A few words about the TK scandal…

Automatically translated from the Polish original.

Ale… why??? What happened today in the Constitutional Tribunal… This is a shot in the knee, a counterproductive action….

….taking a tough stance on shaky legal grounds might have worked with a State Treasury company, i.e. TVP, but not with the Constitutional Tribunal!

Article 130 of the Act on the Structure of Common Courts (p.u.s.p.), which was cited as the basis for removing Święczkowski, states:

§ 1 - a break in a judge’s duties may be ordered by the court president or the Minister of Justice; § 2 - if the judge is the court president, the competence “belongs to the Minister of Justice”.

Korwin-Piotrowska signed the orders against both Święczkowskiego and Sochańskiego, because, based on the Constitutional Tribunal regulations, she considered herself the acting President of the Constitutional Tribunal, and Żurek submitted the motions to lift their immunity.

But if we were to make a simple analogy (which, unfortunately, is constitutionally quite stretched) where:

judge -> Constitutional Tribunal judge court -> Constitutional Tribunal court president -> President of the Constitutional Tribunal

it would turn out that the order should have been signed not by Korwin-Piotrowska, but by Żurek!

The problem is that the p.u.s.p. regulations do not apply directly to the Constitutional Tribunal! The Act on the Status of Constitutional Tribunal Judges states that in matters not regulated by the disciplinary procedure, the p.u.s.p. regulations are applied “accordingly”.

And “accordingly” can mean:

1. we apply the regulation without changes;
2. we apply it with changes resulting from the specificity of the Constitutional Tribunal;
3. we do not apply the regulation at all, because it does not fit constitutionally or structurally.

And here lies the main problem.

If they say:

“§2 is applied accordingly and the President of the Constitutional Tribunal = court president”, then the order is invalid because it lacks authorization - Żurek should have issued it.

If, on the other hand, they say:

“no, Article 130 cannot be applied to the Constitutional Tribunal, because it gives powers to the Minister, and the Minister does not exercise supervision over the Tribunal” - OK, this is much more convincing constitutionally, but then where did Korwin-Piotrowska get the authority to suspend the President of the Constitutional Tribunal? Are we applying it accordingly or not?

I know they will say that this fragment with the Minister does not apply, because it does not fit constitutionally, but the rest is applied accordingly, which is why Korwin-Piotrowska… who is acting as President, because the Presidents are suspended, and suspended by her decision as… acting President….This is a chicken-and-egg problem at its best. The chronology is flawed. This cannot be defended!

This is a (non-)legal construct tailored to the needs of the situation, rather than a solid legal basis for action against a key organ of the state.

Why is this counterproductive? Because half of the people will still contest the Tribunal’s rulings and legitimacy, and the other half…

It’s sad. Because it really had to be done (depoliticize the TK), but it really could have been done differently.