The method of selecting the NCJ in the context of its constitutional tasks

The provisions contained in the latest act on the National Council of the Judiciary from the very beginning have raised a discrepancy, as some milieus have considered them inconsistent with the Polish Constitution, while the rest believed that the interference of the legislator who determines the new procedure for electing the NCJ is actually within the limits of the ordinary legislator’s freedom of action.

Therefore, it is first of all necessary to confront the current state of affairs with the new legal regime for creating the NCJ. Before this happens, nonetheless, it is essential to carefully consider how the current Constitution of the Republic of Poland regulates this issue. The NCJ is the subject of two articles in Chapter VIII of the Constitution (Courts and Tribunals).

Nota bene, it is worth noting that the inclusion of the issues of the National Council of the Judiciary in the mentioned chapter, adding the chapter’s title itself, means that this unit regulates much more than its modest title could specify. After all, the National Council of the Judiciary is neither a court nor a tribunal, which means in turn that the title of Chapter VIII does not cover all institutions regulated in this part of the Constitution. The constitution-maker, however, assumed that the National Council of the Judiciary is competently connected with courts and tribunals. Consequently, the constitution-maker has decided to include its provisions in Chapter VIII. When formulating de lege fundamentali ferenda remarks, one should think either about a new title of Chapter VIII of the Constitution, or about a completely different systematic of those parts of the Constitution which relate to the broadly understood third power. What is more, Chapter VIII, apart from the National Council of the Judiciary, regulates also the issues of the system of courts and tribunals, including the Constitutional Tribunal, which ontologically does not fit into the classic notion of judicative, and which is often referred in the doctrine to as a separate authority, e. g. the power of control or the power of guarantee of the Constitution. It should not be forgotten either that for the progenitor of the European model of control of the constitutionality of law, e. g. for H. Kelsen, the constitutional court was the competent legislative authority, only that it operated on negative principles, by derogating norms inconsistent with the constitution. Consequently, while the positive legislator, e. g. the parliament, introduced new provisions to the legal order, the negative legislator, e. g. the constitutional court, eliminated provisions deemed inconsistent with the applicable legal order. It is worth mentioning here that the problem of the constitutional nature of the Constitutional Tribunal was heavily considered in Poland before even the Constitution was passed, while the final decision of the constitutional legislator to include the Constitutional Tribunal in the organs of the third power was not universally accepted. Critics of the applied legal solution pointed out that it has been clinging tightly to Montesquieu’s tripartite division, ignoring the fact that two hundred years after Montesquieu’s death the structure of the state organs has changed significantly, which means that many new organs appeared, which by no means could qualify for the legislature, the executive or judicative per se.

In fact, such a body is also the National Council of the Judiciary. Its constitutional position, next to courts and tribunals, was regulated, to a very general extent, in Chapter VIII of the Constitution of the Republic of Poland. What is more, its position in the Constitution was not universally accepted. It was pointed out that although the National Council of the Judiciary is indeed “closest” to courts and tribunals, its constitutional tasks are different, and the specific “philosophy” of the NCJ is indeed slightly special. Undeniably, this body is primarily to guarantee the independence of judges and the independence of courts, but it is also to be a platform for cooperation of all authorities with each other, which in the case of a body aimed at the third power is all the more important as the third power is to the least extent democratically legitimate. Therefore, it was believed that the network of ties between the legislative, executive and judiciary, which takes place in the National Council of the Judiciary, was the best guarantee of the democratization of the judiciary through its involvement in relations with other authorities, having the system of democratic elections behind them. Such an assumption was all the more important as the tasks of the NCJ were also related to the mechanism of appointing judges, which meant that democratism of the legislature and the executive was similarly “transferred” to the judiciary, which, inter alia, was democratically created as a result of the National Council of the Judiciary, although to a very indirect degree. Such perception of the specific constitutional philosophy of the NCJ resulted in the rejection of the view that the NCJ is a specific body of the judicial self-government. The National Council of the Judiciary was to be a body aimed at the third power, but also a sui generis body, as it would bring together all three divided powers. In this way, as it was thought, the postulate of cooperation between the authorities, expressed expressis verbis in the preamble, finds a fuller expression.

