PROCEEDING CONSTITUTION AND fresh BASIS.

CONSTITUTIONAL USTROYAL BALAGAN

Written by Robert Starzowski and Warsaw Enterprise Institute

The 1997 Constitution created a mixed strategy – in fact, a mixed one! It established a parliamentary-office strategy with an enhanced position of Prime Minister in relation to, for example, the Italian or Polish model from the period II of the Polish Republic, but not as much as in the German model with the Chancellor. However, she retained direct presidential elections – which gave the president the strongest democratic mandate, but did not give him real power, though she did not just bring him to a purely honorable function, as in the Italian or German model. However, the prerogatives of the president did not scope as far as in the French model, in which the President, as in Poland, is elected in direct general elections.

This created not only political chaos, but besides legal chaos – the provisions of the Constitution are imprecise to the degree that they cannot be interpreted explicitly by constitutional powers of state bodies, which must exacerbate the political conflict between them.

It was not only seen erstwhile the president and Prime Minister were from various political camps – as was the case with president Alexander Kwasniewski and Prime Minister Jerzy Buzek or president Lech Kaczyński and Prime Minister Donald Tusk, but besides erstwhile the president and Prime Minister came from 1 political camp – as was the case with president Alexander Kwasniewski and Prime Minister Lesz Miller, or now with the example of president Andrzej Duda and Prime Minister Beata Szydło.

This bad constitution was the origin of embarrassing political performances – as during the celebration of joining the European Union, during which only the Polish flag was drawn onto the mast by 2 politicians (Kwasniewski and Miller) or disputes over the seat on the plane (Kaczyński and Tuska).

NON-COUNTING COMPETENCE

An excellent example of the weakness of the constitution is the issue of the appointment of judges – which is the area presently causing the biggest disputes. Pursuant to Article 179 of the Constitution, judges are appointed by the president at the request of the National Judicial Council. During the first 10 years of the Constitution, it did not happen that the president would not appoint judges according to the proposal of the National Court Register. It was only Lech Kaczyński in 2008 who refused to appoint any of the candidates indicated to him. In January 2009, the Sejm so amended the Law on the strategy of Universal Courts, stating that the president had to appoint candidates for judges presented by the KRS, and this within a period of receipt of the application. The bill imposed an work on the head of the state, which was not clearly specified in the Constitution itself! The average law may possibly grant the president any additional powers (if it does not take them on the occasion of another authorities, if they arise from the Constitution), but it is not possible to impose constitutional obligations on the body. In April 2009, president Kaczyński directed this bill to the Constitutional Court (TK). In June 2009, the talker of the Sejm sent his opinion on the substance to the Constitutional Tribunal, writing that “in science, whether the President's competence to appoint judges is simply a ceremonial right to legally accept the candidacy of judges presented by the National Court registry or, rather, the president is entitled to decision-making freedom.” How can specified issues stay a “subject matter” in the “state of law”? This proves the Constitution badly.

NON-CONSTITUTIONAL AUTHORITY

The Constitution besides allows for the exercise of effective power by non-constitutional centres – as happened in the case of Marian Krzaklewski and now (text from 2018) Jarosław Kaczyński.

The Constitution, although in Article 10 lays down the rule of division and balance of authorities, allows, or at least does not prevent, the concentration of power in the non-constitutional centre in the individual of the chief (president, chairman) of the ruling party. The parties are financed from the budget, so they do not depend on their members. The detailed allocation of the money received from the budget shall be decided by the parties themselves in the manner set out in their statutes and may be decided by the head of the organization alone.

The head of the organization may decide who he places on the electoral list and where – which is crucial in the proportional elections with the national electoral threshold. The head of the organization may, in subsequent elections, decide not to put on the election list a associate who disobeyed him, which increases the propensity of MPs to obey the head of the party. The organization may even pass the discipline of voting – although the constitution provides in Article 104 that MPs, as representatives of the full Nation, do not bind the electoral instructions, but do not prohibit them from binding instructions from their own parliamentary club – the party. For disobedience, the MP may be sanctioned—and usually meets—not placed in subsequent elections on the electoral list.

