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1
Content available remote COMMENTS ON THE NEED TO REFORM THE TRIBUNAL OF STATE
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2008
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nr 2(85)
113-133
EN
The Tribunal of State was re-established in Poland's post-war system of government more than 25 years ago. Today, the Tribunal performs the role of a constitutional organ within the judicial branch of power which has the power to adjudicate in matters of: 1) constitutional accountability of top state officials for constitutional violations; 2) criminal responsibility of persons, specified by law, for an act which shows all the features of an offence or fiscal offence. Members of the Tribunal of State are chosen by the Sejm, for the term of office of the Sejm, from among Polish citizens (who are not Deputies or Senators).In a modern democratic state ruled by law, the Tribunal of State is essential for strengthening the protection of the population against harmful practices of persons holding top state positions. However, if the Tribunal is to play an important role in shaping legal culture in Polish society, its total reform is required, which will involve the amendment of several provisions of the existing Constitution and adoption of a new Act to regulate the principles of constitutional accountability and the system of organization the Tribunal of State. Such reform should lead to establishing a professional prosecutor, independent of other state institutions, that would have exclusive power to initiate proceedings before the Tribunal. It would also be advisable to deprive the Tribunal of jurisdiction over criminal offences committed by the President of the Republic and members of government. Membership of the Tribunal should include only active judges of the Supreme Court and appellate courts sitting regularly in criminal cases - appointed for an indefinite period by the President of the Republic of Poland from among candidates selected by organs of corporations of judges.. The scope of persons under the jurisdiction of the Tribunal in relation to constitutional offences should be extended to include persons holding other state offices (e.g.. the Commissioner for Citizens' Rights). Decisions of the Tribunal in matters of constitutional offences should be made in a one-stage process. The abandonment of the reform efforts would mean that an appearance of constitutional accountability of top state officials has been maintained.
EN
This article deals with the issue of permissibility of conducting a campaign to increase voter turnout in the course of pre-referendum media silence. A voter turnout not only attracts growing interest of scientists and politicians, but also has become the subject of a wider public debate. As a result, each year there are more new initiatives aimed at increasing among the citizens the awareness of the importance of their participation in elections and referendums and mobilising them to participate in the voting. The authors focus their attention on the difference between election and referendum voter turnouts, i.e. the participation requirement necessary to make the vote valid, both in respect of a local and a nationwide referendum. They show that launching of actions aimed at boosting voter turnout in the period of media silence is a much more complex and unequivocal problem in the case of a referendum. The ‘referendum validity threshold’, intended to guarantee the representative nature of the decisions may, in practice, be used by the minority to forcibly impose its will upon the majority. Voter turnout campaigns can be used to achieve this goal. The article is composed of six parts: an introduction, presentation of the core of pre-referendum media silence and its normative regulation, referendum’s validity requirements, arguments for and against carrying out a voter turnout campaign during the period of pre-referendum media silence, and a summary.
3
Content available remote POLAND REFORMS ITS LAW PUBLICATION SYSTEM (Polska reforma oglaszania prawa)
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EN
In Poland, official journals (legal gazettes) have been published for 200 years in paper version. On January 1, 2012 Poland will join the group of countries where legal gazettes are published electronically on the Internet. The article contains an analysis of the amended Act on Promulgation of Normative Acts and Some Other Legal Acts, which implements that reform. The first part of the article deals with the doubts and fears that have arisen during parliamentary work on the Act. In the author's view, they partly result from the fact that the above-mentioned amendment relates mostly to the cultural sphere and require the recipients of legal information to change their old habits. He argues that official journals published in electronic form will be more accessible than their paper predecessors. The author examines in detail the methods, provided by the Act, to ensure authenticity and integrity of electronic legal documents, as well as the requirement of regular (at least once in 12 months) publication of a consolidated text of an act which has been amended. In the final part, the author wonders how the rules of legal gazettes will change and opts against the practice according to which acts may enter into force on the day they are published.
