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1
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CHANGES OF THE RULES OF PROCEDURE OF THE SEJM IN 2007-2009 (Zmiany regulaminu Sejmu w latach 2007-2009)

100%
Zubik M.
Przegląd Sejmowy
|
2009
|
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.
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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
|
2011
|
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.
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THE ACTIVITIES OF THE LEGAL AND CONSTITUTIONAL COMMITTEE OF THE FIRST NATIONAL COUNCIL OF THE REPUBLIC OF POLAND IN 1940-1942 (Dzialanosc Komisji Prawno-Konstytucyjnej przy I Radzie Narodowej RP w latach 194-1942)

100%
Kulka G.
Przegląd Sejmowy
|
2009
|
issue 2(91)
103-120
EN
The outbreak of World War II and the loss of independence by Poland in 1939, put the supreme Polish state authorities in a peculiar situation. Some of them (the President of the Republic, Council of Ministers) continued their activity in the territories of the allied states, the fate of others was different, e.g. the dissolved chambers of parliament (Sejm and Senate) were replaced by a substitute of Polish parliament, called the National Council. During World War II, two National Councils existed (the first one in France and Great Britain in 1939-1942; the second in Great Britain in 1942-1945). Their organization and, particularly the functioning of its organs, greatly resembled that of the Sejm of the Second Republic. The article presents, on the example of the responsibilities of the Legal and Constitutional Committee of the first National Council, the scheme of functioning of a committee of the Polish quasi-parliament. The subject-matters of issues subject to the debate in that committee were also discussed. The committee itself was not only involved in current matters, including an attempt to address the responsibility of the pre-war authorities for a September campaign defeat or filling a vacancy in the National Council by a representative of the Ukrainian minority, but also in amendment of some legislative acts (e.g. the Act of 31 March 1938 on Deprivation of Citizenship.) and the review of the entire Polish legislation in order to eliminate legal norms violating the principles of the democratic state.
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VETO-ACTORS AND VETO-PLAYERS AS A MODEL OF CONSTITUTIONAL DESIGN FOR YOUNG DEMOCRACIES (Weto-aktorzy i weto-gracze jako model konstytucyjnego projektowania dla mlodych demokracji)

80%
Nowotarski B.
Przegląd Sejmowy
|
2010
|
issue 6(101)
103-122
EN
The article presents a proposal for a model of constitutional design going beyond the traditional discourse about presidential and parliamentary form of government. The proposal is addressed only to young democracies which have come out of dictatorship. The model is designed to help consolidate democracy by making it capable of implementing the necessary reforms and, above all, to protect democracy against its transformation into autocracy. Firstly, the model is based mostly on the experience of democratic transition in the countries of Latin America, Africa, Central and Eastern Europe, as well as Central Asia of the recent 30 years. Secondly, its basic assumptions result — in the author's view — from theoretical reflections of the following scholars: Matthew Soberg Shugart, John Carey, George Tsebelis and Mathew McCubbins. The proposed paradigm of constitutional design has not been based on big patterns of presidential or parliamentary systems, because in 73% countries involved in transformation, their application has not resulted in a consolidated democracy but in hybrid (autocratic-democratic) regimes. Its status is a consequence of the significance for young democracies of the detailed designing of the system of bodies on which the right of veto may be conferred (institutional veto-actors and partisan veto-players), whose consent will be needed in order to effect changes in politics. The model shows the importance and mutual connections of their mechanism, and they may be used to exert influence on political situation in the State.
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CODIFICATION OF BUDGETARY PRINCIPLES BY PARLIAMENT OF THE SECOND REPUBLIC OF POLAND (Problem kodyfikacji prawa budzetowego w pracach parlamentu II Rzeczypospolitej)

