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A SEJM INVESTIGATIVE COMMITTEE AS A FORM OF OVERSIGHT BY THE SEJM

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Banaszak B.

Przegląd Sejmowy

2008

issue 3(86)

The significance of investigative powers of parliament for the exercise of its oversight function is emphasized by the study of constitutional law. Such view is shared by several constitutional courts, including the Polish Constitutional Tribunal. In our times, however, the opinion has been established that investigative powers serve the public interest. In this context, its should be noticed that no function may be considered separately. This point of view obviously extends the scope of activity of the investigative committee. In case that the system of standing committees of the Sejm is well developed, a solution may be proposed that creation of investigative committees is admissible only in the event that a particular matter cannot be dealt with by standing committees. This opinion was shared by the Polish Constitutional Tribunal. This attitude seems to have no wider support in the literature of subject and parliamentary practice democratic states. By contrast, there are opposite trends. They show that even granting of investigative powers to standing committees do not lead to liquidation of investigative committees. Poland's Constitution dos not specify the entities that may be subjected to review by investigative committee. From the principle of the division of powers, the Constitutional Tribunal derives the view that independent organs are excluded from investigation exercised by investigative committees. The resolution on the appointment of the investigative committee as a special (ad hoc) committee of parliament (chamber) indicates the scope of work of an investigative committee in the name of the committee or in the above-mentioned resolution. It is stressed by the literature of the subject that the scope of committee work must be specified clearly and completely. The subject matter of committee work specified in the resolution establishing that committee may not be further modified in a considerable degree, since this should require modification of the resolution which provided the basis for establishing of that committee. The committee itself is not entitled to change the subject matter of its work. Another issue which deserves mention is the question whether the matters that are (or have already been) examined by another State organ may be covered by the subject matters covered by the subject matter of the investigative committee. Such a possibility is generally admitted.

THE LEGAL NATURE OF THE SEJM RESOLUTION TO APPOINT A SEJM INVESTIGATIVE COMMITTEE UNDER POLAND'S CONSTITUTION

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Bien-Kacala A.

Przegląd Sejmowy

2008

issue 3(86)

The article discusses the legal nature of a Sejm resolution to appoint an investigative committee. This problem appeared in the context of the judgment of the Constitutional Tribunal of 22 September 2006 (Act Call No. 4/06). In that judgment the Tribunal ascribed a normative meaning to a Sejm resolution on the appointment of an investigative committee to the extent in which it indicates the subject matter of the activity of that organ. Such committee is an instrument of oversight. In the light of Constitution of 1997, it is justified to claim that the exercise of such function is conferred, in principle, exclusively on the Sejm, whereas the oversight competence of the Senate in relation to a Sejm investigative committee is limited to participation in the proceedings aimed at adoption of a statute (act of parliament) specifying the rules of procedure for that body. The Sejm appoints an investigative committee by means of a resolution. However, resolutions of the Sejmu does not form a uniform category. Most of them take the form of acts of application of law (Poland's Constitution), but a large part of them have no binding nature. Some of them will belong to the sphere of making universally binding law or internally binding law. Ascertaining the nature of the provisions of the resolution opens the way to the examination of rightness of the used form of regulation.. Not always the normative character of resolutions implies from their nature. Only certain resolutions, and sometimes – to a limited extent, have the nature of normative acts. So, an analysis of particular provisions of a Sejm resolution is vital for declaring its normative character. The presence of any normative content justifies the subjecting of the act to the review of constitutionality or legality, particularly when the protection of the rights and freedoms of the person and citizen is at stake. In such situations, the Constitutional Tribunal applies a peculiar presumption of normative nature of legal acts. A resolution establishing an investigative committee of the Sejm is not tantamount to a resolution on appointment of its members. Moreover, the resolution establishing a committee is not a uniform act. Firstly, it creates the committee. In this part, it is an individual act. Secondly, it specifies the subject matter of the committee work, which should be recognised as lawmaking activity of universally binding nature. This resolution may also specify detailed principles of operation of the committee and the time limit for submission of a report by it. In that part, the resolution has rather an internally binding nature and, therefore, it should be counted among acts of lawmaking. Due to the binding nature of some provisions in relation to extra-parliamentary bodies, it may be recognized as a normative act of universally binding force.

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2 Przegląd Sejmowy

1 Banaszak B.

1 Bien-Kacala A.

2 2008

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A SEJM INVESTIGATIVE COMMITTEE AS A FORM OF OVERSIGHT BY THE SEJM

THE LEGAL NATURE OF THE SEJM RESOLUTION TO APPOINT A SEJM INVESTIGATIVE COMMITTEE UNDER POLAND'S CONSTITUTION