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Poles fail to understand the law – an interview with Jerzy Stępień

Published on October 7, 2009 by: in: Politics

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Judge Stępień, you took part in the activity of ‘Solidarność’ in the 80s and you were interned during the martial law. How, in retrospect, do you find the Poland of today? Have the goals of ‘Solidarność’ been achieved?

While talking about ‘Solidarność’ one has to realise how large that social movement was, how many various people were involved in its creation. It was a movement resembling confederations of the nobility from the times of the Commonwealth of Poland and Lithuania. One can wonder how it was possible that in the 80s of the 20th century a group of people (including the working classes) not possessing a particular historical knowledge could have referred to the institution of confederation. Well, all the Poles read  novels by Sienkiewicz, ‘Ogniem i Mieczem’ included. Sienkiewicz thoroughly described confederations, e.g. Tyszowiecka Confederation, which were a form of civil disobedience towards the laws violating the rules of contemporary democracy. Hence, it was the ‘Solidarność’ movement that displays the same mechanisms as in confederations –mass resistance against injustice, among others. ‘Solidarność’ has achieved its goals in 100, or even 200, per cent. Eventually, on 17.09.1993 Poland has regained its independence, which was exactly what ‘Solidarność’, as a mass social movement, struggled to achieve. What is more, it was ‘Solidarność’ that  stimulated the changes in the whole Europe, which were concluded with the fall of Berlin Wall as well as the overthrow of communism.

However, many people claim that ‘it used to be better in the times of PRL (the Polish People’s Republic)’. There are voices of discontent with the situation in III RP.

‘Solidarność’ has implemented a plan “maxi”. I would like to emphasize that there are many more Poles satisfied with the changes. The people who claim that ‘it used to be better then’ should be confronted with the picture of a country where the borders are closed, everyone has to wait a year for a passport (or even a passport cannot be obtained at all), there are empty shelves in the shops, and so on. Most of them would probably change their opinion concerning III RP. And it would be a positive change.

On the Constitutional Tribunal’s websites we can read the text of your speech delivered when you were the president of the Constitutional Tribunal. Its title is ‘500 years’ tradition of the lawful state in the Republic of Poland. How do you assess today’s Poles’ respect for law bearing in mind that it is often said this respect is not impressive?

Before we start to criticise citizens for the lack of respect towards law, it must be clearly stated that the problem lies with the institutions making the law. This is bad quality law, often not understood by the Poles. There are too many acts. What is worse, they are full of mistakes. The Polish law is, unfortunately, created outside the government. Actually, it should be made in one place, by one specialised institution, such as for example Government Legislative Centre. The Parliament and MPs should not tamper with the bills. Their only task ought to be  either to pass a bill  or turn it down.

Likewise, the Senate should be entitled to accepting a bill, rejecting it or, possibly, as in the English House of Lords, delaying the decision for a year so as the matter could be thoroughly considered. Characteristically, the Constitutional Tribunal used to repeal bills just because none of the judges was able to understand what they are all about. The role of the Tribunal often amounts to performing the job of  a ‘sorter’ in a factory who eliminates defective products.

Would it be necessary to change the constitution in order to introduce the changes suggested by you?

Yes. The constitution should be changed. In this case, the competences of the Parliament and the Senate ought to be settled. The Parliament should pass laws and be responsible for political issues. Drawing bills should be the government’s duty. Obviously, adequate changes would have to be introduced into the rulebooks of both houses.

You have been a senator in 1989-93, whether the Senate should be abolished?

The Senate should be preserved. It should become a kind of ‘reflection house’. Moreover, it should not have the right to introduce amendments. It must have only such competences that I have already mentioned – passing or rejecting a bill, or delaying it, actually. One could also consider reducing the number of MPs. There is no point in deceiving oneself – in today’s Parliament merely a few dozen of MPs have actual position enabling them to decide about the shape of law. Only this group is acquainted with the sense of the bill which is being passed. The role of the rest amounts basically to raising hands during the vote.

And what do you think about the idea reported from time to time by various constitutionalists that the Senate should be turned to a “house of the wise”, i.e. to introduce the education requirements so as  only people with adequate qualifications could become senators.

It seems to be a bad idea. I can only consent to the concept which president Kwaśniewski talked about in one of the interviews. It was a concept that ex-presidents should become senators automatically. These are public figures, even after their term is over. They enjoy prestige among the society and have experience gained during their presidential term. They travel around the world and lecture at universities. Granting them a lifelong seat in the Senate would be an interesting idea worth considering.

Do you think the constitution should be changed in other areas as well?

We have had a good instance recently, when the Constitutional Tribunal had  to express its attitude towards the issue of authority to decide who can represent Poland at UE summits. The president is chosen in general elections. Therefore, he is obliged to remind himself to the voters when his term is about to end. People choose the president, so they expect him to take clear action.

In that case, if I understand correctly, the changes would require resigning from the compromise achieved in the 90s of the 20th century and introducing either a parliamentary system or a presidential one? Which solution do you consider better?