80%
Grata P.
Przegląd Sejmowy
|
2011
|
issue 2(103)
41-64
EN
Codification of budgetary principles provides an interesting example of problems in building an independent State and creating its fiscal system. Regulation of budget management principles, recognized as an important duty of parliament in the entire inter-war period, had faced irremovable - as it later transpired - obstacles. During the first years of independence, these obstacles included, in particular, high inflation affecting the economy of the entire country. Later, during the period of Grabski's government stabilization reform, this issue was not the first priority either, giving way to budget-balancing efforts. Coup d'état of May 1926 and the assumption of power by the Sanation (Sanacja) resulted in the September Amendment of the March Constitution of 1921, very important for the practice of budget making. However, a substantial weakening of the position of parliament thus deprived it of the possibility of exerting a real influence on the nature of legislation governing all areas of State fiscal policy. Its was in fact reduced to adopting resolutions urging the government to submit an appropriate bill. One of such resolutions, adopted in 1931, made undertaking the codification of budgetary rules conditional on the adoption of a new constitution. The provisions of the April Constitution of 1935 extended general rules of budgetary management, but they were not followed by legislative action.. Despite growing efforts in this direction by parliament, with the proposal of a relevant Member's bill, the government administration (including Deputy Prime Minister and Minister of Treasury Eugeniusz Kwiatkowski), consistently avoided taking action regarding the codification of budgetary principles. The successive investment projects, including the development of Central Industrial Region (COP) and strengthening the country's defence potential, were financed out of extra-budgetary funds essentially beyond parliament's control. The adoption of a statute governing all aspects of budgetary law would mean a removal of considerable financial autonomy of the government, to which Kwiatkowski could not agree. In those circumstances, the so far unquestioned need for codification of budgetary principles had to give way to actions aiming to develop and modernize the State. But this, in the government opinion, was inconsistent with statutory regulation of rules of budgetary management.
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THE STATUS OF THE MARSHAL OF THE SEJM IN THE SYSTEM OF GOVERNMENT AND THE RIGHTS OF THE PARLIAMENTARY OPPOSITION (Stanowisko ustrojowe marszalka Sejmu a prawa opozycji parlamentarnej)

80%
Pastuszko G.
Przegląd Sejmowy
|
2009
|
issue 2(91)
9-30
EN
The article deals with mutual relations between the Marshal (Speaker) of the Sejm and parliamentary opposition. It strives to depict the president of the Chamber as an authority responsible for initiating contacts between the political groups competing in Parliament. The research assumptions made by the author allow us to approach the powers of the Marshal from the perspective of the division of parliament into two legal and political structures, i.e. the opposition and the government supporting parties. The legal solutions concerning the status of the Marshal of the Sejm are determined by the fact that the office of the Marshal is, in each case, held by a person representing the camp of the ruling parties. The politicisation of the function of Marshal results in the possibility of discrimination of the opposition in the Sejm.. This fact inspires us to think about the problem of political neutrality o the president of the Chamber, since the specific nature of that office is reflected in the need to reconcile interests of different political groups functioning in parliament. The Marshal is responsible for organising the work of the Sejm. Therefore, he is required to make numerous decisions that cause risk of being biased in favour or against a particular option. The existence of many initiatives launched by individual groups depends on his will. Therefore, the concern of neutrality within the scope of powers exercised by him is widely held. It is justified. The more so that the existing legal provisions do not include the clause of political neutrality. In this context, the Marshal should justly balance the influence exerted by all political formations. The fact that the Marshal is, in fact, the nominee of the ruling majority is determined by the procedure for his appointment. Under the existing rules of procedure, the Chamber elects the Marshal by an absolute majority of votes. The requirement of arithmetical majority gives a privileged position to the ruling camp, leaving the opposition little chance to force through its candidate. For the opposition, the possibility of dismissal of the Marshal of the Chamber is of great significance. This issue - due to the lack of clear regulations under the former legal order - has caused doubts for many years. However, these dilemmas have had only doctrinal nature, since the Sejm actually recognised and established its powers in this area. An unambiguous normative rule, expressly providing for dismissal of the office of president of the Chamber was adopted only in an amendment to the rules of procedure of the Sejm in January 2009. These new solutions permits dismissal of the Marshal, among other things, for political reasons. On the other hand, however, they impose other substantial restrictions of formal nature (the procedure based on the constructive vote of no confidence, which requires those applying for dismissal of the president of the chamber to nominate his successor) that may cause difficulties to the opposition. .
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ON THE NEED FOR REFORM OF BICAMERALISM OF POLISH PARLIAMENT (W sprawie potrzeby reformy dwuizbowosci polskiego parlamentu)