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Content available remote THE FUNCTIONING OF THE CONSTITUTION OF THE REPUBLIC OF POLAND OF 2 APRIL 1997
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EN
Poland's Constitution of 2 April 1997 is a result of fundamental transformations of Poland's political system, initiated probably in April - September 1989 and manifested in numerous legislative acts in the years 1989-1997. During these 8 years several constitutional acts were temporarily in force, Poland ratified the European Convention on the Protection of Human Rights and Fundamental Freedoms and other significant conventions, many important laws were adopted and the political practice typical of modern democracies was established. In this context, the new constitution has rather incorporated those transformations that have proved to be effective, with only slight corrections, and not departed from the practice of the preceding 8 years. Nevertheless, the Constitution of the Republic of Poland, as a comprehensive legal act, reveals its current role of an act of the highest rank in the hierarchy of legal acts. The article provides an analysis of such influence on many levels corresponding to its formal structure and, particularly, its division into chapters. Such influence usually implements constitutional principles and values, which is particularly confirmed by the content of legislation and jurisprudence of the Constitutional Tribunal and other courts. However, in the author's opinion, it has also some defects. Among such defects are, above all, the lack of independence of public prosecutors from the government administration and the practice of frequent reconstructions of the composition of the Council of Ministers performed in fact by the Prime Minister, with only formal participation of the President of the Republic and without approval from parliament. This raises doubts whether we can really speak about the functioning of the government enjoying the confidence of parliament (its lower chamber), as provided for by the Constitution.
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Content available remote ON THE CONSTITUTIONAL NOTION OF THE CONDUCT OF POLICY
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EN
As the Constitution stipulates that 'The Council of Ministers conducts home and foreign policy' (Article 146.1), the author begins his article by emphasizing the comprehensiveness of the term 'policy'. It is the Council of Ministers and only the Council which is empowered to conduct the policy. He explains the social roles of the politician, the official (civil servant), and the expert, and dwell upon the status of 'rzad fachowców' (a caretaker government by experts). This leads to the examination of the complex issues of responsibility, the implications of parliamentary scrutiny, and the dual nature of executive power under the Constitution (the President, the Council of Ministers). The author elaborates on the duty of the President to act - in the domain of foreign policy - in consultation with the Prime Minister and the relevant minister (Article 133.3). Policy assessment and/or implementation requires use of such criteria as 'raison d'état' and/or national interest, and in Poland the notion of consensual policy has also become important as part and parcel of the transformation of the political system. The author concludes the article by proposing two constitutional amendments: (1) Article 133.3 should require that the President acts at the Council of Ministers' request or by the Council's previous consent; and (2) clause 144.3.4 should be deleted (President should be deprived of the prerogative to introduce an act of Parliament). The author's final observation is that although nothing will happen without the proper actions of politicians, civil servants and experts, it is also true that without a proper school education that inculcates the rule of law nothing will be permanent.
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Content available remote THE CONSTITUTION AND 'EXTERNAL AFFAIRS'
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EN
The Constitution of 1997, compared to its predecessors, takes a more comprehensive approach to the issue of division of competence to exercise of external powers and the issue of the status of international law in the domestic legal system. These regulations have proved their practical usefulness and do not require review. The more so that they have been created with full awareness of the evolution of importance of particular authorities on the local level as well as an adequate knowledge of the rank and role of 'classic' international law in the modern world. European integration (and, to be precise, the consequences of Poland's membership in the EU to the domestic law) is, on the contrary, the issue that has not found such a mature constitutional regulation. The political disputes, which accompanied the adoption of the Constitution in 1997, resulted in a very restrained approach to these issues by the authors of the Constitution. It might be said that the distinction between 'transfer of competence' and 'transfer of sovereignty' is properly made in the constitution, and the position of EU law is sufficiently specified, but the situation in other areas is not so good. There is lack of satisfactory regulation of the division of competence between the government and parliament in relation to 'European issues' (which particularly undermines the position of the legislature). Beyond the constitutional regulation are European electoral matters, both in respect of elections of Members of the European Parliament and the status of citizens of other EU Member States in national parliamentary elections. There is an obvious need to re-formulate Article 227 (the role of the National Bank of Poland) before Poland's accession to the Euroland. The list of those desirable, or necessary in the future, changes may be much longer. The existence of this problem cannot be neglected. Otherwise, serious troubles can arise, as seen on the example of the European Arrest Warrant (when the amendments to Constitution were made in undue hurry). It has become fact that Poland is a member of the European Union. And this fact should be reasonably, adequately and clearly reflected in the constitution. This must be made in advance before new troubles and complications appear.
