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  1. 2 Czarny P.

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THE SMALL CONSTITUTION OF 1947 AND THE POLISH CONSTITUTIONAL TRADITION

100%
Czarny P.
Przegląd Sejmowy
|
2007
|
issue 5(82)
57-73
EN
The article deals with a 60 year-old act, the Constitutional Act of 19th February 1947 on the system and scope of operation of the supreme organs of the Republic of Poland, which is also called the Small Constitution. The main purpose of the article is to examine whether, and to what extent, this Act could be treated as part of the Polish constitutional tradition. The first part presents the origins of the Small Constitution. The Act is seen as the realization of the concepts promoted by the political camp gathered around the Communist Party, which took power in 1944 and succeeded in the parliamentary election to the legislative Sejm in January 1947. As that was not a democratic election, the Legislative Sejm was not adequately legitimized to adopt a new constitution, even if some minor political opposition still existed at the moment. According to the Small Constitution the system of government of the State was to be based on the principle of temporariness and principle of separation of powers as well as the superior position of the Legislative Sejm guaranteed as a unicameral parliament shaping basic assumptions of the State policy. The applied system resembled to a large extent the parliamentary cabinet model. Many provisions of the Small Constitution were incorporated directly from the March Constitution of 1921. The new institution, inconsistent with a Montesquian division of powers, called the Council of State (composed of the President of the Republic, and Marshal [Speaker] and Vice-marshals of the Sejm) was established. It was modelled on the solutions existed in the Soviet Union. In practice, the process of exercise of power in Poland did not conform to the provisions of the Small Constitution. Under the then existing system of government, called people's democracy, the basic law had to play a special role, to legitimize a 'new authority' and not limit its powers. An important thing, from this point of view, was that the Small Constitution completely ignored the issue of human rights. The hegemonic position of the Communist Party led to the situation in which political decisions were, in fact, made by party organs. Even if the Small Constitution is assessed negatively in the Polish literature, in a relatively long period of operation (i.e. until 1952) it enabled to retain domestic solutions of constitutional law and to strengthen some elements of the Polish constitutional tradition..
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THE SPECIAL SERVICE COMMITTTEE OF THE SEJM AND THE GENERAL DILLEMMAS OF PARLIAMENTARY OVERSIGHT OF THESE SERVICES

100%
Czarny P.
Przegląd Sejmowy
|
2008
|
issue 3(86)
EN
The article deals with legal regulation of parliamentary oversight of special services in Poland in the context of general constitutional regulations concerning the functioning of parliament. The forms and scope of potential oversight to be exercised over the services are subject of diverse opinions and considerable controversies, resulting from the collision of different constitutional principles and values. These includes above all the division and balance of powers as well as Government's accountability to parliament, and also the principles of efficiency and openness of the operation of Government. Particular problems are caused by the fact that, the functioning of the special services is secret in nature and is closely linked to the centre of political authority. Therefore, there is a trend to exclude parliament and parliamentary opposition from dealing with this issue. Parliamentary oversight is also hindered by attempts by the special services to become independent. The following four models of oversight and supervision of the special services are distinguished: internal, political (governmental), parliamentary and social. In the Polish circumstances, we should add a judicial model and oversight performed by the constitutional organs of state audit and legal protection. In Poland, parliamentary oversight has no well-established tradition. In 1995, following previous attempts, a Special Services Committee was established as a permanent auxiliary organ of the Sejm. The establishing of the Committee initiated the process of development of a new model of supervision of the special services and coordination of their activities. The article also presents in detail the following issues: membership of the Special Services Committee (no more than 9 members), access of their members to information containing legally protected secrets and the scope of its tasks and responsibilities (three 'areas' are distinguished in this context: legislative, oversight and opinion-making). In the summary, the author opts for changes to be introduced in the legal system, particularly to implement a statutory principle which extend the scope of oversight exercised by the Committee to all elements of special services (today only some of them are subject to such oversight) and refusal to submit information is subject to external oversight.
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