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THE CONCEPT OF PARLIAMENTARY OVERSIGHT FROM THE POINT OF VIEW OF THE SYSTEM OF GOVERNMENT

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Stebelski M.
Przegląd Sejmowy
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2008
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issue 3(86)
EN
The issue of parliamentary oversight has been the point of interest of the doctrine of constitutional law, particularly in the context of deliberations about the oversight function of the Sejm. However, one may still raise doubts about both the nature of this function and the very concept of oversight as a particular form of activity, although it is admitted that it should consist in comparison of actual state of affairs and that required by law, and formulation of assessment conclusions. Clearly evident influence of the Sejm (which exercises the oversight) on other organs of the State (particularly the Council of Ministers and government administration) sometimes makes the concept of parliamentary oversight take the nature of supervision or even co-decision. The exercise of parliamentary oversight should be seen from a wider perspective of the system of government, including inter alia the principles of legality, separation of powers, sovereignty of the Nation as well as representative nature of the Sejm which represents a particular community. Another aspect to be taken into account in this respect is the principle of transparency of public life and, consequently, the right of citizens to be informed about the activities of public authorities. The requirements imposed on parliamentary oversight by the constitutional principles of separation of powers cannot mean exclusion of several organs of the State from the oversight. It is indeed the separation of powers which requires some mechanisms to secure the independence of public authorities, and to provide those organs with appropriate powers enabling them to perform their functions.
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THE SPECIAL SERVICE COMMITTTEE OF THE SEJM AND THE GENERAL DILLEMMAS OF PARLIAMENTARY OVERSIGHT OF THESE SERVICES

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Czarny P.
Przegląd Sejmowy
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2008
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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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A SEJM INVESTIGATIVE COMMITTEE AS A FORM OF OVERSIGHT BY THE SEJM

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Banaszak B.
Przegląd Sejmowy
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2008
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issue 3(86)
EN
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.
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THE OVERSIGHT FUNCTION OF THE SEJM IN THE CONTEXT OF THE DIVISION OF PUBLIC AUTHORITY AND THE PRINCIPLE OF SUPERIORITY OF THE CONSTITUTION

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Odrowaz-Sypniewski W.
Przegląd Sejmowy
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2008
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issue 3(86)
EN
This article discusses the relation between a theoretical concept of oversight powers of the Sejm and constitutional limitations imposed on the legislature in relation to shaping the structure of public authorities. The subject of this analysis includes answers to the following questions:- Whether the scope of parliamentary oversight is entirely determined by the provisions of the basic law, or does the constitution specify only major functions of public authority which are subject to parliamentary oversight while the legislature has the discretion to extend the scope of such oversight to include extra-constitutional aspects of such control? - Whether the legislature, upon creating extra-constitutional organs of the State, may place them outside the area of the oversight exercised by the Sejm? - Whether parliamentary oversight cover the entirety of the State apparatus, except for those organs whose independence is guaranteed, or whether the scope of oversight exercised by the Sejm is limited only to the activities of the Council of Ministers? The concept of 'broad' oversight function of the Sejm, understood as the right of this legislative body to be informed about the activity of public authorities and institutions, is coherent with both the standpoint in favour of the overall nature of the constitutional regulation of the sphere of State authority and the opinion that the basic law regulates only fundamental institution of the system of government, and leave discretion to the ordinary legislator to define extra-constitutional functions of the State and to delegate them to extra-constitutional organs. Another concept of oversight function of the Sejm assumes that Article 95(2) of the Constitution delimits the scope and nature of oversight exercised by it. As a result, the scope of oversight by the Sejm corresponds to the scope of activity of the Council of Ministers, which covers the affairs of State not reserved to other State organs or local government (Article 146 paragraph 2 of the Constitution). This provision functions as a presumption of competence, which complements the constitutional regulation in relation to actions undertaken by State within its ruling capacity. Without explicit constitutional authorization, the legislature may not reduce the competence of the Council of ministers, since this would contradict the principle of superiority of the basic law. Such a conduct would also lead do diminishing oversight functions of the Sejm. Therefore, a 'narrow' concept of oversight function must assume that the scope of constitutional regulation has an overall nature and includes all aspects of State control and that it determines an organizational structure of the entire apparatus of power. The oversight function of the Sejm, within the above-mentioned meaning, seems not to be reconciled to the practice of creation of extra-constitutional organs of the State which perform extra-constitutional functions. Such organs, existing outside the organizational system of the Council of Ministers, would not be subject to oversight by the Sejm. .
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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
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2008
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issue 3(86)
EN
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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PARLIAMENTARY OVERSIGHT OVER THE COUNCIL OF MINISTERS AND MINISTERS UNDER POLAND'S CONSTITUTION