80%
Dobrowolski M.
Przegląd Sejmowy
|
2009
|
issue 2(91)
31-53
EN
Modern bicameralism has existed in Poland for twenty years now. Its basic structure was formed in 1989-1992, with further slight modifications (often necessitated by reforms in extra-parliamentary areas of the system of government). To sum up, the evolution of the position of the Senate tends, ultimately, to diminishing its role in the system of government (stages thereof are determined, inter alia, by the way in which the Round-Table Agreements were translated into the solutions adopted in the April 1989 Amendment, by the occurrence and consequences of the legislative stalemate, by the change in the edition of the provisions specifying the moment of transferring an adopted bill to the President of the Republic for signature, and by the judicial practice of the Constitutional Tribunal in relation to the meaning of the term 'amendment by the Senate'. The continuance of such direction of the evolution would reduce the role of the Senate to that of a middle-quality legislative bureau, and which - in turn - will raise the question of its further existence. Therefore, we should initiate a discussion on its general reform. At the beginning of the discussion, it is worth mentioning that parliamentary procedures must lead to effective decision-making in which the matter could be talked over. Then, both the Chambers are involved in an intra-parliamentary 'discussion' on the political choice of the best solutions. It seems that the reason for the establishment of the Senate is the application by that Chamber of a different perspective of view in consideration of particular matter. This requires the necessity of a political diversity of membership of the Chambers and modification of mutual relations between them. This approach would lead to the elimination of the provision 'Sejm shall adopt statutes' and making the term of office of the Senate independent of the term of office of the Sejm, as well as modification of the principles concerning the setting up of the composition of the second Chamber. The latter proposal might by achieved by the introduction of a 6-year tern of the Senate with one-third of its membership exchanged every two years or by the election of senators by electoral colleges composed of councillors from the local governments of all levels and presidents of the towns, mayors and heads of communes. To support the 'professional factor', the composition of the Senate should be supplemented by persons who had held the highest state offices in the past. The discussion on these proposals, as it seems, would result in developing an optimal shape of Polish bicameralism.
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NEW ASPECTS OF THE STATUS OF A COMMITTEE OF POLISH SEJM (Nowe aspekty statusu komisji Sejmu RP)

80%
Pajdala H.
Przegląd Sejmowy
|
2009
|
issue 2(91)
91-102
EN
The article deals with new elements determining the status of Sejm committees, existing in its structure and functioning between the promulgation of the consolidated texts of the rules of procedure of the Sejm in 20002 and 2009. It presents procedural changes relating to institutional and organizational contexts of the functioning of Sejm committees, including - in particular - systemic arrangement and evaluation of their nature and trends of their development. The author accentuates not only the current legal position typical of particular stages of institutional transformations, but also takes into account suggestions made in this respect by law sciences. The two recent amendments of the rules of procedure of the Sejm are of particularly great importance, as they include the recommended introduction of the provisions aimed at arrangement and adjustment. Procedural amendments of 2003-2008, affecting the Sejm committees, may be described in two ways: as a structural separation of new bodies and attributing them with new scopes of responsibility and as the changes concerning adjustment of procedural provisions to existing statutes imposing particular task on the Sejm and its organs.
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THE SEJM OF THE REPUBLIC OF POLAND AND THE REPERESENTATION OF INTERESTS (Sejm Rzeczypospolitej Polskiej a reprezentacja interesów)

80%
Labno A.
Przegląd Sejmowy
|
2009
|
issue 3(92)
101-120
EN
The Sejm of today should be seen in connection with the entire system of representation of interests, where parliamentary representation is only one of the platforms in which different interests are manifested. Poland should adopt solutions to organize her system of governance and system of organization of public interests in a way enabling her to protect the interests of the state and its people in the globalised world. The perception of the Sejm, in the context of the emergence of extra-parliamentary forms of representation of interests, seems to be of utmost importance for parliamentarism in Poland. What is at issue is the political and organizational ability of the Sejm to discourse with the most widely comprehended representation of public interests, performed either by the political parties and corporations, or by lobbyists. It determines, on the one hand, the cohesion of the system of governance, and on the other - its ability to claim public legitimacy. Due to its lawmaking function, the Sejm should be treated as an organ in which the activities reflecting different interests of various elements of the society are concentrated. This means, as a consequence, that it has to gather together all forms of representation of interests, since this is now the most important issue for the development of Polish parliamentarism. The system of representation of interests and the system of governance must be perceived as a combination of an organized civil society (with a well-developed system of representation of interests) and an effectively functioning representation within the system of governance (in particular, the Sejm). In Poland, participatory democracy is particularly desirable, mostly because of the weakness of her parliamentary system and a definitely negative view of parliament expressed in public opinion polls. A multitude of newly created systems of representation of interests would contribute to effective protection of interests and promote the legitimacy of governance. To this end, above all, the instruments of lobbying and corporativism. The Treaty of Lisbon, giving the opportunity to find proper solutions for strengthening the position and function of the Sejm within the system of governance, forces changes which should enable Poland to contribute effectively in the lawmaking process. Increase of powers of European Parliament in that area results in the need for greater symmetry of power in Polish solutions. The task of Poland's effective involvement in the system of the European Union may be accomplished by establishing of mew mechanisms of operation of the Sejm (and the Senate) to be supported by activities of institutions representing interests. The recognition of the liability of the state for legislative unlawfulness places the sejm in a new position in relation to the sovereign. The case of claiming damages for 'legislative nonfeasance' is of special significance in this respect. However, its application may be limited.
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CHANGE IN OF THE SYSTEM OF THE POLISH SENATE, ADOPTED IN 2011 (Zmiana systemu wyborczego do Senatu RP z 2011 r.)

