Kontrola parlamentarna służb specjalnych w Polsce
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PARLIAMENTARY SCRUTINY OF THE SECRET SERVICES IN POLAND
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The exercise by the intelligence and security services of their role in protecting the fundamental interests of the State, while maintaining a high degree of confidentiality of their operational activities, requires continuous scrutiny from the political authorities, in particular from parliament performing its representative and oversight functions. This is the starting point of all deliberations on the relationship between parliament and the secret services, both in Poland and all over the so-called democratic world. Another question is the state’s system of government. Parliamentary scrutiny of the government is an immutable feature of the parliamentary system of government. If we count special services among the government administration bodies, which is the most practicable solution (also in Poland), the parliament must have a legally guaranteed opportunity to examine and evaluate their activities. Therefore, parliamentary scrutiny of special services is a consequence of the control exercised by parliament over the government and its subordinate agencies. The extent of practical application of these general principles is determined by way of ordinary statutes. In Poland, this matter is regulated by legislative acts governing the functioning of secret services (the so-called competence acts). The basic purpose of this article is to provide an analysis of these acts. From this analysis a general thesis is derived that, under the existing legal order, proper parliamentary scrutiny of secret services in Poland is not feasible. This is because the provisions of the competence acts prevent parliament from gaining access to classified information showing the activity of secret services. Instead of repeating in the competence acts the idea of subjecting the secret services to parliamentary (Sejm) scrutiny, it is much more important to define precisely the relationship between the Sejm Special Services Committee and the heads of those services. Both the catalogue of the obligations of the heads of the agencies to the Committee, and the issue of accessibility of information gathered by secret services should be included, as soon as possible, in the competence acts. A major, but not the only, problem – identified after examining the competence acts – is the lack of sufficient knowledge about the classified aspects of the activity of secret services. Without this knowledge, the Committee and, thus, Parliament, cannot carry out its scrutiny function. The illusory nature of parliamentary scrutiny is also the result of the fact that heads of services pretend to be politically neutral and conceal their party affiliation, but their real position within the ruling hierarchy is similar to that of members of government. It is not without reason that, even on ceremonial occasions or in official letters they are called ‘ministers’. However, in no way this translates into normative solutions concerning their position under constitutional law. Still the only attempt at changing this situation - taken in 2002 - failed. At that time, the Act on the Internal Security Agency (ABW) and the Foreign Intelligence Agency (AW), was found unconstitutional by the Constitutional Tribunal, to the extent that the heads of the secret services were granted the rank of secretaries of state, (Tribunal judgment of 20 April 2004, Reference No. K 45/02). There was lack of system thinking. However, instead of appointing a new category of secretaries of state, it was enough to enter the positions of heads of ABW and AW into the directory of government positions (in Article 38 of the Act on the Council of Ministers). This proposal is worthy of consideration, and there is one important reason for this. It provides a systemic solution of the problem of political neutrality and party affiliation of heads of these services, at the same time making it possible for Parliament to exercise actual assessment of the activity of secret services and to adjust their activity with the use of a vote of no confidence.
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