Members, at the request of the head of the organization – to whom they must obey, appoint ministers. MPs themselves can become ministers. As ministers, they prepare draft laws, which they then pass as MPs, then implement as ministers, and then as MPs control how, as ministers, they have implemented laws that they themselves have prepared and passed.

The head of a organization placed by him on the electoral lists of a Member, whom he subsequently made minister, may order the authorities of the companies controlled by the minister, the largest companies in the country, to be monopolistic or at least dominant, which influence what is happening on the marketplace and dictate conditions to another private operators. The CEOs of these companies hire who the organization chief points out to order goods and services from whom he points and spends on what he recommends. It is the head of the organization who besides decides on candidates for various crucial positions in the state – specified as NBP, KNF, GPW, UOKiK, URE and UKE presidents.

CONSTITUTIONAL ASSESSMENT PROCESS

The Constitution besides established the politicisation of the process of examining the constitutionality of the laws, keeping the Constitutional Court in the form of small amended since 1982, erstwhile – immediately after the introduction of the martial law on 13 December 1981 – even in a manner contrary to the Stalinist constitution in force at the time – the Constitutional Court Act was passed for the show. While the appointment of the judges of the general and administrative courts has been depoliticized (even besides much, causing the state to alienate the judiciary environment), as if for balance, the appointment of the judges of the Constitutional Tribunal has been politicised to the maximum extent. All the judges of the Constitutional Tribunal are elected by the Sejm itself, not even by a qualified majority. It is so de facto the head of the ruling organization who can decide who will become the justice of the Constitutional Tribunal and will decide on the compliance with the Constitution of the legislative actions of the Members who elected him at the direction of the head of the party, on whose command they besides vote in favour of laws whose constitutionality the judges are to examine.

JUDGMENT

The Constitution besides created an imbalance in the three-partition model of power, putting the judiciary under the supervision of the judges themselves, but did not execute either democratic or substantive verification at the time of the entry into force of the Constitution. The judiciary was delegated to the National Judicial Council. The thought of creating specified a council was born in 1981. The introduction of martial law put an end to it. It was returned at the 1988 circular Table. The National Judicial Council was established by the “contract” Sejm Act of 20 December 1989. The main competences of the Council are to consider candidates for the positions of the ultimate Court judges, the ultimate Administrative Court, the General Courts and military courts and to submit applications for their appointment to the President. Thus, the judges obtained the right to co-opt into their own environment and profession, whom they wanted, and without pre-verifying their own environment.

INTERNAL COMPETITION OF GENERAL CLAUZUL

An excellent example of ambiguity is Article 2 of the Constitution, which states that "Rzeczpospolita Polska is simply a democratic legal state that implements the principles of social justice". With specified a constructed recipe you can interpret everything – depending on what you want. The very thought of a "state of law" has its own reasonably coherent doctrine. The “rules of law, not men” have already been written by ancient philosophers and lawyers – Aristotle in Greece and Cicero in Rome. In modern times, it was raised by John Locke and Samuel Rutherford. In German law it is based on the teachings of Immanuel Kant and Wilhelm von Humbolt. "Lex, Rex" – not “Rex, lex”. “The Law Is King”– not “The King Is Law”. The law is simply a king, not a king is simply a law The thought of the regulation of law was created against the self-sustaining "superena" of the law. This happened at a time erstwhile democracy had not yet existed. The thought of a regulation of law was based on the belief that there are certain subject rights that a man enjoys from the very fact that he is simply a man. They like no sovereign we cannot take distant these rights from him – regardless of whether the sovereign is the king or the people.

Thus, it makes no sense to item the "democratic" nature of the regulation of law unless the thought of the regulation of law is thus intended to weaken. This may be indicated by another word of definition. If this "state of law" is to "democraticly" implement the principles of "social justice", which is an idea, unlike the thought of a "state of law" is unclear and has many different meanings, does not it decide that people, by means of democracy or majority rule?

NEW CONSTITUTION

The 1997 Constitution cannot be defended in substance – it can only be defended for political reasons, against those who want to change it. A negative assessment of the constitution and functioning of the state leads to reasoning in terms of the state alternatively than the current policies and changes to the constitution. The aim should be to form a political strategy which guarantees citizens the widest possible scope of rights and freedoms and ensures the smooth functioning of a state which should not be a feeding ground for political parties. Key issues to be resolved:

1. What is the state's systemic model – a. whether it is essential to improve the badly functioning parliamentary-office model or decision on to the presidential model?

