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1

Majority voting system. 'Falsa lectio' and 'fama clamosa'

100%
Szymanek J.
Studia Polityczne (Political Studies)
|
2006
|
issue 18
29-66
EN
The article evaluates the more and more frequently articulated postulates for changing the electoral system in Poland. In most cases, supporters of replacing the proportional representative system with the majority system claim that changing the mechanism of seat allocation will improve the state of Poland's modern democracy. A recent diagnosis points to a number of shortcomings of the Polish political system in several dimensions, including the bad quality of political class and political parties which might be remedied by a change to the system of redistribution of parliamentary seats. According to supporters of such an option, it will reduce the number of political parties in the Parliament thus contributing to stabilisation of the political system. This conviction is evidently influenced by the so-called Duverger's law, concerning the relation between the electoral system, the party system and the wider political system. The authors of the proposed changes tend to forget, however, that the Duverger's law is nowadays rejected, even by its originator. The same concerns other presumed arguments supporting majority systems, including the responsibility of authorities, more efficient organisation of the political scene, more genuine representation of the voters or restoring to the voting act its original electoral function, etc. In fact, the effectiveness of an electoral system is influenced by a number of factors of which the 'pure' election model is not a decisive one. When selecting a model of electoral law the electoral system should be examined as a whole rather than from the point of an electoral model. For example, the size of constituencies or regulations eliminating extreme parties should be taken into consideration. Eventually, the outcome of the election is affected by non-institutional factors, such as political culture, social and political divide, the degree of political awareness, the economic and cultural background, etc. Eventually, it should be realised that no electoral law is able to arrange the political scene. The problems of 'Polish democracy', which is still an emerging one, do not result from electoral law, but from the general, much deeper crisis of the political parties, while it is the parties which are the most significant element of contemporary democracies, critical to the effectiveness and functionality of any political system.
2

SYSTEMS OF GOVERNMENT

100%
Szymanek J.
Studia Prawnicze
|
2005
|
issue 3(165)
5-49
EN
This paper analyses various systems of government understood as formal and actual relations between the legislative and executive authority. According to the principle of segregation of powers they are segregated first with regards to the scope of competence and then with regards to the competent authority, consequently allowing for a clear distinction between the legislative and executive authority, and for the setting of relations between them. Hence, the principle allows us to define two basic, or 'pure' systems of government, i. e. the parliamentary system and a contrario the presidential system. The first is characterised by a flexible distribution of powers, accompanied by the whole mechanism of various relations and subordinations between authorities. It prefers, therefore, a 'dialogue' or even a 'collaboration' between authorities, encouraging all types of contacts and links between the legislative and executive authority. The best known examples are, on one hand, the right of the parliament to adopt the vote of non-confidence in relation to the cabinet, while on the other hand, the executive authority has the right to dissolve the parliament before the term's end. The parliamentary system has been subjected to changes and modifications all the time. One can find a classic parliamentary- (a dual system), a monistic parliamentary- ( with dominance of the legislative authority) and finally, a rationalised parliamentary system, the most frequent form nowadays. It seems that the most far-reaching form of rationalisation is a semi-presidential system, called also a mixed system, a presidential/parliamentary system or a presidential/prime minister's system.The presidential system is characterised by a very strict segregation of powers, and the best example of such system can be found in the USA. However, the presidential system has not been adopted anywhere else except for the USA. in spite of many attempts of its transplantation. The far-reaching transformation of these systems of government, especially in the parliamentary system have caused that today the two systems can be rarely found in their pure form. We usually deal with some combined solutions which mix in various proportions and combinations various elements from these pure systems. Moreover, the question whether the parliamentary system is better than the presidential one has lost its relevance. What is important today is to ensure stability and efficiency of the system of government.
3

CONSTITUTIONAL BASES FOR FUNCTIONING OF HOUSING ASSOCIATIONS

100%
Szymanek J.
Studia Prawnicze
|
2007
|
issue 3(173)
5-26
EN
The theme of the article is a search for all constitutional full powers that make it possible to consider housing associations as the value protected by the constitution. It is because associations do not have a direct, explicitly expressed anchoring in the constitution. In such a situation the problem of associations and, broadly speaking, co-operative movement may be considered in the light of the general constitutional regulation related to the freedom of association first presented in art. 12 and, secondly, in art. 58 of the Constitution. Beside art. 12 and art. 58 of the principal act, the constitutional basis for establishment, operation and protection of associations as a special form of “voluntary association” is the standard in art. 75 passage 1 of the Constitution. According to it, public authorities have the obligation to run the politics favouring the fulfilment of housing needs of citizens and to support the activities of citizens aiming at obtaining their own apartment. There is no doubt that one of the main activities meeting halfway the duty specified in the provision of art. 75 passage 1 is the establishment of housing associations, whose principal aim - specified in art. 1 of the act on housing associations - is 'the fulfilment of housing needs' of their members. And it is obvious that the task specified in art. 75 passage 1 of the Constitution should also be executed, probably most of all, by means of the statutory establishment of legal institutions, making it possible for physical entities to undertake collective (and individual) activities aiming at building for oneself and one's family a house or apartment in a multi-family building in order to fulfil housing needs by means of using a given house or apartment. It means that associations, whose aim is the fulfilment of housing needs of members and their families have their own, special legal status, resulting from the Constitution related to their role in the execution of the state's duties specified explicite in art. 75 passage 1 of the principal act. As a result, the housing association as one form of voluntary association has not only the general constitutional legitimacy to act, set forth in art. 12 of the Constitution, being additionally a guarantee of the constitutional right to associate provided for in art. 58, but, most of all, has the constitutionally specified aim, which is the execution of tasks in the area of fulfilment of housing needs of citizens.to be completed
4

