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THE NATURE OF THE POWER OF THE PRESIDENT OF THE REPUBLIC OF POLAND: THE REMARKS ON THE POWER TO MAKE APPOINTMENT OF JUDGES

100%
Ciapala J.
Przegląd Sejmowy
|
2008
|
issue 4(87)
31-45
EN
This article deals with the powers of the President of the Republic of Poland taking into account their varied nature. The author offers three criteria of qualification and description of individual powers of the head of state. They include the references to the instrument of countersignature, to the functions and tasks of the President of the republic; to the position of certain state authorities in the system of government, including the context of the separation of powers principle. An analysis based on these criteria should lead to the conclusion whether the President of the Republic is under obligation to use a given power, or such power is exercised discretionally. Particular attention was paid to the power to make appointment of judges on recommendation of the National Council of the Judiciary. In 2007-2008 the President of the Republic altered the practice, which existed since 1989, not to contest the recommendations. The refusal to appoint few candidates for the office of judge gave rise to revealing a 'competence dispute' between the National Council of the Judiciary and the President of the Republic. The fundamental question is whether in the light of the principles and other norms of the constitution, the President of the Republic may refuse to appoint judges thereby shaping his/her competence in a manner typical of the position defined by political power? The author formulates a hypothesis that the President of the Republic may not refuse to appoint judges. In support of it, he offers relevant interpretation of a group of provisions of Poland's Constitution. He also points out that language interpretation is not sufficient for justification of that hypothesis. Presidential powers should be interpreted within the context of fundamental principles of a parliamentary-cabinet system and other constitutional principles. The article also contains critical remarks concerning the way in which some provisions of the existing constitution were formulated.
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POWERS OF THE HEAD OF STATE TO MAKE APPOINTMENTS TO STATE OFFICES (JUDGES IN PARTICULAR) IN THE SECOND REPUBLIC OF POLAND

100%
Witkowski Z., Naworski Z.
Przegląd Sejmowy
|
2008
|
issue 4(87)
EN
During the entire inter-war period (1918-1939) in Poland the influence of the President of the Republic on the composition of ordinary courts was minimal. Under the rule of the March (1921) Constitution wide appointing powers of the President of the Republic, including appointments to other positions and subject to subjective and objective limitations (by the government and by laws) resulted in the transfer of effective authority in this field to the Prime Minister and Minister of Justice while the role of the President was limited to that of putting signature almost automatically. These conclusions (with the exception of the position of the First President of the Supreme Court) are also true of consecutive years, i.e. the period in which the April (1935) Constitution was in force, because under its rule the Act of 1928 on the System of Ordinary Courts continued in force. This formal legal position of the President of the Republic was confirmed by political practice. During the entire period, despite changes of the position of the head of state in the system of government, persons holding this office transferred the power to shape personal composition of the administration of justice to the appropriate minister. Even the Temporary Head of the State and the President of the Republic, who exercised the wide scope of authority and exerted real influence, as specified by the April Constitution, in fact showed limited interest in administration of justice, leaving this sphere within the scope of authority of the government and, practically, the Minister of Justice. The limited role of the head of state in relation to appointment powers was also a consequence of, firstly, the complicated legal situation and, secondly, high turnover in the judicial branch which, in practice, prevented reasonable policies aimed, in perspective, at stabilization and arrangement of situation in administration of justice in Poland.
3
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POWERS OF THE PRESIDENT OF THE REPUBLIC OF POLAND TO APPOINT JUDGES

100%
Sulkowski J.
Przegląd Sejmowy
|
2008
|
issue 4(87)
47-66
EN
In January 2008, for the first time under the rule of 1997 Constitution, the President of the Republic refused to appoint nine candidates for judges nominated by the National Council of the Judiciary. Five of them were candidates for the position of judge in regional courts and four for the position of judge in district courts. This situation revealed imperfection of Polish regulation of the process of appointment of judges. The analysis of the procedure for appointment of judges shows that it is mostly influenced by the judicial community. Diminishing influence of the executive branch on the consecutive stages of the procedure is also apparent. Substantive assessment of candidates is carried out by the National Council of the Judiciary, therefore the role of the President of the Republic in appointing judges is marginal. He may refuse to appoint a judge, but this should be treated as an absolute exception President's. Due to the decision-making rights of the President he functions in the exercise of some of powers as an organ of public administration. As a consequence, however, since the President goes beyond the sphere in which he embodies the majesty of the state and operates as an organ of public administration, there must be control of such actions. It seems that the only remedy to this problem is to undertake legislative work. Amendment of the Constitution may be suggested, so that Article 179 provides not about appointment of judges but rather about giving judicial nominations. But if we assume that, under the check and balance principle, the President of the Republic has to have real influence on the appointment procedure, a system of protection of candidates for judges should be established.
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