Appointment of the Constitutional Court Justice: Some Issues

Martin Belov (ed.), The Role of Courts in Contemporary Legal Orders, The Hague, Eleven International Publishing, 2019, 2019

Iustum Auquum Salutare nr 1, 2017

By adopting the Act of 25 June 2015 with Article 137 in the nal months of its term, theseventh Sejm sought legal grounds allowing the PO–PSL coalition to ll all places atthe Tribunal that were vacated in 2015. According to the derogated legal state, the PO– PSL coalition could ll no position vacated at the CT in 2015 sooner than mid-October.President Komorowski endorsed the legislative manipulation described here by his refusal to leave the decision to call parliamentary elections to a new President. By thatdecision he wanted to provide a convenient time frame for the PO–PSL coalition to make a grab for the Tribunal. The Constitutional Tribunal became involved in that process which sought to installat least three candidates from the nominees selected by PO for the Tribunal. The Tribunal took that action despite the fact that the Sejm found the October election to belegally invalid. Contrary to the judgment of 3 December 2015, attempts are being madeto make public opinion and the world of politics believe that the Tribunal upheld thelegality of the judicial election in October 2015; to that end, resort is made to selected arguments in the statements of reasons. In the scrutiny procedure launched by a group of Sejm deputies the Constitutional Tribunal is a court of law, not a court of facts. The Tribunal has no powers to review the process of selecting the judges by the Sejm. During the proceedings in which it passed the judgment case no. K 34/15, it could only rule on the constitutionality of a general and abstract legal norm

Revista de Drept Constituțional

This study brings together the decision component into the constitutional jurisdiction (constitutional judge) and the one supporting the decision-making process (assistant-magistrate/referendary/legal assistant/adviser etc. of the constitutional judge). The analysis regarding the appointment/entry requirements into the profession, the duties and the status of the constitutional judge and respectively of the assistant-magistrate, aims at emphasizing, in particular, the complementary roles of the two analysed offices and their importance for the exercise of the constitutional justice.

Bond Law Review

This comment emphasises the importance of the mechanisms for appointment of judges in maintaining judicial independence and public confidence in the judiciary. It argues that the power of appointment of judges should not be vested exclusively in the executive government. The paper examines the basic nature of the principal mechanisms for appointment of judges operating in different countries of the world. Particularly, it analyses the main strengths and weaknesses of the elective system of judicial selection and the system of appointing judges through parliamentary approval, consultation with the judiciary and legal profession and an independent commission. It concludes that the appointment of judges by using an independent commission may be considered an acceptable and effective mechanism for judicial appointments.

Paper presented at the First Italian-Hungarian Comparative Law Workshop held in at the Hungarian Academy of Sciences in Budapest, 2013

""This paper discusses the different models of appointment applied for constitutional judges in Europe, taking into consideration also the appointment procedure of the two European regional courts. It offers an account and a comparative analysis of the three appointment models: the split, the collaborative and the parliamentary model, discussing their practical application and shortcomings. In particular, the paper deals with the question of how to avoid standstills in the different appointment procedures and with the publicity of these procedures. The author concludes with a proposal for the Hungarian Constitutional Court, arguing that the split model is the one that ensures better that the composition of the Court expresses a balance between the branches of government.""

2017

Acta Juridica Hungarica, 2013

This paper discusses the different models of appointment applied for constitutional judges in Europe, taking into consideration also the appointment procedure of the two European regional courts. It offers an account and a comparative analysis of the three appointment models: the split, the collaborative and the parliamentary model, discussing their practical application and shortcomings. In particular, the paper deals with the question of how to avoid standstills in the different appointment procedures and with the publicity of these procedures. The author concludes with a proposal for the Hungarian Constitutional Court, arguing that the split model is the one that ensures better that the composition of the Court expresses a balance between the branches of government.