THE CONCEPTION OF EUROPEAN ACTIVITY OF THE POLISH SENATE AS A PARLIAMENTARY SECOND CHAMBER

100%
Szymanek J.
Studia Prawnicze
|
2006
|
issue 3(169)
37-77
EN
The subject of the article is the matter of the 'European commitment' of the Polish Senate. This question should be looked into from at least several points of view. The first tier - 'competency' concerns delimitation of the rights of the Executive and the Legislative branch with regard to the matters referring to the European Union. It is contained in the recognition that the competencies of the parliament in the widely understood 'European relations' are limited 'ab initio' while the second chamber or even wider - the parliament, is brought down to the role of a councelling, advisory body, where the Executive is the leading body. The second tier is a much wider matter having a global value. Namely, the perception of national parliaments by the European Union - conventionally referred to as 'union matter' or 'European matter' - is both undertaken and regulated, even though rather generally, by the European Union. It boils down to the indication of a general role of the national parliaments in the sphere of their European contacts, which on the one hand includes the area 'ad intra' – the internal area, whose core is the relationship of the national parliament with respective national executive bodies. The third tier can briefly and not very precisely be referred to as 'doctrinal' or alternatively 'functional'. It mainly is about an answer to the question what function/ functions national parliaments actually have. Therefore, is this function/ functions, i.e. supervisory and legislative, with the assumption of a necessary transposition in this respect which is imposed by their 'Europeisation'. Or perhaps the function associated with the European participation of national parliaments does not fit in any of the insofar existing or classic or even standard functions of the legislative branch, adopting the form of a separate and independent function - function 'sui generis'. The fourth tier - mutual relations which take place with a divided parliament, the parliament with a complex, two-chamber internal structure (conventionally referred 'structural' or 'bicameral'). The fifth tier - intranational constitutional regulations which should at least to a certain extent by consistent with the general adjudications dictated by the decisions executed at the previous tiers, namely the 'competency', the 'union', 'functional' and eventually the 'structural' tier.
5

RELIGIOUS FREEDOM LEGAL REGULATION

100%
Szymanek J.
Studia Prawnicze
|
2006
|
issue 2(168)
5-30
EN
The article deals with religious freedom (freedom of conscience and belief) which is currently recognized as a fundamental and most important human liberty. This freedom is closely linked, on the one hand, to the individual's right to privacy and, on the other, to the religious neutrality of the state. A short time ago religious freedom or freedom of conscience and belief was defined by the use of many different words and phrases. Now it is undeniably considered as a guarantee of lack of interest on the part of the state for views, opinions, attitudes and judgment of its citizens or people in general. As a result, in domestic regulations and particularly in international norms, freedom of religion is meant to be interpreted in a very broad sense including the right of free choice of religion, the right to have and express different opinions including religious, non-religious as well as anti-religious views. Hence, freedom of religion means a guarantee for individual to make free evaluations and choice of religion and any other opinions. Freedom of religion have two diferent and important dimensions. First, the individual dimension, which guarantees every human the freedom of conscience and belief, and the second - the collective dimension, which guarantees every church and other religious organisations a freedom that means equality, autonomy and independence. Therefore the 'neutral' state is the best guarantee for the human liberty and rights. For obvious reasons, a democratic and pluralistic political regime is the starting point of freedom of religion and of the neutral state. Therefore the freedom of religion (freedom of beliefs or freedom of philosophy of life or finally freedom of conscience and belief) is a real background of the growing cultural and religious plurality in the modern society.
6
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THE ETHICS OF A MEMBER OF PARLIAMENT AND THE NATURE OF A REPRESENATATIVE MANDATE

100%
Szymanek J.
Przegląd Sejmowy
|
2008
|
issue 4(87)
87-102
EN
The ethics of a parliamentarian is 'sui generis' a qualified form of political ethics. However, political ethics and the ethics of a parliamentarian differ in that political ethics is, at least to a degree, legally defined and regulated. The legal framework of ethics of a parliamentarian may be assessed at least from three points of view. The first of them is legal constitutional nature of parliamentary mandate which, in fact, determines specific obligations of its holder shaping his or her behavior, which - in turn - in confrontation with the principles relating to general construction of mandate, may be assessed as ethical or unethical. The second point of view, which is directly linked to the previous one, is the relation between a parliamentarian and his or her own political parties, or - speaking more broadly - his or her powerbase. This relation, firstly, may significantly modify theoretical foundations of the mandate and, secondly, is distinguished by its own system of ethics - used in a peculiar meaning - which may not only complement theoretical foundations of the mandate, but also - even potentially - collide (or, at least, do not harmonize) with them. Finally, the third legal approach to the manner of regulation of ethics of a parliamentarian is the question of relations between a parliamentarian and other extra-parliamentary communities and groups of lobbying character, i.e. all types of pressure groups which - more or less - exert influence on the parliamentarians and parliament and, as a consequence, affect the decisions of the legislature. These three dimensions of ethics of a parliamentarian constitute peculiarly understood subsystems which make up appropriate ethics of a parliamentarian seen as a spectrum of acts that are permitted, required or forbidden and which result from the fact of exercise of the representative mandate. The demand for ethical behavior should require from of a parliamentarian to conduct himself or herself in such a way that respects the constitutional construction of the representative mandate on the one hand, and reconciles the interest of the general public with particular interests (including those of political parties and lobbying groups) on the other, since only such a conduct may give an optimum decision (in a given socio-political circumstances) elaborated by the national representative body. The decisions made by parliamentarians, involved by nature in conflict of various interests, should always result from the choice of priorities and their hierarchy throughout the country, and - in case of a potential conflict or, at least, lack of synchronisation of particular and group interests, the decisive voice should belong to the interest of the nation exposed by the holder of the parliamentary mandate.
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