The new law, which allowed the government to replace the legal emergency with new regulations, was quickly passed. According to some lawyers, the provisions introduced by the actual state of emergency apart from the constitutional provisions regarding exceptional procedures, You may violate the constitution. It turns out that the regulation on the “ban to stay” in the border area may also have other legal flaws.
Work on the law was completed immediately on December 30, to be completed before the state of emergency ended. If the government delays, there will be a “window” between the two bases. So on Tuesday, Sim rejected the Senate amendments after five hours President Andre Duda The law was signed and a little over an hour later it was already published in the Laws Journal.
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The decree was there, the act was not yet
Dozens of minutes after that, another statutory law was published detailing the new territory. This is the decree of the Minister of the Interior and Administration Mariusz Kaminsky of November 30, 2021 “on the imposition of a temporary ban on residence in a certain territory in the border zone”. We have read that this regulation was to go into effect on the 1st of December.
What is the problem? as described “Republic”, the amendment to the law signed by the president states that it enters into force “the day after its proclamation.” That is, … on December 1, after midnight. A few hours after Kaminsky issued his decree. – As stated in The document itself – on November 30, when the law providing for this was not yet in force.
Constitutional Professor. Andrzej Jackiewicz saw that the minister had violated an article of the Constitution that sets out the rules for issuing regulations. As he added, their legal implementation will not be difficult: it will be enough either to write in law that the provisions come into force on the day of the declaration, or to wait until December 1 for the issuance of the regulation – it may be so. Released even a minute after midnight. According to Jackiewicz, unjustified regulation may be grounds for the court to waive the entry penalty.
Dr. Love. Anna Rakoska-Trella, a specialist in constitutional law, said in turn onetThat what Minister Kaminsky did “was not a trifle, but a serious violation.” – But it is the unconstitutional content of the regulation that may affect the way the courts deal with this legal act. In my opinion, people held in the border She said that under this document issued by Marius Kaminsky, they should be acquitted by the courts. In her view, the procedure for passing the law was “extremely egregious and illegal”, and its provisions restrict basic freedoms “without regard to constitutional requirements.” Dr. Love. Rakoska Trilla said:
In this way, by breaching the Constitution through an ordinary law, practically anything can be passed. Including martial law introduced – why not? The way rulers circumvent the Constitution makes it practically invalid today.
Amendment of the border law. What is the project about?
The amendment allows for the introduction of a temporary ban on staying in areas close to the border line, especially prone to immigration pressure or border incidents. The ban may be imposed in a certain area of the border area on the basis of a decree issued by the Minister of Internal Affairs and Administration. The main assumptions of the project:
- “Immigration pressure is still evident on the Polish-Belarusian part of the border. At the same time, accidents are increasing, as well as the use of weapons, provoked by the Belarusian services. Therefore, in order to ensure the effectiveness of border guard actions, it will be possible to impose – for a specified period – a ban on stay in areas close to border lines that are particularly vulnerable to such activities”;
- A ban on residence in a certain area of the border area may be imposed, on the basis of a regulation of the Minister of Internal Affairs and Administration;
- This regulation will specify the area and duration of the ban. The solution will not include, inter alia, prohibiting residents of the area from staying, people who perform profitable work in this area, students and people using border crossings. The locally competent commander of the border guard post will also be able to allow other people, in particular journalists, to remain in the area prohibited by the ban.
- Entities that carry out specific activities in the area covered by the residence ban will be able to receive compensation for its validity period;
- Border Patrol officers will be able to use incapacitating material launchers on the back;
- At midnight, the state of emergency, which was imposed on September 2, at 183 sites near the border with Belarus, ends. It has been extended time after time and, according to the constitution, cannot be done.
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