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1

WHEN THE MARSHAL OF THE SEJM IS THE MOST IMPORTANT PERSON IN THE STATE, OR THE POLISH INTERREGNUM (Gdy Marszalek Sejmu jest pierwsza osoba w panstwie, czyli polskie interregnum)

100%

Zubik M.

Przegląd Sejmowy

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2010

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issue 5(100)

71-89

EN

The article examines historical circumstances and normative basis of the exercise of the duties of the head of state by the Marshal of the Sejm, or the Marshal of the Senate, in the event that the office of the head of state becomes vacant. The tragic events of 10 April 2010 have brought an end to the exercise of office by several persons holding top positions in Poland, including the President of the Republic. The author provides an analyses of constitutional practice existing in the period preceding the assumption of the office by a newly elected President in August 2010. He presents principles accepted by the legal study and confronts them with actual actions taken at that time by Marshals [Speakers] of the Sejm and the Senate. He also attempts to point out the specific nature of the events between April and August 2010. The solutions of the problem are presented by the author in the context of Polish political life, particularly the election campaign in which the person acting as the head of state were participating. Moreover, in the article legal problems are raised as to the consequences of election by the People of the Marshal of the Sejm on whom the Constitution confers the power to perform the duties of the President of the Republic. Impact of such election on the possibility of exercising the mandate of the representative is also considered, as well as problems with the assumption of the duties of the head of state after the renouncement of the seat of the Deputy by the President-elect.

2

CHANGES OF THE RULES OF PROCEDURE OF THE SEJM IN 2007-2009 (Zmiany regulaminu Sejmu w latach 2007-2009)

100%

Zubik M.

Przegląd Sejmowy

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2009

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issue 3(92)

121-138

EN

The rules of procedure (Standing Orders of the Sejm), as a basic normative act governing the organization and procedure of the chamber, formally remains in force since 1992. Subsequent amendments of this act were aimed at its adjustment to modified constitutional provisions and attempted to rationalize the work of the chamber. As a result of several dozen of amendments, the text of the document has lost its consistency. The article discusses four amendments of the rules of procedure made in the first half of the 6th term of the Sejm elected in 2007. The first two amendments have brought a correction to the list of permanent committees and to the procedure applied by the chamber for appointment to certain state positions. Considerable changes in organization and procedure of work of the Sejm were made by 2008 and 2009 amendments. Both of them were mostly aimed to put things in order. They reflected frequent suggestions from legal scholars The amendment of 19 December 2008 has introduced several modifications concerning the first sitting of the chamber, internal organization and procedure of the chamber, as well as the scope of responsibilities of Sejm committees Two weeks later, the amendment of 9 January 2009 was focused on changes relating to the functioning of the Special Services Committee. It is too early now to comment upon the amendments and their consequences for the practice of parliament. The author provides an analysis of the amendments in the context of their content and the procedure used by the Sejm in relation to the form of making changes in the rules of procedure. He identifies emerging opportunities and potential threats in the functioning of parliament. He also recommends that the Sejm initiates the work to draft and adopt its new and comprehensive rules of procedure.

3

STATISTICAL QUANTITIES IN THE SYSTEM OF LAW ESTABLISHED BY THE CONSTITUTION OF 1997 (Wielkosci statystyczne w systemie prawa okreslonym przez Konstytucje z 1997 r.)

100%

Zubik M.

