Before 30 October, the Constitutional Tribunal was a failed institution

Is it elegant to heal the Constitutional Court?

Nope. It is done in the way of present – possible.

You believe that the efforts of the empire's own rationis will be of no usage today. due to the fact that the authorities utilized up or fell down. It is so essential to mention to the figure of the ‘final interpreter’. The explanation of who has the power to decide as the eventual will persist.

Rules are interpreted in 2 ways. First, it is done by 1 who has the right or at least claims to have it (ration of empires). His explanation is of a dominant character, due to the fact that behind it is the apparatus of state power. However, this explanation is subject to the evaluation – here the second order – of people who have no power but have knowledge, competence and authority. They can thus show mistakes in the reasoning of the eventual interpreter. And they may request correction or offer their own, better interpretation. But they only offer.

Public opinion is frequently incorrect about these 2 orders. He assumes that the prof. of law, judging on tv a circumstantial solution as contrary to the constitution, prejudges its incompatibility. There is no specified place. The prof. of law has no power to regulation on non-compliance with the basic law. The best he can do is convince, and that's the end of his options.

It would be good if both interpretations went hand in hand. However, this is not always the case, but it creates a dispute that cannot be resolved. For this reason, I always study that I am talking about what I think can be derived from the rules.

Does the General Assembly of Judges of the Constitutional Tribunal have the power to interpret the law?

In the current situation, yes.

Why?

The Constitutional Tribunal before 30 October was a failed institution. Not only did they not function, but even erstwhile they took action, they were negatively assessed by global tribunals, inter alia, in the judgement of the European Court of Human Rights of 7 May 2021 (Xero Flor v Poland) or in the judgement of the EU Court of Justice in Case C-448/23. For this fallen institution the Sejm elected judges. I have no uncertainty that they were chosen correctly. Then the president, against the law, refused to take their vows. So they put them together in a replacement form. Did they do it legally? That is what the Venice Commission says, with which I agree. However, the president behaved contrary to the requirements of the law, seeing here the instrument of emphasising his advantage as an actor of the public-political scene.

Then president Święczkowski denied them the right to judge. The judges took matters into their own hands and led to its suspension.

The judges had 2 options. Either they could do nothing, which means tolerate the president's excesses and the violation of the law by the president of Święczkowski, or they could act. They chose the another option. The explanation doubts concern whether they have achieved the required quorum to form the General Assembly of the Constitutional Tribunal judges. In my opinion, they have. Why? The provision refers not to the number, but to the fraction of the 2/3 "general number" of the judges of the Constitutional Tribunal. "General" and "statutory" (so 15) may, but request not be identical. What if there were vacancyes? In judgement K 47/15, the Court itself, in its undisputed composition, held that the full composition of the judges meant: judges entitled to attend the assembly in a given situation and not all judges.

Let us translate these considerations into current realities in the TK. Jarosław Wyrembak, a alleged doubler, is surely not entitled to attend the convention. According to the judgement of the ECHR, its participation in the ruling would deprive the Court of the characteristics of the court. However, there is inactive a problem of 2/3 of 14. For the purposes of our conversation, I now enter the shoes of the black character, seeking the anticipation of further lowering the quorum. At least 2 more people would should be free of them. So I'm inactive looking for a villain, an excuse. I find it in Article 130 of the Universal Courts Act (PrUSP.).

Was there any excuse in that recipe?

In my opinion, it was absolutely possible. And not as an excuse. The persistent failure to call on the General Assembly, as Mr Świętczkowski did, preventing both the adoption of a budgetary resolution and the failure to regulation decently elected judges, led to permanent obstruction of the tribunal. In Article 130 of the PrUSP, I read that "if, in view of the nature of the action carried out by the judge, the seriousness of the court or the essential interests of the service require immediate dismissal from the performance of his duties", then an immediate interruption may be ordered until the disciplinary court has passed its resolution, no longer than 1 month.

