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1

SPECIFIC LEGAL AND SYSTEMIC FEATURES OF THE FUNCTION OF THE HEAD OF STATE'S POLITICAL ARBITRAGE (Prawnoustrojowa specyfikacja funkcji arbitrazu politycznego glowy panstwa)

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Szymanek J.
Studia Polityczne (Political Studies)
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2009
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issue 24
171-212
EN
The article aims at an analysis of the systemic position of the head of state, as set in the wide formula of the Parliamentary system, and of the function of the political arbitrate attributed to the head of state. It begins with a general observation that, in the case of a head of state in a parliamentary regime, the so called 'arbitrage function' is obligatory. In such a system of governance, the monarch or the president is not expected to be the leader of the executive, a factor ruling in the full meaning of the term. Quite to the contrary; in accordance with such principles of traditional Parliamentarism as 'the King can do no wrong', 'the King may not act on his own', and, lastly, 'the King reigns but he does not govern', in a Parliamentary system the head of state is moved aside, performs ceremonial functions, is a figurehead or, as the tale in the III French Republic held, is a person who cuts the ribbons at flower exhibitions. Apart from performing his representative and ceremonial entitlement, a president (a monarch) also exercises political arbitrage. The latter may take very different forms. It may be, e.g. a sport arbitrage, where the head of state is expected only to observe the rules of the game. It may be also a judicial arbitrage, where, apart from legality, the assessment of the arbiter may also be based on being right and fair. It may, finally, be arbitrage in the sense of making decisions, dangerously approaching the concept of arbitrariness, where the arbiter's actions mean a specific right to a 'free hand'; that is, the right to take decisions which are the best in the arbiter's opinion. Apart from this, the arbitrage of the head of state may take the form of value arbitrage, where the arbiter will protect those values significant to the state and its system. A so-called party arbitrage may be also indicated; this assumes that the head of state has an active role in maintaining the ruling coalitions, and, if necessary, in seeking the parliamentary majority providing a base for the government. However, whatever the type of arbitrage and whether it genuinely comes to the fore in practice or not, the arbitrage (a function of political arbitrage) is recognised as a necessary component of the structure of parliamentary governments.
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AXIOLOGY OF THE CONSTITUTION OF THE FIFTH FRENCH REPUBILC (Aksjologia konstytucja V Republiki Francuskiej)

100%
Szymanek J.
Przegląd Sejmowy
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2008
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issue 6(89)
34-57
EN
This article deals with the axiology or the spirit of the Constitution of 1958. It originates from the assumption that the constitution establishing the Fifth Republic was a deliberately planned attempt of a complete recovery of the state, including in particular its accommodation to changing social and political circumstances of France and,after brief experiences of the Fourth Republic. The basis for proposed constructions was provided by the approval of a parliamentary system of government, which however did not mean simple repetition of the solutions having been brought by the Third and, then, the Fourth Republic. On the contrary, the authors of the constitution aimed at a far-reaching recovery and improvement of parliamentary system of government. Their basic idea was to establish a new constitution based on the strong foundations of parliamentary system, with the existence of a powerful and effective executive branch. This was, in their opinion, the precondition of implementation of its basic idea, called the 'régime d'équilibre et de collaboration des pouvoirs'. Immediately after its adoption, the Constitution was criticised, inter alia, for departing from the idea of parliamentary system, excessive exposition of the role of the executive power, degradation of a statute which was an act of a particular importance in France, or, finally, for the absence of rights and freedoms, and also because its language was not sufficiently juridical. There was also a controversy about the axiology of the Constitution, regarded by some as too eclectic, inconsistent and laconic, and by others as too shallow and reduced to a brief idea of a 'powerful executive'. An opinion was also expressed that, in principle, such axiology does not appear in the (formal) text of the Act of 1958. A wide range of views on the axiology of the Constitution of the Fifth Republic and the fact that we have to deal with an actual deficit of constitutional values is probably the result of the lack of a universally agreed definition of the concept of axiology of the constitution. This notion is often replaced with such words as 'spirit' of the constitution, its 'origins', 'roots', 'inspirations' or even 'ideology', or - to say it more cautiously - 'guiding principles'. So, there is no consensus on what, in fact, determines the axiology of the constitution. Hence, the phenomenon of axiology of the constitution of the Fifth Republic cannot, in principle, be reduced to one perspective. The system of values that is established by the constitution and, what is equally important, by use of which the sense of its provisions should be interpreted, is an absolute conglomeration. It is defined by the political situation existing in the moment of establishment of the Fifth Republic and the basic principles of the Gaullist doctrine vital to the rudiments of the constitution, and also by other views of the theory, usually including the idea of 'rénouverle' of the political system, and, finally, traditional principles of the French system of government, expressed explicitly in the text of the constitution. All of this allows us to reconstruct the axiology of the constitution establishing the system of government of the Fifth Republic. .
3