80%
Jarentowski M.
Przegląd Sejmowy
|
2011
|
issue 4(105)
33-47
EN
In January 2011 the Sejm adopted the Election Code which changes, inter alia, some elements of electoral system and the procedure for election of the second chamber of parliament - the Senate. Among the most important novelties was replacing of former 40 constituencies with 2-4 members with 100 single-member constituencies. An election formula has remained intact; it is still a simple majority vote. As regards the adjustment of the size of constituencies (i.e. the number of seats to be taken in a constituency) to the number of inhabitants, the former electoral law provided for a relatively imprecise procedure of distribution of seats between 16 provinces and, then, between constituencies. The Election Code introduces single-member constituencies; therefore it requires that the boundaries of constituencies (and, as a result, the number of its inhabitants) be adjusted to the number of seats, i.e. one seat. To prevent the necessity of changing the boundaries of constituencies in every election, the Code provides a margin of flexibility: to each constituency it should fall at least 50% of the norm of representation and no more than 200% of that norm (the norm of representation equals to the number of the country's population divided by 100). The Code also includes a provision guaranteeing that the number of constituencies created in each province will be no less than the integral number resulting from division of the number of inhabitants of the province by the norm of representation. One possible result of the introduction of single-member constituencies is that the most represented party will lose some seats to smaller parties or to independent candidates. Should the election of 2007 be held on the basis of the Election Code, the Civic Platform would probably lose 4 seats to the Law and Justice Party. Another effect of changing the size of constituencies will be solving the problem with wasted votes. Previously, under multi-member constituencies, a voter was able to (but didn't have to) choose as many candidates as was the number of seats to be obtained in the constituency. However, the voters have not always made use of that possibility. The bigger was the number of seats to be obtained in a constituency, the smaller was the proportion of voters indicating the whole possible number of candidates. During the elections in 2001, 2005 and 2007, about 24% of votes were wasted in this way. The Election Code has filled the loopholes in the existing law. Previously, the law has not provided for what to do when the number of candidates standing for a seat in a by-election equals the number of seats to be obtained in that election. In practice, elections were held, but voters had no opportunity to vote against candidates. By contrast, the Code provides for the possibility of casting a negative vote.
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VOTE OF NO CONFIDENCE UNDER THE WESTMINSTER PARLIAMENTARY SYSTEM (Wotum nieufności w parlamentaryzmie westminsterskim)

