A member of parliament from the ruling coalition talks about “obstruction of government work” by Andrzej Duda, and the presidential minister maintains that the government “does not send any laws to the president's desk.” Who's right? We checked how many bills Andrzej Duda had to sign and what their fate was.
On November 10, in the “Woronicza 17” program on TVP1, next year's presidential elections, potential candidates and the ending term of office of Andrzej Duda were discussed. Let us remind you: he cannot run for a third term.
“Marshal Szymon [Hołownia] is the candidate who has a chance to win over the center-right electorate,” argued Barbara Oliwiecka from Poland 2050. “And this is very important, because we really have to do everything to ensure that the Law and Justice candidate does not win the presidential elections a second time and does not obstruct government work as it has… what we encounter,” she added. Łukasz Rzepecki, minister from the Chancellery of the President of the Republic of Poland, responded: “How can the president to obstruct the work of the government?” – he asked. “Well, without signing laws,” Oliwiecka replied. “But you are not sending any bills to the president's desk” – said Minister Rzepecki. “The Act on the Constitutional Tribunal, the Act on the National Council of the Judiciary…” – KO senator Krzysztof Kwiatkowski began to list. “You know that these are openly, extremely unconstitutional acts,” Rzepecki replied and added: “Probably the only two. The only two“.
Is it really true that “no bills” are being sent to the president's desk now? Minister Rzepecki did not specify what specific laws he was referring to: government or parliamentary bills. So we checked how many laws have been passed during this term of the Sejm and what their fate was.
Regulations, procedures. The problem with the status of the current Constitutional Tribunal
According to art. 88 section 1 in connection art. 122 section 2 of the Constitution of the Republic of Poland, the condition for each act to enter into force is for it to be signed by the mayor and then published in the “Journal of Laws of the Republic of Poland”. The Marshal of the Sejm submits the bill to the President for signature after completion of work on it in the Sejm and Senate. The latter may then, within 21 days: – sign the act; – veto; – decide not to sign and refer it to the Constitutional Tribunal (preventive control pursuant to Article 122(3) of the Constitution); – sign and refer to the Constitutional Tribunal (post-control pursuant to Article 191(1) of the Constitution). However, while in the preventive mode the act is dealt with by the full bench of the Constitutional Tribunal (at least 11 out of 15 judges), in the post-control mode the tribunal considers the application only in a five-member panel.
Advocate Dr. Monika Haczkowska from the Polish Society of Constitutional Law in an opinion sent in February this year to Konkret24 (we were then dealing with the fate of the budget act) emphasized 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. Before the Constitutional Tribunal issues a judgment, there is a presumption of the constitutionality of the act. The Tribunal usually examines whether the procedure has been violated and whether the substantive compliance of the act with the constitution exists.
However, Donald Tusk's government does not recognize the current composition of the Constitutional Tribunal as consistent with Polish law. Since March 2024, it has not published its rulings. The reason is the so-called sitting in the Constitutional Tribunal. understudy judges (this matter was described in detail in Konkret24) and the management of the tribunal by Julia Przyłębska.
March 6, 2024 The Sejm adopted a resolution on eliminating the effects of the constitutional crisis of 2015-2023 – stated in it that “taking into account in the activities of a public authority the decisions of the Constitutional Tribunal issued in violation of the law may be considered a violation of the principle of legalism by these bodies.” The principle of legalism results from Art. 7 of the Constitution, according to which public authorities act on the basis and within the limits of the law. The Sejm also found that Julia Przyłębska, who serves as the president of the Constitutional Tribunal, is an unauthorized person in this position. The resolution states that her election as the president of the Constitutional Tribunal was made without first obtaining a resolution – required by law – from the general assembly of judges of the Constitutional Tribunal. Moreover, as indicated, Przyłębska's term of office expired on December 21, 2022. “All procedural decisions regarding the management of the work of the Constitutional Tribunal, and especially the appointment of adjudicating panels, made by Julia Przyłębska may be questioned,” we read.
The Sejm also stated that due to the Sejm resolutions regarding the election of Constitutional Tribunal judges adopted in flagrant violation of the law, Mariusz Muszyński, Justyn Piskorski and Jarosław Wyrembak are not judges of the Constitutional Tribunal. Therefore, the Constitutional Tribunal's judgments involving them are affected by legal defects, and these defects also concern decisions previously made by Henryk Cioch and Lech Morawski, who were replaced by Piskorski and Wyrembak.
The Sejm also assessed that the Constitutional Tribunal in its current shape is incapable of performing its tasks, which – as we read in the resolution – “requires the re-creation of the constitutional court, in accordance with constitutional principles and taking into account the voice of all political forces that respect the constitutional order.” The resolution indicates that the judges of the renewed Constitutional Tribunal should be elected with the participation of the opposition. “Determining the composition of the body should be spread over time so as to confirm the will to create this body free from the perspective of the current term of office of the Sejm and Senate,” the resolution reads.
May 7, 2021, European Court of Human Rights in the judgment, he assessed that President Andrzej Duda had violated Polish law by refusing to swear in duly elected judges in 2015, and then by appointing new judges in their place, elected by the Sejm, ignoring previous judgments of the Constitutional Tribunal. And on December 13, 2024, in the justification for one of the resolutions seven judges of the Criminal Chamber of the Supreme Court stated: “The body composed of persons appointed to previously filled positions is not a body described in the constitution as the Constitutional Tribunal. Therefore, the decisions issued by it do not have the effects of general validity and finality.”