THE POLISH CONSTITUTIONAL EXPERIENCE (BETWEEN DEMOCRACY AND AUTHORITARIANISM) (Doswiadczenia konstytucyjne Polski - miedzy demokracja a autorytaryzmem)

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Szymanek J.
Studia Polityczne (Political Studies)
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2007
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issue 20
63-98
EN
The subject of the article is a reflection on the Polish constitutional experience. Certainly we may take pride in the first written constitution on the European continent. However, the Constitution of 3rd May had, and still has now, no more than a symbolic value. It did indeed represent the modern, rational ideas of the age but on the other hand, it was a constitution abandoned, not put into practice, something which prevented its full verification. The constitution which followed, that is, the Constitution of March 1921, was, in turn, a copy of the French solution, insufficiently original and transferred to Polish soil in a way which was overly mechanical and ill-considered. As a result, despite the democratic and liberal cheers, it could not become an authentic or, first and foremost, an effective fundamental act. This was, in fact, confirmed by the coup d'état of May 1926, which drew a line through the democratic principles of the March Constitution. The straightforward consequence of this was the passing, in 1935, of the next constitution, named the April Constitution. Although this constitution has a negative tradition, being associated, as it is, with the repudiation of democracy and the introduction of non-democratic and authoritarian solutions in its place, yet, for all that, the April Constitution was the product of native, Polish thinking and, in addition, it was a constitution highly rated in legislative and doctrinal terms. It did, after all, represent original ideas for a political system, which, irrespective of the opinion in which they were held, comprised a serious contribution to constitutional thought. This is confirmed by all the instances in which, to a lesser or greater extent, the provisions of the 1935 Constitution were drawn upon, e.g., the French Fifth Republic. For obvious reasons, the next constitution, this time socialist, adopted in 1952, was an equally negative experience. Here, it again became evident that a constitution copying a foreign model, this time Soviet, is undemocratic, collectivist and, in addition, completely fictional. Since the Constitution of the People's Republic of Poland was merely a 'constitution on paper', it was not, as a result, a law which operated substantively; neither, and all the more so, was it a law which was accepted and absorbed. It held the most negative meaning for the Polish constitutional experience as it generated its own, peculiar condition of political culture, approving attitudes which were overtly anti-constitutional and even anti-state. This acquis of the Polish constitutions is pointed up, in its own way, by the Constitution of 1997, which is currently in force. Its substance draws upon those solutions familiar from earlier periods which were positively verified, whilst negating and eliminating those which have proved to be undemocratic, unverified or, quite simply, erroneous. At the same time, the Constitution of 1997 is bound up, and very clearly, with a range of contemporary, democratic principles and values of constitutionalism, confirming that Polish constitutionalism, despite all its drawbacks and shortcomings, is part of a significantly wider trend of European thought on political systems.
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THE REPRESENTATIVE RELATIONSHIP AT A EUROPEAN UNION LEVEL: AN ATTEMPT TO DESCRIBE THE NATURE OF MANDAT (Stosunek przedstawicielski na poziomie Unii Europejskiej (proba opisu charakteru mandatu)