80%
Wieciech T.
Przegląd Sejmowy
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2010
|
issue 6(101)
83-102
EN
Under the Westminster system of government, the normative basis of political accountability of the government is provided by constitutional conventions being the norms of an informal and extralegal nature. Consequently, there are no formalized procedures to hold the government politically accountable to the parliament, which would allow the latter to pass a vote of no confidence in the government. Currently, the Cabinet is accountable only to the lower chamber of parliament, which means that only the loss of confidence of the House of Commons in the United Kingdom and Canada, and the House of Representatives in Australia, imposes on the prime mister a constitutional obligation to submit his resignation or to bring about the dissolution of parliament. Parliament may express a vote of no confidence directly or indirectly, and, in the practice of governance, the possibility of withdrawal of confidence from an individual member of government has been eliminated. The defeat of a supply bill (one that concerns the spending of money) is an indirect form of expressing a vote of no confidence. Any voting in parliament may be transformed by the prime minister into a motion of no confidence, who is required to make a declaration to this effect. The specificity of the procedures for passing a vote of no confidence by parliament under the Westminster parliamentary system is evident in the lack of traditional instruments to rationalize political accountability of the government. In these circumstances, rationalization of political accountability manifests itself in limiting the possible use of indirect form of passing a vote of no confidence almost only to refusal to authorize the expenditure of funds on government activities, consideration only those motions of no confidence which are submitted by the Opposition leader, as well as exclusion of the possibility of unexpected fall of a government having majority support in the parliament, inter alia, by the use of the mechanism of pairing. However, the lack of classic mechanisms rationalizing political accountability of the government does not result in strengthening of the position of parliament in relation to the government, as could be manifested by a frequent application of the motion of no confidence by the legislature. In practice, a stable two-party political system enabling the creation of majority one-party Cabinets, should be considered to the most important mechanism for rationalization of political accountability of the government.
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'EURO-AMENDMENT' PROPOSED IN BILLS AMENDING THE CONSTITUTION OF THE REPUBLIC OF POLAND: AN ASSESSMENT ATTEMPT ('Euronowelizacja' w projektach ustaw o zmianie Konstytucji RP. Proba oceny)

80%
Kustra A.
Przegląd Sejmowy
|
2011
|
issue 3(104)
31-54
EN
Following several years of Poland's membership of the EU and after the ratification and entry into force of the Lisbon Treaty, the idea of a large-scale 'Euro-Amendment' has reached its 'constitutional moment'. In this article the author makes an attempt to compare two proposals providing for a wide-ranging review of the constitution in connection with Poland's membership of the EU. These include a Presidential Bill which was mostly the result of work of the science team established in 2009 by Bronislaw Komorowski, the then Marshal of the Sejm (Sejm Paper No. 3598) and a Deputies' Bill submitted by members of the Law and Justice Party (Sejm Paper No. 3687). The bills amending the constitution discussed in this article reveal the existence of a political impetus for a far-reaching modification of the basic law in relation to matters connected with Poland's membership of the EU. A comparison of the two bills demonstrates that they differ remarkably not only in the content of the proposed constitutional solutions, but also in some of the bills' general underlying assumptions. The Presidential Bill contains (both in the title of a new Chapter Xa and in its provisions) a direct and explicit reference to the European Union.. On the other hand, the Deputies' Bill maintains the existing provisions guaranteeing unlimited scope of delegation of powers, repeating the current wording of Article 90 of the Constitution, which states that such a delegation is made to an international organization or an international institution Different approach has been applied in relation to amendment of Article 227 of the Constitution (proposed only in the Presidential Bill). Differences manifest themselves also in the concept of 'European policy' of the government and in the method of governing the relations between the executive and legislative branches of government in the exercise of competences relating to the EU membership. Therefore, the passing of the 'Euro-Amendment' of Polish basic law will, in fact, depend on the willingness of politicians to compromise to get a qualified majority of two-thirds of votes in the Sejm and absolute majority of votes in the Senate, as required by Article 235 of the Constitution.
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PROFESSIONALIZATION OF THE LEGISLATIVE WORK IN PARLIAMENT (Profesjonalizacja parlamentarnych prac ustawodawczych)

80%
Szymanek J., Karp J.
Przegląd Sejmowy
|
2009
|
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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NEW VOTING TECHNIQUES IN THE CONTEXT OF THE PRINCIPLE OF DIRECT ELECTION (Nowe techniki glosowania w swietle zasady bezposredniosci wyborow)

