members of the hatter group ‘Kasta’, which includes several members of neo NCJ and one of the deputy main disciplinary commissioner, have no disciplinary proceedings.

The provisions thanks to which the Minister of Justice exchanged over 150 presidents and vice presidents of courts, arbitrarily interrupting the current terms of office, are suspected of violating the principle of court independence. Similarly to the wide powers to transfer judges without their consent, which also enables withdrawing them from the trial of specific cases violates the constitutional principle of non-transferability of the judge and the right to have the case examined by a ‘competent’ court.

A separate problem is the legality of the procedure for adopting law: without consultation, in a few days or even hours, in an extraordinary mode, in which the Marshal of the Sejm suspends the deadlines.

You scratch my back and I’ll scratch yours.

Political power has taken over independent control bodies – except for the Ombudsman. However, the Ombudsman mainly has persuasive power. He can demand explanations, send recommendations and signals to the authorities, document lawlessness and alert. It may join court proceedings, also leading to questions from the CJEU for a preliminary ruling. Adam Bodnar does all this extremely conscientiously exposing himself to the attacks of political power. But he can’t command anything. He cannot change any authority decision.

The only thing that still works according to the law and the constitution is the Ombudsman and the judiciary. The seized (in accordance with the law) parliament adopts laws in accordance with the will of the executive, without worrying about their compliance with the constitution and the procedure for its adoption. The Marshal of the Sejm is abusing power, giving projects an extraordinary course, blocking the debate, turning off microphones, excluding opposition MPs and imposing financial penalties, and even depriving opposition MPs of the opportunity to vote (moving plenary sessions to the Column Hall and blocking entry for opposition MPs). The Marshal also violated the constitution (Article 61, i.e. the right of access to meetings of elected bodies), closing access to the Sejm. This was stated in February by the Regional Administrative Court in Warsaw.

The President’s office (taken over in accordance with the law) is used to sign statutes that raise constitutional doubts, to block the swearing-in of the judges of the Constitutional Tribunal elected by the previous Sejm, and to swear – contrary to final judgments of the Supreme Administrative Court – judges elected to the Court. And also to exclude selected persons from the criminal liability, to remind the pardon of Mariusz Kamiński before a final conviction (which was legalized by the Constitutional Tribunal).

The taken over (partly unlawfully) Constitutional Tribunal rules in accordance with the interests of political power. And with its ideology – to recall the verdict in the Łódź printer case, introducing a de facto clause of conscience in services. Now, for example, non-believers (or 'nihilists’, as President Kaczyński says about them) or non-heterosexual people can be refused service in a restaurant or renting a hotel room with impunity. The Constitutional Tribunal also serves to neutralize judgments of the Court of Justice of the EU: e.g. by anticipating the judgment of the CJEU, the Constitutional Tribunal has ruled on the conformity with the constitution of the procedure for selecting a neo NCJ. And also to give executive basis for unlawful activities, e.g. by ruling that the First President of the Supreme Court Małgorzata Gersdorf was elected in a manner contrary to the constitution (Law and Justice did not use this gate, but it has it).

The Law and Justice officer Jan Nowak elected as the President of the Office for Personal Data Protection was used to unlawfully block an execution of a final judgment of the Supreme Administrative Court ordering disclosure of lists of support for candidates for neo NCJ. In the reserve there is a complaint of Law and Justice deputies to the Constitutional Tribunal: that disclosure of names would violate the constitution.

Even national Social Security Company (ZUS)[8] was used by the ruling party: to block the CJEU from considering questions from the Supreme Court judges regarding their forced retirement. ZUS withdrew its complaint from the Supreme Court, on the basis of which judges asked the CJEU these questions.

Holy cows and worse sort of people

Art. 31 of the Constitution, guaranteeing equality before the law, became a facade. We divide – as in the Polish People’s Republic[9] – into worse sort of citizens, normal people and holy cows. An example of a holy cow is the chairman of the Supreme Audit Office Marian Banaś, who is protected by the tax office, the Central Anticorruption Bureau and the prosecutor’s office.

