O potrzebie wprowadzenia ustawy referendalnej do systemu prawnego w Polsce

The problems raised in the doctrine of constitutional law related to the implementation of a decision taken in a referendum in matters of particular importance to the state, as well as the generally marginal use of the institution of popular vote in the constitutional prac-tice, give rise to reflection on the introduction of the institution of a referendum law into the Polish constitutional system. In this article the author considers the advantages and disadvantages of such a solution, analyzing at the same time contemporary normative regulations concerning such acts in other countries. The research leads to the conclusion that despite the risks involved, the refer-endum law should appear in the Polish constitutional system in the future, as it would not only give a chance for a more complete reflection of the will of the collective subject of sovereignty without the necessity of its decoding by the parliament, but it could also be an impulse for the development of the referendum practice in the Republic of Poland. However, it is important to introduce proce-dural barriers that will prevent depreciation of this institution.

Glosa do Wyroku Trybunału Konstytucyjnego z dnia 14 grudnia 2017 r., sygn. akt K 17/14

In the commented judgment, the Constitutional Tribunal stated that the provisions of laws and regulations providing for the right of officers of many services to search a person or carry out a personal inspection are inconsistent with the Constitution of the Republic of Poland. The inappropriate division of regulations between laws and sub-statutory acts, violating the constitutional requirement of specifying the principles and procedure of limiting the rights and freedoms of the individual at the level of a law, was rightly questioned. The Tribunal also referred to the obligation to ensure effective mechanisms of protection of individuals against unjustified interference with their rights through the introduction of effective measures of appeal against undertaken actions. Due to the narrow scope of the Ombudsman’s request initiating proceedings before the Tribunal, the consideration was limited only to certain aspects of searches and personal inspection. However, valuable, albeit fragmentary, references to the essence of these activities and their normative shape, desirable from the constitutional perspective, can be found in the judgement.

Czy utworzenie instytucji rzecznika praw podatnika jest niezbędne dla prawidłowego funkcjonowania systemu ochrony praw i wolności człowieka oraz obywatela?

The article aims to show that the creation of the institution of a taxpayer Ombudsman is necessary to improve and tighten the system of protection of human and civil rights and freedoms. The author analyses the content of the draft laws on this Ombudsman and their justifications in order to determine the motives behind their authors, initiating legislative proceedings. These considerations focus on the existence of the rationale for state interference in the field of the protection of the rights of tax entities, which is addressed in formal and substantive terms. The controversial aspects of existing legislative solutions have also been highlighted.

Ograniczenia wolności kultu religijnego w czasie pandemii COVID-19: między konstytucyjnością a efektywnością

The purpose of the present study is to analyse the restrictions on the freedom of religious worship introduced by the Polish executive authorities in the face of the spreading COVID-19 epidemic. The analysis aims to answer questions not only concerning the conformity of these actions with the Constitution of the Republic of Poland and statutory laws, but also pertaining to the issue of the level of preparation of Polish law for an epidemic. In reference to these questions, the author concludes that the introduction of restrictions on the freedom to manifest religion by acts of worship in the regulations issued by the Minister of Health and the Council of Ministers exceeds the bounds of statutory authorisation and is inconsistent with the Polish Constitution. According to the Constitution of the Republic of Poland, passing a law remains the only admissible way of introducing restrictions on the freedom of manifestation of religion, and there are no exceptions to this rule even in states of emergency. On the other hand, the author also points out that if the effectiveness of combating this kind of epidemic really depends on possibility of introducing the above-mentioned restrictions without a long legislative process, it means that Polish executive authorities have been confronted by the constitutional legislator and the legislature with a choice between being efficient and acting in conformity with the Constitution and statutory laws. Therefore, the article postulates that it is necessary to make deep changes to the current law. Elaborating a broad concept of these changes requires further analysis, and the relevant discussion needs to take into account the experience gained so far in combating the coronavirus epidemic, the importance of freedom of thought, conscience and religion, and the solutions adopted in other countries. A clear and balanced, as well as properly sequenced and democratically justified specification of the rules that should be followed by the executive when introducing restrictions related to the spread of the epidemic, even with regard to such important values as the freedom to manifest religion through acts of worship, is undoubtedly more appropriate than formally ruling out the possibility of taking action that may turn out necessary in the future.

Reforma prawa fundacyjnego w poglądach Henryka Ciocha

Among the rich and diverse scientific activities conducted by Henryk Cioch, foundation law occupies a special place. This subject matter became the focus of the Professor’s interest since the Law on Foundations came into force. A characteristic feature of his work was a critical and innovative approach to statutory provisions regulating the functioning of the foundation. The whole scientific output of Henryk Cioch allows us to conclude that he postulated the need for a reform of foundation law. The purpose of this article is to analyse the views expressed by Henryk Cioch on the necessity to make the necessary amendments to the existing text of the Law on Foundations. It is, first of all, an indication of those de lege ferenda postulates put forward by the Professor, which have been included either in the hitherto amendments to the Law on Foundations or reflected in the case-law. The analysis contained in this article will focus on the key problems of foundation law, which according to Henryk Cioch were: the concept and types of foundations, the establishment of foundations, the system of foundations and supervision over their activities, transformation and abolition of foundations.