2. Will they destruct the legislature or keep a bicameral parliament, and if so, will they not make a Chamber of a different character from the Senate?

3. How to conduct the legislative process?

4. Do you keep the constitutional judiciary model to date or destruct the Constitutional Tribunal and decide on the constitutionality of the laws leave to the ultimate Court?

5. Should separate administrative courts or administrative departments operate in common courts?

6. What character should the ultimate Court have, and how should it have been chosen?

The proposed fresh constitution refers to the Polish Republican and Freedom tradition, eliminating those solutions which in the past have led to the weakening of the state.

The process of political decision-making must be shaped so that the state does not become paralyzed, but on the another hand the public authorities act as a servant to the citizens and respect their rights. Citizens, already on the basis of the Constitution itself, should know what rights they have, what are the guarantees of these rights, what are their limits, what are the limits of the sphere in which they can freely form their destiny and how public authorities can respond to the actions of citizens. No laws make the state's prosperity, but the creation of a fundamental law should limit the anticipation of a group's dominance over others in a way that prevents, or hinders, self-creation. The solutions adopted are intended to prevent the state from being treated as feeding grounds for those who have gained influence over power.

The instruments to be utilized are:

• the visibility of cardinal rights – fundamental human rights and civilian liberties,

• consistent implementation of the regulation of division,

• strengthening executive power and focusing political responsibility.

The task uses patriotic and historical symbolism. Presidential and parliamentary elections are held on 3 May. The President's oath – on 15 August on the Polish Army Day, on the anniversary of the 1920 Warsaw Battle. The judges of the ultimate Court are to be 44 – in mention to the most mysterious and Messianic number in Polish romanticist literature.

CARDINAL RIGHTS

The most crucial in the country are its citizens. The emphasis on this apparent and forgotten fact serves to item the rights of the “cardinal” – so called according to the best tradition of the Republic of Both Nations. They determine, on the 1 hand, the power of the citizens over their own destiny and, on the another hand, supply a framework for the state's intervention in the actions of its own citizens. Among the cardinal's rights are fundamental human rights, which are his "natural" rights – "natural". They are not "gifted" to him by anyone, but are a trait of man as specified (not just a citizen). The state has a work to defend them.

These rights are life, freedom and property. another civilian liberties already come straight from human nature, but from the position of Citizen and from the political strategy of the state. This strategy is to be designed so that these freedoms are protected as best as possible. Although from the natural law of freedom and property understood in a conventional way it is possible to remove all another civilian liberties that have been codified in the draft, specified codification has been decided due to the fact that in modern times there are more supporters of limiting civilian liberties and their restrictive interpretation. The task follows the rule that citizens are allowed anything that is not explicitly forbidden. An explanation extending rules limiting civilian rights and freedoms and extending the rights and powers of public authorities is prohibited.

STATE FUNCTIONS

The task defines, in a separate chapter, the basic functions of the State. The state is to service citizens, not itself and politicians who regulation the state. Therefore, the functions of the state must be more precise than previously defined. These functions include providing citizens with financial resources erstwhile they scope an age that makes professional activity impossible, at a level that the state budget can bear. Therefore, at the constitutional level, a way of shaping retirement age is defined so that it cannot be the subject of current political disputes. The task besides assumes that pensions as a social benefit financed from the budget will be equal to all. This is equivalent to ceasing the collection of individual insurance premiums, leading to an increase in current net wages.

An crucial component is the introduction of the rule that the State may conduct economical activities in its strategical areas, with the aid of state-owned enterprises created by law – as is the case with PKP or PPL today. State ownership of shares in companies in which private individuals invest – in the interests of their future supplementary pensions besides – will be unacceptable. The state cannot mix the empire with the Dominion.

