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Monday, February 26, 2024

Budget Act 2024 in the Constitutional Tribunal. What does successor mode mean?

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President Andrzej Duda signed the budget law, but announced that it would be referred to the Constitutional Tribunal for post-control. According to the Prime Minister, it is “irrelevant”. Is it really? Experts explain what successive mode is and what are the possible scenarios.

The parliament finished work on the budget act for 2024 on January 24. On the same day, the Speaker of the Sejm, Szymon Hołownia, announced that submitted this bill to the president. On Wednesday, January 31, Andrzej Duda declared that he had signed the budget act for 2024, but at the same time he decided to referring it and two other laws signed that day under the procedure of post-control to the Constitutional Tribunal.

In the announcement Chancellery of the President of the Republic of Poland explains that this happened “with due to doubts related to the correctness of the procedure for adopting the above-mentioned laws, i.e. the inability of MPs Mariusz Kamiński and Maciej Wąsik to participate in the work of the Sejm on these laws. These are PiS politicians who were legally convicted on December 20, 2023, and pardoned on January 23, 2024 by the president. As a result of the final conviction they lost their parliamentary seats, but the president does not agree with it. The office’s announcement about the signing of three laws by Andrzej Duda and their submission to the Constitutional Tribunal stated: “Similar actions will be taken by the President of the Republic of Poland each time Members of Parliament are prevented from performing their mandate resulting from general elections.”

The laws on which Andrzej Duda decided on January 31 are:

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  • Budget Act for 2024 of January 18, 2024
  • Act of January 16, 2024 on special solutions for the implementation of the Budget Act for 2024.
  • Act of January 16, 2024 amending the Act – Provisions introducing the Act – Law on Higher Education and Science and the Act – Law on Higher Education and Science.

The Prime Minister commented on the president’s decision Donald Tusk. “The budget has been signed and that’s what it was about. The rest doesn’t matter. The money will go to the people, nothing will stop it,” wrote on the website X. Andrzej Domański, Minister of Finance, in an interview with tvn24.pl he said: “The most important thing is that the budget is signed.”

Politicians commented on the president’s move hotly. KO MP Kamila Gasiuk-Pihowicz mocked in the post on platform X that “the Przyłębska Tribunal will soon rule whether it is summer or winter.” “The budget has been signed. There will be raises for teachers, double indexation of pensions, the Active Mom program and many good changes. Understudies will not block it,” she wrote (original spelling of posts). Senator Krzysztof Kwiatkowski he reminded the events of 2016, when “PiS MPs barricaded themselves in the Column Hall and voted on the budget with 236 people” and “over 200 opposition MPs were prevented from voting.” “Then you did not send the budget to the Constitutional Tribunal, now you are demanding that two MPs cannot participate. It’s a mockery,” he summed up.

Despite information from the president’s office about “doubts related to the correctness of the procedure for adopting laws,” Andrzej Duda said in a statement the next day (February 1) that “the government will be able to implement the obligations it has undertaken, the obligations it has included in the budget act.” “I am glad that there will be such an opportunity,” he emphasized.

So what is the future of the budget act and two others that were subsequently brought to the Constitutional Tribunal? Is it really, as Prime Minister Tusk wrote, “the rest [jest] “irrelevant”? Possible scenarios are presented by experts whom Konkret24 asked for consultation.

Subsequent procedure: the application is considered by five judges, there is no set deadline

The procedure for adopting the budget act – also in the event of sending it to the Constitutional Tribunal – is described in the Constitution of the Republic of Poland. According to its provisions, when the Marshal of the Sejm presents the adopted bill for signature to the president, the president may: sign the bill; veto it; decide not to sign it and refer it to the Constitutional Tribunal (preventive control pursuant to Article 122(3) of the Constitution); sign the act and refer it to the Constitutional Tribunal (post-control under Article 191(1) of the Constitution).

However, as far as In the preventive mode, the full bench of the Constitutional Tribunal (at least 11 out of 15 judges) deals with the act, then the application in the post-control mode is considered only by a five-judge panel.

It is worth noting that the president’s request to examine the compliance of an act with the constitution – regardless of whether it was submitted before or after the signing of the act – may concern selected provisions of a given act, and not the entire act. In the case of the president’s decision of January 31, this did not happen.

Advocate Dr. Monika Haczkowska from the Polish Society of Constitutional Law notes in an opinion for Konkret24 that in the case of preventive control, the Constitutional Tribunal has two months to issue a ruling, but in the case of subsequent control it is not bound by this deadline. The expert reminds that before the Constitutional Tribunal issues a judgment, there is a presumption of the constitutionality of a law. He explains that the Constitutional Tribunal usually examines whether the procedure has been violated and whether there is material compliance with the constitution. He emphasizes that in the case of the president’s latest request, we do not know what issue Andrzej Duda requested to be examined.

Doctor Mateusz Radajewski from the Department of Law at SWPS University writes in an analysis for Konkret24: “If the President questioned only the procedural aspects of the adoption of the budget act, the Constitutional Tribunal can only state that the entire budget act is consistent or inconsistent with the Constitution.” And further: “If the Constitutional Tribunal agreed with the President’s doubts, it would mean declaring the entire budget act unconstitutional.”

Unconstitutionality of the Budget Act: what then? Government project, Act on the provisional budget

However, as Dr. Radajewski writes: “never in history has the entire budget act been declared unconstitutional, especially after it was signed, and therefore while it was in force.” Then what? “Such a decision would normally require the preparation of a new bill and its adoption by the Parliament,” he replies.