In my explanation of this provision – and not as an excuse, but as a means of legitimacy is simply a certain limit – this provision must be implemented in its entirety. This, in turn, means that the decision to interrupt the proceedings must be handed over to the disciplinary court within 3 days to measure the correctness of the order within a month. The application of the interruption must be combined with a judicial review mechanism. Others go on: they believe that this provision does not apply to TK judges, but to judges in general courts. However, it has late been applied to a justice of the ultimate Court, and to judges of the Constitutional Court the rules on SN judges apply accordingly. The Helsinki Foundation for Human Rights, Prof. Ryszard Piotrowski or Prof. Marcin Matczak, stands against any application of Article 130 of the PRUSP. Their explanation limits are set elsewhere before mine.

So 8 judges are a quorum?

In my opinion, yes, due to the fact that 12 judges present are entitled to participate. Of course, there are allegations that this standard has been artificially developed. I agree that this is not an elegant play, but I think it is within the limits of legitimate interpretation. Especially since the charges against the president are not lifted off the finger.

You are in favour of extending tolerance to an explanation acceptable, but not desired. In another words, the end justifies the means?

To a certain, proportional level of weighing of respective values it is always so. The problem is that it will not be desired but simply tolerated. However, I think it is worth it to enable the tribunal to act. It is apparent that TK has been taken hostage in the political struggle. A lawyer may, therefore, only indicate possible legal channels to mitigate this unlawful dispute.

Is the game worth a candle?

Honestly, I don't know. I'm afraid of the consequences of this full thing. I hope, however, that the judges will act vigorously and build their authority on it. I have a akin experience of my own. Let me remind you that I was elected as the first ombudsman in 1987. You can say all about this choice, but surely not that it was elegant. An unknown female was taken closer to anyone, hoping that I would visit the planet for public money and not bother anyone. I tried very hard not to, and happiness favored me and the office. And they said, "What a spokesperson she was erstwhile she was allowed to be chosen by commies." The authority comes with time. And its construction depends not only on the individual’s individual efforts.

How are judges expected to build their authority present erstwhile the president accuses them of a coup and calls usurpers?

The judges are in a very hard situation. They must act against the large adversities of political forces. After all, for good reason, both sides of the political dispute profit from this diminishing authority of the Court. They have worse than I had: TK sentences are very hard to translate into language direct benefits for the citizen. It will be a long time before we as a nation can measure whether the court game was worth a candle.

Stanislaw Piotrowicz was a disciplinary spokesperson in the case of Bogdan Święczkowski. Is this a chance for him or a trap?

Mr. Petrovich has a choice. He may presume the function of disciplinary officer and then legitimise the actions of the judges in question. He can do nothing either. Then the deadline will be 1 period and Mr. Święczkowski automatically returns to the president of the Court. The hazard is huge.

Can't the General Assembly appoint another justice alternatively of Piotrowicz's non-executive action?

Maybe, but not until Mr. Petrovich declares he's not on the case. If he stays silent long enough, the assembly will have no area for manoeuvre.

The success of the full case hangs on Petrovich?

To any extent, yes. If the hold on Mr. Piotrowicz's side leads to the expiry of the monthly deadline without considering the order of interruption, then president Święczkowski returns. With him at least part of the old order. Besides, something may happen again – it's like a chess game – it's hard to foretell individual movements.

Then you'll gotta reset the tribunal?

Reset as specified is simply a mark and desired solution. After all, it was anticipated by a bill passed by the current parliament and at the request of president Duda deemed unconstitutional by the fallen Court. I'm very sorry this happened. I do not agree with Prime Minister Tuski, who is comparing the reset proposal to sharing the contents of a robbed old lady's purse. Is that what the Prime Minister said erstwhile she was sent to the Sejm? Only that – here I am in opposition to those who see reset now as a real alternate to what is happening in the TK today. It takes a constitutional minute to reset.

Maybe this is the moment. It is time to change the constitution, terminate the word of office of all the judges of the Constitutional Tribunal and introduce a procedure for their selection by a two-thirds majority. Then the charges of the deficiency of apoliticalness of judges will be dropped.

In the current situation, a revision of the Constitution would be an excuse to intensify the conflict. And ruining more institutions.

But what will we do after the Court, which half of Poland will not accept, listening to the President's words about usurpers?

Most likely the president will inactive say that. We can't change that, due to the fact that we have a strong expansion to another authorities. However, the Court has a chance of healing if it starts working again. This is more likely to happen by applying an explanation which I consider acceptable, though not desirable, than by a reset which deludes as desirable on the far horizon. But now this script is surely not feasible.