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Probation officers; legislative process Kp 4/15

The Marshal of the Sejm’s use of wording other than that arising from the parliamentary practice – when the Senate’s amendments to a statute were put to a vote – does not infringe the constitutional standards of the legislative process. By contrast, what constitutes a serious procedural breach is an erroneous interpretation of the outcome of the vote, as a result of which the amendments have not been taken into account in the text of a bill adopted by the Sejm and submitted for signature to the President of Poland.

At the hearings on 25 October 2016 and 5 October 2017, the Constitutional Tribunal (full bench) examined an application filed by the President of the Republic of Poland as part of an a priori review concerning the correctness of the legislative process of adopting the Act of 9 July 2015 amending the Probation Officers Act (hereinafter: the Act of 9 July 2015).

The Constitutional Tribunal adjudicated that the Act of 9 July 2015 is inconsistent with Article 122(1) in conjunction with Article 121(3) of the Constitution.

Moreover, the Constitutional Tribunal decided to discontinue the proceedings as to the remainder.

The ruling was adopted by a majority vote. Dissenting opinions were filed by the following judges of the Tribunal: Judge Małgorzata Pyziak-Szafnicka and Judge Sławomira Wronkowska-Jaśkiewicz.

The subject of the review conducted by the Tribunal comprised the Act of 9 July 2015. The basic allegation of the President of Poland concerned irregularities that had occurred at the stage of the legislative process described in Article 121(3) of the Constitution, i.e. in the course of the Sejm’s examination of amendments to the Act of 9 July 2015 which had been proposed in a resolution adopted by the Senate.

The President of Poland questioned the Marshal of the Sejm’s use of the wording she resorted to when she was putting the Senate’s amendments to a vote as well as the correctness of the interpretation of the voting result. As a result, the President of Poland was provided with a version of the bill for signature that differed from the version actually adopted by the Sejm, i.e. in breach of Article 122(1) of the Constitution.

What constituted the essence of the case under examination was not a substantive review of the provisions of the Act of 9 July 2015, but a review of the correctness of the legislative procedure in the light of constitutional requirements.

Having analysed the course of the legislative process, the Tribunal concluded that a vote on the Senate’s amendments took place within the meaning of Article 121(3) of the Constitution, i.e. that obligatory stage of the legislative process had not been overlooked. In the present case, in the context of the challenged provision, the following two other issues emerged: firstly, does Article 121(3) of the Constitution permit casting affirmative votes, i.e. carrying out a vote in favour of adopting the Senate’s amendments or – as the President argues in his application – is it only possible to cast negative votes, i.e. in favour of rejecting the amendments; and, secondly, what are the consequences of an erroneous interpretation of a voting result?

The Tribunal did not agree with the allegation about a breach of Article 121(3) of the Constitution caused by the carrying out of a vote in favour of adopting the Senate’s amendments by the Marshal of the Sejm. Article 121(3) of the Constitution stipulates that a resolution of the Senate rejecting a bill, or an amendment proposed in the Senate's resolution, shall be considered accepted unless the Sejm rejects it by an absolute majority vote in the presence of at least half of the statutory number of Deputies. In the Tribunal’s view, it may not be deemed that the challenged provision definitely determines that it is only admissible to cast negative votes on the Senate’s stance.

It follows from the parliamentary practice and from views expressed in the doctrine that – when considering amendments proposed by the Senate – the Sejm votes in favour of rejecting the amendments. However, in the Tribunal’s opinion, if there is a vote in favour of adopting the amendments and such a vote gives grounds for concluding that the Sejm did not reject the Senate’s resolution by an absolute majority of votes cast in the presence of at least half of the statutory number of Sejm Deputies, then it should be deemed that the vote referred to in Article 121(3) of the Constitution was carried out effectively.

In such cases, however, the outcome of voting must always be reflected in the final text of a bill adopted by the Sejm. The said bill must include adopted amendments and the Marshal of the Sejm is obliged to submit such a version to the President of Poland for signature. Therefore, the Tribunal held that, in the light of Article 121(3) of the Constitution, the primary significance should be given to the intention of Sejm Deputies expressed in the act of voting, and not to the form of voting.

The fact that the Tribunal ruled in favour of the admissibility of casting affirmative votes in favour of the Senate’s amendments does not determine that in the present case there was no infringement of the legislative procedure. Indeed, there is no doubt that the legislative step in the form of an interpretation of a voting outcome was derived erroneously by the Marshal of the Sejm.

This constitutes a serious procedural breach since the consequence thereof is – against the intentions of Sejm Deputies, the absolute majority of whom were in favour of the adoption of the Senate’s amendments – not taking account of amendments in the text of the bill submitted to the President of Poland for signature.

Since voting (regardless of its negative or positive character) constitutes an element of the procedure described in Article 121(3) of the Constitution, then – within the scope of the interpretation of the voting outcome – there was an infringement of that provision.

The consequence of an infringement of Article 121(3) of the Constitution, as regards an erroneous interpretation of the voting outcome, is an infringement of Article 122(1) of the Constitution. Pursuant to the latter provision, after the completion of the procedure specified in Article 121 of the Constitution, the Marshal of the Sejm submits a bill adopted by the Sejm to the President of Poland for signature. There is no doubt that the Marshal of the Sejm, despite the requirement of Article 122(1) of the Constitution, submitted to the President of Poland for signature a different text than the one adopted by the Sejm after the consideration of the Senate’s amendments. Indeed, the Sejm adopted those amendments and it was necessary to modify the text of the Act of 9 July 2015, i.e. to take account of changes arising from the adopted amendments. The text submitted to the President of Poland for signature did not include the necessary modifications, and hence there had been an infringement of Article 122(1) of the Constitution.

Adherence to the legislative procedure regulated in the provisions of the Constitution constitutes a prerequisite for a statute to take effect. Due to the fact that the Tribunal deemed that the Act of 9 July 2015 is unconstitutional, the consequence of the judgment issued in the course of this a priori review is the obligation of the President of Poland to refuse to sign the statute under discussion, as prescribed by Article 122(4) of the Constitution. In this instance, the result is the completion of the legislative proceedings in the present case.

When addressing the issue of the composition of the adjudicating bench assigned to examine the present case, the Constitutional Tribunal stressed that the said composition had been determined in accordance with the Constitution as well as the binding Act of 30 November 2016 on the Organisation of the Constitutional Tribunal and the Mode of Proceedings Before the Constitutional Tribunal.

The previous exclusion of Judge Mariusz Muszyński, Judge Henryk Cioch and late Judge Lech Morawski was inconsistent with the Constitution as well as with the statutory provisions that regulated the proceedings before the Constitutional Tribunal at that time. The said judges of the Tribunal had been elected by the Sejm, and the President of Poland had given them the oath of office. Therefore, there were no grounds for impugning their status.

By contrast, on the basis of the Tribunal’s decision of 6 March 2017, issued with reference to an application by the Public Prosecutor-General as to the composition of the adjudicating bench in the present case, the following judges of the Tribunal had been excluded from the said adjudicating bench: Judge Piotr Tuleja, Judge Stanisław Rymar and Judge Marek Zubik. The said decision has not been amended or repealed so far.

The Presiding Judge of the adjudicating bench was the Vice-President of the Tribunal, Judge Mariusz Muszyński, and the Judge Rapporteur was the President of the Tribunal, Judge Julia Przyłębska.