A parliamentary government is inscribed in the tradition of the  Polish statehood. A presidential system existed only once, by the law of 1935 April Constitution. This concept did not work. The president’s jurisdiction was too broad.

In view of this, should the presidential election be a general election?

The president should be elected, as in every parliamentary system, by the Parliament or other collegial body. Like I noticed before, the general elections cause the fact that voters have specific expectations towards the president. Expectations, which cannot be realised because they fall behind the president’s authority. In a parliamentary system choosing the president in general election makes no sense. The government is the body, which is supposed to be the executive power. Not the president who, in a parliamentary system, performs mainly representative functions.

Do you suggest any other changes in the constitution?

EU ought to be noted in the constitution. In other words, the problem lies in the clearly defined rules concerning the relations between state authorities and UE organs. The constitution as it is now does not interfere with Polish UE membership. It makes it possible. However, nothing more. UE is such an essential scheme that the constitution cannot pass it over. As the constitution was being created in the 90s, it was difficult to predict when (and whether at all) Poland will enter the UE. Hence, there is the lack of adequate regulation. Five years have passed since Poland’s admission to UE. It is high time, then, for the UE to become instantly recognised by Polish law.

As far as other suggested changes are concerned, the president’s right to appoint the chairman of Constitutional Tribunal should be abolished. The thing is, it falls in the president’s jurisdiction to propose a bill in order to decide whether it is compatible with the constitution or not. That means, the president is, potentially and directly interested in the matters run by the Tribunal. There appears a conflict of interests. The president must not have any influence on the choice of the chairman of that institution. The chairman should be chosen by the Constitutional Tribunal judges themselves. Let them decide who will be their superior.

I met an opinion, expressed and retold by some constitutionalists, that the constitution should be protected from too frequently introduced changes. One of the suggestions is to enforce an obligatory review of the constitution, for instance once in every 10 years, by a collegial body consisting of professionals who would propose possible changes if they considered them necessary. In a period of time between the reviews, any change of the constitution would be strictly hampered and possible only in extraordinary situations. What do you think about that?

It is an interesting idea worth considering. At the same time, let us remember that up to the present, the constitution has been changed only twice: in 2006 regulations concerning European Arrest Warrant were introduced. And in 2009 the amendment involved art. 105 of the constitution concerning the passive voting rights. The change consistied in banning a person legally sentenced to imprisonment for an offence prosecuted with a civil accusation. At the moment I cannot see any danger of too frequent changes of the constitution.

Returning to the Constitutional Tribunal, you were its president between 4 November 2006 and 25 June 2008. Were there any efforts to put pressure  on judges, attempts to influence  verdicts, for example on the part of MPs?

During the entire term it happened once. Someone tried to exert influence on my attitude. Funny it may seem, the person attempting to persuade me to take a certain stand did not realise that their position was absolutely convergent with my own. It should be emphasized that the Tribunal judges are absolutely independent. No judge identifies himself with any political option which exerted some influence on his or her appointment. The function that he performs is the culmination of his career. At the same time it is worth pointing out that, fortunately, no one can be appointed for the next term. Otherwise, the candidate  seeking reelection would be prone to pressure. At present, such danger does not exist.

Can the Constitutional Tribunal be improved in any way?

The regulations shaping the Constitutional Tribunal are appropriate. The only changes, which in my opinion could be considered, are: prolonging the judiciary term of office, e.g. to 12 years (presently it is 9 years), changing the way of choosing the chairman, which I have mentioned before, and making the role of the senate more significant by awarding the right to choose some of the judges. Other improvements are not necessary. There occasionally appear ideas that I find particularly harmful, for instance the suggestion to reintroduce the Parliament’s right to reject the Tribunal’s sentences by a certain majority of votes. It must be noticed that the Tribunal can earn actual influence on shaping the law only if its sentences are decisive.

Does it seem possible to separate the functions of Minister of Justice and General Prosecuting Attorney ?

First of all, public prosecution service should constitute a part of the judiciary and the General Prosecuting Attorney ought to be a prosecutor, not an examining magistrate. It was in the 50s, during Stalinism times, that competences of an investigating judge were allocated to the General Attorney. This must be changed. One should seriously consider establishing an independent position of the investigating judge with autonomous competences differing from the competences of the General Attorney. Then, the General Attorney would have no influence on the investigations, naturally. This would let us limit the accusations of exerting political pressure on public prosecution service, which sometimes occur. At the same time the Minister of Justice should not interfere with the judiciary. The Minister performs a political function and this is what he must deal with– politics.

You were one of the authors of the local government’s reform in Poland. Has the reform, in your view, been successful? Every now and then there appear suggestions that districts, for instance, should be liquidated.

