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Miller: constructive vote of no confidence “immediately after the government is sworn in.” Lawyers warn

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According to the former prime minister, the term of office of Mateusz Morawiecki and the new Council of Ministers can be shortened and Donald Tusk and his government appointed in its place more quickly – it is enough to use the procedure of a constructive vote of no confidence. Constitutionalists have great doubts.

Leszek Miller, former prime minister of the SLD-UP-PSL government from 2001-2004, and currently an MEP of the Civic Coalition, has been promoting for several weeks a method that, in his opinion, will accelerate the current opposition’s coming to power. This is to be a motion for a constructive vote of no confidence in the government of Prime Minister Mateusz Morawiecki. The former prime minister proposed this idea at the beginning of November. This was supposed to happen at the first session of the Sejm after the elections, after the Prime Minister resigned. The idea was later repeated by Marek Sawicki, senior marshal of the Polish People’s Party, which was widely discussed. Although Miller and Sawicki claimed that it was constitutionally possible, it was the constitutionalists we talked to at the time did not agree with this assessment.

Now Leszek Miller returns to his idea. This time, however, it is not about a constructive vote of no confidence after the dismissal of the government, but just after the new government is sworn in and before the vote in the Sejm, a vote of confidence in it. The politician emphasizes that this is fully legal.

“Immediately after the Morawiecki government is sworn in (November 27 at 4:30 p.m.), the Sejm should receive a motion for a constructive vote of no confidence in the Council of Ministers, indicating Donald Tusk as a candidate for prime minister,” he wrote on November 26 on X platform former prime minister (original spelling). “Seven days after this – on December 4 – the Speaker of the Sejm should convene the House and put the motion to a vote. This will end Mateusz’s murder and ridicule of the executive power in the eyes of citizens. There is no doubt as to the legality of this procedure, as Morawiecki’s new government will be existed since the swearing in and all provisions of the constitution will apply to it,” he said. The next day he posted next entry on this topic: “I see that many of you do not see the difference between a government in a state of resignation and a government appointed by the president, but before obtaining a vote of confidence in the Sejm. In the first case, the constitution does not allow for a vote of no confidence, in the second case, a request for a constructive vote distrust is allowed.” He repeated his proposal later TOK FM radio. “Then, instead of two weeks, we have a week of torment for Mr. Morawiecki’s new government,” he argued and assured about the constitutionality of his idea.

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Leszek Miller’s theses sparked discussion again. His post has 320,000 views. views and almost half a thousand comments. Internet users support: “Let’s do it!”; “May”; “That would be a great solution”; “I would really like someone to finally stop this brazen farce”; “A fair conclusion”; “There’s nothing to wait for.” But there were also opposing voices: “I don’t listen to Leszek Miller. He has ideas that are detached from life. It’s not a good idea,” he commented in Polsat News co-chairman of the New Left, deputy speaker of the Sejm Włodzimierz Czarzasty.

The constitutionalists we talked to also think this is not a good idea. They have doubts and warn against implementing it.

A vote of confidence and a constructive vote of no confidence

Let us recall that as a result of the elections on October 15, five parties entered the Sejm. According to the National Electoral Commission, Law and Justice won 35.38 percent. votes, Civic Coalition – 30.70 percent, Trzecia Droga (PSL+Polska 2050) – 14.40 percent, New Left – 8.61 percent, and Confederation – 7.16 percent. votes. Therefore, the democratic opposition (KO+Trzecia Droga+New Left) can count on 248 seats in the Sejm, which means it has a parliamentary majority.

Pursuant to art. 154 of the constitution, the president designates the Prime Minister. He assembles the government and presents its composition to the president. The president then appoints the Prime Minister and other members of the government within 14 days from the date of the first sitting of the Sejm.

Even though the parliamentary arithmetic shows that PiS has no chance of forming a government, such a mission was entrusted by President Mateusz Morawiecki. He will present the president with the composition of his next government, which – as announced – will be sworn in on November 27. Within the next 14 days, the Prime Minister will present the government’s program of activities before the Sejm. After the expose, he will request a vote of confidence in the new Council of Ministers. This is the first step in appointing a government described by the Constitution of the Republic of Poland. However, if the newly appointed Council of Ministers does not gain the trust of the MPs, the Prime Minister resigns and the Sejm takes the initiative in this matter (this is the second constitutional step). The president entrusts the current government with further duties.

Everything indicates that Mateusz Morawiecki will fail in his mission to obtain support for his government in the Sejm and then, in the second constitutional step, the Sejm will appoint a new prime minister – Donald Tusk, which results from the coalition agreement concluded by the four parties. However, this may not happen until the first half of December.