Przegląd Sejmowy

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2011

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issue 5(106)

9-22

EN

In Poland, under the Constitution of 1997, a new approach to the system of legal sources was applied. Its respective provisions have arisen mostly in response to the proposals put forward by the jurisprudence and legal scholars to limit the discretion exercised by the executive in determining the legal situation of the individual. Nowadays, in various normative acts, lawmakers more often refer to statistical quantities. Generally, this is the result of searching for objectivised principles for conduct of public authorities. The author discusses theoretical and practical consequences of the legislator's reference to such type of statistical quantities. He directs his efforts at establishing the criteria of assessment of the conformity of such practice with the constitution, and revealing the threats resulting from such practice. Moreover, he points out the need for an adequately detailed definition of the power of an executive body to properly determine a particular statistical quantity and properly connect this quantity with different legal norms. The author's theoretical investigations are based on the judgment of the Constitutional Tribunal (examining the case on the application of the Human Rights Defender). The case concerns a provision of the Real Estate Management Act which requires the President of the Central Statistical Office to publicize real estate price indices. These indices are designed, inter alia, as a basis for indexation of benefits that may be provided by public authorities to citizens in relation to real property management. Despite the fact that the Act came into force in 1998, the said provision has not been implemented yet. Additionally, the Human Rights Defender contested technical feasibility of fulfilling such a statutory obligation. The author presents arguments against the Constitutional Court's decision finding no unconstitutionality of the challenged provision. He also raises doubts - in the context of the constitutional principle of legality - about the admissibility of the exercise of the obligation so defined, due to an excessive discretion given to the President of the Central Statistical Office on the basis of a generally formulated provision concerning competence.

4

A BILL AMENDING THE CONSTITUTION OF THE REPUBLIC OF POLAND INTRODUCED BY THE DEPUTIES OF THE PARLIAMENTARY CLUB OF CIVIC PLATFORM (SEJM PAPER NO. 2989, THE SEJM OF 6 TERM) (Polish title below)

100%

Zubik M.

Przegląd Sejmowy

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2011

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issue 3(104)

9-30

EN

(Polish title: Projekt ustawy o zmianie konstytucji RP poslow Klubu Parlamentarnego Platformy Obywatelskiej (druk nr 2989, Sejm VI kadencji)). The article deals with the proposal introduced by the Deputies of the Parliamentary Club of Civic Platform to amend Polish Constitution of 1997. The proposal is the most comprehensive one those introduced in the last 14 years of existence of the Constitution. The bill, submitted to the Sejm in February 2010, is - in a sense - a recapitulation of the public debate on amending the Constitution of the Republic of Poland. Even if not intended to provide a thorough review of constitutional foundations for the functioning of the state and to redefine the axiology of the constitution, the bill contains several substantial changes, which - according to their authors - would improve the operation of the legislative and executive branches of government. First, the author discusses the role of the procedure for amending the constitution in guaranteeing stability of the constitution. In this context, he examines the issue (tackled in the literature) of dysfunctionality of several provisions of the Constitution and regulatory deficiencies revealed during their application. He depicts successive proposals to amend the Constitution that have already been submitted to the Sejm, including, paying particular attention to their context and historical setting. He mostly focuses on changes in: membership of both chambers of parliament, the status of Member of Parliament, powers of the Sejm, procedure for the election and substitution of the President of the Republic and his powers. Additionally, the author examines the proposal for deconstitutionalisation of the National Security Council (President's advisory body on national defence) and the National Broadcasting Council (an authority responsible for safeguarding freedom of speech and public interest in the media), as well as the reasonableness of constitutional regulation of the status of prosecutor's office.. The bill in question, even if not free of flaws, receives generally positive appraisal from the author. An in-depth reflection is, however, needed on the working out of a consistent concept of distribution of tasks and powers among particular public authorities, as well as specifying the numbers of members of the Sejm and the Senate. A weakness of the bill, in the author's view, is that it does not contain any provision governing Poland's functioning within the structures of the European Union and any consequent conferment of powers on state authorities. The fate of this proposal remains unknown. However, it reveals a range of problems whose solution, in a normative sense, should be based on a public debate, parliamentary resolutions or, probably, decision taken by the sovereign.

5

THE COMPETENCIES OF A CONSTITUTIONAL COURT AND THE LIMITS OF JUDICAL DISCRETION OF THE JUDGES OF THE CONSTITUTIONAL TRIBUNAL (Kompetencje sadu konstytucyjnego a granice swobody orzekania przez sedziów Trybunalu Konstytucyjnego)

63%

Zubik M., Wiacek M.