The constitutional regulations of the NCJ were included in two articles of the Constitution of the Republic of Poland. Art. 186(1) defines the key function of the National Council of the Judiciary, which is to guard the independence of courts and judges. Art. 186(2), however, being important from the point of view of the functions of the National Council of the Judiciary, presents the NCJ’s competence in the form of special application card to the Constitutional Tribunal. On such basis, the National Council of the Judiciary may submit a motion to the Constitutional Tribunal regarding the conformity with the Constitution of normative acts to the extent to which they relate to the independence of courts and judges. The second article devoted entirely to the NCJ in the Constitution is Art. 187. It regulates the elements of this body’s organization, including its number, composition and term of office. Pursuant to the provisions of Art. 187, the National Council of the Judiciary consists of: 1) the First President of the Supreme Court, the Minister of Justice, the President of the Supreme Administrative Court and a person appointed by the President of the Republic of Poland; 2) fifteen members elected from among judges of the Supreme Court, common courts, administrative courts and military courts; 3) four members elected by the Sejm from among deputies and two members elected by the Senate from among senators. In addition, based on the provisions of Art. 187, it was decided that: 1) the National Council of the Judiciary elects a chairman and two vice-chairmen from among its members, and that the term of office of selected members of the National Council of the Judiciary is four years. The regulation contained in Art. 187 ends with a legal delegation to issue an act developing the content of the constitutional provisions. On its basis, the structure, scope of activities and work of the National Council of the Judiciary, as well as the method of selecting its members are specified.

The Constitution (Art. 187) expressly specifies the composition of the NCJ deciding that it consists of: 1) the First President of the Supreme Court, the Minister of Justice, the President of the Supreme Administrative Court and a person appointed by the President of the Republic; 2) fifteen members elected from among judges of the Supreme Court, common courts, administrative courts and military courts; 3) four members elected by the Sejm from among deputies and two members elected by the Senate from among senators. The Constitution, specifying the composition of the National Council of the Judiciary also stipulates that “The system, scope of activities and work of the National Council of the Judiciary, as well as the method of electing its members shall be determined by the law” (Art. 187 (4)). Thus, the statutory changes introduced in 2017 implemented the constitutional delegation contained in Art. 187(4). The legal basis for legislative action is therefore clear and cannot raise any doubts. Unsurprisingly, the introduced changes could not announce persons to the composition of the National Council of the Judiciary who were not provided for by the constitutional regulation. The catalogue of entities making up this constitutional organ was precisely indicated, and it was not the ordinary legislator’s will to change it in any way. The legislator operating at the level of an ordinary act decided at the same time that it is the act in which the method of selecting members of the NCJ should be defined. Clearly, this method could not conflict with the method indicated in the Constitution, in any cases in which such a method was explicitly specified in the Constitution. It should be recalled here that Art. 187 defines precisely the method of electing parliamentary members of the NCJ. After all, the Constitution stipulates that four members are elected by the Sejm from among deputies, and two members are elected by the Senate from among senators. In addition, the Constitution of the Republic of Poland provides expressis verbis for the participation in the NCJ of the First President of the Supreme Court, the Minister of Justice, the President of the Supreme Administrative Court and a person appointed by the President of the Republic of Poland. As a result, within these three groups of the composition of the National Council of the Judiciary, only one of them did not have an election mechanism. At the same time, the constitutional legislator decided that the method of electing members of the NCJ is determined by the law (Art. 197 (4)). The above statutory delegation should, logically speaking, be referred to the category of those members of the NCJ, whose election methods were not specified in the constitutional provisions. In this way, the choice of the second group of members of the NCJ (judges) was left to the will of the ordinary legislator. This determination, however, is not entirely arbitrary. After all, the constitutional legislator explicitly provided for this group to include fifteen members selected from among judges of the Supreme Court, common courts, administrative courts and military courts. This means that the absolute condition must be here the respect that in this particular group there are only members of the National Council of the Judiciary; a) judges; b) belonging to the indicated courts, i.e. the Supreme Court, common courts, administrative courts and military courts.

