What’s the Status of the KRS Act? We Know the Legal Opinions on the Senate Amendment Commissioned by the Sejm Committee [NEWS OKO.PRESS]

ON TUESDAY, JULY 9, 2024, the Sejm Justice and Human Rights Committee began work on two bills reforming the Constitutional Tribunal. The draft bill on the Constitutional Tribunal (TK) and the draft bill on the provisions introducing the TK Act are part of the so-called Bodnar four-pack. This package also includes a resolution adopted by the Sejm in March and a bill amending the Constitution, which is currently being worked on by the Senate.

The draft bill on the TK includes provisions such as the selection of Tribunal judges by the Sejm with a 3/5 majority vote. Candidates can be nominated not only by parliamentarians but also by the President, the Sejm Presidium, the National Prosecutors’ Council, and the general assemblies of the Supreme Administrative Court (NSA) and the Supreme Court (SN). The management of the TK by the president and the disciplinary system would also be reformed. The bill on introducing provisions includes recognizing as invalid the rulings of the TK in which unauthorized persons, the so-called “double judges,” participated.

PiS Lawmakers Against “Foundation Lobbying”

The Tuesday session of the Justice Committee began with attacks from PiS lawmakers. Former Deputy Minister of Justice Michał Wójcik called the TK bills “an attack on another democratic institution.” He also requested a recess so that a representative from the Ministry of Justice could attend the session.

Paweł Szrot, former State Secretary in President Andrzej Duda’s office, stated that “the chances of these provisions coming into force during the current president’s term are slim.”

However, PiS lawmakers most intensely criticized the fact that the bills were authored by experts from the Batory Foundation and submitted as parliamentary bills by parliamentarians.

“This is fiction. It is supposed to be a parliamentary bill, but it was brought by an external foundation,” said Zbigniew Bogucki.

“We do not know the real authors of the bill. Do they have registered lobbying activities?” asked Paweł Jabłoński.

During the committee session, PiS lawmakers also launched an attack on Twitter. “SCANDAL at the Justice Committee! Private foundations are writing projects for the Coalition! It turns out that the parliamentary project of the Sejm majority regarding the new Constitutional Tribunal law was brought by the Batory Foundation! They twice confirmed that they are the authors of the project! Scandal!” wrote Kazimierz Smoliński.

“In accordance with the will of the Sejm, the project was sent to the committee for work,” responded one of the bill’s sponsors, Sławomir Ćwik (Poland 2050). “The foundation could have prepared the project and submitted it as a civic initiative. Nevertheless, a group of parliamentarians can use such a project and submit it as a parliamentary one (…) It was more inappropriate to submit de facto government projects created in ministries, signed by a group of parliamentarians, and then processed as parliamentary ones to avoid consultations. And pushing such projects through the Sejm in two or three days. This is an expert, apolitical project, subject to public consultations.”

Krzysztof Izdebski from the Batory Foundation also spoke in the debate:

“I am surprised that parliamentarians are not prepared and did not read the justification, where all this is described. There was also a public event in the Sejm and the Senate. This project has been in the media for two years. Your representatives were also invited to meetings dedicated to this project (…) The whole process is transparent, so please do not insinuate that we are hiding something. It is common practice for expert circles to create draft bills. Social organizations prepared dozens of such projects last year alone. Some received parliamentary approval, others did not. It is simply the free mandate of a parliamentarian to decide on something.”

The Problematic 3/5 Majority

During further proceedings, several technical amendments prepared by the Legislative Bureau were adopted. Lawmakers also debated the substantive solutions of the bill. Kazimierz Smoliński (PiS) raised concerns about the provision stating that judges remain in office until a new judge is elected. In his opinion, this could violate their constitutionally defined nine-year term, as electing a new judge requires a 3/5 majority in the Sejm, which is difficult to achieve.

Katarzyna Ueberhan (Left) admitted that she sees the 3/5 majority as valuable. “But I share the doubt of MP Smoliński (…) whether it will not lead to a paralysis of the judge selection process and an extension of the nine-year term?” The Left MP suggested that if a 3/5 majority cannot be reached, the possibility of election by an absolute majority should be introduced.

Committee Chairman Paweł Śliz (Poland 2050) emphasized that the 3/5 majority was pointed out as one of the most promising solutions of the entire bill during public consultations. It was also strongly defended by Professor Tomasz Zalasiński, one of the authors of the project, who also participated in the session.

Another proposal was made by Maciej Tomczykiewicz (KO). “We do not want a situation where any majority—ours or future—takes over the Tribunal,” said the MP. He suggested removing the provision about remaining in office until a new judge is elected. “Let’s delete this provision. There will be vacancies, but there will be no situation where one side will depend on obstruction.”

Ultimately, the amendment to delete this provision was submitted by Paweł Jabłoński but was rejected in the vote.

“Citizens Do Not Want Piotrowiczs and Pawłowiczs”

During the Committee session, another flagship solution proposed in the bill, aimed at depoliticizing the new Tribunal, sparked controversy. PiS lawmakers raised several objections to the provision stating that only persons who have not been active politicians for at least four years (four years must pass from the expiration of the mandate, the end of serving in the Council of Ministers, or the end of party membership) can run for TK judge.

The Legislative Bureau, commenting on these provisions, stated that it had doubts whether only MPs, members of the Council of Ministers, and party members listed in the bill meet the status of “being an active politician” or whether this catalog should be expanded. Another doubt concerns the fact that the constitution already stipulates that a party member cannot become a judge, and the new bill tightens this requirement by introducing an additional cooling-off period for candidacy after relinquishing party membership.

Paweł Jabłoński continued the thread of constitutional doubts about such a solution, asking if the sponsors had legal analyses on this matter. Kazimierz Smoliński argued that it is unclear how to determine the moment when someone no longer belongs to a political party.

“I agree that there will be potential problems with determining when party membership expired. But it will have to be demonstrated by the person who wants to run,” answered Ćwik.

Government coalition MPs defended the introduction of the cooling-off period, pointing out that alongside the 3/5 majority, it is a key mechanism ensuring the depoliticization of the TK.

“I would leave it in the form it is in the project. A citizen must be assured that no party activist, no person holding high public positions and dependent on a particular political party will become a member of the Constitutional Tribunal. This is really crucial, and citizens expected that there would be no more such Piotrowiczs, no more Pawłowiczs in the Constitutional Tribunal,” said Katarzyna Piekarska.

After several hours and discussing several articles of one of the two TK bills, the Committee took a break in the session. The work will resume on July 16 at 10:00.

The above-given text was published at OKO.press by Dominika Sitnicka

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