First of all, the only body that can decide on constitutionality in Poland is the Constitutional Chamber.
This Chamber in its judgement of April 20, 2020 ruled out that the resolution of the Supreme Court is inconsistent with the Constitution of the Republic of Poland.
Simultaneously, it has been clearly stated that the dismissal of a judge from adjudication contained in a resolution is unknown to the legal system, as it undermines the appointment of a judge by the President of the Republic of Poland.
The Ministry of Justice, since the Supreme Court passed a resolution of January 23 this year questioning the status of judges, had no doubt that this resolution was invalid by law. It was issued in flagrant violation of applicable provisions, including Article 179, Article 180 paragraph 1 and Article 10 of the Polish Constitution.
These provisions clearly stipulate that judges are appointed by the President of the Republic of Poland, upon a motion of the National Council of the Judiciary, for an indefinite period. Judges are irremovable, and the system of the Republic of Poland is based on the division and balance of legislative authority, executive authority and judicial authority.
Therefore, no court may examine, let alone question, judge nominations. The same applies to laws governing the status of judges and the manner in which candidates are selected. Therefore, the Supreme Court cannot encroach on the competence of the National Council of the Judiciary, the President of the Republic of Poland or the Sejm.
The prerogative of the President is not subject to any control. All the more it cannot be the subject of limitation or any narrowing of interpretation made in the content of the basic normative act. On June 2, 2020, the Constitutional Chamber indicated in its ruling that judges are appointed by the President as a result of the implementation of his prerogative.
This prerogative, which stems from its essence, denotes that such appointment requires neither any prior decision or approval by another authority, nor any follow-up control.
The constitutional legislator did not foresee a procedure that would allow judicial appointments to be examined. The only guarantee that the President will not appoint a person who does not meet the conditions for such appointment to the position of judge is the National Council of the Judiciary, which submits a request to him in this matter.