Therefore, the mechanisms for electing members of the body introduced by the new act on the National Council of the Judiciary cannot be considered as violating the constitutional standards. Those mechanisms fall within the scope of the freedom of action of the ordinary legislator who, when shaping the content of statutory provisions, had to take into account the electoral mechanisms directly regulated at the constitutional level. As a result, the margin of appreciation applied only to the judges of the NCJ. The legislator decided, significantly changing the provisions in this regard, that the judge panel of the National Council of the Judiciary will not – unlike before – be elected by the judges of individual courts (Supreme Court, common, administrative and military courts), but only by the Sejm, from among candidates presented by judges (one candidate may be reported by a group of 25 judges) of these courts, containing the names of the judges of these courts. In addition, in order to meet the postulate of democratization of the judiciary, an important novelty was the introduction of the solution that a “judge” candidate for a member of the National Council of the Judiciary may also be suggested by a group of two thousand citizens of the Republic of Poland, who are eighteen years of age, have full legal capacity and enjoy full public rights. Of course, it applies only to a judge and only a judge belonging to the courts indicated in the Constitution who may be a candidate to the National Council of the Judiciary.

As a consequence, the change of the judiciary part of the NCJ seems so far that 15 judges have been chosen by judges of individual courts themselves, while under the new provisions, candidates for members of the NCJ are proposed by judges in the number of 25 or by citizens (in the number of 2 thousand), with the assumption that only judges can become these candidates. The legislator considered this solution admissible within the framework of the statutory delegation granted to the legislator by the Constitution to determine the procedure for electing members of the National Council of the Judiciary. In this way, the method of electing the judiciary part of the NCJ was changed, but at the same time all the constitutional conditions were met. The latter conditions indicate that: a) 15 judges were to be elected; b) only judges may be members; c) these judges must represent certain courts or types of courts. The adopted solution was argued as follows: a) the National Council of the Judiciary is not a self-governing body of judges, therefore there are no grounds for recognizing that judges must be elected only by judges; b) the constitutional requirements were fully respected, so that judges from the indicated courts would be judges of the NCJ; c) the established mechanism of selecting judges (i.e. from among candidates proposed by the judges themselves) better corresponds to the constitutional assumption of the National Council of the Judiciary, according to which the NCJ is to express the idea of ​​cooperation between various authorities in order to better and more effectively ensure its basic role, i.e. to guard independence of courts and judges (compare Art. 186 (1)); granting citizens the right to nominate candidates (who can be solely judges) significantly democratizes the NCJ and the entire judiciary (whose organ is the NCJ). It is worth noting that the National Court of the Judiciary Act explicitly assumes that the president of the court of the competent court from which the proposed candidate comes from, presents an opinion on the candidate to the Sejm by presenting his or her profile in writing, as well as their accomplishments. The lack of such opinion makes the candidacy ineffective, which proves that the courts have “authority” over all “judge” candidacies.

It should be understood from this legal status that the hypothesis that the present NCJ, in terms of its “court” or “judicial” members, is no how elected contrary to the Polish Constitution. In this regard, the Constitution clearly decided that the method of selecting this part of the NCJ is left to the discretion of the ordinary legislator. Moreover, the delegation to issue the act, in so far as it refers to the statutory determination of the method of electing the members of the National Council of the Judiciary, contained in Art. 187 (4), can be applied in practice only to “judge” members of the NCJ. The remaining members of the National Court of the Judiciary are its members either ex officio (e. g. the Minister of Justice, the President of the Supreme Administrative Court) or are elected on the basis of other provisions. The latter applies to deputies and senators whose procedure of election to the National Council of the Judiciary is determined by the regulations of both chambers, respecting the principle of parliamentary autonomy. As a consequence, the delegation to statutory determination of the method of electing members of the NCJ may only apply to a group of 15 judges. Moreover, it should be clearly noted that, pursuant to the amended provisions, solely judges may be candidates to the NCJ members, while candidates may only be suggested and presented by judges (or citizens), which does comply with the provisions of the Polish Constitution. The role of the Sejm is therefore limited to the possibility of not selecting a proposed candidate without any possibility of imposing own candidate.

