Now that Parliament has decided to elect two members of the Constitutional Court in violation of the Constitution, and another member was elected by default, the question is whether President Ilir Meta will actually swear in the three new members of the highest court of the country, according to Constitution art. 129. There is good argument to make that he shouldn’t, as the election procedure was arguably unconstitutional.
During the TV program “Real Story,” Chair of the Legal Affairs Committee Ulsi Manja declared that the oath was merely “ceremonial” and not relevant to the exercise of duty of the new members of the Constitutional Court:
I think that the beginning of the mandate is linked with the moment of election by the Assembly as regards the two members […]. The oath is a ceremonial, solemn element, but cannot block the functioning of a constitutional organ. […] If two members are not called by the President to make the oath, they should go to the Constitutional Court to take office. […]
The issue of the oath is the same like when you decide to marry and you go to the mayor to celebrate, but he doesn’t do. Will the couple then separate?
Manja’s analogue of marriage is non-sensical. Indeed when the mayor doesn’t swear in the couple, they will not separate, but neither will they be married before the law. Much better would be to look at actually existing jurisprudence on the value of the oath.
The Constitutional Court itself has issued a ruling in relation to the function of oath taking in 2016, with regard to another “constitutional organ,” namely Parliament.
In the verdict, the Constitutional Court states in §18:
Related to the beginning of the mandate of the deputy, the Court has deemed that the juridical consequences of the mandate begin at the moment the candidate is announced deputy by the Central Election Commission. From this moment he is obligated to fulfill all constitutional and legal requirements […]. The moment of the oath of the deputy marks the beginning of the exercise of his duty and not the beginning of the mandate.
Like a deputy, a member of the Constitutional Court starts their mandate at the moment of election, and like a deputy, the beginning of the exercise of their duty is the moment they take the oath. Different from what Manja claims, taking the oath is not merely ceremonial, but essential.
It is true that the Constitutional Court has three new members, but none of them are allowed to be involved in any decision making or other processes until they have taken the oath before the President. The jurisprudence of the Constitutional Court is clear on this point.