Pursuant to Article 7 of the Constitution, public authorities act on the basis of, and within the limits of, the law.[1] Quoted provision – creating the principle of legality – is addressed both to all public authorities (legislative, executive and judiciary) and to local government bodies. The essence of the principle of legality is that a public authority may only do what the law allows it to do, but this principle also applies to the system, structure and competence of public authorities. Legalism is the way in which these bodies are established by legal means and act on the basis of, and within the limits of, the law that defines their tasks and competences as well as the procedures. This leads to the issuance of a decision in the form prescribed by law, based on a proper legal basis and in compliance with the provisions of substantive law binding on a specific authority.[2] "Acting on the basis of law" means the requirement of legal standing (basis of competence) for all activities consisting of the exercise of public authority. This competence cannot be presumed, it must be defined clearly and precisely by the law. On the other hand, the term "within the limits of the law" means the constitutional obligation of public authorities to strictly obey in their activities not only the norms determinig their tasks and competences (not to exceed their competences), but also not to violate any other applicable norms.[3]
One aspect of the principle of legalism is the prohibition of violations of procedural law by a body in the course of the law-making process.
The public authority responsible for the law-making is composed of two chambers of parliament[4]: the Sejm and the Senate.[5] The question arises whether the adoption of a statute by the Sejm or the Senate in a composition inconsistent with the Constitution results in a violation of the principle of legalism expressed in Article 7 of the Constitution, and thus in the unconstitutionality of the adopted statute. The practice which could have been seen in recent months requires serious consideration of whether such a situation occured, in particular, when the Sejm deliberated without the participation of elected and sworn MPs who were illegally prevented from participating in the Sejm session or when a person who is not a senator took part and voted in the Senate session.
The first situation concerns the deprivation of the possibility of participating in the work of the Sejm of two MPs convicted by a court judgment. It was made by the decision of the speaker of the Sejm, who despised that the President of the Republic of Poland had previously applied the power of pardon with respect to these Mps and that the Supreme Court had finally refused to confirm the expiry of their mandates.[6]
The second case concerns the situation when an elected and sworn senator took over the position of prosecutor. This is particularly the case when a senator who is also the Minister of Justice – General Prosecutor made a procedural decision that is reserved exclusively for ordinary prosecutors conducting investigation.[7]
It should be emphasized that the Polish Constitution prohibits combining the senator's mandate with the prosecutor's office.[8]
These situations must raise a question whether we are dealing with a defective formation of the composition of the Sejm or Senate when adopting specific laws and what effect this may have on the validity of these laws.
It seems that both the Sejm and the Senate in such situations deliberate in an improper composition, violating the principle of legalism. The adopted acts are affected by a legal defect, which imply the necessity of stating that such an act is inconsistent with Article 7 of the Constitution.
It should be noted that in parliamentary practice it is common for laws to be passed without the participation of all MPs. Most often this is due to unforeseen circumstances (e.g. illness of a MP) that prevent individual MPs from participating in the legislative process. It is also possible for temporary vacancies to occur between the expiry of MP's mandate and the taking up mandate by another MP.
However, the situation is different when the Sejm adopts a bill without the participation of all 460 deputies due to arbitrary actions of the speaker of the Sejm, which have no basis in the legal order ruling in the Republic of Poland.[9] The situation should be treated similarly when a person whose mandate has expired takes part in the adoption of the bill as a senator.[10]
The first situation was the subject of consideration of the Constitutional Tribunal, which, deliberating the motion of the President of the Republic of Poland, found that the act adopted by the Sejm, in which, due to the unlawful actions of the speaker of the Sejm, two MPs were refused participation, is inconsistent with the provisions of the Constitution of the Republic of Poland, in particular with its Article 7 establishing the principle of legalism.[11]
The Tribunal found that the actions of the speaker were unlawful, contrary not only to the applicable law, but also to the final judgments of the Supreme Court from 4 and 5 January 2024. According to the Tribunal, it is the speaker of the Sejm who is responsible for ensuring that the MPs are provided conditions for the effective performance of their duties and for protecting their rights. His actions cannot lead to unlawful differentiation of the legal status of individual MPs. Each of the 460 MPs – elected by the Nation in universal elections – upon taking office gains the possibility of exercising parliamentary rights, in particular the possibility of participating in voting, and has the same status in relation to other MPs and analogous rights and obligations. Meanwhile, the unlawful actions of the speaker of the Sejm led to the permanent exclusion of specific individuals from the work of the Sejm, thus de facto creating a category of deputies who do not perform their mandates. Such category is unknown to the Constitution. Thus, the Sejm proceeded in a composition formed as a result of unlawful actions of the speaker of the Sejm, preventing specific MPs from participating in legislative work. For this reason, this body cannot be classified as the Sejm in the constitutional sense. Consequently, the adoption of a law by an improperly formed body leads to its unconstitutionality.
The Constitutional Tribunal noted that its assessment of the defectiveness of the legislative procedure is not undermined by the fact that the challenged act was adopted by an appropriate majority of votes with the required quorum maintained. In the Tribunal's opinion, in a situation where any MP is illegally prevented from participating in the Sejm's work on a specific act, even if the quorum was maintained and the required majority for its adoption was obtained, it is still affected by a legal defect, as it was issued in violation of the principle of legalism by a body that does not meet the constitutional requirements regarding the representation of the Nation by the MPs. The illegal actions of the speaker of the Sejm resulted in the invalidation of the will of a group of voters who elected the excluded MPs as representatives of the Nation.
The Tribunal recalled that, according to the law of the Republic of Poland, on the day they took their oaths at the first session of the Sejm, these MPs took up their parliamentary mandates which they retained despite the decisions of the speaker of the Sejm declaring the expiry of their mandates. What is important, the illegality of the speaker's decisions was finally confirmed by the Supreme Court, competent in the subject matter.