Przegląd Sejmowy

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2009

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issue 4(93)

25-58

EN

The starting point for this analysis is an assumption that the principle of legalism (specified in Article 7 of Constitution) applies to the Constitutional Tribunal. This means that its ruling actions should be initiated on the basis of a distinct competence norm. The competencies of the Constitutional Court in the area of assessment of constitutionality of statutes are specified exclusively by the Constitution, therefore eliminating the possibility of extension of its competencies by way of a statute. The authors show that the Constitution of 1997 eliminates previous limitations of the activity of the Tribunal and specifies a new different instruments by which the Tribunal can exert influence on the Polish legal order. They point out the consequences of the recognition by Poland of the jurisdiction of European Court of Human Rights and Poland's accession to the European Union. They also focus their attention on the process of interpretation of the legal regulation that serves as a standard of review of the challenged law. In their opinion, the context in which the Constitution operates is required for examination of that process. This concerns, inter alia, identification of a 'historical moment' in which the Republic of Poland finds itself now. The article also deals with the so-called self-restraint of constitutional court judges which requires them to exercise their powers in a way so that interference of the Tribunal within the sphere of competence of organs of other authorities does not exceed that which is necessary. Stability of the judgment line of the Constitutional Tribunal is also discussed. The authors stressed that divergence of jurisprudence is acceptable, but it should not exceed a level which would endanger the legal security of the individual. They also raise the issues concerning the effects of the decisions of the Tribunal. They indicate that the effects of a judgment of the Tribunal finding unconstitutionality are specified in the Constitution, i.e. the loss of the binding force of the unconstitutional provision together with the possibility of undermining decisions taken on its basis. Moreover, the Constitutional Tribunal may specify another date for the end of the binding force of the unconstitutional act. In the authors' view, the basic law does not contain other provisions concerning competence, which would authorize the Tribunal to shape the effects of its decisions in a specific manner. For these reasons the authors express doubts about admissibility of decisions in which the Constitutional Tribunal would specify, in the operative part, the effects of the entry into force of its judgment. This covers the instances in which the Constitutional Tribunal, firstly, excluded the possibility of quashing the decision based on the unconstitutional norm by the addressees of the unconstitutional norms and, secondly, made settlements relating to individual matters providing background for the review of constitutionality. To sum up, the authors state that the Constitutional Tribunal enjoys considerable public confidence.

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5 Przegląd Sejmowy

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WHEN THE MARSHAL OF THE SEJM IS THE MOST IMPORTANT PERSON IN THE STATE, OR THE POLISH INTERREGNUM (Gdy Marszalek Sejmu jest pierwsza osoba w panstwie, czyli polskie interregnum)

CHANGES OF THE RULES OF PROCEDURE OF THE SEJM IN 2007-2009 (Zmiany regulaminu Sejmu w latach 2007-2009)

STATISTICAL QUANTITIES IN THE SYSTEM OF LAW ESTABLISHED BY THE CONSTITUTION OF 1997 (Wielkosci statystyczne w systemie prawa okreslonym przez Konstytucje z 1997 r.)

A BILL AMENDING THE CONSTITUTION OF THE REPUBLIC OF POLAND INTRODUCED BY THE DEPUTIES OF THE PARLIAMENTARY CLUB OF CIVIC PLATFORM (SEJM PAPER NO. 2989, THE SEJM OF 6 TERM) (Polish title below)

THE COMPETENCIES OF A CONSTITUTIONAL COURT AND THE LIMITS OF JUDICAL DISCRETION OF THE JUDGES OF THE CONSTITUTIONAL TRIBUNAL (Kompetencje sadu konstytucyjnego a granice swobody orzekania przez sedziów Trybunalu Konstytucyjnego)