Are there „fake-Judges” working today in Polish courts? – Analysis
This week leading professors of law continue to dispute whether we can divide judges in Poland into legitimate judges and „neo” (i.e. illegitimately nominated) judges.
Leading professors of law at loggerheads on the Polish Constitution – Marcin Matczak (L) and Ryszard Piotrowski. Photos in montage: Adrian Grycuk/CC 3.0/Wikipedia
The constitutional crisis continues in Poland, evidenced this month by the diametrically opposed evaluations of two leading professors of law.
Professors Ryszard Piotrowicz and Marcin Matczak, both of the University of Warsaw, have debated, not directly but via the medium of the new right-tending YouTube Channel „Zero”. (This Channel is thereby offering a forum for both sides in this battle of the culture war at least.)
Professor Piotrowicz has maintained in several media appearances a strongly critical attitude to the current government and its purported efforts to return Poland to constitutionality and the rule of law. He has emphasized that the Polish Constitution blocks the legislature from dismissing judges, implicitly including judges illegitimately nominated.
He has continued this line by saying that there „is no such thing as a „neo-judge”” which is the pejorative term for a judge nominated or promoted by a constitutional body (above all the National Council of the Judiciary (KRS)) acting contrary to the constitution under the last PiS-led government.
Professor Matczak has responded that the Constitution does not include mention of many situations that are legally significant, a „coup d’etat” being one pertinent example.
Professor Piotrowicz, like many in the legal profession in Poland, takes what might be called a „textualist” approach to the law – what is written in Constitution or in a contract is paramount – and not, perhaps, the intentions or values expressed by those texts.
From a broadly textualist perspective, the current government’s attempt to „fix” the constitutional crisis by questioning the legitimacy of judges who profited from unconstitutional decisions or bodies is just as much a violation of the constitution – the separation of powers in particular.
For defenders of the current government, such as Professor Matczak, the Constitution is not just a text, a „piece of paper”, it represents a state of affairs where the rule of law is respected. So actions that are against the letter of the law but are intended to return the Constitution to its rightful place are not on a par with actions that undermined the Constitution in the first place.
Even if the main political parties could sit down for a („neo”?) round table or a „Constitutional Reset” as advocated by Konfederacja MP Krzysztof Bosak, this would be a situation where the legislature essentially decided that some new form of the judiciary is legitimate – i.e. acting suspiciously like historical royalty or papacy.
Sources: Channel „Zero”
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