Position of the Union of Entrepreneurs and Employers on the termination of the term of office of the First President of the Supreme Court

Warsaw, 5^th July 2018

5POSITION OF THE UNION OF ENTREPRENEURS AND EMPLOYERS ON THE TERMINATION OF THE TERM OF OFFICE OF THE FIRST PRESIDENT OF THE SUPREME COURT

As long as politicians accuse each other, as long as they maintain that it is them and not the other party who have an idea for Poland, and who convince to the solutions they propose – atypical and radical as they may be – we are witness to a normal discourse that does not significantly diverge from the standards adopted in other countries in the world.

There are, however, some dimensions of the functioning of the state, which due to the raison d’etat should be removed from the rules of a brutal political dispute, within which it is allowed to do and say almost everything.

One of these dimensions is the judiciary, which in the state of law performs at least two roles. First, it serves the peaceful resolution of disputes, and secondly – as part of the classical division of power – protects citizens from the legislative and, most importantly, executive power, especially in a system, in which these two authorities penetrate each other.

For this reason, the Union of Entrepreneurs and Employers criticises the shortening of the term of office of the First President of the Supreme Court, which is discordant with the provisions of the Constitution.

The Supreme Court, which seems to many people an institution terribly distant from the life of an average person, has a strictly defined scope of competence. Both in the old Act of 23^rd November 2002 and in the new Act of 8^th December 2017, these competences include the administration of justice by supervising the legality of the judgments of common and military courts. Within these competences, the Supreme Court has settled many legal disputes vital from the point of view of various social groups in matters concerning everyday life of average citizens. In recent years, after the political changes that took place in 2015, by virtue of the resolution of 22^nd June 2017, the Court confirmed the permissibility of disposing of agricultural property to a relative, even before the end of the 10-year period since its acquisition. On 25^th August 2017, it adopted a resolution that the right to separate ownership of premises located in a building located on real estate, for which perpetual usufruct right has been established, does not expire upon the expiry of the period for which such right was established. This year, the Court stated that when assessing whether a given contractual term is allowed, one should take into account the state at the time of conclusion of the contract, without the need to investigate whether any damages resulted from the use of an unlawful clause – which is essential from the point of view of Swiss franc borrowers. Therefore, the Supreme Court should be considered an institution that is of paramount important to the Polish economic system. Henceforth, one cannot refrain from reacting when the principles of functioning of the Supreme Court provided in the Constitution are violated, because it raises serious concerns as to whether the next step will be interference with its jurisdiction.

According to Art. 183 sec. 3 of the Constitution, the First President of the Supreme Court is appointed by the President of the Republic of Poland for a six-year term from amongst the candidates presented by the General Assembly of the Judges of the Supreme Court. The duration of the term of office of the First President is therefore explicitly stated in the Constitution. Article 180 sec. 1 of the Constitution also states that the judges are not removable. It is impossible not to notice that the theoretical gate to circumvent this provision is sec. 4 of the same article, according to which an act defines the age limit, after which the judges retire. Therefore, a judge cannot be removed theoretically, but it is possible – by means of an ordinary act, voted by a simple majority – to manipulate the age limit, after which a judge will retire by virtue of the law.

Repeatedly criticised by the Union of Entrepreneurs and Employers, the imprecision of the literal provisions of the Constitution must not be used to violate the principles that are not only the principles of the Polish Constitution, but an element of the legal culture of our entire civilisation. There is no doubt that the possibility of determining the age limit of “retirement” must not in any way affect the term and irremovability of the First President of the Supreme Court (just like the President of the Supreme Administrative Court). The duration of the term of office of the First President is specified in the Constitution very precisely, the legislator has not decided to include in the provision a reference to a specific law that would define the terms of retirement – as is the case of retirement age of judges.

In the “old” Act on the Supreme Court, the legislator in Art. 10, in relation to constitutional regulations, narrowed the group of persons who may become the First President of the Supreme Court – the Constitution says that the President appoints the First President from among the candidates presented by the General Assembly of the Supreme Court Judges, while the Act states that the Polish President appoints the First President from among the judges of the Supreme Court in an active state. In the “new” law on the Supreme Court, the procedure was made precise even further – it was specified that the General Assembly of Supreme Court Judges may submit five candidates selected from among the judges of the Supreme Court in the active state. At the same time, it was supplemented that the First President may only be appointed once, and the position may be taken only until the state of retirement, being retired or the end of term. Thus, the Act defines the conditions for terminating the term of office, the duration of which – without exceptions or delegations to determine them in statutory mode – is provided for in the Constitution.

There can be no doubt that the confusion around the Supreme Court would not have occurred if the Polish Constitution had been written in a logical, understandable, and unambiguous manner. This is not the case, however, and unless a new Constitution is adopted, we must rely on the goodwill of those who make use of its provisions. Unfortunately, as the history of the proceedings of the new law on the Supreme Court clearly show together with the shape of the adopted regulations and the subsequent conduct of the authorities, one cannot really speak of goodwill in this case. From the very beginning, the undisguised goal was to get past (or even break) the provisions of the Constitution and to terminate the term of office of the First President of the Supreme Court by retiring the person in question.

The Union of Entrepreneurs and Employers criticises the actions of the legislator, the government, and the president in relation to the Supreme Court and draws attention to the fact that the credibility of the judiciary is one of the key conditions for conducting business in Poland, which is taken into account by both foreign investors and Polish entrepreneurs in making investment decisions. The condition of the Polish judiciary will have an impact on the economic situation and budget results, i.e. factors that allow the current government to carry out some of the amendments. By undertaking such controversial actions, the authorities contribute to the perversion of the rule of law, which – as the latest history of political culture in our country shows – will be a process deepened by successive administrations, which are equipped with an excellent excuse to creatively interpret the Constitution in a spirit coincident with their own, current political interest.

The Union of Entrepreneurs and Employers has repeatedly emphasised the need to urgently reform the judiciary, but we must not accept a situation in which this reform has an almost exclusively personal dimension. For entrepreneurs, the political views of adjudicators are not important – as long as they leave them outside the courtroom. The key is that the economic dispute be settled as quickly as possible. We are still counting on a real change of the system, one that serves Poland, the justice system itself, as well as the citizens and entrepreneurs seeking in courts protection of their rights.

Union of Entrepreneurs and Employers