Doctor Monika Haczkowska reminds: – So far, if the tribunal found the act unconstitutional due to failure to follow the procedure, it was not due to the incomplete composition of the Sejm. And there were such situations: in the event of a person’s death or nomination for another office. We have had many such situations. The Tribunal ruled on procedural incompatibility, for example, when it turned out that the Senate had introduced amendments but went beyond the scope of its competences or that certain amendments could not be introduced in the third reading. It was this type of thing and there weren’t many of them.

But she also admits that it may happen that the Constitutional Tribunal will rule that the act is entirely unconstitutional due to procedural irregularities. It may also declare partial inconsistency of an act with the constitution – when it refers to substantive, not procedural, grounds.

When asked about the scenario after the Constitutional Tribunal declares the entire budget law unconstitutional, she replies: – The government is preparing a new law, but not a budget law, but an act on a provisional bill for a few months or half a year. The procedure is exactly the same: three readings take place in the Sejm, then it is sent to senators for approval and then to the president. The dates are the same, nothing else can happen here. If the Constitutional Tribunal issues a ruling on the unconstitutionality of an act, in this case the budget act, then the act ceases to be valid and is ‘thrown’ from the legal system.

The expert points to the relevant provision of the Constitution of the Republic of Poland:

(…) 3. In exceptional cases, state revenues and expenses for a period of less than one year may be determined by the Act on the provisional budget. The provisions relating to the draft budget act shall apply mutatis mutandis to the draft act on the provisional budget. 4. If the Budget Act or the Act on the provisional budget have not entered into force on the commencement date of the financial year, the Council of Ministers shall conduct financial management on the basis of the submitted draft Act.

Constitutional scholar Dr. Kamil Stępniak expects the Constitutional Tribunal to issue a ruling on the constitutionality or unconstitutionality of the entire act. The president appealed against the procedure for processing acts, including the budget act, because he is of the opinion that people who are members of parliament did not participate in the adoption of the budget. – However, such a ruling would be an aberration from the constitutional point of view – says Dr. Stępniak. – The Constitution provides for a quorum to pass specific laws. A disputed issue between two people cannot influence this, he argues.

He believes that if the tribunal decides that the budget act is unconstitutional, an unprecedented situation will occur. – The doctrine assumes that for a period shorter than one year it should be an act on provisional relief – admits Dr. Stępniak. But according to him, despite the possible need to adopt new regulations, the government’s hands will not be tied. – We will have a transitional situation and the government will work on the draft budget in the meantime – he explains.

However, Dr. Radajewski explains that if the Constitutional Tribunal decides that the entire act is inconsistent with the Constitution, it cannot impose a deadline on the government for preparing a new draft act and having it adopted by the Parliament. “However, since the adoption of the budget act is an obligation, it should be assumed that an effective declaration of the unconstitutionality of the budget would mean the need to immediately start work on a new act. It is worth noting that if the only basis for declaring such unconstitutionality were procedural defects at the parliamentary stage, the government could immediately report this the same budget draft as before,” he explains. “If the Constitutional Tribunal effectively found that the budget was adopted in an unconstitutional manner, it would be assumed that this act was never in force,” writes Dr. Radajewski. – “Many years ago, in the jurisprudence of the Constitutional Tribunal, the thesis was formulated that a violation of the procedure for adopting acts results in the fact that the act was not actually passed. Until the budget act is passed again, the principle of Article 219(4) of the Constitution and conduct financial management on the basis of the government’s draft budget.

The problem of the current composition of the Constitutional Tribunal

“Currently, the situation may be complicated by doubts as to the status of the Constitutional Tribunal’s ruling in this case, which may not be recognized by some state authorities. If the President maintains the practice of referring each act to the Constitutional Tribunal, the Tribunal will declare them unconstitutional and the state authorities will question the judgments in these cases, legal chaos may occur on an even greater scale than before,” warns Dr. Radajewski in his analysis for us.

Dr. Stępniak also points out that a lot may depend on the composition of the tribunal. – If there are doubles, it will be as if you or I put on a judge’s robe and adjudicated on the budget – he says in an interview with Konkret24. – Due to the above, it is possible that the government will not recognize such a decision – he adds.

However, Dr. Haczkowska believes: “Despite many doubts about the constitutional identity of the current Tribunal, the government cannot ignore the fact that such a ruling was issued by the Tribunal.” In her opinion, the Council of Ministers may act on the basis of the draft budget act due to the need to maintain continuity. “This is a special situation. We usually say that an act is valid and has the force of a generally applicable act only when it passes the entire legislative process. The Budget Act is the only case in which the creators of the constitution introduced such protection,” he emphasizes.

How often have presidents used the succession mode?

It was not the first time that Andrzej Duda submitted a subsequent application to the Constitutional Tribunal to examine the compliance of the act with the constitution. According to data on the website dziennik.pl, he has done so 12 times so far. Previous presidents also used this legal path. According to information on the president’s archived website, during one term of office, President Bronisław Komorowski referred bills to the Constitutional Tribunal at least 15 times, including seven times using the post-control procedure. In turn, President Lech Kaczyński submitted it 19 times applications to the Constitutional Tribunal, only three of which concerned already signed laws.

READ MORE IN KONKRET24: What is successor mode and how have recent presidents used it?

Main photo source: PAP/Radek Pietruszka





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