The position of Prime Minister Mateusz Morawiecki has been submitted to the Constitutional Tribunal regarding the amendment to the Act on the Supreme Court referred by the President to the Constitutional Tribunal. In it, the Prime Minister maintains that the provisions concerning the test of independence of a judge and the transfer of disciplinary and immunity cases of judges to the Supreme Administrative Court, challenged by Andrzej Duda, are in line with the constitution.
“It should be recalled that the purpose of the Act is to introduce solutions enabling Poland to submit the first application for payment of funds from the National Reconstruction Plan. (…) The Act being the subject of these proceedings allows Poland to obtain funds due to it in accordance with the Constitution, especially needed for development in a period of significant economic challenges” – it was emphasized in the position of the head of government signed under the authority of the Prime Minister Mateusz Morawiecki by the President of the Government Legislation Center Krzysztof Szczucki.
The extensive, almost 100-page, position of the Prime Minister – as the first of the written positions that should be submitted in this case – appeared on the website of the Constitutional Tribunal. The document is dated March 24 this year.
The president sent the bill to the Constitutional Tribunal
The amendment to the Act on the Supreme Court passed in January by PIS according to the authors, it is to fulfill a key “milestone” for the European Commission to unlock funds from the National Reconstruction Plan. However, on February 10 this year – after the bill hit the president’s desk – Andrzej Duda informed that he had decided to refer the amendment to the Constitutional Tribunal, under the preventive control procedure. At the same time, he appealed to the judges of the Constitutional Tribunal to immediately deal with the case.
In the application published several days later by President Duda to the Constitutional Tribunal, the basic provisions of the amendment to the Supreme Court were questioned, including those on the so-called test of independence of the judge and on the transfer of disciplinary and immunity cases of judges to the Supreme Administrative Court, as well as the vacatio legis of the amendment set for 21 days.
The most extensive part of the presidential proposal refers to the modifications introduced by the amendment to the so-called test of independence and impartiality of the judge. This test is a relatively new institution, which was introduced by the previous amendment to the Supreme Court Act in the summer of last year. Under the current assumptions, it is intended to allow for examining the judge’s compliance with the requirements of independence and impartiality, taking into account the circumstances surrounding his appointment and his conduct after the appointment, if in the circumstances of a given case they may lead to a violation of the independence or impartiality standard, affecting the outcome of the case. The possibility of such tests is provided for all judges, and in accordance with the applicable regulations, a request for such a test may be submitted by a party to the proceedings conducted by a given judge.
However, according to the changes from the January amendment, the judge’s impartiality test may be initiated not only by the party to the proceedings, but also “ex officio” by the court itself. The amendment also supplemented the possibility of examining the requirements of independence and impartiality during the “test” with the premise of establishing a court “on the basis of a statute”. At the same time, from the provision on this test, the premise of “influence on the outcome” of a given case was deleted.
According to the head of state, the possibility of questioning the appointment of a judge “on the basis of a statute” comes down to questioning the correctness of his appointment, and thus questioning “the existence of a basis for exercising judicial power by him”. “The above violates the essence of the presidential prerogative in the field of appointing judges, while at the same time violating the principle of separation and balancing of powers laid down in the constitution,” the president’s application underlined.
Prime Minister: The test of independence does not lead to undermining the president’s act
Referring to these allegations, the position of the Prime Minister indicated that “for the purposes of the constitutional problem under consideration, the presidential prerogative to appoint judges should be perceived primarily in the perspective of guaranteeing the independence of the judiciary, and not only as a factor strengthening the power and position of the President in the system of government”.
“Despite the addition of a new premise of the independence test, the effect of a judgment issued in the event that a judge is found not to meet the requirements of independence, impartiality and establishment on the basis of a statute will not change and will continue to be only exclusion of the judge from examining individual cases” – it was noted in the position signed by Szczucki.
In the opinion of the head of the government, the premise of “establishment on the basis of a statute” refers to “serious irregularities in the process of appointing a judge, which, however, do not have the same significance in the circumstances of individual cases, and as a result do not always lead to the undermining of the judge’s independence and impartiality.” “.
“The test does not lead to undermining, negating or repealing the effects of the official act of the president. The decision issued as a result of the test does not deprive the judge of his status and the judicial authority entrusted to him in the act of appointment. It may, however, only incidentally limit the possibility of exercising this authority in a specific case” – highlighted in this position.
Head of the government: the list of cases covered by the Supreme Administrative Court’s jurisdiction is not exhaustive
Also with regard to the second of the fundamental segments of the amendment, i.e. the transfer of disciplinary and immunity cases of judges to the Supreme Administrative Court, the Prime Minister’s position requested that the regulation be recognized as compliant with the Constitution.
The President, addressing the amendment to the Constitutional Tribunal, argued that the powers of this court to exercise control over public administration could not be considered to include disciplinary proceedings against judges of other courts. “It should be recognized that the Supreme Administrative Court, due to its constitutional definition, as well as the scope of its existing competences, is not adequately prepared to perform the role of a disciplinary court competent for the cases of all judges” – concluded the head of state’s motion.
Referring to this issue, the position of the head of the government indicated that “the constitutional catalog of matters covered by the Supreme Administrative Court’s jurisdiction (…) is not closed” and the constitution “only establishes the presumption of jurisdiction of administrative courts in the scope of controlling the activities of public administration”.
“(Constitution – ed.), however, does not predetermine that all cases concerning such control will be considered by administrative courts, and so, for example, appeals against decisions of the Social Insurance Institution in matters in the field of social insurance are considered by common courts. At the same time, it does not prohibit entrusting The Supreme Administrative Court in cases which, according to the general presumption of jurisdiction, should fall within the jurisdiction of common courts.
Morawiecki: the provision contributes to the best implementation of the interests of the Republic of Poland
On the other hand, as it was written in the Prime Minister’s position, “in the context of (…) vacatio legis assessment criteria, it should be pointed out that the Supreme Administrative Court is already examining disciplinary cases and independence tests, so these are not new issues for Supreme Administrative Court judges, i.e. people who have not only experience in these matters, but also outstanding legal knowledge.
“The adopted period of vacatio legis contributes to the best implementation of the interests of the Republic of Poland, as it enables the submission of two payment applications in 2023 and gives the opportunity to obtain these funds as soon as possible in 2023.” – added, referring to the issue of funds from the KPO.
Positions on the case should be presented by the Prosecutor General and the Sejm. The Constitutional Tribunal has not yet set a date for examining this case. The Tribunal should deal with the President’s request in full. At least 11 judges of the Constitutional Tribunal are required to convene a hearing in the full bench.
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