USTROY MODEL

The executive power is exercised by the President, who is besides the head of state. The origin of his legitimacy is the will of the Nation expressed in direct general elections and obtaining an absolute majority of the votes cast. Moreover, traditionally there is simply a higher voter turnout in the presidential election. While 15,593,033 (50.91 percent) of eligible members voted in the 2015 parliamentary election, 16,993 169 (55.34 percent) of eligible members in the presidential election. These 4.43 percent points are over 1.4 million votes, almost 9.5 percent of those who voted in the parliamentary elections.

Between the 2010 presidential election and the 2011 parliamentary election, the difference was even greater – almost 2 million votes: 17 050 417 (55.31%) to 15 050 027 (48.92%).

The president obtains an absolute majority of the votes (more than 50%) of the voters, while the government can now form itself a organization that will receive little than 40% of the votes.

The presidential strategy is much more representative. The intention of the task is not only to strengthen the executive authority by focusing the decision in 1 centre, but besides to base the functioning of this authority on a rule of clear, one-man responsibility. It is so the president himself who appoints ministers and voivodes. They are officials of the President. However, the office of the Minister is not created by the President, but by Parliament in the form of a bill. The president has the freedom to fill offices, but the Sejm has the right to express discontent with those implementing the laws and to express mistrust to ministers.

Among the powers of the president is besides the anticipation of introducing martial law in the event of an external threat to the safety of the state. The introduction of martial law may consequence in the regulation of cardinal rights – especially freedom and property. No citizen will be able to refuse military service for spiritual reasons. There are besides paramedics in the military on the front line – they do not gotta shoot enemies if spiritual beliefs do not let them to. However, there are no spiritual beliefs that would forbid helping soldiers who hazard their wellness and life in defence of their common homeland and who are being shot at by the enemy. The introduction of martial law besides results in restrictions on property rights – for example by allowing the anticipation of requisition of property for the defence needs of the country.

According to the draft, the President's power is strengthened, but financial decisions stay reserved for parliament. The president is not restrained by the Sejm in spending, but the determination of their totals and their distribution to individual departments remains the work of the parliament, which passes the budget bill.

SEJM

Despite the mediocre experience of Polish parliamentary office, it was decided not to limit the size of the Sejm, leaving the number of 460 MPs – just due to the fact that specified a number would facilitate the introduction of majority elections in single-mandate constituency. An independent election run can be conducted in the territory of 60 thousand. In the case of proportional elections in multiple constituencies, the number of Members should not exceed 120.

During its work on the constitution, the proportional ordination was promoted by the post-communist left, which "provided a draft proportional ordination in an utmost edition for 2 reasons: to guarantee its participation in the Sejm and to establish a uniform Solidarity camp. A part of the SCHN besides spoke in favour of proportionate arrangements. The single-mandate electoral districts are the right choice for civilian society. This kind of ordination enables the public to be active in the systemic reconstruction process by launching a bottom-up initiative. According to Max Weber's diagnosis, proportional ordination leads to organization regulation of memos and promotes the decline of civic virtues and demoralization. Polish practice, unfortunately, confirms this thesis of Weber. At the same time, the desire to supply support to the government and to build political parties resulted in the fact that the strategy of III of the Republic of Poland became a field of tender between political comets trying to defend and enforce biased interests. As Piotr Winczorek noted, the Constitution's work aimed alternatively at achieving an effect that corresponds to the ideological beliefs of its participants and expected expectations Citizens alternatively than striving to meet the fitness criteria outlined in 1 way or another. Whether a given body is truly needed or designed decently to execute its duties was not the subject of deeper inquiry. There was a deficiency of systemic thinking; in the field of view, the designation of individual parts alternatively than the full of this arrangement.” This time you must not make the same mistake.

The Sejm conducts the legislative process in an orderly manner. Each draft bill has its author and only the author has the chance to make amendments to it – which makes it importantly hard for lobbyists to make alleged "contributions". The Sejm besides appoints the lawyer General, the president of the ultimate Chamber of Control and the president of the National Bank of Poland, i.e. chiefs of law enforcement and control, as it is essential to limit the powers of the Sejm to legislate and increase transparency of the legislative process, the attention of the prosecutor and the ultimate Chamber of Control will attract the actions of those holding positions in the executive authority.

