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THE SYSTEMIC FOUNDATIONS OF INCOMAPATIBILITY OF A PARLIAMENTARY MANDATE

100%
Zubik M.
Przegląd Sejmowy
|
2008
|
issue 4(87)
103-118
EN
The article discusses selected questions relating to prohibition of holding of several offices at the same time ('incompatibilitas') and undertaking of particular activity by persons performing public functions. The Constitution of 1997 takes different approaches to this issue. The differences concern both subjective aspects (i.e. persons and positions subject to such prohibition) and objective ones (i.e. the content of such prohibitions). Sometimes, the Constitution itself imposes the limitations on incompatibility of positions and activities taken by persons performing public functions. (e.g. in Article 209 paragraph 2). It also allows the legislator to elaborate and extend that catalogue. Incompatibility rules play the role of guarantor and are designed to secure proper functioning of public institutions. Nevertheless, at the same time, they constitute limitation on the rights of the individual. Therefore, the principle of 'incompatibilitas' should be harmonised with the freedoms and rights of persons and citizens. The author examines legal solutions and problems which appeared in the practice of their application. He also discusses the jurisprudence of the Constitutional Tribunal concerning the issue, as well as the views of the study of law in this respect.
2
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THE ETHICS OF A MEMBER OF PARLIAMENT AND THE NATURE OF A REPRESENATATIVE MANDATE

80%
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.
3
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STATE AND LOCAL GOVERNMENT ADMINISTRATION IN THE CONTEX OF THE PRINCIPLE OF INCOMAPATIBILITY OF A PARLIAMENTARY MANDATE

80%
Jagielski J.
Przegląd Sejmowy
|
2008
|
issue 4(87)
121-134
EN
The categories of '(state) government administration' and 'local government administration' are ambiguous and its content is not easy to define. Normative exponents are not sufficient, especially in relation to state government administration (the notion of local government administration is, in a degree, oriented by legal regulations). The categories of state and local government administration can be perceived from narrow or wide perspective. In a narrow sense, these categories include administrative organs and offices belonging to the functional organization system directed by the Council of Ministers or functioning within the organizational structures of self-governing communities. In a wider sense, these categories also comprise other entities counted among units of state or local government administration on the basis of additional criteria. Which approach (wide or narrow) should be used in relation to the application of the principle of incomapatibilitas? From the literal wording of Article 103 of the Constitution and Article 30 paragraph 1 of the Act on the Exercise of the Mandate of a Deputy or Senator, it follows that, they relate to the category of state and local government administration in its absolute meaning, and that both the Constitution and the statute do not envisage any additional criteria in order to narrow the meaning of both categories for the purposes of regulations contained in these acts. In these circumstances which may cause quite irrational effects in relation to the extent of the above-mentioned prohibitions for the exercise of the mandate of a deputy or senator, two suggestions may be made. Firstly, there is a need for strict and accurate application of classification criteria to discriminate between state and local government organization units and, secondly, additional criteria should be applied, such as the criterion of. predominance of administrative functions over other functions within the scope of activities of a given organizational unit or the criterion of the character of a position held by a given person in the organizational unit. However, finding a general solution requires interference of the norm-giver, on the level of a constitution, or at least ordinary law, which would specify in an unequivocal (and restrictive manner) the limits of organizational area of state and local government administration in relation to the application of he principle of incompatibility of a parliamentary with employment in the units of these levels of administration.
4
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THE ISSUE OF INCOMAPATIBLITY OF THE REPRESENTATIVE MANDATE IN OPINIONS OF THE BUREAU OF RESEARCH OF THE CHANCELLERY OF THE SEJM

80%
Cieslik Z.
Przegląd Sejmowy
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2008
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issue 4(87)
135-147
EN
Opinions on the issue of incompatibility are prepared by the Bureau of Research of the Chancellery of the Sejm, directly or through its agency, within the framework of consultative tasks specified in the rules of procedure of the Sejm. Usually, they are produced in the first months of the term of office of the Sejm and are connected with the exercise by the Marshal [Speaker] of the Sejm of his power to pronounce the expiry of the mandate due to the holding by the Deputy of a position subject to incompatibility. The author attempts to sum up the previous results of work of the Bureau of Research of the Chancellery of the Sejm in this field and to indicate main legal problems addressed in the opinions concerning the issue. From an analysis of these opinions it follows that major difficulties relate, firstly, to relations between the notion of 'employment' used in Article 103(1) 'in fine' of the Constitution and 'performance of work on the basis of labour relationship' used in Article 30(1) of the Act on the Exercise of the Mandate of a Deputy or Senator and, secondly, the interpretation of the notions of state and local government administration in Article 30(1) of the Act on the Exercise of the Mandate of a Deputy or Senator. It turns out that the authors of opinions present various solutions of the above-mentioned problems and often their opinions contain totally different conclusions. Taking into consideration their doubts about interpretation of these notions, it is possible to identify prevailing views. A survey of the opinions leads to the conclusion that arising doubts tend to be resolved in favour of incompatibility. Such judgements, as a rule, are justified by the aim of the institution, its guarantee function. The connection between incompatibility and the principle of separation and balance of powers is also pointed out. The authors of the opinions who present different (narrower) approaches do not agree as to the criterion which justifies a more narrow of the notions in the normative context. The results of the survey confirm critical views of the theory concerning the existing regulation on incompatibility of the mandate of a Deputy. The notions and wording used are ambiguous to the extent that it endangers the principle of legal certainty. The proposal to amend the Act on the Exercise of the Mandate of a Deputy or Senator, offered by legal theorists is reasonable.
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