Zawartość

"Judges need our support" - article by Adam Bodnar for onet.pl

Data: 
2016-05-20

Bodnar: judges need our support

                A right to jurisdiction belongs to the basic rights of a citizen. Specifically: a right to an independent court and an impartial judge. This is what the constitution and binding international agreements state. It is important to remember these rights because impartiality is often treated only as judge's privilege. However without judicial impartiality, a proper functioning of the state under the rule of law is impossible. Judges would be diminished to the role of office workers who carry out the orders of their superiors, and citizens would be deprived of the security to which they are entitled. The independence of courts is a guarantee that no minister, member of the parliament,  mayor or businessman will dictate courts how to function, which cases to consider and which to postpone, and finally - what judgments to deliver.

                I'm of course aware that these are abstract ideas for many citizens, which do not have any direct influence on an everyday reality. Similarly is in the case of personal freedom. As long as we are free to decide about our own lives, make independent choices, solve individual problems, we do not notice this freedom; we treat it as a certainty. If courts obey the standards of independence for years (and judges the standards of impartiality), we no longer see the importance of these constitutional values and their meaning in our everyday life. Only crisis and dangers awake us from slumber.

The following constitutional body protects the independence of courts and impartiality of judges: The National Council of the Judiciary. It consists of 25 members, including 15 judges, a representative of the President of the Republic of Poland and 6 representatives of the parliament. Other members are the current First President of the Supreme Court, the President of the Administrative Supreme Court and the Minister of Justice. The Council decides on e.g. judicial appointments, gives opinions on drafts of legal acts concerning jurisdiction, and also deals with professional ethics of judges.

                When the Council was established in 1989, it was created on the basis of experiences from some Western European countries. It was acknowledged as an important mechanism which regulated the balance between the three powers: the legislative, the executive and the judiciary. Representatives of all powers were represented in the Council, but the majority was formed by judges. Thanks to this, the Council could effectively defend a constitutional position of courts and judges against the attempts for domination undertaken by the other two powers. This defense was effective, inter alia thanks to a skillful execution of judicial appointment and promotion procedures, requests to respect the judgments of the Constitutional Tribunal, appealing against various "repairing acts" concerning the judiciary, and protesting against brutal attacks of some politicians or explaining the cases of violating professional ethics by judges.

                This is what it was like. But now the executive does not want to accept defeat. A draft of an amending act on the National Council of the Judiciary has just been received by the Government Legislative Centre. This draft was prepared in the Ministry of Justice. The most important changes concern the choice of "judicial" members of the Council. It stipulates e.g. an expiration of current Council members' term of office (within four months from the date when the act comes into force), a prohibition of performing this function by presidents and deputy presidents of courts, new appointments of Council members and ensuring a bigger representations of judges from lower courts.

                The draft act contains also one more important provision, which introduces a significant extension of the President's competences. Until now, the President appointed as judges candidates indicated by the Council, now the Council would indicate only two candidates, and the President would choose one of them. The issue seems to be only formal, but it has a huge meaning for the relation between particular powers because it grants to the President not only a right to choose between two candidates, but also to assess them.

                As judges themselves emphasize, the purpose of these changes is obvious - they aim to disintegrate the environment, to remove non-conformists and to diminish the reputation of the Council. This will lead to yet another step towards the depreciation of the judiciary and further subjecting it to institutions governed by politicians.

                If this plan is successful, it will be difficult to speak about independent jurisdiction or impartial judges in Poland. Thus, a basic right of citizens will be endangered.

                This is why we should not leave judges on their own. It is an environment of wonderfully educated people, who are courageous and aware of their role in the country. But at the same time they do not compete in elections and for popularity, so they do not have a direct support of the society.

                We may change this, however, by making citizens aware - through media, Internet or during social actions - what an important role for democracy and the rule of law is played by impartial judges. This is very much connected with our everyday life - with a sense of order, security, freedom. To say directly: without impartiality and independence, courts will be courts only in name.

                The case of the National Council of the Judiciary is undoubtedly an important solidarity test for judicial environment. It is also a challenge for civic society. Its basic right - a right to jurisdiction- may find itself in grave danger. So if we hear more politicians who want to "destroy judicial elites, remove obsolete institutions, introduce new people," we should think what they really desire. Because of course we do support the improvement of courts' efficiency or faster consideration of cases, but this is not the road that we should take. This is a problem of organization, finances, technical solutions. It definitely has nothing in common with losing a guarantee of independence and impartiality.

                Are we in such a danger? Such a world was portrayed in Andrey Zvyagintsev's film "Leviathan", which was nominated to an Academy Award. There is a court, there are procedural formulas, agents, provisions, but by the end each citizen loses their home. Citizens lose with an omnipotent political power, have no legal protection and are powerless. Courts often prove to be a  sham institution, which is dependent on local politicians and pacts.

                Our national Leviathan has an appetite for more independent institutions. It is only up to us whether we allow for such a world and give him a green light to "swallow" the next chapter of our Constitution.