However, attention should be paid here to another problem which is important when assessing the constitutionality of the new method of electing the NCJ. As long as the introduced solution per se does not actually violate the norm of Art. 187 (1) Point 2, it may raise doubts from the point of view of the apolitical nature of judges, as long as we treat it more broadly as a general principle of separating the third power from the influence of political parties (while not only the prohibition of judges from belonging to a political party). After all, it may be debatable whether the adopted mechanism of creating the personal substrate of the NCJ is not formed by chance in such a way that the system of political forces in parliamentary chambers plays too much of a role in it. While so far, according to the old regulations, among all 25 members of the National Council of the Judiciary having a strictly political lineage, only six of them had a parliamentary lineage (4 deputies elected by the Sejm and 2 senators elected by the Senate), instead now, this parliamentary lineage is possessed by as many as 21 members of the NCJ (4 deputies, 2 senators and 15 judges elected by the Sejm). Taking into account the above, it can be stated that the new National Council of the Judiciary Act does not infringe, in a purely technical sense, the method of appointing the judges of the National Council of the Judiciary (after all, the legislator has been expressly delegated to define “the method of electing members of the National Council of the Judiciary”). It may, however, violate the Constitution at the point in which it formulates the imperative of apoliticality of judges, which should be understood – generally – as independence from the influence of any political factors, especially any political parties. It is certainly problematic to consider the election of the main composition of the NCJ – the body having a decisive influence on the system of promoting judges – as a choice immunized from the influence of political factors. After all, the parliament is by definition a political body, being a kind of condominium of political parties.

It corresponds to the fact that the newly adopted method of creating the composition of the National Council of the Judiciary may, at least indirectly, violate the principle of apoliticality and independence. Such probability, nevertheless, results not from the fact that the Constitution prevents the Sejm from electing judges – members of the NCJ, but from the fact that the position of the Sejm is dominant in the entire mechanism of selecting the composition of the NCJ, which ultimately selects 19 out of all 25 members. This means that there is a political influence (the influence of the parliamentary political parties) on the NCJ, and then, indirectly, on judges themselves, in whose appointment system the NCJ does play a fundamental role. As a consequence, it should be stated that the system of selecting judge members of the National Council of the Judiciary created in the 2017 Act does not infringe the Constitution per se or “technically”. Yet, if it is viewed in the context of the constitutional principles defining the position of the third power (including apoliticality), there must be doubts as to whether the election mechanism assuming in practice the dominant participation of the Sejm, shall not violate any constitutional provision or even the constitutional philosophy. 

However, the philosophy of the NCJ cannot be correlated solely with the third power. This is all the more so because the role and constitutional tasks of the NCJ go a bit further. The comparative analysis clearly shows that bodies similar to the Polish National Council of the Judiciary exist in many other countries and in the vast majority of them they are in fact aimed at the mechanism of judicial promotions and at ensuring institutional “dialogue” of the third power with the others. As a result, those councils are sui generis bodies, combining the features of a corporate (local government) body with the features of a body ensuring cooperation of the divided powers, which under the conditions of separation of powers is a natural and necessary thing at the same time. Comparative experience shows, however, that a body similar to the Polish National Council of the Judiciary may also not exist at all. In the European Union, there is no equivalent of the Polish NCJ in such countries as Austria, Finland, Germany, Luxembourg or the Czech Republic. In these countries, judicial promotions are decided by the presidencies of the courts that have vacancies, while the judicial appointments are finally approved by the minister of justice. In these cases, therefore, we cannot speak of an absolute and full autonomy of the third power as regards the mechanism of judicial promotions. Autonomy cannot be ensured, at least sometimes, in those cases where councils – in an analogous or only similar shape – exist. Malta is a good example here. There is the so-called Judicial Appointment Committee. Its role is to provide opinions on candidates for judges. Nevertheless, it is two other authorities that actually decide on the filling of judicial vacancies. The judges are appointed by the president (treated peculiarly as an element of the legislative power under the King in Parliament principle), as recommended by the prime minister (i. e. the head of the executive).