80%
Gapski M. P.
Przegląd Sejmowy
|
2009
|
issue 2(91)
79-90
EN
The principle of direct election is one of fundamental electoral principles and, despite its relatively clear content, is recognized by the constitutional law doctrine within three slightly varied meanings. Broadly understood, it means a one-level election, where the composition of an elected body is determined directly on the basis of the content of votes given by electors (voters). In a narrower meaning of the word, direct nature of election enables the voter to vote for a particular candidate, voters have an effect on the election of each candidate. In the narrowest meaning, the above-mentioned requirements are met and the voter votes in person in the polling station. This article examines, in the context of conformity with the principle of direct election, three voting techniques which do not require the voter's attendance in the polling station, i.e. proxy voting, voting-by-mail and e-voting. The author concludes that the principle of direct election is to the most extent impeded by proxy voting, because the way in which he/she votes cannot be verified. The proxy may behave against the will of his/her principal, which obviously violates the direct nature of election. As concerns distant voting, i.e. by mail or via Internet, one should bear in mind general conformity of those form of voting with the principle of direct election. The main obstacle concerning their use in the electoral process is the problem of reliability of the mail system and the creation of reliable electronic system resistant to manipulation. The presented voting techniques are today the most frequently applied democratic electoral standard and, as concerns e-voting, are considered a constituent part of future democracy. Therefore, despite some doubts as to their conformity with the electoral principles, it is very important requirement that their popularization in Poland be performed in a careful and competent way.
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ON ENSURING CONTINUOUS CONDUCT OF WORK OF THE COUNCIL OF MINISTER UNDER POLAND'S CONSTITUTION OF 2 APRIL 1997 (Zapewnienie ciaglosci w kierowaniu pracami Rady Ministrow pod rzadami Konstytucji z 2 kwietnia 1997 r.)

80%
Bozek M.
Przegląd Sejmowy
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2010
|
issue 6(101)
9-24
EN
The Constitution of the Republic of Poland places real authority in the hands of the prime minister. The proper use of that power enables him to 'spur' the Cabinet into action and to provide its continuous operation. As chief of government he determines the internal structure of the Council of Ministers and is responsible for control and coordination of the work of its members. He also makes efforts to maintain parliamentary majority support by the government. The tasks and responsibilities of the prime minister include matters related to operation of the Cabinet and a formal conclusion of its mission. He has an exclusive competence to submit to the Sejm a motion requiring a vote of confidence in the Council of Ministers (Article 160 of the Constitution) and to submit the resignation of the Council of Ministers in cases specified in Article 162 of the Constitution. Consequently, the prime minister plays the role of guarantor of the Council of Ministers itself and the constitutional system of governance. One can easily imagine a situation where unexpected and permanent absence of the prime minister causes considerable disruption in the work of the government and functioning of the system of governance. The Constitution of the Republic of Poland does not regulate the issue of replacement of the prime minister in the event of his temporary absence or his temporary failure to perform the duties of the chief of government. Moreover, the constitutional provisions do not specify any procedure in the event of permanent incapacity to continue the performance of the function of the prime minister as a result of a random incident (e.g. the death). In that context, one must conclude that the existing Constitution does not provide for explicit provisions to ensure the continuous management of the work of the government. From the perspective of the prime minister's unexpected and permanent incapacity to perform his duties (or his death), the provisions of the Act of 1996 on the Council of Ministers should be considered insufficient. This results from the fact that the above-mentioned provisions establish the principle of 'appointment' of the person to replace the prime minister instead of the replacement based on the rule 'by the operation of law'. Therefore, the Constitution should contain the provisions specifying the matters relating to replacement of the prime minister and procedures applied by the government in the event of permanent incapacity of the prime minister to perform his duties. It is only by way of amendment of the constitution that this important problem of organic law. When making an attempt to resolve the issue, one must draw on the constitutional principles of the chancellor's system. The acceptance of this approach would require, firstly, that in Article 147 of the Constitution a deputy prime minister be established as an obligatory category of members of the government and, secondly, that a new principle be introduced in the constitution according to which the removal of the prime minister from office, for any reason, would by the operation of law result in the end of the Cabinet's mission.
16
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THE SEJM OF THE REPUBLIC OF POLAND IN THE PERIOD OF TRANSFORMATION (Sejm Rzeczypospolitej Polskiej okresu transformacji ustrojowej)

80%
Sarnecki P.
Przegląd Sejmowy
|
2010
|
issue 5(100)
14-31
EN
Since the beginning of the process of transformation in Poland (initiated by the parliamentary election on 4 June 1989) the Sejm has operated within several constitutional structures. They have brought, step by step, the principle of separation of powers into Poland's system of government and made the Sejm the key element of legislative power. Apart from lawmaking, the Sejm has other functions (including those relating to oversight, budget, adaptation of international law, political inspiration, and - recently - the European function). The wide-ranging approach to the duties of the Sejm is not only the result of habits from our past (years 1952-1989), when the Sejm was declared to be the superior authority of the State. We must not forget that the Sejm is a house of parliament, and that in a democracy such a body may deal with any public matter, discuss it and express its position thereon, not only for the purpose of making law on its basis. Therefore, the list of competences of the Sejm includes not only statutes, but also resolutions concerning particular matters, as well as declarations. The article contains statistical data on the activities of the Sejm in respect of certain issues. The author concludes that, in general, the Sejm has successfully completed its transformation to the new system. However, as concerns the development of appropriate political culture, its activity may raise some doubts.
17
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CHANGES IN ELECTROLAL LAW INTRODUSED BY THE ELECTION CODE (Zmiany w prawie wyborczym wprowadzone przez kodeks wyborczy)