Districts should be preserved. They are well established in the local government’s tradition in Poland. In fact, they have always existed, even if sometimes been called differently. The final result of the reform, however, differ from the idea which guided the concept created with my participation. First and foremost,  there is no effective control over the finances of the local government’s units. Such control should be absolute and professional. Meanwhile, Local Clearing Houses posses only the latter quality. Controls are only random and may not include all municipal finances. Furthermore, introducing public elections of commune heads or mayors would additionally weaken the local council’s control over the finances, which lie in the local executive’s hands. This audit should be conducted by an independent professional, i.e. both professional and complete, including all financial and budget execution.

Local governments are also too politicized. Consequently, the officials have no sufficiently powerful, independent position in relation to the councilors. They have to work being fully aware that falling foul of a certain political option might result in loosing the job. Meanwhile, people appointed by political parties become councilors, because the voting system functions on the basis of proportional electoral regulations. Only in communes under 20,000 inhabitants the majority electoral regulations apply. What is more, such councilors often treat their work not as a mission, acting for the sake of local community but rather as as usual source of livelihood. Therefore I believe that councilors should not be entitled to high stipends as it is presently. At the most, they should be entitled to repayment of the salary lost while working for the council.

You mentioned excessive politicization of local governments as a result of applying proportional electoral regulations. In 1990-93 you were the general commissioner. Can you see any possibility of de-politicization of the elections in Poland? What causes the poor attendance in elections?

Poles do not understand the law, as I said! The rules governing the way to conduct the elections (at every level) are exceptionally complicated and absolutely unclear even  for the well-educated. To give an example, one of my colleagues, a solicitor, was very surprised when I explained the rule of proportional electoral system to him. It seems to a lot of people that putting a cross next to a certain name is voting for this particular person. However, such a vote is allocated to a party; the candidate can benefit from it only when there is favourable opportunity. Poor attendance during the elections results from the fact that people don’t understand the rules of electoral system. Therefore, they don’t participate in the elections. They cannot see the strength of their votes.

The advocates of proportional elections argue that with the majority electoral system (with one-seat constituencies) most of the votes can be wasted. They claim that only one person wins, and the rest, even if they were given a significant number of votes, will meet a defeat. Nevertheless, this is a matter of decision whether we choose particular people because of their qualifications or other values. Alternatively, we choose a political party, which imposes its candidates upon us. This refers in particular to the local government’s electors. Introducing the rule of proportion in communes over 20,000 inhabitants is nonsense. It affects adversely the very idea of local government as such. It also brings about what I mentioned before – too strong authority of political parties. Moreover, the proportional electoral system makes the candidates from the same list fight each other. It is absurd! All this causes decline in the political culture.

What do you think about the suggestion to introduce obligatory voting, as in Belgium for example, and to fine the person who doesn’t take part in the elections without excuse?

This idea is totally absurd. Let’s take into consideration the fact, that not going to the poll is a choice as well. A citizen is fully entitled to do so.

For a number of years you worked as a counselor (Licensed Legal Adviser). As a trainee solicitor, finally, I would like to ask what is your opinion about the present way of holding the legal internship?

Training applicants should be based on a master-student relationship. The supervisor ought to shape the counselor-to-be with the emphasis on the profession ethics and inculcate moral values in them. It doesn’t seem reasonable to carry out a training consisting in gathering a mass of people at lectures which are basically revision of what the trainee has heard at the university, with some extension encompassing judicial decisions. This way one can actually pass the knowledge pertaining to the subject matter, but it is not possible to hand over to the future counselor the values which should guide every lawyer performing a public trust profession. It seems worth remembering that skills can be harmful if a person of underdeveloped ethical values takes advantage of them.

Moreover, it’s worth mentioning that there are many solicitors in Poland. Talking about solicitors I also mean counselors because in fact these professions are identical. In total, it refers to 30,000 people out of 38 million citizens. In Germany there are more than 100,000 solicitors. But one should take into account the fact that the population of Germany is 82 million. It follows that the market saturation in Poland and in Germany does not differ that much. One doesn’t have to wait long for the results. Nowadays in Poland there are solicitors who cannot afford the corporation’s membership fee.

Should counselors’ (Licensed Legal Advisors ) and solicitors’ (Advocates)*  societies be combined?

Yes, they should connect, but on the other hand, if they do not, nothing bad will happen.

Thank you for  the interview.

Explanation:

  • In Poland there are two legal corporations: Legal Advisers and Advocates. De facto both corporations have the same rights and their members acts in the market as professional Attorneys. The only difference is that Legal Advisers have the privilege to work as employees under the provisions of Labor Code or enjoy a free profession (it is individual choice of each Legal Adviser) whereas Advocates do not have such a right (free profession only). From the other hand, Advocates are entitled to defend citizens accused of committing a crime on trial (under the Criminal Code) whereas Legal Advisors cannot practice criminal law (on trial civil cases only).

  • Both corporations are members of Council of Bars and Law Societies of Europe (CCBE) thus there is a strong pressure coming inter alia from EU authorities to join both organizations together into one body with the same rights.

Translation: Magdalena Jermacz

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About Tomasz Krzyzanowski

Lawyer, Trainee of Licensed Legal Adviser at Warsaw Chamber of Legal Advisers. Employee of Law Office in Warsaw.

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