The prosecutor’s office taken over by Law and Justice deals primarily with the protection of the people of power. The case of the blackmail of the former KNF head Marek Chrzanowski against the banker Leszek Czarnecki, who was threatened by taking over his bank „for 1 PLN”, has ceased. Earlier, Chrzanowski was given 24 hours to remove evidence. Beata Szydło did not receive the charge of not publishing the judgments of the Constitutional Tribunal. The prosecution protects the driver of Beata Szydło from liability for the accident of her limousine, assigning all the blame to the driver of the car which hit the limousine. Prosecution discontinued the matter of preventing opposition deputies from voting and submitting motions in the Column Hall. Judge Igor Tulea’s notification of a crime of false testimony in this case by Law and Justice deputies, including Mateusz Morawiecki and Ryszard Terlecki, was swept under the carpet. And the judge himself has criminal proceedings to disclose the secrecy of the proceedings in the decision in this case.

For years, the police did not detain nationalists presenting neo-Nazi slogans and gadgets, but detained and interrogated – putting charges on – people wearing monuments in T-shirts with the inscription „CONSTITUTION”. The Police unlawfully monitored street opposition activists, environmental movements and opposition MPs.

Activists of Polish Citizens, Committee for the Defence of Democracy, anti-fascists are detained by police for blocking nationalist marches under Nazi slogans. Jerking, kicking, spitting and scolding women who sat in the middle of a nationalist march was recognized by the prosecutor’s office as an acceptable way of showing dissatisfaction.

Street opposition activist Elżbieta Podleśna was detained in her own home, the apartment was searched, all her electronic devices were detained and she was detained for six hours at a police station in another city because of alleged offense of religious feelings by putting up posters with the Rainbow Madonna. Meanwhile, the prosecutor’s office has not protected the media of judges suspected of participating in the Kast group for a month. Inequality before the law and uncertainty of the legal situation are basic features of the lawlessness state.

The only thing that works according to the law and the constitution is the judiciary. Thanks to the persistence of judges who are increasingly opposing political pressure. But the authorities have a way to do it: simply to ignore them – like the Polish President when, despite the Supreme Administrative Court’s ruling, he swore judges to the Supreme Court, or the Marshall of the Sejm who did not comply with the Supreme Administrative Court’s judgment regarding the disclosure of lists of support for neo NCJ candidates.

And to Supreme Court’s Chamber of Extraordinary Complaint and Internal Affairs composed of people trusted by Law and Justice, the authorities can send any final judgment that they don’t like, as part of the so-called extraordinary complaint. In this way, it takes control over the case law of common courts.

Article 2 of the Constitution says: The Republic of Poland is a democratic state ruled by law implementing the principles of social justice. After four years of rule by Law and Justice, Poland is a state of the ruling party that realizes its will. We are facing a state of impunity.

Link to the original internet publication in Polish:

https://www.polityka.pl%2Ftygodnikpolityka%2Fkraj%2F1926680%2C1%2Cbezprawne-prawo.read%3Fsrc%3Dmt&usg=AOvVaw0I70lpyb2vEuOvhwyjGr8d

 

[1] All footnotes are added by translator for better understanding of the text.

[2] Orig.: Najwyższa Izba Kontroli (NIK) – pursuant to the Constitution the Supreme Audit Office controls the activities of government administration bodies, the National Bank of Poland, state legal persons and other state organisational units from the point of view of legality, economy, purposefulness and reliability. The Supreme Audit Office may control the activities of local governmental bodies, municipal organizational units from the point of view of legality and thriftiness, the activities of other organizational units and business entities to the extent that they use state or municipal property or funds and fulfil their financial obligations to the state.

[3] Orig.: Centralne Biuro Antykorupcyjne (CBA) – a uniformed and armed special service of the Polish state, an office for combating corruption in public and economic life, in particular in state-owned and local government institutions, as well as for combating activities detrimental to the economic interests of the state.

[4]See: https://amp.dw.com/en/kaczynski-tapes-reveal-murky-business-dealings-of-polands-powerful-pis-leader/a-47316459.

[5] Independent association of prosecutors established in response to legal changes politicizing prosecutors’ office introduced in April 2016. Its statutory aim is, inter alia, defending prosecutors against harassment and pressure, and ensuring that the independence of the Public Prosecutor’s Office is written into the Constitution.

[6] Lower house of Polish parliament.

[7] Irrespectively of the importance of cases.

[8] Orig.: ZUS (Zakład Ubezpieczeń Społecznych): a state-owned provider of social security service.

[9] The name of Polish state under the communist regime.