There is a stalemate in the matter of the Constitutional Tribunal – three new judges are supposed to start work at the Constitutional Tribunal at the beginning of December, but no one is fighting for the vacant seats because the Sejm has not indicated candidates to replace them. Not only the ruling parties, but also PiS did not report them. – This is an absolutely stalemate situation – he thinks constitutionalist Dr. Dominika Haczkowska.
Almost 90 bills on the president's desk
Let us recall: MP Oliwiecka stated that the current government “faces obstruction of the government's work” by the president – which Minister Rzepecki denied. Because according to him, those in power do not send laws to the president's desk. However, neither the presidential minister nor the Third Way MP are right. Although, in fact, Andrzej Duda's processing of parliamentary bills can be described as “obstruction”.
Well on the parliamentary website there are 100 items in the tab with laws passed during this parliamentary term. We analyzed each one. As we calculated, The Marshal of the Sejm submitted 89 acts to President Andrzej Duda for signature (as of November 15, 2024). 10 recently passed by the Sejm are awaiting consideration by the Senate. In the case of one, this has already happened, the Sejm subsequently adopted some of the amendments and the bill will soon be submitted for signature.
65 acts were authored by the government (two of them by Prime Minister Mateusz Morawiecki), 21 were created in the current parliament, and there were three civic projects. Among the 21 acts, there are three projects signed by the MPs of Poland2050: on amending the Trade Restriction Act on Sundays and holidays and some other days; on amending the Act on municipal self-government and certain other acts; on the repeal of the Act on the State Commission for the Investigation of Russian Influence on the internal security of the Republic of Poland in 2007-2022. And one of the laws – on amending the Act on cash benefits for performing the function of a village head was authored by Law and Justice MPs.
75 acts signed. The president is waiting for the Constitutional Tribunal's verdict
What did President Andrzej Duda do with these 89 laws?
He signed: – 57 acts that were created in the government (two under Mateusz Morawiecki); – six bills authored by members of the government coalition; – three bills submitted by citizens; – three bills authored by members of the Polish People's Party; – two bills signed by Polish parliamentarians 2050; – two acts adopted on the initiative of parliamentary committees; – one bill authored by PiS.
Of these 74 bills signed in total, the president referred to the Constitutional Tribunal (let us remember that its composition is unrecognized) as many as 10 for follow-up inspection.
He refused to sign four acts: – budget-related for 2024; – amendment of the pharmaceutical law; – amending the Act on national and ethnic minorities and regional languages; – on the liquidation of the commission for investigating Russian influence.
He sent four acts to the Constitutional Tribunal under preventive control, i.e. before signing them. These were: – amendment to the Electoral Code; – amendment to the Act on the National Council of the Judiciary; – the Act Provisions introducing the Act on the Constitutional Tribunal – the Act on the Constitutional Tribunal.
The latter three are particularly important in view of the situation surrounding the Constitutional Tribunal described above and the political conditions of President Andrzej Duda's decision – their goal is an attempt by the ruling coalition to reverse key legal reforms introduced by the United Right government.
In early August 2024 Andrzej Duda submitted an amendment to the Act on the National Council of the Judiciary to the Constitutional Tribunal. The main assumption of the government's amendment to the Act on the National Council of the Judiciary is that the 15 judge-members of the National Council of the Judiciary will be elected in direct elections and in a secret ballot by all judges in Poland, and not – as is the case after the change in regulations in December 2017 – by the Sejm. After the election of new members of the National Council of the Judiciary, the current judge-members of the Council would lose their seats. In this way – according to the intention of the Ministry of Justice – the National Council of the Judiciary is to become independent from the legislative power, and the amendment in this matter is to be one of the fundamental changes restoring the rule of law in Poland. The amendment also provides that the right to run for membership of the National Council of the Judiciary will not be available to judges who became judges after the regulations regarding the National Council of the Judiciary were changed in 2017. According to the amendment, the election of 15 judge-members of the National Council of the Judiciary will be supervised by the National Electoral Commission, which will be responsible for organizing the elections, among others. for verifying applications or printing ballots. Judges of all levels are to be represented on the National Council of the Judiciary.
In early October 2024 Andrzej Duda submitted two bills to the Constitutional Tribunal aimed at reforming the tribunal itself. Both laws regarding the Constitutional Tribunal, together with the resolution of the Sejm adopted in March and the proposal to amend the constitution, constitute a package of a comprehensive reform of the Constitutional Tribunal – presented at the beginning of March by the head of the Ministry of Justice, Adam Bodnar, and politicians of the ruling coalition. The new Act on the Constitutional Tribunal assumes that the judges of the tribunal will be elected by the Sejm by a 3/5 majority of votes in the presence of at least half of the statutory number of deputies. Candidates must be between 40 and 70 years old and in the four-year period preceding their election they cannot hold the mandate of a Member of Parliament, Senator or Member of the European Parliament, or be a member of the Council of Ministers or a political party. The regulation establishes a 14-day deadline for the president to take the judicial oath, counted from the date of election by the Sejm. In mid-September, the Sejm adopted the Senate's amendments to the laws reforming the Constitutional Tribunal. The amendments will enable, among others: taking an oath to a judge of the Tribunal elected by the Sejm without the participation of the president – before a notary. They also introduce full transparency of judges' asset declarations.
The provisions introducing the Act on the Constitutional Tribunal contain transitional regulations, adapting and repealing currently applicable acts relating to the functioning of the Tribunal. At the same time – as predicted – the judgments of the Constitutional Tribunal issued in recent years by a panel composed of “persons not authorized to adjudicate” would be “null and void and have no effect”.
The seven bills that have already been passed are still waiting for President Andrzej Duda's signature.
Main photo source: Grzegorz Jakubowski/KPRP