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Szymanek J.
Przegląd Sejmowy
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2011
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issue 3(104)
91-111
EN
This article deals with relations between a Member of the European Parliament and a voter. The author wonders if this relation corresponds with the traditional notion of the representative mandate established in the classical theory of constitutional law, or it is of a somewhat indefinite nature. The Treaty of Lisbon specifies that 'The European Parliament shall be composed of representatives of the Union's citizens' (Article 14(2) TUE), providing, at the same time, a precise definition of the 'citizen'. According to it, 'every national of a Member State shall be a citizen of the Union' and 'citizenship of the Union shall be additional to national citizenship and shall not replace it'. (Article 9, last sentence). There is no doubt that in this relation, the one who is represented is the Union's citizen, i.e. a national of a Member State. Here, a question arise whether the classical formula of representation provided by constitutional law could be applied to the representative relation defined above. The requirement for utilizing legal construction of representation, in the proper meaning of the word, is the existence of a unified and homogeneous substratum constituting the represented entity. Under a conventional scheme of representation, such a substratum is simply the nation or people, without any internal diversification. However, such unified treatment is not quite the case at EU level. Electoral mechanism specifying national quota of MEPs violates the principle of holistic approach to the represented entity, which is also contravened by the secondary nature of EU citizenship, explicitly specified in the Treaty, in relation to citizenship associated with a member state. As a result, Union's citizens sitting in the European Parliament are selected according to national (state) classification. Owing to various measures, both formal (concerning electoral law) and actual (concerning mostly political parties at EU level), these differences are minimized , but cannot be completely eliminated. Nevertheless the entire legal and political structure of the European Parliament is slowly losing its national character and gaining clearly European traits.
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CONSTITUTIONAL RULE OF THE EQUALITY OF CHURCHES AND OTHER CONFESSIONAL ASSOCIATIONS (Konstytucyjna zasada równouprawnienia kosciolów i innych zwiazkow wyznaniowych)

100%
Szymanek J.
Studia Prawnicze
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2009
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issue 1-2(179-180)
161-201
EN
The Constitution in art. 25 passage 1 proclaims the rule according to which 'churches and other confessional associations are egalitarian'. This rule, taking into account the lack of an explicitly defined chapter, introduces the most important element of this system, i.e. the lack of focus on any church or other confessional associations. The sine qua non condition of separating the sacrum and profanum areas is the equality of religious organisations, which means that it is not allowed to discriminate or favour some of them in comparison to others; that rule was probably the most relevant feature of the system of connection of the state and the church in every application version. Therefore it should be assumed that the equality rule as the starting point of the whole regulation included in art. 25 of the Constitution constitutes - especially in comparison to other rules articulated in art. 25, i.e. impartiality, autonomy and independence of confessional associations, as well as bilateralism of regulating relation of the state and the church - the equivalent of the system of division, which was expressed in this way in the Constitution, admittedly only implicite, but nevertheless quite clearly. The unequivocality of the system of division is markedly confirmed by the catalogue of rules shaping relations between the state and the church, which on the one hand just determine the system of division, and on the other hand fulfil in this way a very distinct guarantee role in relation to the equality rule. Thus the equality, by the power of the constitutional legislator, became the key standard to specify the institutional way of relation of the state to the confessional issue, thus fulfilling the role of a standard both 'opening' the whole group of standards and values defining the adopted way of arranging relations between the state and confessional associations (in art. 25 and 53 of the Constitution), and a standard to a large extent protected by all other standards of the constitutional characteristics of relation of the state towards confessional associations. The fact of such a specifically understood binary nature of the rule of equality (guaranteeing and guaranteed standard at the same time) best confirms its constitutional significance, as well as its basic and most important sense, which is an indirect, tacite undertaken settlement of the system of division between the state and the church.
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PARLIAMENTARY MANDATE (A REINTERPERETATION OF CLASSICAL APPROACHES) (Mandat parlamentarny (reinterpretacja ujec klasycznych))

