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SUPERVISION OF SECRET SERVICES BY THE PRIME MINISTER AND WAYS OF ITS IMPLEMENTATION UNDER CURRENT LEGISLATION (Nadzor Prezesa Rady Ministrów nad sluzbami specjalnymi i sposoby jego realizacji w swietle obowiazujacego ustawodawstwa)

100%

Bozek M.

Przegląd Sejmowy

2010

issue 3(98)

9-40

In Poland, supervision of intelligence-security services (the Internal Security Agency, the Intelligence Agency (AW) and the Central Anticorruption Bureau) by the Prime Minister constitutes the long-lasting element of the 'system of the democratic control of the secret services'. As part of this system the supervision of these services by the Prime Minister includes two crucial spheres: assigning tasks to the services (i.e. programming them) and examining and adjusting their current activities. The regulations adopted in 1989-2006 have given the Prime Minister a dominant role in the system which could be roughly called a system of programming and oversight of secret services. Of vital importance in this respect are the provisions of the Act on the Council of Ministers and the Act on the Branches of Government, as well as other acts providing a basis for functioning of the services (the so-called competence acts). In accordance with these regulations, chiefs of civil secret services are in direct subordination to the Prime Minister, which is similar to hierarchical relation. On the other hand, the Prime Minister is vested with explicitly specified powers to examine and correct the functioning of the secret services. The powers of the Prime Minister to implement supervisory measures enable him not only to exert influence on these services in order to ensure legality of their actions and conformity with the principal directions of general state policy (verification supervision), but also to issue guidelines and orders to chiefs of the services (hierarchical supervision). Admittedly, they cannot concern the way of conduct or termination of official duties of secret service officers, but they may be used to indentify the area of interest and, even, to assign particular tasks to the services. As an authority responsible for the supervision of secret services, the Prime Minister has the right to demand information about the activities of these services, including access to classified materials concerning their operations. According to constitutional provisions the Prime Minister may 'delegate' substantial part of tasks relating to supervision of the secret services to a minister, a member of the Council of Ministers (the so-called task minister) In such case, a minister so delegated performs everyday supervision of the services and bears political responsibility for their proper functioning. Otherwise (if the Prime Minister has not appointed a member of government to deal with secret services), the task of supervising them remains in the domain of the head of government. The Prime Minister may entrust certain persons (secretaries or undersecretaries of state in his/her office) with selected tasks relating to such supervision. However, this does not result in automatic transfer of all powers (ensuing from the power of supervision) from the Prime Minister to those persons.

Kontrola parlamentarna służb specjalnych w Polsce

80%

Bożek M.

Przegląd Sejmowy

2012

issue 1(108)

9-23

The exercise by the intelligence and security services of their role in protecting the fundamental interests of the State, while maintaining a high degree of confidentiality of their operational activities, requires continuous scrutiny from the political authorities, in particular from parliament performing its representative and oversight functions. This is the starting point of all deliberations on the relationship between parliament and the secret services, both in Poland and all over the so-called democratic world. Another question is the state’s system of government. Parliamentary scrutiny of the government is an immutable feature of the parliamentary system of government. If we count special services among the government administration bodies, which is the most practicable solution (also in Poland), the parliament must have a legally guaranteed opportunity to examine and evaluate their activities. Therefore, parliamentary scrutiny of special services is a consequence of the control exercised by parliament over the government and its subordinate agencies. The extent of practical application of these general principles is determined by way of ordinary statutes. In Poland, this matter is regulated by legislative acts governing the functioning of secret services (the so-called competence acts). The basic purpose of this article is to provide an analysis of these acts. From this analysis a general thesis is derived that, under the existing legal order, proper parliamentary scrutiny of secret services in Poland is not feasible. This is because the provisions of the competence acts prevent parliament from gaining access to classified information showing the activity of secret services. Instead of repeating in the competence acts the idea of subjecting the secret services to parliamentary (Sejm) scrutiny, it is much more important to define precisely the relationship between the Sejm Special Services Committee and the heads of those services. Both the catalogue of the obligations of the heads of the agencies to the Committee, and the issue of accessibility of information gathered by secret services should be included, as soon as possible, in the competence acts. A major, but not the only, problem – identified after examining the competence acts – is the lack of sufficient knowledge about the classified aspects of the activity of secret services. Without this knowledge, the Committee and, thus, Parliament, cannot carry out its scrutiny function. The illusory nature of parliamentary scrutiny is also the result of the fact that heads of services pretend to be politically neutral and conceal their party affiliation, but their real position within the ruling hierarchy is similar to that of members of government. It is not without reason that, even on ceremonial occasions or in official letters they are called ‘ministers’. However, in no way this translates into normative solutions concerning their position under constitutional law. Still the only attempt at changing this situation - taken in 2002 - failed. At that time, the Act on the Internal Security Agency (ABW) and the Foreign Intelligence Agency (AW), was found unconstitutional by the Constitutional Tribunal, to the extent that the heads of the secret services were granted the rank of secretaries of state, (Tribunal judgment of 20 April 2004, Reference No. K 45/02). There was lack of system thinking. However, instead of appointing a new category of secretaries of state, it was enough to enter the positions of heads of ABW and AW into the directory of government positions (in Article 38 of the Act on the Council of Ministers). This proposal is worthy of consideration, and there is one important reason for this. It provides a systemic solution of the problem of political neutrality and party affiliation of heads of these services, at the same time making it possible for Parliament to exercise actual assessment of the activity of secret services and to adjust their activity with the use of a vote of no confidence.

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2 Przegląd Sejmowy

1 2012

1 2010

1 Bozek M.

1 Bożek M.

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SUPERVISION OF SECRET SERVICES BY THE PRIME MINISTER AND WAYS OF ITS IMPLEMENTATION UNDER CURRENT LEGISLATION (Nadzor Prezesa Rady Ministrów nad sluzbami specjalnymi i sposoby jego realizacji w swietle obowiazujacego ustawodawstwa)

Kontrola parlamentarna służb specjalnych w Polsce