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.
Financed by the National Centre for Research and Development under grant No. SP/I/1/77065/10 by the strategic scientific research and experimental development program:
SYNAT - “Interdisciplinary System for Interactive Scientific and Scientific-Technical Information”.