However, judicial councils exist in countries such as France, Spain, Italy, Belgium, Portugal, Bulgaria and Slovenia. In Spain, for example, there is the Central Council of the Judiciary. According to Art. 122 (2) of the Spanish Constitution, it is the “governing body of the judiciary”. The Council consists of twenty members appointed by the king for five years and the President of the Supreme Court as chairman. The twelve members of the General Council of the Judiciary are appointed from among judges of all categories (detailed rules are laid down in an organic law). Four members are appointed at the request of the Congress of Deputies and four at the request of the Senate. Each chamber elects the members of the General Council of the Judiciary by a three-fifths majority of the full chamber. The selection is made from among lawyers and other lawyers who have the appropriate competences and more than five years of practice in their profession. What is more, the Italian Supreme Council of the Judiciary includes groups of members representing all three powers, with a clear dominance by representatives of the judiciary. Currently, after numerous amendments, the Council consists of 16 judges and prosecutors elected from among its members (two judges or public prosecutors of the Court of Cassation, four public prosecutors performing functions in deciding on the merits of the cases examined, ten judges performing functions within common courts in the field of deciding on the merits of cases) and 8 judges elected by the parliament from among university professors of law and lawyers who have been practicing for at least fifteen years. The President of the Council is, by law, the President of the Republic, but in practice this function is very rare, as the Council’s work is managed on a daily basis by the Presidency Committee composed of the vice-chairman of the Supreme Council of the Judiciary and two members. In turn, the Bulgarian Supreme Council of the Judiciary consists of 25 members. Its ex officio members are: the President of the Supreme Court of Cassation, the President of the Supreme Administrative Court and the Public Prosecutor General. Lawyers with high professional and moral qualifications, with at least fifteen years of legal experience, are elected members of the Council who are not ex officio members. The eleven members of the Council are elected by the National Assembly by a majority of two-thirds of the deputies, and eleven are elected by the judiciary. The National Assembly elects 11 members of the Council by a majority of two-thirds of the deputies, including six to the Judges’ College and five to the Prosecutor’s College. The selection is made from among candidates who are judges, prosecutors, investigators, habilitated Doctor of Legal Sciences, barristers or other lawyers with high professional and ethical qualifications, in accordance with their professional qualifications and specialization. The strictly corporate composition is the French Supreme Judicial Council. It is a body that safeguards the independence of judges, and at the same time is a disciplinary court for judges. Art. 65 of the French Constitution indicates that this body consists of two sections – one is created from the Judges’ College and the other refers to a group of prosecutors. The section competent for judges is chaired by the First President of the Court of Cassation. It is also composed of: five judges, one prosecutor, one state counsellor appointed by the Council of State, one lawyer, six prominent personalities not belonging to the prosecutor’s office and judiciary, or to the administration. The President of the Republic, the President of the National Assembly and the President of the Senate appoint two personalities each. Nominations made by the chairmen of both parliamentary chambers are subject to opinion of the relevant standing committees and the respective chamber. The section competent for prosecutors is chaired by the Prosecutor General at the Court of Cassation. Moreover, it is composed of five prosecutors, one judge, a state counsel, a lawyer and six personalities, distinguished personalities who do not belong to the prosecutor’s office and the judiciary, or to the administration. From this group, the President of the Republic, the President of the National Assembly and the President of the Senate appoint six personalities each. The division into judges and prosecutors is also appropriate for the Belgian solutions. The Supreme Council of Justice of Belgium consists of a Dutch-speaking College and a French-speaking College, which are based on the principle of parity. They are composed of judges and prosecutors elected by their milieus, as well as members appointed by the Senate with a 2/3 majority of votes. Each College within its organizational structure has the nomination and appointment committee for this purpose, as well as the opinion-giving and investigative committee. The number of all members of the Council is 44. Among them, there is an equal division into 22 members who come from the judiciary and prosecutor’s community, selected from among judges and prosecutors. Thus, the number of members coming from the judges and prosecutors and the others is therefore equal. Each of the language Colleges must consist of at least one judge and one prosecutor. There are 11 judges and 11 non-judges in each of two Colleges of the Council. The composition is completed by another 22 people appointed by the Senate from outside the judiciary and prosecution community. Each language College consists of at least four members of each gender and: a) at least four lawyers who have been members of the bar for at least 10 years; b) three professors working at a university, academy or higher college with at least 10 years of professional experience; c) four persons with a university degree or its equivalent, with at least 10 years of professional experience, particularly in legal, administrative, economic or scientific fields. Among all members, there are two directors, 17 university staff (including four translators) and 25 support staff. To submit a candidacy within the mentioned group, it must be shown that the person has not been a judge for at least five years prior to the application. There is also the Judicial Council in the Netherlands. Currently, the Council consists of four members (it is worth pointing out that the Constitution creates a range here, as it determines the composition of the Council at the level of three to five members), who are appointed by a royal decree on the order of the minister of justice. Two of them work as judges, the other two work in other professions. Judges who are members of the Council are part of the justiciary. They are judges responsible for administering the judiciary, as well as judges from the Central Court of Appeal for the Civil Service and Social Security Affairs or the Administrative Court for Trade and Industry. The other two members occupy other senior positions in the central government of the Netherlands. They are mainly court officials who are responsible for the administration of justiciary. They may not combine the functions of a minister, a secretary of state, a deputy chairman or its member. The following persons may not become members of the Council for the Judiciary: the chairman or member of the Court of Auditors, the national ombudsman or the deputy, as well as a civilian employee working in the Ministry of Justice or related institutions or agencies under this authority. The incompatibilities also apply to the President and Vice President of the Supreme Court. There is also a judicial council in Slovenia. Here the Council consists of 11 members. Five are elected by parliament on the proposal of the President from among university professors of law, barristers or other types of lawyers, and six are elected by judges themselves who are constantly practicing. Membership in the Council is considered to be an honorary function performed in a non-professional manner. Members of the Council are elected for a six years term, immediately after which they may not be re-elected. Every three years, two or three members of the Council are elected by the National Assembly, and three members of the Council are elected from among the active judges themselves. In the case of a person who became a member of the Council in the supplementary elections, his or her office expires at the end of the term of the office for which the member of the Council was elected. There is a High Council of the Judiciary in the Portuguese system too. It consists of a chairman, a vice-chairman and 15 members. Two members are appointed by the President of the Republic, seven members are elected by the Assembly of the Republic. The next six ones are chosen by judges. Members are elected by secret election in accordance with the principle of proportional representation (all judges have the right to elect). Supervision over the correctness of any electoral acts and the final settlement of voting is vested in the Election Commission, chaired by the President of the Supreme Court of Justice. Members of the High Council of the Judiciary elected by judges exercise their mandate for three years, with the possibility of re-election. Council members who are not judges are subject to the guarantee system used by members of the Council who are judges.