Since these persons were MPs during the proceedings of the act by the Sejm, they were entitled to all the rights related to the performance of the function of a MP – in particular the fundamental right and obligation of active participation in the work of the Sejm, which finds its source in the constitutional principle of exercising power by the Nation through MPs who are its representatives. In the Tribunal’s opinion, preventing the implementation of the indicated right and obligation affects the defectiveness of the legislative process in which the act under review was adopted. As a result of the actions of the speaker of the Sejm, which do not fall within the limits of the law in force in the Republic of Poland, these MPs were deprived of the actual possibility of exercising their mandates during the work on the audited act, and thus exercising power on behalf of the Nation, being its representatives. This resulted in a defective legislative process due to the improper composition of the Sejm. In view of this, the Tribunal ruled that the audited act is inconsistent with art. 7 in connection with art. 4 sec. 2 [12] in connection with art. 104 sec. 1 [13] in connection with art. 96 sec. 1 [14] of the Constitution. As a result of the Tribunal's ruling, this act lost its validity.
This judgment of the Tribunal raises questions about the validity of other acts adopted by the Sejm without the MPs who were illegally not allowed to participate in the work of the Sejm.[15] This is all more significant because one of these acts is the budget act. According to the Constitution, the fact that it is not adopted within the constitutionally specified deadline authorizes the President to order the shortening of the Sejm's term of office.[16]
[1] Art. 7 of the Constitution of the Republic of Poland (Journal of Laws 1997.78.483 of 1997.07.16):
The organs of public authority shall function on the basis of, and within the limits of, the law.
[2] Judgment of the Constitutional Tribunal of 16 March 2011, file no. K 35/08, OTK ZU no. 2/A/2011, item 11.
[3] Judgment of the Constitutional Tribunal of 27 May 2002, file no. K 20/01, OTK-A 2002/3/34; judgment of the Constitutional Tribunal of 23 March 2006, file no. K 4/06, OTK-A 2006/3/32.
[4] The term 'parliament' itself does not appear in the text of the Polish constitution, the conjunction Sejm and Senat is used as its designation in each case.
[5] Art. 10(2) of the Constitution of the Republic of Poland (Journal of Laws 1997.78.483 of 1997.07.16):
Legislative power shall be vested in the Sejm and the Senate, executive power shall be vested in the President of the Republic of Poland and the Council of Ministers, and the judicial power shall be vested in courts and tribunals.
Art. 95(1) of the Constitution of the Republic of Poland (Journal of Laws 1997.78.483 of 1997.07.16):
Legislative power in the Republic of Poland shall be exercised by the Sejm and the Senate.
[6] Decision of the Supreme Court of 4 January 2024, file no. I NSW 1268/23; decision of the Supreme Court of 5 January 2024, I NSW 1267/23
[7] This is a situation where, unprecedentedly, on 26 July 2024, Senator and General Prosecutor in one person – Adam Bodnar – personally issued a procedural decision in the course of the investigation, considering a motion to exclude another prosecutor due to his lack of impartiality. The General Prosecutor may issue instructions to prosecutors, but his special powers in the course of preparatory proceedings are very limited. The legislator clearly separated the function of the politically responsible Minister of Justice – General Prosecutor (politician) from the National Prosecutor, who is an active prosecutor and the the General Prosecutor's first deputy and has powers in the human resources area, as well as having the right to take appropriate procedural steps on his own initiative or as a result of their transfer or takeover. The practice of previous Ministers of Justice – General Prosecutors clearly indicated that they refrained from issuing procedural decisions reserved exclusively for prosecutors.
[8] Art. 103(2) in conjunction with art. 108 of the Constitution of the Republic of Poland (Journal of Laws 1997.78.483 of 1997.07.16):
No […] public prosecutor […] shall exercise the mandate of a Senator.
[9] Two MPs – Mariusz Kamiński and Maciej Wąsik – were not allowed to participate in the work of the Sejm, including voting on bills, through technical activities, i.a. by deactivating the cards and not allowing them to enter the Sejm buildings.
[10] MP Marcin Romanowski submitted a motion to the speaker of the Senate to terminate the mandate of Senator Adam Bodnar. Romanowski skierował wniosek o wygaszenie mandatu Bodnarowi (wpolityce.pl)
[11] The judgment of the Constitutional Court from 19 June 2024, K 7/24; Trybunał Konstytucyjny: Tryb uchwalenia ustawy (trybunal.gov.pl)
[12] Art. 4(2) of the Constitution of the Republic of Poland (Journal of Laws 1997.78.483 of 1997.07.16):
The Nation shall exercise such power directly or through their representatives.
[13] Art. 104(1) of the Constitution of the Republic of Poland (Journal of Laws 1997.78.483 of 1997.07.16):
Deputies shall be representatives of the Nation. They shall not be bound by any instructions of the electorate.
[14] Art.96(1) of the Constitution of the Republic of Poland (Journal of Laws 1997.78.483 of 1997.07.16): :
The Sejm shall be composed of 460 Deputies.
[15] As of 24 August 2024, there are still 12 cases registered in the Tribunal concerning the unconstitutionality of laws due to their enactment by the Sejm in the same circumstances as the case in question.
[16] Art. 225 of the Constitution of the Republic of Poland (Journal of Laws 1997.78.483 of 1997.07.16):
If, after 4 months from the day of submission of a draft Budget to the Sejm, it has not been adopted or presented to the President of the Republic for signature, the President of the Republic may, within the following of 14 days, order the shortening of the Sejm's term of office.
Comments