Cognizance Journal of Multidisciplinary Studies (CJMS), 2024

Among the most important factors that influence the freedom and independence of the judiciary is the method of recruiting and appointing judges and the methods appointing have been determined for them, and these methods are very different, but the understanding of these differences and the discovery of necessary reforms are very helpful in solving judicial corruption, which in the Islamic judicial system, qualified judges are usually appointed by the Caliph and sometimes appointed by the Caliph's representative. Also, in exceptional cases, they can be appointed by the senior judge, dominated person (rebellious Amir) and the infidel ruler, and their dismissal is also related to the Caliph, and the reason behind this is to preserve the independence of the judiciary and be free from any kind of pressure, coercion and illegitimate requests in their work and affairs, but in the in those law-system countries which are influenced by the common law, judges are usually appointed from among experienced lawyers. The position of a judge is considered a kind of reward because appointed person has done the job of a lawyer in the courts for a long time and has gained experience that is why they have this authority. But in Romano-Germanic law system, the judges are appointed from among the university students. The purpose of this applied and comparative study and writing is the selection and appointment of judges according to the Islamic jurisprudence, the system of selection and appointment of judges in the United States representing the Common Law, and the selection of judges in France representing the Romano-Germanic. This study and research use the bibliographic and descriptive method, where the freely appointment of judges by judicial in the law system of America and the method of appointment are the important discussions. In the federal system of the United States, according to the federal constitution, each state has special laws that accept and determine the general organization of forces and the conditions and methods of selecting judges based on their political and philosophical views. The judicial organization of one state will be different from the judicial organization of another state. Unlike the United States of America, judges in France are selected from among the students of high schools (universities). The difference is that the judges of the general courts are national Judiciary School students and judges of administrative courts are mainly selected and recruited from among senior expert students and also from general law students who have studied in the National Administrative school, and after theoretical and theoretical lessons, they complete their work-study stage in the French State Council, which then divides their employment with a large institution (Dewan of Accounts), which is led by the National Administrative Seminary. People with high marks in the exam are recruited to the French Council of State, who will then continue to work as judges in the courts.

Collection of Papers "Challenges to the Legal System", 2021

The purpose of this work is to explore two methods of election of judges: election by the parliament and by the judicial council. The author compares these methods of election of judges using few principles which have to be fulfilled: legitimacy, accountability, and independence of judges, as well as merit criterion. The author examines advantages and weaknesses of both methods. His hypothesis is that the judiciary is one of branches of state power, and that therefore the judges have to be legitimate and accountable since they have to be in a way responsible to the people who are the bearer of the sovereign power. This could be achieved only through direct or indirect election of judges. Since the author rejects direct election of judges, he finds out that the only way to achieve judges' legitimacy is through their election by parliament. This method of election has one main weakness, namely very strong possibility that the parliament would elect judges according to political rather than professional (merit) criterion. This is the reason why the author thinks that there should not be parliament's monopoly in the process of election since the judges have to be elected on the proposal of the judicial council among candidates who have to pass special exam.

European Constitutional Law Review, 2020

Relations between the judiciary and the elected authorities (i.e. the legislative and the executive) in each country and at all times are among the most sensitive from the point of view of statehood. The present paper undertakes a problem of the constitutional backsliding in Poland in and after 2015. It briefly summarises the problem of the independence of judges and courts from the perspective of both the Polish Constitution and international law and questions the argument that state sovereignty enables the political majority to impose unlimited change on the judicial system. The decline of constitutional review shows the disintegration of the discursive community of law in a country once treated as a model of the successful democratic transfromation. Polish judges found themselves in a hopeless position between the need of the constitutional obedience and the rising political pression. The strategy of the Polish government, quite different from the Hungarian one, highlights the need for a debate about the sources of legitimising the judiciary. Not in every country and under every political circumstance that the form of judges’ participation in public discourse can be limited to only typical judicial activities. The democratic crisis in Poland reveals a dramatic need for judges as educators and members of society to be active also outside the courtroom. Otherwise, it might not be possible to bolster the level of social confidence in the judiciary, and thus to strengthen its legitimacy, which has never been high and has been further reduced in recent years, mostly as a result of the progressing global socio-political crisis, which manifests itself in Poland and other Eastern European countries in a return to authoritarianism. A well-expressed but firm opposition to limitations placed on the constitutional competences of the judiciary by political authorities – the latter claiming to have the necessary democratic mandate – is not a form of political activity that is prohibited for judges, but is rather one of the legitimate instruments of participation in the debate. Even more than that, it is a manifestation of the judges’ implementation of their mandate towards the nation, which has constituted the judiciary as one of the authorities by which to express its will.