DoRzeczy.pl: Doctor, I have to admit that I am a little worried about our conversation. There is a chance that it will be out of date by the time it appears on our website. Only a few days ago we talked about the situation of Mariusz Kaminski and Maciej Vesic, and it has already changed several times. So I ask, as Poles often do: what is this really about? We had so many different announcements and announcements that it's easy to get lost. Didn't it all actually start with a debate over the president's pardon power? Andrzej Duda used it for M. Kamiński and M. Wąsik in 2015.
Dr. Michal Sopinski: Of course, the root of this situation is that the president's prerogative in the form of pardon power has been questioned. After all, historically the problem of pardons, often also called such individual amnesties, the doctrine unanimously assumed – and this was reiterated by the Constitutional Tribunal in one of the decisions – that the moment of pardon depends on the President. Especially if we look at the Act of Grace historically as a remnant of the monarch's responsibility to settle legal disputes and act as the court of last word. However, today we have destroyed this legal state.
Let us imagine, as citizens, a hypothetical situation where we have one Poland and two legal orders operating there. The current government chooses one normative order, and the opposition, which was in power until recently, chooses another normative order. After all, yes, you can neither exercise power nor opposition. Unfortunately, this is not the way to live in the long term under the rule of law. This leads to pure anarchy, an explosion of the whole country. Marshal Holovnya declared that MPs Vasik and Kaminsky are no longer MPs, choosing one of the statutory orders, which assumed that they were not MPs, but he could have chosen the second order, represented by the President, the Constitutional Tribunal. or the first president of the Supreme Court, Prof. Malgorzata Manowska, who assumed that the act of pardon was available to the president at all stages of the process and was therefore effective, therefore MPs are still MPs and the decision of the district court should be considered null and void.
According to the latest information, the Warsaw-Shrodmieski District Court prepared orders for the transfer of Mariusz Kaminski and Maciej Vesik to prison. how do you look
The tragedy of the present situation is that we are actually destroying our country, destroying all forms of government, including the authority of law. Today, justice is more associated with the statement that he who is stronger is right. Carl Schmitt's misunderstood judgment of the supreme, which says that the sovereign, or ruler, is the one who makes the final decision and enforces his law by force. The doctrine often speaks of an internal morality, a law also called axiological justification, which provides the basic elements of fairness and justice. And if we depart from this view of the intrinsic morality of the law, we arrive only at the pure will of the sovereign, at voluntarism, at the will of the stronger, who can oppress the weak, and can unjustly take away his property as private. and material. After all, a democratic state of law is a state in which the separate branches of government: the legislature, the executive and the judiciary limit each other, but also cooperate with each other. The Prime Minister should cooperate with the President and the Seimas. Individual officers, uniformed services act in accordance with the law.
Will we have the first political prisoners in the Third Republic of Poland?
I don't rule it out. However, let's remember that the Polish state is based on the provisions of Art. 7 of the Constitution, the principle of legalism, which presupposes that a person acts on the basis of and within the limits of the law. And today, if no one knows what the law is, how can one act on the basis of the law? How can an officer, policeman or prison guard act according to the law if he does not know? He looks at the president, the chairman of the Seimas, the first president of the Supreme Court – the government. He does not know what the law is, because we are dealing with a dispute hitherto unknown to Polish constitutionalism. How can an ordinary citizen, an ordinary person, know who is right in this dispute? As eminent lawyers, professors and constitutionalists have such different opinions about whether someone is a deputy, whether a criminal is convicted by final judgment, and whether someone is in hiding. An act of individual amnesty, or pardon? This is a fundamental thing. And the fact that the legal elites, professors, lawyers and judges did not decide this in a definitive way, really insults the Polish justice system, all its participants, because how can we later demand the protection of the law from the citizens, if there are no lawyers among them who demand this consent, What is this law?
Changing the subject a bit. In a few days, the Supreme Court will issue a decision on the validity of the elections. They are issued by the Chamber of Extraordinary Control and Professional Responsibility. The same thing that is so strongly questioned by those in power and part of the judicial community.
