The problem of losing constitutional identity by the National Council of the Judiciary

Abstract

Draft acts regulating the status of judges appointed at the request of the National Council of the Judiciary (hereinafter: NCJ) after 17 January 2018 assume that the NCJ lost its constitutional identity. Meanwhile, reflection on the issue of the loss of constitutional identity by the body is of a fragmentary nature in the case law of courts and tribunals, as well as in the science of constitutional law. No criteria have been developed to determine when this loss occurs. The example of the NCJ shows that it is difficult to find such criteria even in strictly defined numerical requirements resulting from the Constitution, and even more so in the assessment of the degree of violations of the Constitution in the manner of regulating the organization or functioning of this body. This last criterion raises serious doubts related to the fact that the inconsistency of the provision of art. 9a of the Act on the NCJ with the Constitution has not been established by a judgment of the Constitutional Tribunal. Therefore, the NCJ – despite the defective formation of its judicial part – remains a constitutional body.