PiS leader Jarosław Kaczyński said outside the Constitutional Tribunal headquarters that President Karol Nawrocki “has every reason” to consider whether to swear in judges elected by the Sejm. He was responding to the opinion of the Venice Commission published on Tuesday.
What the Venice Commission said
The advisory body of the Council of Europe stated in its opinion that the president “should promptly accept the oath from judges elected by the Sejm and not claim the right to verify the election procedure”. As media quote the document, the fact that the oath is taken before the president “does not mean that the president has the power to examine the grounds for the election or the procedure leading to it”.
The commission stressed the ceremonial nature of the oath. It recommended that, where the president refuses to receive it or delays, judges be allowed to take the oath without his physical participation. According to prawo.pl, the oath is not a condition for the valid election of a judge.
Palace: opinion has no legal force
Presidential spokesman Rafał Leśkiewicz told PAP that the Venice Commission opinion “has no legal force whatsoever”. Opinions of this body are advisory and do not bind states.
Government representatives took a different view. Justice Minister Waldemar Żurek wrote on social media that the president has no right of veto over judges elected by the Sejm. Prime Minister Donald Tusk said that, in the event of a refusal, judges should take the oath without the president’s participation and notify him of this. Sejm Marshal Włodzimierz Czarzasty addressed Nawrocki in a recording: “Mr President. I am waiting. But I am impatient”.
Kaczyński: there is a precedent
On Tuesday, Kaczyński said before entering the Tribunal that the president has grounds for deliberation. He recalled the presidency of his brother Lech Kaczyński, who refused to accept the oath from a candidate nominated by Samoobrona, because in his assessment she did not meet the criteria. According to Kaczyński, this lasted four months, until an informal agreement was reached on swearing-in and her subsequent resignation. “There is a precedent, nobody protested then” he said, as reported by WP.
The PiS leader also attacked the ruling coalition. He spoke of a government “that does not respect the law” and said that “the will of power is law”.
Background to the dispute
The conflict has been going on since March, when the Sejm elected six Tribunal judges. The president swore in two of them, Magdalena Bentkowska and Dariusz Szostek. According to WP, the other four took the oath in the Sejm with the wording “before the president”, which the Tribunal authorities, including its president Bogdan Święczkowski, did not recognise, and they were not admitted to adjudicate. Since 4 September, Maciej Berek, elected at that time, has also been waiting to be sworn in.
What it means
The opinion does not change the current legal situation, so the Tribunal’s adjudicating panel is not changing for now. The resolution depends on the president’s decision or on possible amendments to the provisions on the oath. As of publication, the Presidential Palace had not announced that it would receive the oath from the waiting judges.
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