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Szymanek J.
Przegląd Sejmowy
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2010
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issue 5(100)
127-156
EN
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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THE CONSTITUTIONAL DETERMINANTS OF THE POLITICAL STATUS OF THE PARLIAMENT IN POST-SOVIET SPACE: CENTRAL ASIA CASE STUDY (Konstytucyjne wyznaczniki pozycji ustrojowej parlamentu w przestrzeni poradzieckiej: casus Azji Centralnej)

100%
Szymanek J.
Studia Prawnicze
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2008
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issue 2(176)
5-30
EN
Independence of Central Asia republics proclaimed in 1991 was 'politically imported' as a consequence of USSR decomposition. The same is true for decomposition of republics' constitutions - their character and degree was determined by changes in USSR constitution. Even few months before the end of Soviet Union republics of the region did not plan a secession and their citizens were eager to sign reformed Treaty of USSR, what they showed in referendum deciding on the fate of Soviet Union. Traces of totalitarian rule can be found in outcome of systemic and legal transformation conducted by post-communist elites. Thereby it is impossible to understand contemporary processes in legal and political spheres without referring to history of statehood and constitutionalism of Central Asia republics. Process of building constitutional system is unique in each country of Central Asia. It was shaped by the oriental traditions, like clan based political mechanisms, custom and Muslim law and by the heritage of Soviet totalitarianism. Other important factor connected with process of building constitutional system in this region are different, mixed systems of government which Central Asia states established. Generally there are presidential or semi-presidential systems of government. In contemporary struggles between democracy and authoritarianism in Central Asia, for now the latter wins. The reasons of this situation could be found in peculiarities of political culture, national psychology, conservative attitude of political elites and vulgarization of democracy, even this 'regulated and controlled'. In these conditions constitutional status of the parliament in each country of Central Asia is very specific. The legal and political status of parliament belongs to the highest principles regarding the status of the legislature, i.e.: national sovereignty, representative government as the basic form of exercising supreme powers by the nation, highest role of the constitution, separation of power. Those principles which are generally accepted in most democratic regimes in Central Asia are understood in a different way. First, because organ which represents national sovereignty is not only parliament, but also the head of state. Second, because legislative functions are executed not only by parliament but also by president or government. And finally, because separation of power often is only partial. Authoritarianism in Central Asia and different presidential or semi-presidential form of government often break the principle of separation of powers.
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INFLUENCE OF THE JURISPRUDENCE OF THE COSTITUTIONAL TRIBUNAL ON THE SHAPE OF PARLIAMENTARY LAW (Wplyw orzecznictwa Trybunalu Konstytucyjnego na ksztaltowanie sie prawa parlamentarnego)