SENAT

The existence of the legislature makes sense only if it has a completely different character than before, and it will not only service to correct possible errors in the laws passed by the Sejm. This is only possible in the case of an introduction another than the age of the election price. specified a census can be – already known to the Polish constitutionalism of the Second Republic – the census of public service. The Senator can only be a individual who has previously proven himself in local government. due to the fact that it is the local government that should be the forge and verification of politicians who would like to test themselves later on on the statewide. At the same time, making the advanced home of Parliament a self-government chamber strengthens local authority – the closest citizen, moving schools, hospitals, building local roads, etc. Strengthening self-government serves the rule of division of power as specified – moving from Monteskius' three-division model to Constant's model, which distinguished “municipal power”.

JUDICIAL AUTHORITY

A third, equivalent authority in a state set up to safeguard the law, the primary origin of which is the Constitution being the judiciary. John Locke claimed that the main reason people form the state is to have individual to settle disputes between them due to the fact that “no 1 can be a justice in his own case”. "Nemo iudex in causa sua," said ancient Romans. That's what the courts are for. However, the judges are not “an extraordinary caste of men.” “If you want to be a justice among people, you must be a human being yourself” – Johann Georg Hamann pointed out. That's why the judge's profession must be the crown of the lawyer's profession. Therefore, a justice according to the task will be able to be a Citizen who is at least 40 years of age (in the ultimate Court – 45 years) and for 10 years (in the ultimate Court 15 years) has actively pursued a legal profession authorising the replacement of a trial or prosecutor, or has a degree of habilitated doctor of legal discipline and for at least 10 years (in the ultimate Court for 15 years) has taught at a university having the right to give a degree of doctor of legal science. The work of a man with specified experience allows to measure whether he has a predisposition to hold the office of judge.

Courts are not the buildings in which they are located. They are institutions that settle disputes between citizens and between citizens and national authorities, in peculiar taxation authorities. In the process of resolving these disputes, courts must defend the circumstantial rights of citizens, not the mythical and abstract "interest of the state". due to the fact that it is in the interests of the state to defend citizens – all together and each individual!

The right to a court is not the right to years of litigation. It is the right to a swift and just settlement. The same, in the same or akin case as in another same or akin cases—in accordance with the rule of equality before the law. The right to a court is simply a civilian right and a citizen who pays taxes should not pay the courts extra. Court records should be removed. The claim that this will lead to the money and flood of courts is itself a ‘money’. The deformalisation of proceedings will let for the swift screening of cases of the apparent character of moneymakers, and the actual care of the ultimate Court and the ultimate Administrative Court for judicial uniformity will reduce the number of cases in courts, which, of course, will consequence in faster sentences. The transparency of the judiciary shall guarantee a constitutional request that the courts in which the justice decides to conduct its authoritative profile containing information on the course of study, professional work, publications and decisions which he has issued or has participated in. On the another hand, there is no provision for authoritative information to the public about the state of the judge's assets – the request to inform about this is simply a reason why the best practitioners and scientists may not want to become a judge. The state of the judge's assets may be known to anti-corruption authorities. He doesn't should be known as a defendant. The draft introduces the rule of uniformity of the judiciary. It does not supply for the maintenance of the Constitutional Court or of separate administrative courts.

THE HIGHEST COURT

The peculiar position of the task is for the ultimate Court. The ultimate Court shall examine the matters set out in the Constitution (such as the case of the President's prosecution, the validity of the elections) and the cases concluded by a final judgement in the proceedings before the general courts, which, in view of their importance to the legal order of the Republic of Poland, the ultimate Court justice shall present to the ultimate Court. The ultimate Court will so be a peculiar cassation court – judges will be able, as in the United States, to admit only matters of real importance. The number of judges (44) and their level and authority will exclude the anticipation of flooding the ultimate Court with irrelevant cases.

Only a citizen of the Republic of Poland will be able to become a justice of the ultimate Court without being punished for crimes or offences (even road offences), who turned 45 years old and was a justice for at least 15 years, has actively exercised a legal profession authorising the replacement of a trial or prosecutor, or has a degree of doctor of habilitated legal science, and has taught at least 15 years at a university having the right to give a doctor of legal science. This creates a mechanics for applicable selection of best practices and theorists. The first composition of the ultimate Court will be selected in the general election – which creates a strong legitimacy for judges to regulation on crucial matters. Formal requirements for passive electoral law will constitute a barrier to the selection of accidental persons. The Office of the ultimate Court justice will be held – as in the United States – for life. The justice can resign himself. After the vacancy arose, the judges would be appointed by the President, but with the consent of the Senate.