As what can be understood by that, the bodies of the judicial council type do not form one universal, permanent and repeatable scheme. They may not even exist at all. However, where they do exist, their shape depends on the constitutional tasks assigned to them. As a result, those councils are sometimes bodies with a decidedly court (judicial) profile, other times their judicial composition is depreciated by involving other entities (e. g. heads of state, parliaments) in the appointment process. The intensity of one or the other element depends mainly on what tasks are performed by the council, or on what tasks are dominative in the entire constitutional functions they perform. At the same time, it is pointed out that the optimal solution is a specific balance of the council election mechanism. It seems to be the best to try to balance the influence of judges and non-judges, especially in all those cases where boards are not seen as purely corporate bodies. In the diverse range of solutions applicable around the world, nevertheless, it points out that the common denominator is providing the council with a professional profile. This means that knowledge and professionalism (the requirement of legal education) are more important than holding or not holding the office of a judge. It is also pointed out that in many cases (Bulgaria, Portugal, France, Spain, the Netherlands) parliament is among the bodies involved in the process of electing members of the judicial council. Its participation in the election of the council is to grant democratic legitimacy to the council and, through the council, also to the entire judiciary. Regardless of the scope of the constitutional tasks, it is emphasized that a very important function of the election mechanism applicable in the case of a judicial council type body is to reduce the distance of democratic legitimacy that separates the first two powers from the third. Therefore, these councils are not only to uphold all the principles and values that are invariably associated with the constitutional status of the judiciary (apoliticality, independence, separateness), but also to introduce an element of democracy to the meritocratic system which dominates (and should dominate) in the courts.