63%
Karp J., Szymanek J.
Przegląd Sejmowy
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2009
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issue 4(93)
145-175
EN
The point of departure for the comments contained in the article is the assumption that the jurisdiction of the Constitutional Tribunal has mostly contributed to the formation of parliamentary law as a distinct discipline of constitutional law broadly meant. The subject of analysis of parliamentary law includes matters concerning both the structure and organization of parliament, and detailed parliamentary procedures. Usually, parliamentary law is treated as part of constitutional law, which regulates organization, composition, functions and the rules of operation of a parliamentary assembly. It is also often called 'an internal law of parliament', to express that - above all - its main field of regulation includes the principles of the internal structure, organization and working procedures of parliament. In the broad meaning, parliamentary law covers: electoral law, legal status of a member of parliament, as well as the entire legislative process taking place both inside and outside parliament. In its narrow meaning, however, it concerns the structure, organization and parliamentary procedures. Despite the applied definition of parliamentary law, its basic point of interest is connected with matters of parliamentary organization, scope of powers and rules of procedure. The 'parliamentary' judgments made by the Constitutional Tribunal during its 20-year existence may be divided into several groups in accordance with their subject, as referred to parliamentary law narrowly understood. They include judgments falling into the field of: 1) autonomy of parliament; 2) mutual relations between both chambers of parliament; 3) the functions of parliament and ways of exercising them; 4) Sejm's internal rules of conduct. The review of main judgments concerning parliamentary matters clearly shows that the decisions of the Tribunal contributed considerably to a more precise specification of the constitutional provisions governing the position of the Sejm and the Senate within the system of government. Moreover, the jurisprudence of the Tribunal has resolved essential practical questions, e.g. the scope of admissible amendments proposed by the Deputies to the Sejm or by the Senate, or the rules defining the paths of the legislative process. This has had a clearly utilitarian dimension, including – in particular – that of praxeological nature and that which has also rationalized the sequentially complex and (often) only generally formulated parliamentary procedures. This comment does not mean that the achievements of the above-mentioned judicial body has not aroused controversy or even criticism, or that all matters appeared in the field of parliamentary law (broadly understood) have been addressed and definitively resolved. This does not mean the line of the jurisprudence of the Polish Constitutional Tribunal has always been constant. Just the opposite, the Tribunal has often modified its opinions, or – at least – provided different arguments for its findings. However, it has always taken a creative approach to parliamentary law, thereby contributing to its high status.
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PROFESSIONALIZATION OF THE LEGISLATIVE WORK IN PARLIAMENT (Profesjonalizacja parlamentarnych prac ustawodawczych)

63%
Szymanek J., Karp J.
Przegląd Sejmowy
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2009
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issue 5(94)
111-128
EN
The law-creating process carried out in a parliament of a democratic state has for a long time been the subject of study and discussion on how to improve it, not only in terms of the speed of the legislative process and legitimacy of laws passed during that process, but also the quality (in different meanings of this word) of these laws. The latter two elements are particularly important, as they provide a basis for remarks concerning the requirements for validity of laws. It is well known that, to meet these requirements, laws have to be adopted upon the procedure, and in accordance with the content, of hierarchically higher law, and also (and maybe above all) laws should fulfill the praxiological requirement which is compatibility to complex social realities, since it is only in such that the enacted norm will adequately perform all functions prescribed to it. Consequently, in the process of creation of laws by parliament, the legislator is required to satisfy particular conditions guaranteeing that the laws newly passed will reflect imperatives resulting from the constitution as to their conformity and systemic cohesion, and that they will effectively regulate different spheres of public life without posing any threat of conflict between the legislator and the addressees of a new law. The conditions in which laws satisfying validation requirements for their constitutionality and legal and socio-political effectiveness are created, may be defined using a catchy slogan 'professionalization of legislative work'. It means that the political process of passing laws under the existing norms of the constitution and parliamentary rules of procedure imposes several requirement on its actors. They have to: possess adequate knowledge in the field that is subject to regulation, select effective remedies to be used in a drafted law in order to solve existing problems, predict effects of that law coming into force which do not cause negative social, economic and political consequences, and assess honestly whether an act so passed could be effectively enforced. The authors enumerate Polish legal solutions aimed at professionalization of legislative work in parliament, and compare them with theoretical models of law-creating, including above all, the so-called concept of communicative approach to lawmaking, according to which legislative process is a particular kind of a communication (information) process involving many different subject exerting different influence on the final content of enacted law. There is a relatively new phenomenon of a gradual increase of the number of such subjects and the growth of information resources (knowledge). Professionalization of legislative work in parliament should guarantee rational participation of heterogeneous subjects on the stage of creation of a norm, in order to satisfy the postulate of deliberative lawmaking and to improve mechanisms of selection and real procession of information (where the role of parliamentary expert services is evident), and enabling parliament to enact optimal law.
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