2010 | 5(100) | 127-156
Article title

PARLIAMENTARY MANDATE (A REINTERPERETATION OF CLASSICAL APPROACHES) (Mandat parlamentarny (reinterpretacja ujec klasycznych))

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The article provides a critical review of literature in the field of constitutional law concerning a theoretical model of the representative mandate. The model of the free (representative) mandate is unquestioningly accepted almost everywhere. This fact is reflected in the constitutional formulas which openly establish free mandate or those which proclaim explicitly the prohibition against establishing the imperative mandate The legal aspect of representation does not tally with its political aspect required for proper definition of a mandate. Therefore, solutions between the two above-mentioned models are more often offered, including the limited representative mandate or a hybrid mandate, i.e. the semi-imperative mandate. It is however stressed that even if in the strictly legal sense a Member of Parliament is non-accountable, ergo his/her mandate cannot be withdrawn, in the political (practical) terms he/she is, in a sense, linked with voters (in the constituency) and – above all – with his/her power base which is found today in political parties. Due to this, the process of institutionalization of political parties should by considered from a wider perspective of a constitutional justification of a newly defined mandate and that of the creation of foundations for legitimatization of the holder of the mandate as an exponent of a political party. In some cases, an emphasis placed - on the level of the constitution - on MPs' connections with their power base is so great that it takes the form of the so-called Czechoslovak clause, which means the loss of the mandate in the event of a change of party affiliation by a MP. It seems that such a solution should not be recognized as a classic concept of individualized mandate, but rather as a new formula of collective mandate where the role of holder of mandate is placed by a political party and not a MP. Worth mentioning is existance of representative mandate in relation to the so-called second chambers of parliament, with some exceptions (e.g. in Germany). Whereas, in second chambers, being the forum of particularistic representation, established unlike that in first (basic) chambers, continuation of an analogous mandate may raise justified controversies. Second chambers, due to their specific nature, complete the representation of the whole parliament. Therefore, another kind of mandate (e.g. an imperative one) could be acceptable. However, it would not be a regular binding mandate, but rather a complementary one, as it is aimed at complementary representation , reflected in the composition of the second chamber which only together with the general (global) representation of the first chamber constitutes complete picture of parliamentary representation.
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  • Jaroslaw Szymanek, Uniwersytet Warszawski, Wydzial Dziennikarstwa i Nauk Politycznych, ul. Krakowskie Przedmieście 3, 00-047 Warszawa, Poland
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