EN
The article deals with selected issues concerning the organization and competence of the Tribunals and their role in the system of government in Poland, i.e. the Constitutional Tribunal and the Tribunal of State (Impeachment Court). The author presents basic foundations of the Constitution of 1997 as well as further legislative changes. The first part of the article discusses the matters concerning the Constitutional Tribunal, particularly the alarming phenomenon which is the undermining of the authority of the Tribunal, especially by politicians. The author reveals the proposals aimed at separation of the procedure for election of the judges of the Constitutional Tribunal from current political disputes, as well as the reforms of the functioning of the Tribunal. He points out the defects of existing regulations concerning constitutional complaints and the procedures for settling disputes of competence. He also examines the scope of jurisdiction of the Constitutional Tribunal, including the assessment of the procedure of taking effect by the normative act within the abstract review of norms. Moreover, he shows the complications resulting from constitutional limitation of the competence of the Tribunal and the effect of its judgments. The second part deals with the problems relating to an institutional shape of the Tribunal of State. He pointed out the inconsistence of Poland's regulations on adjudicating in matters of offences with the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms. He also presents some proposals for changes in the procedures of the exercise of constitutional accountability in Poland.
EN
In Poland, under the Constitution of 1997, a new approach to the system of legal sources was applied. Its respective provisions have arisen mostly in response to the proposals put forward by the jurisprudence and legal scholars to limit the discretion exercised by the executive in determining the legal situation of the individual. Nowadays, in various normative acts, lawmakers more often refer to statistical quantities. Generally, this is the result of searching for objectivised principles for conduct of public authorities. The author discusses theoretical and practical consequences of the legislator's reference to such type of statistical quantities. He directs his efforts at establishing the criteria of assessment of the conformity of such practice with the constitution, and revealing the threats resulting from such practice. Moreover, he points out the need for an adequately detailed definition of the power of an executive body to properly determine a particular statistical quantity and properly connect this quantity with different legal norms. The author's theoretical investigations are based on the judgment of the Constitutional Tribunal (examining the case on the application of the Human Rights Defender). The case concerns a provision of the Real Estate Management Act which requires the President of the Central Statistical Office to publicize real estate price indices. These indices are designed, inter alia, as a basis for indexation of benefits that may be provided by public authorities to citizens in relation to real property management. Despite the fact that the Act came into force in 1998, the said provision has not been implemented yet. Additionally, the Human Rights Defender contested technical feasibility of fulfilling such a statutory obligation. The author presents arguments against the Constitutional Court's decision finding no unconstitutionality of the challenged provision. He also raises doubts - in the context of the constitutional principle of legality - about the admissibility of the exercise of the obligation so defined, due to an excessive discretion given to the President of the Central Statistical Office on the basis of a generally formulated provision concerning competence.
9
80%
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2008
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nr 1(84)
29-44
EN
The National Broadcasting Council (KRRiT) is subject to political accountability that is enforced under specific procedure that is not applied to any other constitutional body. The procedure is initiated with a yearly report submitted to the Sejm, the Senate and the President of the Republic. The Sejm and the Senate may accept or reject the report by means of a resolution. If one, or both, of the chambers accepts the report, the proceedings is concluded. But the rejection of the report by both chambers opens the way to expiration of the term of office of the Council. However, the expiration will not take place without the approval from the President of the Republic. This means that an unanimous negative assessment of the report of the Council by the Sejm, the Senate and the President of the Republic is required to enforce political accountability of the Council in the form of expiration of its term of office. The political nature of this form of accountability results mostly from the lack of legal specification of the conditions of assessment of the report, which opens the way to application of political criteria of such assessment. Of importance is also the fact that the assessment of the report is made by bodies which are political by nature.
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EN
The principle of separation of powers is among those rules governing proper functioning of the State which accompany the reflection about the exercise of State authority since it has become the subject of discussion concerning the attributes of a government the people deserve. This question attracts interest of constitutionalism since its birth. At the same time, the separation of powers principle has become the subject of many critical assessments and comments focused on the practice of functioning of constitutional systems based on that principle. However, their functioning is not free of mistakes and failures; and the principle itself helps the governments justify their lack of effectiveness and discourages the ordinary citizens from participation in public life. It is also perceived as an anachronism , as compared to the opportunities of new technologies and challenges of development. It might be said, however, that this principle, typical of democratic state governed by the rule of law, constitutes - especially in the context of threats to modern democracy - a determinant of identity of constitutionalism, on account of its importance for the affirmation and guarantees of human rights and its role in shaping the structure and rules of functioning of a democratic State. The separation of powers principle is articulated in Article 10 of the Constitution and in the State structures established by the Constitution and mechanisms provided for their functioning as well as constitutional values determining the limits of authority. Specifying the definition of constitutional democracy, the Constitutional Tribunal stressed that such system of government is characterized by the lack of the supreme organ of the State authority, while the principle of supremacy of constitution provides a foundation of the State. In the opinion of the Constitutional Tribunal, the separation of powers principle means that the legislative, executive and judicial branches of power are separated, and that there must be balance and cooperation between them. However, this principle has no merely organizational nature, since it is aimed at protection of human rights by preventing any branch of power from the abuse of its authority. The jurisprudence of the Tribunal gives us awareness that constitutional democracy consist in the limitation of power of the majority by the right of the individual. Of great significance, from the point of view of separation of powers in a democratic State, is the issue of relations between the legislative and executive powers. The parliamentary system established by the authors of the constitution in relation to these relations, is called by the doctrine 'rationalized parliamentarism'. The advantage of the legislative power is closely connected with the role given to statute by the authors of the constitution to guarantee the rights and freedoms of the individual. It seems that they even rely on statute and judicial power, rather than on the potential role of the separation of powers principle for protection of the individual against possible threats, particularly from the executive power.