PROCUREMENT

The current constitution, although it contains regulations on the NRC, does not contain any regulation on the prosecutor's office, which is crucial from the point of view of civilian rights and freedoms, due to the fact that it may affect these rights and freedoms. Therefore, the anticipation of creating a individual union between the Minister of Justice and the lawyer General should be excluded at the constitutional level, so as to guarantee that the lawyer General does not abuse his power to gain approval and his political career, and to limit the prosecution's powers to watch over criminal prosecution. The Public Prosecutor's Office is simply a organization to the proceedings which are decided by the courts in respect of which the Minister of Justice has powers of authority and control. The Minister of Justice should not be the lawyer General. The ongoing conflict over the powers of the Minister of Justice towards the courts and judges is besides due to the fact that he is besides the lawyer General. The Prosecutor's Office is simply a organization to the proceedings which are decided by the courts in respect of which the Minister of Justice has certain powers of authority and control.

Although under the current Law on the Prosecutor's Office, the prosecution, the guardian of the regulation of law, in the draft, at the constitutional level, has limited its actions to the prosecution of criminal offences, due to the fact that it does not, as a substance of fact, uphold the regulation of law due to the fact that there are courts, so equipping it with this attribute takes distant the meaning of the thought of "lawfulness".

VERIFICATION OF AUTHORITY

In order to destruct the bad effects of the union of personnel between the legislative, executive and judicial authorities, the task seeks to destruct their causes – that is, the anticipation of specified union being created. This is served by restoring the old postulate of the Polish enforcement movement "incompatibilitys". Those undertaking paid service in the state administration should not be members of legislative bodies not to legislate rights for themselves and not control themselves from the exercise of their own rights.

PUBLIC FUNDS

The task assumes uniformity of the budget. Public finances are to be concentrated alternatively than scattered in various funds, agencies and agendas, making it hard to control the way they are distributed and facilitating various embezzlements. The task prohibits backing from the budget of political activities, and so besides political parties.

Such backing is petrified by the existing political system, hindering the emergence of fresh ideas and promoting their groupings. In the era of online transparency and with the strengthening of the position of prosecutor and ultimate Audit Chamber and the introduction of majority elections in tiny constituencies, organization and civic control of the sources of organization and politician backing should be adequate not to hazard further strengthening the "partiocracy" of organization backing from the state budget. The introduction of majority ordination at the direct election of presidents, mayors and mayors brought triumph to many partyless candidates.

NEW CONSTITUTIONAL AUTHORITIES

In order to avoid temptation and the anticipation of abuse of public positions for private purposes, it is prohibited for persons holding specified positions to conduct business on their own account, to be partners in partnerships, to carry out open capital marketplace operations and to get and sale immovable property for business purposes. The only origin of their income, during their tenure, may be remuneration.

It remains to be considered whether the National Trust Fund, which manages their assets, should not be established. If a individual is simply a legal individual or performs it, he should not know how that law will affect his or her assets and the economical activity that he or she has previously pursued. The NFP should manage the assets of politicians as well as the ZUS manages funds located in the FRD – through passive investment in stock indices or bonds, alternatively than shares of circumstantial companies operating in circumstantial industries. This will limit the area to abuse and corruption.

INSTITUTIONS IN THE SURVEILLANCE CONSTITUTION

The task does not supply for an ombudsman's office due to the fact that specified an office is needed in the legal systems and systems providing for a very far-reaching interference of state authorities, especially administrative bodies, in the lives of citizens. The draft introduces constitutional guarantees of rights, excluding the anticipation of specified interference, resulting in the full impracticability of the office of specified a spokesman.

The task does not foresee the existence of the National Broadcasting Council due to the fact that specified an institution is completely unnecessary and was introduced into the Constitution in 1997, mainly for social and political reasons, as an instrument of "control" over television, which was scrupulously utilized after 1997 against the political group (AWS) which won the election at the time, and could not scope for the means as PiS did in 2016.