A decision by President of the Republic of Poland Karol Nawrocki refusing to appoint 46 candidates to judicial posts has been delivered to the Ministry of Justice. According to the ministry, no statement of reasons accompanied the decision, which – in the ministry’s view – raises serious doubts as to its compliance with constitutional principles and the transparency of the nomination process.
The Constitutional Model of Judicial Appointments
Under the Constitution of the Republic of Poland, the process of appointing judges is two-stage and requires the cooperation of two bodies:
- the National Council of the Judiciary, which announces the competition and recommends candidates,
- the President of the Republic, whose role is to grant the appointment.
The Ministry emphasises that the act of appointing a judge is a formal and ceremonial act, not a substantive one. Therefore – as the minister stresses – the President cannot assess candidates on the basis of their views, case-law activity or beliefs.
The lack of any reasoning for the refusal makes it impossible to determine whether the President’s decision falls within the constitutional limits of his powers.
A Decision Without Reasons and Its Consequences
Minister of Justice Waldemar Żurek points out that a refusal to appoint judges without explaining the grounds raises concerns about its legality and transparency:
“THE ACT OF APPOINTING A JUDGE BY THE PRESIDENT IS FORMAL AND CEREMONIAL IN NATURE. ANY ATTEMPT BY THE HEAD OF STATE TO INDEPENDENTLY ASSESS JUDGES WOULD BE AN USURPATION OF POWERS THE PRESIDENT DOES NOT POSSESS,” THE MINISTER STRESSED.
He added that statements made by representatives of the Presidential Chancellery suggest non-substantive motives behind the decision, which, in the ministry’s view, violates the constitutional principles of judicial independence (Article 173) and separation of powers (Article 10).
Background to the Decision: Letters of Protest from 2020–2021
Most of the 46 judges who were refused appointment signed open letters published in 2020 and 2021:
- a letter to the OSCE concerning the planned postal voting in the 2020 elections,
- a letter to the government calling for the implementation of CJEU judgments regarding the Disciplinary Chamber of the Supreme Court.
Judges serving as electoral commissioners at the time argued that the so-called “envelope elections” could breach the law, and the Disciplinary Chamber was regarded as incompatible with standards of judicial independence.
Commenting on this issue, Minister Żurek stated:
“THIS IS A LESSON FOR JUDGES: LET US DEFEND THE RULE OF LAW, BUT LET US BE CONSISTENT. THEY SHOULD NOT ENTER A PROCEDURE THAT IS ILLEGAL, BECAUSE OTHERWISE THEY BECOME HOSTAGES TO POLITICIANS.”
Unacceptable Non-Substantive Criteria
The minister stressed that refusing a judicial appointment on the basis of a candidate’s views, letters of protest or specific rulings does not fall within presidential powers and constitutes a breach of the Constitution:
“ALL INDICATIONS POINT TO NON-SUBSTANTIVE GROUNDS FOR THE REFUSAL. THIS VIOLATES THE CONSTITUTIONAL LEGAL ORDER.”
Żurek also warned against dangerous precedents:
“IMAGINE THE PRESIDENT REFUSES TO APPOINT JUDGES HANDLING SWISS-FRANC LOAN CASES SOLELY BECAUSE THEY APPLY CJEU RULINGS. SUCH A SITUATION WOULD BE COMPLETELY ABNORMAL AND UNACCEPTABLE.”
The ministry recalled that Polish consumers have repeatedly relied on protection stemming from EU law, and CJEU judgments have been crucial in combating unfair clauses in loan agreements.
Experts Speak Out: Constitutional Lawyers Against the Refusal
The President’s decision has drawn reactions from constitutional law scholars.
Prof. Andrzej Zoll – former President of the Constitutional Tribunal:
“THIS IS INDEED A PRESIDENTIAL PREROGATIVE, BUT ONE OF A FORMAL AND CEREMONIAL NATURE. THERE IS NO ROOM HERE FOR A FREE, SUBSTANTIVE ASSESSMENT OF CANDIDATES.”
Prof. Marcin Matczak – constitutional law expert:
A REFUSAL FOR THE REASONS INVOKED BY THE PRESIDENTIAL CHANCELLERY VIOLATES ARTICLE 10 OF THE CONSTITUTION (SEPARATION OF POWERS) AND ARTICLE 173 (JUDICIAL INDEPENDENCE).
Prof. Krystian Markiewicz – President of the Iustitia association of judges:
“THE PRESIDENT DOES NOT HAVE THE POWER TO ISSUE A NEGATIVE DECISION. THE CONSTITUTION DOES NOT GRANT HIM SUCH A COMPETENCE.”
The post Does the President’s refusal to appoint 46 judges without giving reasons violate the Constitution? first appeared on CEO Magazyn.
Source: https://ceo.com.pl/?p=333259
