“In the presence of” does not have to mean “in the presence of”. Confusion surrounding the swearing in of judges of the Constitutional Tribunal

Persons elected as judges of the Constitutional Tribunal may take the oath before the president, but without his presence – said prof. for PAP. Andrzej Rychard, referring to the content of the Act on the status of judges of the Constitutional Tribunal. According to the sociologist, in the procedure of appointing Constitutional Tribunal judges, the president plays only a ceremonial role.

Two newly elected judges of the Constitutional Tribunal – Dariusz Szostek and Magdalena Bentkowska – were invited to the Presidential Palace on Wednesday.

Szostek confirmed to PAP that he had received an invitation to the Presidential Palace. He added that, according to his knowledge, such an invitation was also received by attorney Bentkowska. Referring to the issue of invitations addressed to two of the six selected judges of the Constitutional Tribunal, he noted that “it is not the role of a judge to evaluate the president's decisions.”

The president, in accordance with the constitution, is obliged to swear in all duly elected judges of the Constitutional Tribunal – added Szostek.

The president's role at the Constitutional Tribunal is “purely ceremonial”

Director of the Institute of Philosophy and Sociology of the Polish Academy of Sciences, prof. Andrzej Rychard, asked by PAP for a comment on this matter, emphasized that according to the constitution, Constitutional Tribunal judges are elected by the Sejm, and in accordance with the Act on the status of Constitutional Tribunal judges, the person elected to the position of a judge of the Tribunal takes an oath before the president. – According to various lawyers, “in front of” does not have to mean “in the presence of” – he assessed.

According to the sociologist, the president plays no role in this legal construction. – There is no such thing as taking an oath, accepting it or not. Judges take an oath, and the president's role is purely ceremonial. Of course, it would be better for it to be ceremonial, but if it is not done, the judges may take the oath before the president, but without his presence, he said.

– If the president wanted to divide the judges in order to, perhaps, somehow impede the functioning of the ruling coalition, it does not change much, because they are all, in fact, already judges of the Constitutional Tribunal when they take the oath. Only failure to take the oath would mean that they would not be judges of the Constitutional Tribunal – he explained.

An attempt to divide the ruling coalition?

In the expert's opinion, President Karol Nawrocki, by deciding to invite two Constitutional Tribunal judges to the Presidential Palace, “no longer exposes his accusation of an illegal election.” – He invited two of the six, and they were selected in the same way as the others – he noted.

– Maybe these four will also receive an invitation from the president, which would complete the ceremonial nature of the procedure, but even not inviting these four legally does not change the procedure, because it is not a two-way communication – added Prof. Richard.

When asked whether the decision to invite Constitutional Tribunal judges recommended by PSL and Polska 2050 to the Presidential Palace could also be an element of a political game, he said that “it would not be a very high-level game.” – I also accept this interpretationthat there is some political desire to differentiate the ruling coalition, but it would not be consistent with the seriousness of the whole situation, although I cannot rule it out – said the sociologist.

Gameplay in the Presidential Palace

The Sejm elected six judges of the Constitutional Tribunal on March 13. The following people were elected as judges of the Constitutional Tribunal: Krystian Markiewicz, judge, previously chairman of the codification committee of the system of the judiciary and prosecutor's office at the Ministry of Justice; Krystian Markiewicz; Ph.D. legal sciences, prof. at the Institute of Legal Sciences of the Polish Academy of Sciences Maciej Taborowski; Ph.D. legal sciences, prof. at the Department of Civil Procedure at the Faculty of Law and Administration of the University of Warsaw, Marcin Dziurda (all three recommended by KO); judge, previously president of the District Court in Opole, Anna Korwin-Piotrowska (recommended by the Left); Ph.D. prof. Dariusz Szostek of the University of Silesia (recommended by Polska 2050), as well as lawyer Dr. Magdalena Bentkowska (recommended by PSL).

The head of the president's office, Zbigniew Bogucki, asked the Speaker of the Sejm, Włodzimierz Czarzasty, to provide the president with explanations regarding the selection of judges. He assessed, among other things, that the simultaneous election of six judges of the Tribunal was contrary not only to the Constitution of the Republic of Poland, but also to the practice of the Sejm. Similar doubts were raised by Law and Justice MPs in their application to the Constitutional Tribunal, in which they challenged the provisions relating to the procedure for electing Constitutional Tribunal judges by the Sejm. However, the Court adjourned the hearing without a date. He also decided to ask President Nawrocki to take a written position on this matter.

andr/ rbk/ mhr/