Glosa do Wyroku Trybunału Konstytucyjnego z dnia 16 maja 2018 r., sygn. akt SK 18/17

The commented ruling of the Constitutional Tribunal concerns the constitutionality of the provision of Article 70(1) of the Family and Guardianship Code, which provided that the time limit for a child to bring an action to deny the paternity of his or her mother’s husband is three years and runs from the moment the child reaches the age of majority, regardless of the child’s know-ledge of his or her biological origin, i.e. regardless of whether the child within that time limit acquired knowledge that he or she did not come from his or her mother’s husband and whether the child could decide to bring an action. The expiry of the three-year period resulted in the expiry of the child’s right to claim the denial of paternity of the mother’s husband and, consequently, precluded the possibility of a positive determination of the paternity of a man other than the mother’s husband. The Constitutional Tribunal found this provision to be inconsistent with Article 30 in conjunction with Article 47 in conjunction with Article 31(3) of the Constitution of the Republic of Poland. The author agrees with the position expressed by the Constitutional Tribunal in the judgment in question, which in this case provides a basis for consideration of the relationship between the right to know one’s biological origin and the value of stabilising the civil status of a child and persons remaining in an established family relationship with him or her.

O postrzeganiu i badaniu przez językoznawców wartości konstytucyjnych. Recenzja publikacji: Ewa Gorlewska, Słownictwo aksjologiczne w Konstytucji Rzeczypospolitej Polskiej. Znaczenie tekstowe a konotacje potoczne

The author of the article presents the review of the monograph written by Ewa Gorlewska. The monograph is based on research methods used in linguistics. E. Gorlewska classifies her book to the “language of values” (axiolinguistics). The author of the review simultaneously assigns it to constitutional juryslinguistics. The monograph consists of two parts. The first one contains an analysis of dictionary and textual meanings of the names of constitutional values. The second presents their colloquial understanding by young Poles. E. Gorlewska argues that the textual meanings of constitutional values differ from its colloquial understanding by twenty-year-olds and claims that there are some differences between the constitutional hierarchy of values and the hierarchy of values of young people. The author of the article finds the monograph very valuable, interesting and of significant importance for constitutional law.

Glosa do Uchwały Naczelnego Sądu Administracyjnego z dnia 30 listopada 2020 r., sygn. akt II OPS 1/20

In the commented resolution, the Supreme Administrative Court expressed the position that the deadline specified in Article 318(1) of the Environmental Protection Law is a procedural period. The position of the Supreme Administrative Court is not accurate, because the structure of this provision, the subject matter of the relationship referred to in Article 318 of the Act, as well as the evaluation of the regulation from the systemic perspective, lead to the conclusion that the analysed period is of a substantive nature and cannot be reinstated.

Działalność ustawodawcza wolnych sejmów w czasach Rady Nieustającej (1778–1786)

The author discusses the legal framework of the legislative activity of ‘free’ (that is, not confederated) Sejms. He discusses parliamentary practice between 1778 and 1786 after a thorough analysis of the king’s legislative initiative with special emphasis on proposals submitted by the throne, and the role played by the Permanent Council in drafting laws. The author argues that numerous bills drafted by envoys had little impact on the results of Sejms because after the election and control of the executive authorities ended, there was no time to examine the drafts. Sejm decisions could be divided into two categories: a) decisions made before the separation of two chambers – concerning elections (of executive and judiciary authorities) and vote of acceptance for the Permanent Council; and b) legislative decisions made during further proceedings, with a special subcategory in the form of provisions related to the control over executive powers. The author also provides a quantitative analysis of legislative output between 1778 and 1786.

Parlamentaryzm Wielkiego Księstwa Litewskiego XIV–XVIII w.