80%
Rakowska A., Skotnicki K.
Przegląd Sejmowy
|
2011
|
issue 4(105)
9-32
EN
The Election Code was adopted on January 5, 2011 and entered into force on August 1, 2011 replacing five existing laws governing elections. It has unified the electoral system and implemented some new solutions aimed at changing considerably the electoral process or providing only an arrangement of the existing regulations. The authors describe and provide assessment of some novelties implemented by the Code, including single-member constituencies in elections to the Senate and in local self-government elections, the requirement for candidates to have no criminal convictions, obligation to apply gender quotas on electoral lists, changes in the election campaigning procedures, possibility of two-day voting, correspondence voting, as well as the powers of international election observers. They discuss the advantages and disadvantages of these institutions, at the same time identifying those solutions which may cause problems in practice. As regards single-member constituencies the authors claim that their introduction in elections to the Senate mostly shows a continued lack of vision for the second chamber and, in relation to local self-government elections, it may tempt municipal councils to determine the boundaries based mostly on the results of elections in former polling districts. Concerning gender quotas, the authors pointed out doubts as to their compliance with several constitutional provisions. Constitutional and interpretative doubts also appear in relation to the provision requiring candidates to have no criminal convictions. Regulations concerning election campaigning are also criticized, showing lack of preciseness of the provisions the Code which may cause a lot of doubts in practice. Discussing the possibility of a two-day voting, the authors conclude that it is no inconsistent with Poland's constitution. They support the idea of correspondence voting for citizens staying abroad and introduction of a statutory basis for activities performed by international election observers. Finally, the authors conclude that the changes introduced in electoral law mostly result from the practice of its application and are of arranging nature; therefore they should rather be approved. However, there are provisions that should be considered as imperfectly prepared, which prove the continued existence of a tendency to treat electoral law as an instrument for political dominance.
18
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THE CONCEPT OF REFORM OF LAW IN RELATION TO GENERAL ELECTIONS TO THE SEJM AND SENATE IN THE PROCESS OF ADOPTION OF THE AUGUST AMENDMENT (Koncepcje zmiany prawa wyborczego do Sejmu i Senatu w procesie uchwalania noweli sierpniowej)

80%
Kacperski K.
Przegląd Sejmowy
|
2011
|
issue 1(102)
43-69
EN
The coup d'état carried out in May 1926 by Joseph Pilsudski proved a significant turning point in the history of the Second Republic, as it put en end to parliamentary turn democracy existing since 1918-1919. The coup affected all elements of political system, including the actions of the Sejm and the Senate of the first term of office, aimed at development of new instruments of electoral law (in relation to representative bodies). It resulted from the general objective of the Pilsudski's camp, i.e. to strengthen the institutions of the executive rather than improve the mechanisms of creation of parliament. In June 1926, many bills have been submitted in the Sejm with the aim of transformation (in part or in the whole) of the principles governing elections of Deputies to the Sejm and Senators. After a discussion lasting several months in parliament no changes in this matter have been enacted. It turned out that none of the proposals submitted by Centre-Right parliamentary groups did not get acceptance from Deputies and Senators. The content of the proposals was too controversial for them to reach a qualified majority of votes in a highly fragmented parliament (which resulted from Pilsudski's actions). It turned out again that it is easier to voice ideas than turn them into action. Thereby, the call for improvement of the system of general elections to the Sejm and Senate, which was one of most important subject of public debate in the 1920s, receded, imperceptibly, into the background. And it was only in 1935 that such improvement was carried out as an element of a wider process of transformation of the system of government, culminating in the adoption of the April Constitution.
19
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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)

70%
Karp J., Szymanek J.
Przegląd Sejmowy
|
2009
|
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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