Informally Developed Prerogatives as Effective Means of Strengthening the Powers of the President of the Republic of Poland

The aim of this paper is to present the practice of informal development of the constitutional catalogue of prerogatives of the President of the Republic of Poland and to show the extent to which this practice has contributed to strengthening the position of the President in the system of state organs. The prerogatives of the President of the Republic of Poland, which are official acts exempt from the requirement to obtain the countersignature of the Prime Minister, are listed in Article 144(3) of the 1997 Polish Constitution. The constitutional catalogue of prerogatives is formally closed, but in practice, it has been expanded informally by successive Presidents of the Republic. The problem particularly concerns the new competences granted to the President by the parliament; they are not formally included in the constitutional catalogue of prerogatives and therefore require the countersignature of the Prime Minister. Informally, however, successive Presidents of the Republic turn these competences into prerogatives to strengthen their position in relation to the government. Among the arguments raised by them are those concerning the concept of competences analogous to prerogatives and those concerning the concept of competences that are a consequence of prerogatives. In the past, the Polish Constitutional Court questioned the constitutionality of informal expansion of the catalogue of presidential prerogatives. This case concerned the appointment of the President of the National Radio and Television Council by the President of the Republic without first obtaining the countersignature of the Prime Minister. The Court held that this appointment as a new power granted to the President of the Republic was not a prerogative and therefore required the countersignature of the Prime Minister. At the same time, however, the Constitutional Court limited the consequences of its judgment, which was perceived by legal doctrine as quite controversial legal. Currently, an analogous problem concerns the new powers of the President of the Republic under the procedure for the appointment of judges to the Supreme Court. Although they were not included in the constitutional catalogue of prerogatives, the President of the Republic began to exercise them without the countersignature of the Prime Minister, considering it to be his prerogative. This now raises the question of the validity of the appointment of judges to the Supreme Court. Informal rules not only allow the President of the Republic to expand his catalogue of prerogatives, but also change the nature of the aforementioned prerogatives and the way they are applied. In particular, the current President has repeatedly stressed that prerogatives are official acts not subject to any control.