Hans Christian Andersen probably did not expect that the slogan “The King is Naked” would be relevant in Poland more than two centuries later.
PThe rule of law… since 2017 we have been hearing about its violation united right. There is practically not a day or an hour (or even a quarter of an hour) that doesn't go by when some representative of the ruling former totalitarian opposition doesn't let us know that PiS has taken away from us… the courts.
The rule of law is reduced to… the method of electing judges of the National Council of the Judiciary.
according to the present NeoMinister of Justice when he was still Rainbow Ombudsman, Adam Bodnar:
– according to art. According to Article 186 of the Constitution, the National Judicial Council protects the independence of courts and judges. Participation of the Seimas in the appointment of the members of the National Council of Justice, specified in art. Section 187 Section 1 Paragraph 3 of the Constitution is limited to the election of four members of the National Council of the Judiciary from among the deputies. in the light of art. 187 Section 1 Points Under Article 2 of the Constitution, the judges must elect fifteen members of the National Council of the Judiciary from among the judges of the Supreme Court, common courts, administrative and military courts. In this way, the constitutional principle of a separate and independent judiciary will be implementedK (Article 10(1), Article 173 of the Constitution).
A similar view can be found among judges who are members of the judiciary. According to them
this bill (2017 revision – HD) It is unconstitutional because it transfers the possibility of electing the members of the judges/National Council of the Judiciary to the Parliament, which violates the separation of powers. Therefore, now, according to the resolution of the Seimas, it is necessary to dismiss the unconstitutionally appointed judges/members of the National Council of Justice and to appoint new ones in accordance with the current provisions of the Constitution.
andLe art. 10 (Separation of Powers) raises many doubts. For example:
It is also worth noting The principle of separation of powers was introduced into the constitutions of democratic countries at the end of the 18th century and the first half of the 19th century, when political parties did not yet exist. Currently, they are seriously changing the form of this principle, de facto limiting it only to the legal level. It may be an exaggeration to say that the role played by political parties makes the separation of powers between the legislative and the executive illusory, since in reality the party (or coalition) with the majority in parliament forms the government. . “It is difficult to talk about the division of power in a political sense, when the government is politically identical to the parliamentary majority. We must also remember the whole series of overlaps between the legislative and executive powers, which means that more than 3/. 4 of the laws adopted by the Seimas were initiated by the government. In practice, the government largely participates in the implementation of legislative power” (see L. Garlicki, K. Gołyński, Polish Constitutional Law. Lectures, Warsaw 1996, p. 65).
(in: Constitution of the Republic of Poland. comment, Prof. Dr. Boguslav Banazaki, 2012)
He organizes a media and legal circus Exotic trio And his media, for whom Montesquieu's separation of powers is the most sacred of secular sanctities, finds it hard to stay serious.
Read for yourself:
Contrary to the often expressed belief, there is no constitutionally established principle of separation of powers – as H. Barnett emphasizes – absolute value.. The concepts of legislation, ruling and implementation of the executive power do not have – as the author points out – a precise definition (the ability to define precisely has not been proven). Then it is difficult to make a strict distinction between them. R. Masterman takes an identical position, arguing that in many cases, The dividing lines between constitutionally defined powers are unclear and blurred (These lines are often unclear). Thus, this division is “dynamic, multi-dimensional”. These observations correspond to the reflections of WJ Waluchów, who points out: The anachronism and conventionality of the approach from the time of Montesquieu writes about the phenomenon of “combination of the roles of the legislature and the judiciary and the executive”. (Combine the role of legislator with the role of judge and government executive).