This article aims to present the beginnings and development of the forms of parliamentarism in the Grand Duchy of Lithuania when it was an independently functioning state and after its Union with the Crown of Poland, which gave rise to a new state in Europe called the Commonwealth. Lithuanian parliamentarism developed through a long process of evolution of representative institutions. The most important role was played by a group of magnates (the so-called lords and princes) holding the highest offices in the state and the Church, and appointed by the ruler. This group formed the Council of Lords, an advisory body to the grand dukes; during the Commonwealth ruler’s rare stays in Lithuania, the Council took over many of his prerogatives, becoming the most important legislative, executive, and judicial body of the state, except for the grand duke himself. The strong position of the Council of Lords (and in fact, a few of its most important members holding the most prominent offices) influenced for centuries the political life of Lithuania, dominated by powerful families, almost constantly playing the role of the so-called hegemons, even after they were formally equated in law with the common nobility in 1563. The Lithuanian nobility, on the other hand, was slowly gaining in the sixteenth century the right to participate in the parliamentary life of the state. In principle, however, Lithuanian nobles were deprived of the legislative and control initiative; their role was accepting and executing the ruler’s decisions agreed with the Council of Lords. Thus, they were interested in acquiring the rights of the Polish nobility, and consequently, in the Union with the Polish Crown. The establishment of the Commonwealth resulted in the incorporation of Lithuanian representatives from the senatorial group and poviat (county; Polish: powiat) nobility to the General Sejm of the Crown, in which, however, they could not play a significant role due to their small number compared to their Polish counterparts. In such a situation, it was important for the Lithuanians to maintain the principle of liberum veto, for in this way they could prevent the adoption of constitutions contrary to their interests. Throughout the whole history of the Commonwealth, the Lithuanians made efforts to ensure that their representation corresponded to the popular definition of the state of both nations (Polish and Lithuanian), and not one of its three equal provinces (Greater Poland, Little Poland, Lithuania). However, in the parliamentary system, their only success was the periodic separation of the constitutions for the Grand Duchy of Lithuania from those of the whole state. Even so, Lithuania was treated as one of three provinces, which was reflected in the election of a Lithuanian deputy as Sejm marshal every third Sejm, in the composition of Sejm commissions (1/3 of seats for Lithuanians), and finally in holding of every third Sejm in Lithuania (since 1676). While preparing the Lithuanian state for the union with Poland, King Zygmunt II Augustus carried through substantial political and legal reforms in 1564–66. He introduced a new administrative division, a uniform system of parliamentary institutions (district assemblies, bicameral Sejm), and a new code of civil criminal and administrative law (the so-called Second Lithuanian Statute in 1566). This system was much clearer, simpler, and better thought-out than the one in force in the Polish Crown. Each of the poviats of a province (i.e. voivodeship, some being single-poviat ones), was to meet for deliberations in a specific place (in fact, the capital town of this poviat), gathering local senators and the land owners (Latin: possessionati), and deliberate under the direction of the ‘lord’ of a given administrative unit, i.e. a bishop or voivode in poviats, and, from 1764 on, local marshals in non-voivodeship poviats, ex officio. The law stipulated who should attend a given sejmik under pain of penalties, how long a sejmik may be in session, how many deputies could be elected (only two in each poviat for ordinary Sejms), what remuneration each of them was to receive for their function. During parliamentary debates, Lithuanian senators and deputies often debated separately at the so-called provincial sessions (similar to the nobility from Greater and Little Poland) to prepare the constitutions for their own province and, possibly, take a common position on state issues. Since in Lithuanian law, only general sejms existed, for a long time Lithuanians did not recognise convocation and coronation Sejms as such, did not always participate in them, and did not agree to include them among the alternate ones (that is, for the marshal from Lithuania to head). Until the early eighteenth century, there were cases of calling by rulers or by the citizens of the Grand Duchy themselves of the so-called Lithuanian convocations, i.e. quasi-Sejm assemblies of Lithuanian estates, for deliberations to take decisions (mainly taxes) of a comprehensive nature. This process was initiated by Stefan Batory, but Lithuanians did not welcome the convocations as contrary to the provisions of the Union. The so-called general sejmik (held first at Vawkavysk [Wołkowysk] and then Slonim), where a common position was to be agreed on matters important for the entire state and Lithuania itself, soon came to an end. Lithuanian magnates were not interested in such a gathering, and the nobility (despite the occasional attempts to revive the institution) did not have the strength or the willingness to strive for its functioning. The function of the coordinator of common positions was then taken over by the provincial sessions mentioned above. In conclusion, it should be noted that before the union with Poland (Union of Lublin) in 1569, the Lithuanians had their own tradition and solutions of the parliamentary system, clearly different from those of the Crown. Their reforms of 1564–66 prepared the state to function within the Polish parliamentarism, but the 1569 Union did not establish a new Sejm of the Commonwealth – representatives of the Grand Duchy (senators and deputies) were only incorporated into the existing Sejm of the Crown. They functioned within it, but they certainly did not play an important role, most often dominated by the much more numerous, more politically sophisticated, and feeling their political strength deputies of the Crown. For a long time, the deputies from Lithuania were more at the disposal of their magnate patrons. Enjoying temporary successes and failures, they struggled to break free from their political tutelage (especially from the hegemons of the Radziwiłł, Chodkiewicz, Sapieha, Pac, and Czartoryski families) until the collapse of the state. The functioning of the Lithuanians within the parliamentary system (sejmiks, Sejm) shared with the Poles was also one of the most important factors of their linguistic and cultural Polonisation, clearly visible in the resolutions of sejmiks (they started to be written down in Polish) already at the end of the sixteenth century.