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Mojak R.
Przegląd Sejmowy
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2008
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issue 3(86)
EN
Parliamentary oversight of the executive has a well established tradition in the system of government. Its origins date back to the beginning of parliamentary history. In a democratic state, it is directly related to the legal and systemic guarantees of protection of the principles of a democratic state ruled by law. In our times, parliamentary oversight of the executive is considered as basic element of parliamentary system of exercise of ruling powers, and constitutes part of systemic mechanisms by which the sovereign power of the Nation is accomplished. In the political system of the Third Republic of Poland, parliamentary oversight of the activities of the Council of Ministers provides one of the most important platforms of relations between parliament and the government. Article 95(2) of the Constitution confers the exercise of parliamentary oversight on the Sejm. By this oversight some attributes of 'oversight powers' of parliament are realised. It is indeed, the constitution which conferred on parliament (most often on its both chambers - the Sejm and the Senate - the exercise of oversight of the activity of many other organs of the State; e.g. the Supreme Chamber of Control, the National Broadcasting Council, the Commissioner of Citizens Rights. The oversight of the activities of the Council of Ministers exercised by the Sejm includes all areas of systemic activity of the government. It extends to actions undertaken by the Council of Ministers, ministers and the entire organisational system of government administration. The systemic nature and purpose of parliamentary oversight in relation to the government should be considered in close relation with elements of political construction of parliamentary government, particularly with the principle of political accountability of the Council of Ministers and its members to the Sejm. Parliamentary oversight of the government exercised by the Sejm and, in a limited degree, by the Senate, is functionally aimed at political scrutiny of main directions of government policy. Its scope covers all areas of activity of the government and government administration. Under the parliamentary system of government, such oversight is treated as particularly important platform of exerting influence by parliament on the government.
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THE CONSTITUTIONAL ACCOUNTABILITY AND SEJM OVERSIGHT: SELECTED ISSUES

80%
Gromek Z.
Przegląd Sejmowy
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2008
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issue 3(86)
EN
This article discusses selected issues concerning the exercise by the Sejm of its powers to hold persons performing top State positions (from the point of view of Sejm oversight) accountable before the Tribunal of State. The authors of analysis of the Sejm authority to deal with preliminary motions to hold persons constitutionally accountable pointed out that in such power the oversight function of the Sejm is realized. However, they also noted that such power has at the same time some specific features as compared with other instruments of oversight exercised by Sejm. Then, the proceedings before the Constitutional Accountability Committee of the Sejm were described. In this respect, the standpoint which considers such proceedings as completely consistent with pre-trial proceedings in the penal procedure should be criticized. They also opted for reduction of the scope of the proceedings in the Committee in relation to evidence. Similar criticism was caused by the lack of application by the Committee of instruments regulated in Article 9(2) of the Act on the Tribunal of State. Addressing a controversial issue whether the proceedings to hold persons constitutionally accountable is based on the principle of procedural legality, it was ascertained that in such proceedings the principle of opportunism exists. Therefore, the Sejm is not under legal obligation to initiate, in any case, proceedings in relation to constitutional accountability. Another issue, raised in the article, is admissibility of holding members of collegial bodies constitutionally accountable for actions taken by such body in gremio. As concerns this question, it was stated that individual accountability of members of such bodies for such actions is exceptionally admissible. Finally, the issue of effectiveness of performance by the Sejm of its power to initiate proceedings before the Tribunal of State was discussed. The reasons for low effectiveness in this sphere were indicated.
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THE OVERSIGHT FUNCTION OF THE SEJM IN RELATION TO EUROPEAN INTEGRATION

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Wojtowicz K.
Przegląd Sejmowy
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2008
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issue 3(86)
EN
The oversight function of the Sejm in matters of European integration should be understood widely as it covers both the stage of delegation to the European Union the powers typical of the sovereign authority of the State, as well as the exercise of those powers within a particular separate institutional structure. As concerns the first aspect, the Sejm (sometimes jointly with the Senate) takes part in the procedure of granting consent for ratification of the accession treaty itself, or ratification of possible modifications introduced to treaties establishing the European Union. Thereby, the Sejm, as part of Polish parliament participates in the oversight of the intensity and pace of integration, as well as its territorial extent. Moreover, the exercise of oversight on the way in which the Union uses the powers conferred on her, should take into account the specific nature of that organization, manifested in the exercise of the lawmaking function (in general) by an international organ - the Council of the European Union. For that reason, the influence of national parliaments on decisions taken within the Union is mainly determined by the degree to parliaments are able to oversee the activities of government within the framework of appropriate institutions. The Sejm exercise oversight over the government in a form specified in the Cooperation Act. The Sejm (its European Affairs Committee) may, in particular, be provided with information and documents, including legislative proposals of the EU and to express adequate opinions which, however, do not obligate the government to take any position within the EU organ. Additionally, the Sejm (its European Affairs Committee) gives its opinion about the candidates nominated by the government for certain posts in the EU. In the event that the Lisbon Treaty enters into force, the scope of oversight function of the Sejm (parliament) will be considerably extended, particularly in relation to the observance of the subsidiarity by the Union. The exercise by the Sejm (parliament) of the oversight function, within the above-said meaning, contributes to strengthening of the democratic basis of integration and legitimizes the process of making decisions in the European Union.
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