On the other hand, the dogmatic, not to mention the oversimplified and schematic understanding of the principle of separation of powers b. Ackerman counters in a paper with a significant title: “Goodbye Montesquieu.” Using the example of election commissions staffed by judges, but completely separate from judicial and political agencies (separate from the regular judiciary and political branches), the author wonders whether their activities do not confirm the global trend towards “a certain isolation”. It functions from the legislative body, from the executive and judicial power structures? – Isolate certain functions of the legislative, executive and judicial authorities? Answering this question in the affirmative, he concludes that “A new division of power is emerging in the twenty-first century“. The author also does not hide that this opens the field for the start of more advanced comparative studies in the field of administrative law. Taking into account the issue of the public administration court (judicializace public administration) saturated with the appropriate methods of court activity, D. Kriska drew similar – although quite controversial in methodology – conclusions. decided this This phenomenon creates the basis for questioning certain doctrinal and dogmatic views about the position of constitutional bodies and the principle of separation of powers. (některé doktrinální či dogmatické interpretations about the position of institutional organs či delbě moci).
M. Künnecke puts the issue even more categorically and reminds that by developing the theses of J. Locke and taking into account the model of the British unwritten constitution, Montesquieu reduced the role of the judicial system to the simple application of the law (just applying the law). Therefore, he could not – in the first place – take into account the phenomenon that in time became known as judicial review; The concept of judicial control based on the assumptions of the cassation model was developed in the Habsburg monarchy only in the second half of the 19th century. Second, there is no single version of the separation of powers doctrine. This division is a fundamental principle in all Western democracies, but in each of them it is interpreted and functions in its own way. However, the statement that “power must be checked with power” is indisputable. This view is beginning to dominate the literature, but it is not accepted without opposition and reservations; In some publications, the system of checks and balances is seen as a consequence and a natural extension of the formal separation of government functions and the personnel of its agencies. For example, J. Macmillan, describing the Australian version of the doctrine of separation of powers, notes that it is supported by “an active system of checks and balances”. Today, the meaning of this doctrine can be fully seen only if new theories are taken into account. The concept that R. Masterman calls “a pure version of the theory of separation of powers” is gradually gaining a historical dimension. It seems – as the author suggests – rejects the assumption that the three branches of power can actively influence each other's activities by activating the mechanism of mutual restraint (a pure theoretical version of the separation of powers also rejects the idea that the three branches can actively check each other's actions). *
The author of the above words is Prof. Doctor of Legal Sciences Zbigniew Kmieciak He is a retired judge of the Supreme Administrative Court. It is therefore difficult to question his authority; It is especially incredible that this was done by a law graduate (… at the age of 48!), the vice-president of the European Commission. Vera Zhurova. Also by individual members of “our” Bodnar or Justita, or even by all of them.
MWe have a provision in the Constitution (Article 10) that is not only incompatible with the reality of the 21st century, but was already outdated in the mid-1990s when it was formulated.
But it was he, and this in a more orthodox way than Montesquieu himself, who found his way onto the banners of Justitia and the whole usual “Rise gang”.
It is significant that the aforementioned people do not even try to mention art. 4, which is the main constitutional principle and recognizes the sovereign in the nation to whom all authorities are subject, therefore the judiciary cannot be excluded. Even Bodnar revealed, still an overtime ombudsman, that “the four” simply did not exist.
why this circus
Ultimately, we must understand that the game is about power. But not what Rudy and his gang are currently enjoying. It's a less visible force, but no less brutal for that reason. And independent of any election, even a rigged one.
As throughout the EU, the war between the judges and the public is going slow and quiet. Even in Germany there were rumors about the father State of judges (Richtersstaat), which is denial Rule of law (Rechtsstaat).
This is evidenced by the non-recognition of the National Council of the Judiciary, whose appointment Justice has lost the ability to influence.
It's the same Extraordinary Control and Public Relations Chamber of the Supreme Court. After all, this extraordinary caste dreams of being answerable only to God and history. However, it should be noted that few people believe in God and as history shows… someone always writes.
And how? badThen he will go to court.
Penalty for Bodnar!
The nation must regain its lost role as sovereign.
11/01/2024
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* In: Judicial control of public administration. Volume 10 Administrative Law System,
Editor: Prof. Dr. Roman Hauser, Prof. Dr. Zygmunt Nieviadomski, Prof. Dr. Andrzej Wrobel, 2016