On Thursday, April 9 this year. The oath ceremony of new judges of the Constitutional Tribunal, elected by the Sejm on March 13, took place in the Column Hall of the Sejm. The ceremony sparked another dispute between the authorities and politicians of the ruling coalition and the opposition.
According to prof. Marcin Wiącek, ombudsman for civil rights, the dispute should be resolved as soon as possible by a ruling of a common court. He tells Business Insider what should be the primary value.
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Ombudsman: This dispute must be resolved as soon as possible
According to the Commissioner for Human Rights, the correctness of the procedure used will be assessed by common courts. How is this possible?
According to the Ombudsman, there are several paths to choose from. For example, a complaint for inaction, an action to determine the status of a judge, an action to be allowed to adjudicate.
— These are legal remedies that can be used primarily by a judge of the Constitutional Tribunalbut also – in some cases – the prosecutor. The court will then assess the legal status of selected Constitutional Tribunal judges and the legal effect of the oath taken in the form in which it was taken today, says Prof. Marcin Wiącek.
In his opinion It would be best for the good of the state if such a court ruling was issued as soon as possible. The idea is to end the dispute regarding the legal consequences of today's events.
— If the court found that the oath was effective and judges should be allowed to adjudicate, then in a democratic state of law such a ruling should cut across the dispute and be respected. In my opinion, this type of court ruling is very likely, because in the light of the Constitution, the President of the Republic of Poland has no competence to block the ability of a duly elected judge of the Constitutional Tribunal to hold office – emphasizes Prof. Marcin Wiącek.
The law cannot block a Constitutional Tribunal judge
– Undoubtedly from March 13 this year we are dealing with six judges of the Constitutional Tribunalwhile in accordance with the Constitutional Tribunal Act, taking an oath is an obligation for judges, enabling them to proceed to adjudication. What is important is that within accordance with art. 195 section 1 of the Constitution, in the exercise of his office, a Constitutional Tribunal judge is subject only to the Constitution, and not to the “Constitution and laws”just like other judges (Article 178(1) of the Constitution) – says prof. Marcin Wiącek.
According to the Ombudsman, an ordinary statute and the procedures provided for therein cannot result in blocking a judge's ability to hold officewho was elected by the Sejm. – Therefore, the provisions of the Constitutional Tribunal Act should be interpreted in such a way as to find a solution to this situation – a solution that will enable the implementation of the principle of the supremacy of the Constitution – says Prof. Wiątek.
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The government is happy, the president disagrees
According to the constitution, the Sejm elects judges of the Constitutional Tribunal. In turn, in accordance with the Act on the status of judges of the Constitutional Tribunal, judges take an oath before the president. President Karol Nawrocki took the oath on April 1 this year. only from two judges and did not appear at the Sejm ceremony on Thursday.
That's why judges took the oath in the presence of a notary, used the phrase “toward the president” and addressed him. From the Sejm, they went to the Chancellery of the President (the building is located right next to the Sejm), where they took written oaths to the president, confirmed by a notary.
This solution is supported by some constitutionalists and the October 15 Coalition, including the Speaker of the Sejm Włodzimierz Czarzasty, Minister of Justice Waldemar Żurek and Minister Maciej Berek.
The oath taken in the Sejm is criticized by PiS and the Presidential Palace. Already in the morning, Zbigniew Bogucki, head of the Chancellery of the President, stated on behalf of Karol Nawrocki that choosing an alternative way of taking the oath means refusing to take it and resigning from the position.
As a result, although Bogdan Święczkowski, the president of the Constitutional Tribunal, allowed all six judges into the Tribunal's building, he did not recognize four.
In turn, in the afternoon on Thursday, Bogucki announced that the presidential palace does not recognize the Sejm oath and will submit an application to the Constitutional Tribunal to resolve the competence dispute.