According to Leszek Miller’s idea, the opposition can gain power faster. The former prime minister proposes that immediately after the swearing-in of the new government of Mateusz Morawiecki, and before the vote of confidence, a motion should be submitted to the Sejm for a constructive vote of no confidence and hold a vote on it. What is a constructive vote of no confidence? It’s a procedure described in art. 158 of the constitution. They are requested by a group of at least 46 MPs. In the application, they must name the candidate who would take over the office of prime minister in place of the dismissed one. Then, at least seven days must pass before the Sejm can vote on the motion. To express a vote of no confidence, an absolute majority is needed, i.e. 231 MPs (more voting in favor of the motion than those voting against and abstaining). If the Sejm expresses such a constructive vote of no confidence, the president must accept the government’s resignation and appoint a new prime minister indicated in the motion, who then presents him with new ministers. The government so elected does not have to obtain a vote of confidence again: after presenting the ministers, the president takes the oath from them and the new government begins to function.

So if Leszek Miller’s idea comes true and everything goes as he planned, in the first week of December the Sejm may lead to the election of Donald Tusk as prime minister through a constructive vote of no confidence. Theoretically, a vote of confidence in Prime Minister Morawiecki’s government would be pointless. Lawyers, however, are skeptical.

Constitutionalists: not always desirable; circumventing the constitution; should not be used; unacceptable

In an analysis published on November 10, 2023 on the website Konstytuczny.pl Dr. Maciej Pach from the Department of Constitutional Law at the Faculty of Law and Administration of the Jagiellonian University writes that “In the light of the Constitution of the Republic of Poland, it is permissible for the Sejm to express a vote of no confidence in the Council of Ministers, which has already been appointed by the President of the Republic of Poland, but has not yet been granted a vote of confidence in pursuant to Article 154(2) of the Constitution”, he adds that “this (…) will not always appear as desirable”. He argues that this may result in “a conceivable – although illegal – reaction of the President of the Republic of Poland in the form of a refusal to appoint the Prime Minister elected by the Sejm and, at his request, the remaining members of the government.”

“Leszek Miller’s idea can be formally implemented. A government will be formed, a vote of no confidence can be expressed in it,” says Dr. Hab. Joanna Juchniewicz from the Faculty of Law and Administration of the University of Warmia and Mazury in Olsztyn. However, she also has doubts. “But this is circumventing the constitutional procedure for appointing the Council of Ministers, using the institution of a vote of no confidence to bypass the procedure for forming a government. Because we use a constructive vote of no confidence when the appointed government, which received a vote of confidence, for some reason loses this confidence and the majority wants to change the position. prime minister,” he notes.

– A vote of no confidence should not be used in unusual situations, i.e. when the procedure for appointing the Council of Ministers is ongoing and we are at one of its stages (unfinished), or when the resignation was accepted at the first session of the Sejm and the President entrusted the Council of Ministers with continuing to perform duties until appointing a new Council of Ministers. Logically speaking – there is then no government – so there is no one to submit a constructive vote of no confidence in, either after the Council of Ministers is sworn in, but before the stage of the Sejm vote on the vote of confidence as part of the “first step” – explains Konkret24 Dr. Monika Haczkowska, a constitutionalist from the Polish Society Constitutional Law. It draws attention to one more thing. After expressing a vote of no confidence, the Prime Minister would have to resign anyway, and the president would have to accept it. It is not known when he would do it, although he should do it without unnecessary delay. – So the question remains how much time will actually be gained – wonders the expert.

Dr. Mateusz Radajewski from the Department of Law at SWPS University is more firm in his assessment. He considers Leszek Miller’s idea unacceptable. In his opinion, this would circumvent the constitutional three steps of forming a new government. “Article 154 of the Constitution of the Republic of Poland clearly grants the Prime Minister indicated in the so-called first step the right to present an expose within 14 days of his appointment. The Sejm cannot deprive him of this right by expressing a vote of no confidence in him beforehand. The Sejm may express its position on a given government only after hearing the exposé. The institution of a constructive vote of no confidence, referred to in Article 158 of the Constitution of the Republic of Poland, serves to dismiss a government that previously enjoyed the support of the Sejm, but lost it. In other words – in the light of the currently applicable regulations, a vote of no confidence cannot be expressed in a government that has not yet received a vote of confidence,” he explains in the analysis sent to Konkret24.

Main photo source: Tomasz Kubiak / ArtService / Forum

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