Polish President Karol Nawrocki has refused to sign 46 judicial promotions in cases where the individuals concerned questioned the validity of other judges appointed during the lifetime of the last Conservative (PiS) government.
According to the Constitution, the National Council for the Judiciary (KRS) recommends judicial appointments to the President but he has the power of discretion on whether to approve those appointments.
Nawrocki, as was the case with his predecessor Andrzej Duda, is aligned with PiS and is an opponent of the present centre-left government led by Prime Minister Donald Tusk.
During the time of the last PiS government, the composition of the KRS changed after legislation was passed to have it elected by parliament rather than by senior judges.
That reform was challenged by the then-Liberal opposition and by European Union institutions such as the European Commission and the European Court of Justice (ECJ).
As a result, the 3,000 judicial appointments made between 2018 and 2023 have been challenged by Tusk’s government. A number of judges have used ECJ rulings to claim that some of their colleagues do not have the right to adjudicate cases.
The present government is attempting to resolve the issue with a proposal to change the way the KRS is elected. In addition, it wants legislation that would either confirm or demote those appointed during the time of the last PiS government.
Since all those appointments were confirmed by the former president, though, Nawrocki believes they are valid. He says it is those who are questioning their validity who are in breach of the Constitution.
Justifying his decision not to approve the promotions approved by the KRS, he said he was doing so to show that “the questioning of the status of judges by their colleagues will not be tolerated” and that he is using his discretion in refusing to sign the nominations.
“I will not grant nominations or promotions to those judges who question the constitutional and legal order of the republic, who listen to the malicious whispers of the justice minister, Waldemar Żurek, who encourages judges to question the constitutional and legal order of Poland,” Nawrocki said.
“Over the next five years [the remainder of Nawrocki’s term], no judge who questions the constitutional powers of the President, the Polish Constitution [or] the Polish legal system can expect either a promotion or a nomination,” added the President, noting that he had made such a promise when taking office in August.
Nawrocki said that the fact some judges question the status of others harms “our citizens, ordinary people, who cannot receive a fair court judgment that complies with Polish law.”
He pointed to the overturning of convictions against two murderers and a man who raped an underage girl because they had been issued by “neo-judges”, that is judges appointed by Duda on recommendation of the KRS.
Regarding the President’s decision, his chief of staff, Zbigniew Bogucki said the rejected nominees had been involved in “quasi-political or outright political activities”, including “questioning laws passed by parliament and signed by the President”.
Bogucki added that Nawrocki’s decision was related to the promotion of judges to higher positions. He said, though, they will continue to adjudicate in their current positions.
The government’s spokesman Adam Szłapka condemned the President’s decision as a “usurpation of power and attempt to undermine the justice system”. He said Nawrocki was “deepening the chaos inflicted on us by PiS”.
Justice minister Waldemar Zurek claimed that the President’s decision may be unconstitutional.
“The Constitution clearly states that the president does not decide who is a judge, but rather certifies the nomination,” Żurek told reporters.
The constitutional court, though, in 2012, when there was no dispute over the membership of that court, ruled that a president does have the right to reject recommendations made with regard to judicial appointments.
Nawrocki has intimated that he will not budge and will reject the government’s legislative proposals for dealing with the rule of law crisis in Poland. Tusk does not have the three-fifths parliamentary majority required to overcome the President’s objections.
The PM is setting up a constitutional council of his own to propose changes that will include provisions on the work of the judiciary.
In an interview on November 11 with broadcaster wPolsce24, the President said that, if he and the government are unable to reach an agreement on how to resolve the rule-of-law crisis, he would submit a motion for a national referendum to be held on the issue.
Since such a motion requires approval by the Tusk majority-controlled second chamber of parliament, the Senate, that is also unlikely to happen. The gridlock seems certain to stay until the parliamentary elections due in the autumn of 2027.
Nawrocki, given his high approval ratings, is not under any real pressure to agree to a compromise and the ruling coalition, given the support it has from the European Commission. The improving poll ratings for Tusk’s party means it is in the same boat.
