The President's midday movement has shaken the legal environment and government policy. Nawrock announced that he refused to nominate 46 judges and for 5 years he would not advance those who, in his opinion, question the constitutional order. In the evening, a letter with a list of names arrived at the Ministry of Justice, but without a reasoned decision. The hotel announces an analysis of the paper and an assessment of the legal basis.
Waldemar Żurek. Photo: screen shot, KPRM
What precisely did the president announce?
Karol Nawrocki reported that he did not agree to the nomination of 46 judges and that In the next 5 years, he will not advance or appoint people who, he says, undermine constitutional powers the head of state and the applicable legal order. In his speech, he referred to Article 179 of the Constitution and the judgement of the Constitutional Court of 5 June 2012, which treat the appointment of a justice as a individual prerogative of the President, not requiring a countersignate of the Prime Minister. The announcement was confirmed by the President's Office, and political tensions were besides noted by global agencies.
Response of the Ministry of Justice and Government
On the same day, the Ministry of Justice reported that it received a letter from the President's Chancellery concerning the refusal to appoint 46 judges, but the paper does not contain a justification. The hotel announced its position after examining the registered list. In a government message, there is simply a thesis on the President's exceeding constitutional powers. Some constitutionalists stress that the discretion of the head of state is not absolute.
Waldemar Żurek: I can only applaud
The Minister of Justice explained the correct procedure: "The first phase is simply a competition before the legal KRS. erstwhile the competition is over, there is simply a resolution indicating those aspiring to the judge's position and she is indictable to the SN. And then there is an act of nomination presented by the President”. He added that "If fresh circumstances appear between the end of the competition in the KRS and the presentation of the nominations, the president may revoke the proposal to the KRS and then the Council shall proceed again".
Referring to possible refusal motives, Waldemar Żurek stated: "The statements of the President's Chancellery indicate, in my opinion, that there are non-essential grounds for specified refusal". However, he pointed out that "If these 46 people went through the 'neoKRS' and the president refused them due to the fact that it was a flawed National Judicial Council, then I can only applaud".
The Minister stressed the request for legal control: ‘This decision should be treated as an administrative act, subject to judicial review’. And he clarified the limits of the head of state's recognition: "The president in Poland does not have the power to say that Kowalski nominates and Nowaka does not – without justification. Anyone who applies for a public office must know on what legal basis he has been denied access to that office."
He besides indicated the possible direction of complaints: "After the President's refusal, in my opinion, the road to the European Court of Human Rights is the right path". Commenting on the decision-making style, he concluded with a sharp metaphor:“We do not know whether these individual refusals will be justified in any way, or simply the president will give us a list and say, ‘the ones I want, I do not want’. This is how the Sun King acted, and we are a republic that has a constitution.”
Legal Constitutional background of the dispute
Article 179 of the Constitution provides that judges are appointed by the president of the Republic of Poland at the request of the National Court Register. In its judgement of 2012 (Event No K 18/09), the TK considered the act a prerogative, i.e. a individual competence which does not require a countersignature and does not boil down to the automatic execution of the KRS application. The dispute so does not concern the existence of the prerogative itself, but its limits: whether and in what circumstances the president can refuse, as the refusal should be justified and whether specified refusal is subject to judicial review.
What We Know About the List and applicable Effects
According to government communications, the list includes individuals at various stages of the professional path, both candidates for the first nomination and promotion applications. On Wednesday, November 12, after afternoon hours, the ministry confirmed receipt of documents, reserving a deficiency of justification. If the interruption includes staffing in general courts, further delays in cases and an increase in arrears may result.
Limits of recognition: possible scenarios
Government narration suggests that refusal to appoint if it is treated as an act of public authority of an administrative nature or otherwise enforceable should be subject to judicial review and may subsequently lead to complaints to the European Court of Human Rights following the exhaustion of national resources. In turn, supporters of a broad explanation of the prerogative indicate that the President's decision is fundamentally recognised. So today's dispute is not just about a list of 46 names, but about a model of balance of power in the state of law.
That's another point of inflammation after the signals. blocking nominations by Nawrocki in another services and institutions. In the assessment of observers, this may translate into a multi-month legislative and systemic deadlock.
Source: PAP, Reuters, TVN24, ONET