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Content available remote Niegodność wyborcza a niektore instytycje prawa karnego i konstytucyjnego
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EN
The work on a bill to amend the acts governing elections of the Sejm and the Senate, as well as the act on presidential elections, which adjusted these acts to the wording of Article 99 para. 3 of the Constitution (added in 2009) – resulting in adoption of the bill and its promulgation in Dziennik Ustaw – has not attracted much interest. Meanwhile, the manner in which the text of the above-mentioned amendment was prepared, as well as its final wording, subsequently “transferred” to the Election Code, tells us a lot about the way of interpretation of constitutional terms and understanding of the Constitution by the Polish legislator. Another issue, almost completely ignored by those working on constitutional amendments and revision of electoral laws, but also by the law doctrine, is the effect of the erasure of the entry from the register of convictions in relation to the candidate on his eligibility. In the author’s opinion, the predominant approach to this question is wrong, since it is based on interpretation of constitutional concepts from the angle of statutory terms, while the opposite reasoning should be applied. While the approach that the concept of ‘convicted person” already existed on the day of the adoption of the Constitution would be defended, identical value would be attributed to the concept of ‘offence” which, however, is interpreted by reference to the autonomous notions of the Constitution of 2 April 1997. In the conclusion, the author, taking a literal and autonomous approach to statutory regulations of the cited provision of Poland’s constitution, claims that the existing statutory regulations have not still been fully adjusted to constitutional provision, especially to the extent that Article 106 of the Penal Code requires electoral bodies to treat as non-existent the conviction by the valid judgment of the court to the penalty of deprivation of liberty for intentional offence prosecuted by the public prosecutor when entry on such conviction was erased from the register. Consequently, inclusion of the above-mentioned mechanism into the newly adopted Election Code makes this act defective to the extent in question. In the author’s view, the said amendment of the Constitution, doubtful in the context of conformity with the constitutional requirements existing in the moment of its adoption, has given a new, constitutionally relevant, meaning to the matter of procedure – public or private – of prosecution of offences. As a result, all legislative proposals aiming at widen the catalogue of such offences should meet the requirements specified in Article 31 para. 3 of the Constitution.
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Content available remote CONSTITUTIONAL-LAW BASIS OF THE ECONOMIC ACTIVITY BY PUBLIC ENTREPRENEURS
70%
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2008
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nr 1(84)
45-63
EN
The starting point of this analysis is a statement that the authors of Poland's Constitution have decided not to include therein a precise basis for the conduct of economic activity by the State. According to Article 1 of the Constitution which establishes the principle of a common good, the State - as a structure of power - is obligated to pursue the public interest in each area of its activity. Economic activity of the State should contribute to the achievement of common good. The task of identification of the common good is conferred, principally, on the executive and legislative branches of government which are empowered to take decisions (within widely defined constitutional limits) concerning the conduct of economic activity by the State and about the use of profits resulting therefrom. There is no obstacle to the State conducting profitable economic activity, provided that profits are used for the benefit of public interest. Referring to Article 2 of the Constitution, which establishes the principle of social justice, it is the duty of the State to correct market mechanisms which may result in discrimination against some individuals or social groups. Involvement by the State in economic activity may be one the means of intervention. The commitment to the principle of social justice may be perceived as the basis of operation of an entrepreneur. A social market economy, based, among other things, on the freedom of economic activity, is the basis of the economic system of the Republic of Poland (Article 20 of the Constitution). Stressing the significance of private ownership for shaping the economic system, qualifies public economic activity as merely an exception. Any form of economic activity by the State is permissible if it conforms with the principle of the common good. The exceptional nature of public economic activity also ensues from the norm which establishes the principle o subsidiarity. According to this principle, the State should intervene in the area of social and economic relations only when individuals are not able to address the challenges by themselves. The principle of subsidiary can sometimes impose on the State an obligation to intervene and engage in economic activity in the event that private subjects are not (for objective reasons) able to operate without State intervention. Public economic activity takes different forms, all of which are characterised by the term: public entrepreneur, which is defined in this article.
