Legal Eye: Office security

"The President shall recall a Minister in whom a vote of no confidence has been passed by the Sejm" - Article 159 of the Polish Constitution

Once they have taken office, Ministers might consider themselves safely on the gravy train. But their job security, at least in a legal sense, hangs by the slenderest of threads.

Ministers of the Polish government serve at the will of the Prime Minister and the lower house of Parliament (Sejm). They are political appointees and, for the most part, have no job security. In contrast to the President and members of Parliament, they enjoy almost no immunity from prosecution for offenses committed either while in office or prior to assuming office.

Ministerial selection

Article 154 of the Polish Constitution charges the Prime Minister with selecting the Council of Ministers.    The President formally appoints each new Minister, and then the Sejm approves the Council's new composition and program by taking a vote of confidence. If the Sejm fails to approve the new Prime Minister and Council it will select an alternative Prime Minister, who has to form a new Council.

Ministerial powers

Individual Ministers "shall direct a particular branch of government or perform tasks allocated by the Prime Minister," according to Article 149. A regulation or order issued by a Minister may be repealed by the Council, following the request of the Prime Minister. Moreover, as provided by Article 150, "a member of the Council shall not perform any activity inconsistent with his public duties."

The Council is empowered to issue regulations, protect the interests of the State Treasury, adopt a draft State budget, conclude international agreements, ensure the internal and external security of the State, supervise the work of all State agencies, and ensure the implementation of all laws.

Accountability

The Council as a whole, together with each individual Minister with respect to those matters falling within his field of competence, is responsible to the Sejm. The Sejm may recall (or if you prefer "fire") either the entire Council or an individual Minister by majority vote. Additionally, the Prime Minister may sack a Minister by motioning the President to "effect changes in the composition of the Council" pursuant to Article 161.

A Minister may also be referred to a special Tribunal of State for violating the Constitution or the law, as well as for the "commission of an offence connected with the duties of his office," according to Article 156. Such a referral may be made at the motion of the President or at least 115 members of the Sejm, provided that at least three fifths of the Sejm approves such a referral.

Financial liability

Harm caused to a person or legal entity by the action (or inaction) of a State official, including government Ministers, is actionable. Specifically, Article 417 of the Civil Code declares: "The State Treasury shall be liable for damages caused by an official of the State in carrying out acts entrusted to him."

Paul Fogo is a senior attorney with Miller, Canfield, W. Babicki & Partners