Balicki: The worst Sejm in three decades has destroyed Polish parliamentarism

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Ryszard Balicki, a leading Polish constitutional scholar from the University of Wrocław, has passed judgement: the current Sejm whose term is now coming to a close, responsible for violations of established traditions and the Constitution as well, was a mute and essentially pointless Sejm. Who is responsible? In large part, the former Marshal of the Sejm, Marek Kuchciński.



The outgoing Sejm [the lower chamber of the Polish parliament – ML] has become essentially a decorative body. It functions, because the Constitution demands it to, but it plays no real political role. It is not a place where debate is conducted and where the most important decisions are taken – this is how constitutional scholar Ryszard Balicki judges the previous four years of destruction wrought upon Polish parliamentarism.

 

The Polish Sejm has been reduced to the role of an unimportant and purely formal stage in the process of enacting law. Members of Parliament no longer participate in debates on issues of import to the functioning of the state, but rather mechanically and without reflection carrying out the will of the real political decision-makers.

 

Decisions taken by the former Marshal [Speaker – ML] of the Sejm, Marek Kuchciński, contributed to the reforming of the Sejm into an obedient “voting machine”. Furthermore, the former Speaker was responsible for instigating the most serious crisis in the modern history of Polish parliamentarism – the events of 16 December 2016.

 

Bills under consideration are not submitted to consultations with the public, they do not contain a precise Assessment of Regulatory Impact, and because of the breakneck pace at which legislation is adopted, bills frequently go without proper review by the Office of Parliamentary Analyses.

 

When law is made in this manner, there is no confrontation with the opinions of experts and practitioners, which leads to significant legislative mistakes and a disjointed system.

 

This is the source of another ailment of the outgoing Sejm – the continual passage of amendments to fix legislation just adopted.

 

“The way the Marshal works” – how Polish parliamentarism was wrecked

 

“The way the Marshal works” – a quote from former Marshal of the Sejm Marek Kuchciński. These words were part of a statement that Marek Kuchciński read out during a joint press conference with Jarosław Kaczyński at which the former Speaker announced his resignation.

 

The worst parliament in 30 years

 

We cannot today imagine a country that wants to be recognised as a democratic state in which there would be no functioning parliamentary body representing the sovereign. This is an obvious consequence of the recognition that the direct exercise of power by the sovereign, including in relation to the size and territorial scope of modern states, must be restricted in favour of representative democracy.

 

However, of particular importance are the words used in the opening sentence of the preceding paragraph: “a democratic state”. For in any other case, a parliament – formally in existence – becomes merely an insignificant ornament, a meaningless stage decoration alongside the real centres of state decision-making.

 

Unfortunately, this is exactly the case in Poland right now.

 

It should be noted, however, that the demise of the Sejm’s significance did not begin four years ago at the beginning of its present term. We have been able to observe this phenomenon for several terms, and one factor in it is the consolidation of the Polish political arena. Each successive Parliament has thus been worse than its predecessor, but the outgoing Sejm has done much to accelerate this trend.

 

Marshal Kuchciński the face of the Sejm, reimagined as a “voting machine”

 

The functioning of the Sejm is in large part dependent on the personality and political position of the individual holding the post of Marshal of the Sejm. This is also why the outgoing Sejm will remain linked in history with the face of Marek Kuchciński.

 

With the face of a Marshal who, without his own political ambitions, did everything within his power to fulfil as fully and quickly as possible the expectations – even those that went unspoken! – of his political party and its leader. He didn’t even bother attempting to perform the constitutional role of the Speaker – guardian of laws and representative of the lower chamber.

 

Decisions taken directly by Marshal Kuchciński contributed to the reformation of the Sejm into an obedient “voting machine”.

 

There are few other appropriate words to describe a model of parliamentary procedure in which MPs are allotted 30 seconds to speak, and legislation is passed in the space of a single day.

 

The governing party has perfected the “technological” cycle for the production of law starting from the very beginning, in the form of the right to initiate legislation, to the very end, in the form of the signature of the Polish President.

 

Bills are submitted by MPs as formally private members’ bills and are thus not burdened with the necessity of public and social consultations and hearings. We have seen this technique used before, when the mechanism was termed by the press as “bypassing the law”. However, in the past it was treated as an exception worthy of harsh criticism; the present Sejm has turned it into the primary mode of proceeding.

 

In the space of a few days (or rather a few nights – the current Parliament is the undisputed record-holder for night-time sessions), and at times even just a few hours, bills undergo three readings, being passed after adoption to the Senate.

 

The Senate, dominated by Senators from the governing party, usually refrains from submitting any reservations to the adopted bills, thus ensuring the legislation goes straight to the President’s desk, who completes the legislative procedure by affixing his signature.