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Content available remote THE AXIOLOGY AND SPIRIT OF THE CONSTITUTION OF THE THIRD REPUBLIC OF POLAND
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EN
The author makes an assumption that any text of the constitution cannot properly be understood without its historical, cultural and political contexts. Therefore, he presents in detail the historical context of work on a constitution of democratic Poland, starting with the debates of the Round Table. In this respect, he distinguishes three stages of systemic transformations, delineated by successive terms of parliament: first stage prior to the first partially democratic election when the constitution of the Polish People's Republic was changed, the office of President of the Republic elected by the National Assembly was introduced and new act on elections to the Sejm and the Senate was adopted; the second stage - the period of functioning of the 'contractual parliament' when the name of the State was restored and ideological phrases about the alliance with the Soviet Union and the leading role of the PUWP were deleted from the basic law, and the provision stating that Poland is a democratic State governed by the rule of law and implementing the principles of social justice was introduced together with the principle of universal election of the president; the third stage - the functioning of a parliament chosen in a fully democratic election, when the constitutional acts were adopted, including: the Act on mutual relations between the legislative and the executive power of the Republic of Poland and the local self-government (the so-called Small Constitution) and on the procedure for the preparation and adoption of a constitution of the Republic of Poland; the fourth stage - the period of functioning of a parliament elected in 1993, when the (1997) Constitution of the Republic of Poland was adopted. In this historical context, it is difficult to give an unequivocal answer to the question about the date of establishment of the Third Republic of Poland. The author makes a distinction between the letter and the spirit of the constitution. The Constitution of the Third Republic of Poland is entirely driven by the sprit of compromise. The philosophy of compromise which motivated work on a draft of a basic law, has mostly given Poland's Constitution an eclectic shape. The slogan of constitutional compromise hid a consistent implementation of the purposes of the then leading bloc, i.e. the protection of interests of the post-communist formation. Concessions made by the authors of the constitution to win the required majority of votes, concerned matters (in their view) of minor importance. The coming into force of the Constitution of the Third Republic of Poland meant an achievement of the goal declared by its promoters, which was a definitive confirmation of national reconciliation and closing historical accounts which date back to the period of the Polish People's Republic.
EN
The article deals with relations between the individual and human rights on the one hand, and the State on the other, in the context of the Constitution of the Republic of Poland. The author poses the question whether the idea of subordination of the State to the individual is really a central idea of that constitution. He puts forward many arguments against such suggestion. These arguments relate, above all, to the arrangement of the constitution: a chapter concerning human rights is chapter II, while chapter I deals with foundation of the State; the goals of the State are specified in the preamble including the following initial phrase 'the existence and future of Poland as our Homeland' and in Article 5 where human rights are as subject of protection by the State is mentioned after independence and integrity of (its) territory; a general concept of human rights protection adopted in the constitution is dominated by the structures typical of law in its objective sense; the way of regulation admissible limitations on human rights differs from international standards; possibility of claiming human rights is constitutionally guaranteed, mostly by constitutional complaint which is above all aimed at correction of legal system, rather than claiming of rights by the individual; Article 1 ('The Republic of Poland shall be the common good of all its citizens') interpreted as referring to Article 1 paragraph 1 of the April Constitution of 1935, one of the main ideas of which was precedence of the State over the individual. He also analyses the arguments in favour of the recognition of the idea of subordination of the State. Nevertheless, they cannot be accepted as resolving the question of whether it is a central idea of the constitution. These arguments include in particular: the principle of subsidiarity contained in the preamble, even if it has not been appropriately emphasized there; recognition of inherent and inalienable dignity of the person, but it was not until Article 30 that this provision has been contained and it does not determine the relations between the human dignity and rights and the State. The author suggests that the only conclusive way to justify the subordination of the State in relation to the individual as a central idea of the constitution is by means of Article 1. Taking into account, above all, preparatory work, we should reject the interpretation of that article referring to the April (1935) Constitution. Essential interpretative context may be found in preparatory work and social teachings of the Catholic Church, referred to therein. In that case, the common good means the entirety of the conditions of social life which favour the human development. These conditions include above all the respect for human dignity. Such interpretation of Article 1 gives priority to proposals on what the State should be to serve the individual rather than to safeguard obligations of citizens in relation to the State.
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