Now we come to the simple conclusion that during the last eight years the two legal orders have developed completely parallel. The beginning of this division into two legal orders dates back to 2015 and the election of judges of the future Constitutional Tribunal by the Seimas. Using the metaphor of the butterfly effect, we can say that it was the flapping of wings that nine years later ended in a tornado, a tsunami that destroys the entire legal order in Poland today. This decision caused further problems in both the constitutional and general courts. Reforms, decisions, cancellation of reforms, presidential veto. In addition, let's take into account the fact that the European Union has begun to intervene deeply in the Polish justice system in recent years.
We often hear that IKNiOZ is not a court, because the court decided about it. This is actually one of the main arguments of the opponents of this chamber. What are you saying?
If it is not agreed today that the Constitution is a norm of norms, that the Constitution establishes certain boundaries that cannot be crossed by everyone, that the Constitution establishes laws that are binding on everyone, it is not surprising that other unconstitutional norms. Values and principles are also subject to relativization. With Poland's accession to the European Union, we agreed that the Union and its tribunals, such as the Court of Justice of the European Union, its regulations and other sources of law, became an element of Polish law. But to date, in these 20 years, we have not clearly and definitively established whether the supreme law is EU law or the Constitution. Some lawyers think so, and others think otherwise. We have a dispute about this, and that is why in this dispute, which chamber of the Supreme Court is a court and which is not, very often arguments from European laws and decisions of European tribunals appear.
why Because they dilute the dispute. If we were dealing with such a positivist understood state, hierarchically structured law, we would also have an authority, an entity that would have the last word. In the United States, we have a Supreme Court. If he decides on a point, there is no more discussion. Neither the president nor the senator nor the congressman can speak. The case is resolved. When we mix the Polish normative order with elements of European law, this court slowly loses the last word, because the Constitutional Tribunal can be rejected, the Supreme Court of Poland can be rejected. And this is a huge problem, one that prominent legal theorists of the 20th century warned that international law, when we recognize its universally binding force even at the level of citizen-state relations, can turn out to be a kind of Pandora's box. And unfortunately, I get the impression that this is slowly happening.
The deadline for adopting the budget is approaching. New, sensational scenarios are constantly appearing in the media. It is known that the President cannot veto the budget bill, but he can refer it to the Constitutional Tribunal. The question is, what's next?
It seems that new elections will be held in the spring. Such a move by the president is, of course, a nuclear option, but it could cut the main axis of the dispute about who will be Poland – Donald Tusk or Jaroslaw Kaczynski – and make us all think about Poland. as the common good of all citizens.
At the end of our conversation, I wanted to ask if you don't feel like the whole legal dispute is getting a little out of hand, and maybe paralysis is just around the corner?
What we are currently dealing with is a kind of duopoly – two separate legal orders: one protected by the President of the Republic of Poland Andrzej Duda and the first President of the Supreme Court, Prof. Malgorzata Manowska; And the second legal order, represented today by the Speaker of the Sejm, Shimon Holoun, and a motley crew of Supreme Court judges from the Chamber of Labor, as well as lower-level common courts. This situation is a huge problem for the entire Polish state. This is a kind of anarchization and the desire to destroy the main value of the legal system, which is certainty and legal security. Today, this disagreement and failure in the negotiations between the President and the Speaker of the Seimas means that nothing is certain.
Nevertheless, in my opinion, taking into account the norms of both the Constitution and the normative rank, the Marshal of the Seimas did not have the right to terminate the mandate of the deputies, because the President actually applied the pardon law to them. And thus, the Marshal of the Sejm – and I will repeat it again – exposes himself to responsibility according to art. CC 231. We will probably find out whether he will have such a responsibility or not, only in a few years, when the parliamentary majority will change again. why Because, unfortunately, today politics very often has a certain primacy over the law, and the de facto ruling majority decides what is the rule of law and what is not. As Prime Minister Tusk himself announced in his exhibition…
In fact, who is in the law will be decided only by the officers who will decide whether deputies Vasik and Kaminsky will go to prison. And this is a very reprehensible situation, as the responsibility shifts from politicians and judges to the last element of the justice chain – the police and the prison service.
Also read:
Dr. Sofinski: Marshal Holovnia's actions are subject to criminal liability
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