 

This constitutes fulfilment of the constitutional requirements governing the legislative process, but only in the formal sense.

 

Bills under consideration are not submitted to consultations with the public, they do not contain a precise Assessment of Regulatory Impact, and because of the breakneck pace at which legislation is adopted, bills frequently go without proper review by the Office of Parliamentary Analyses.

 

This is the source of another unsurprising ailment of the outgoing Sejm – the continual passage of amendments to fix legislation just adopted.

 

As the “Legislative Monitoring Report” informs us, “an ignominious record has been set by the Personal Income Tax Act, which the Sejm has amended over 70 times. There is also the Energy Act, amended 36 times, and the Telecommunication Act, amended 24 times”.

 

A Marshall who punishes the opposition

 

The personality of the Marshal of the Sejm was also on full view in the emotional manner in which he conducted sessions of Parliament, as well as his excessive inclination to impose financial penalties on MPs.

 

In the term now coming to a close, the Marshal of the Sejm fined MPs on a total of 15 occasions. The most frequently punished MP was Sławomir Nitras (PO), who was fined 5 times, and still has 2 cases in progress.

 

Financial punishments levied against MPs are nothing new and have been present in the Parliament’s regulations from its first term. Originally, they were only a punishment for unjustified absences at committee hearings (since 1992) and plenary sessions (from 1996).

 

A change was made in 2002, when the possibility to impose penalties was expanded to include “flagrant violation of provisions of the appropriate regulations”. It should be emphasized that at the time, Law and Justice MPs voted against this change.

 

Legislation governing this area was amended again in 2018. The ruling party, adopting amendments to the Act on the Exercise of the Mandate of Deputy and Senator, made it possible to punish MPs by reduction of their remuneration also in the event of violation of the “dignity of the Sejm, Senate or National Assembly at their meetings or meetings of their bodies” and “flagrant [violation] of the peace or order in an area managed by the Chancellery of the Sejm or the Chancellery of the Senate”.

 

A consequence of these amendments was the corresponding amendments to the Rules of Procedure of the Sejm. At that time, it was also decided that the Speaker of the Sejm alone would decide whether an MP had violated the dignity of the Sejm or the peace in an area managed by the Chancellery.

 

These solutions, and particularly the manner in which they are used, are doubtlessly intended to exert pressure on opposition MPs to restrict their activities.

 

The Marshal provoked a parliamentary crisis

 

The Marshal of the Sejm was also the instigator of the largest crisis in the history of contemporary Polish parliamentarism – the events of 16 December 2016.

 

The 33rd session of the current Sejm was planned for that day, with an agenda comprising 13 items, including the third reading of the draft budget for 2017. During the session, emotions boiled over as MPs expressed their objections to Marshal Kuchciński’s decision to restrict the freedom enjoyed by journalists working in the Parliament.

 

During review of a third minority motion regarding the budget bill, MP Michał Szczerba (PO) wanted to ask a question. Szczerba only managed to say “Dear Marshal! Music soothes the savage beast. That’s why Warsaw is…”. At that moment, Marshal Kuchciński turned off the MP’s microphone and expelled him from the chamber. The Marshal’s decision led to a group of MPs blocking the lectern, and in effect to further recesses in the chamber’s sitting being announced.

 

As a consequence of these events, the sitting was transferred from the official chamber to the Hall of Columns, and votes taken there were attended by only a portion of the deputies, in a manner that violated the Constitution as well as legislation governing the performance of MPs’ duties and the Sejm’s own regulations.

 

The Sejm – a mere formality

 

Even this brief analysis of the functioning of the outgoing Sejm leads us to the conclusion that it has become a merely formal body. It functions, because the Constitution requires that it does, but it performs no real political role. It is not a place where public debate is conducted, nor where the most important decisions of the state are taken.

 

As a result of abuse of his privileges, Marek Kuchciński ceased to serve as the Marshal of the Sejm, but his style in managing the work of the chamber remains in place.

 

But in a move particularly difficult to accept, the Sejm was not even able to conclude its term in a dignified manner.

 

On 10 September, the Sejm decided to suspend its session and continue it on 15-16 October – in other words, after elections to the Sejm and Senate scheduled for 13 October.

 

Of course, the term of the outgoing Sejm lasts until the day preceding the first session of the incoming Sejm, thus the decision is in line with the letter of the law but violates a constitutional custom that has been in force for decades. It thus constitutes a situation without precedence.

 

But this is the face of the outgoing Sejm – a Parliament that violated the Constitution and ignored existing traditions. A mute and essentially disposable Sejm.

 

[translated by Matthew La Fontaine]



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October 11, 2019

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