Above the Constitution (voice in a debate)

Citizens are constitutionally entitled to observe and record plenary sessions of the Sejm and Senate [the two chambers of the Polish parliament]. Arguing such rights with the Marshal’s Guards barring a citizen from entering, however, is another matter altogether.

The Senate Marshal, Mr Stanisław Karczewski, published on the Senate’s website a statement claiming that [opposition] Deputy-Marshal, Mr Bogdan Borusewicz, had allowed citizens to the plenary room “through a back door”. This is alleged to have occurred during a plenary session held on 27 September 2017 to debate the National Freedom Institute – Civil Society Development Centre. The session should have been open to citizens under Art. 61. 2. of the Constitution (“The right to obtain information shall ensure access to documents and entry to sittings of collective bodies of public authority formed by universal elections, with the opportunity to make sound and visual recordings.”). The statement, however, claims that a certain regulatory procedure was by-passed to allow access. Namely, the citizens were to have notified their visit 24 hours prior to obtain their single-entry card under Regulation No. 4, dated 18 July 2013, of the Marshal of the Senate.

We are not here to analyse the truthfulness of the Marshal’s statement. It suffices to state, however, that the citizens entered upon having their names entered on a list, which is one of the procedures envisaged by the said regulation (Art. 2.1.9). What is far more significant is that the regulation was used as a basis for making the Marshal’s statement and for turning a Constitutional right to access the Senate proceedings into a restricted commodity.

Indeed, as the order of the day keeps changing by the hour it would be hard to notify one’s visit 24 hours in advance. Besides, access passes are issued on an individual basis, while citizens exercising their rights and freedoms often organise themselves. They want to observe sittings in a larger group, the final composition of which may only be known at the last hour, just before the start of the sitting. This is all more than understandable in view of the ever-shifting timings and of the fact that few people have all day to wait. The access system should be designed to make attendance possible.

The Constitution leaves to both chambers the freedom to choose what access procedures they want to prescribe in their regulations (Art. 61.4). Surely, however, this freedom must stop short of being unconstitutional, as restrictions to the principle of openness are defined to be “imposed by statute solely to protect the freedoms and rights of other persons and economic subjects, public order, security or the important economic interests of the State” (Art. 61.3).

Let us now turn to the Regulations of the Sejm [the lower chamber of the Parliament]. It repeats constitutional principles, but restrictions appear in a Regulation of the Marshal of the Sejm, No. 1, dated 9 January 2008, which lays down detailed rules of access to the premises of the Parliament. First, it mentions limitations to the right under Art. 61.2. that do not exist in the Constitution, such as “violation of good manners” and “disorderly conduct in the past” (par. 20 and 21 of the regulation). Second, the regulation allows for a temporary exclusion of the right granted in Art. 61.2 to specific individuals (par. 21). Third, the Head of the Sejm’s Chancellery may temporarily restrict access to the audience gallery (par. 67). Fourth, the Commander of the Marshal’s Guards has been given the right to restrict or withhold the right to access the grounds remaining under the management of the Sejm’s Chancellery and into the Sejm buildings (par. 6).

In practice, therefore, the execution of constitutional rights can be limited by officials, which the Constitution never mentions. What is more, the Sejm Chancellery makes evaluation of the execution of these provisions difficult in practice. Here is how it responded to questions about specific documents that introduced these restrictions: “The control over access to the facilities remaining under the management of the Sejm Chancellery counts among technical means used to ensure safety within these buildings. It is unrelated to the performance by the Chancellery of its public responsibilities or to the recording of how these responsibilities are performed. Information to this end does not, therefore, constitute public information. It derives, therefore, that details of persons who have been issued a ban from accessing the said buildings, or a register of such individuals, also does not constitute public information” (letter dated 27 September 2017). This answer makes it impossible for citizens to exercise due control. The case is now clearly destined for the courts.

Meanwhile, the courts have already ruled in support of our approach. The rulings came after our report on our suspicion of a criminal offence when access to the Sejm public gallery was denied to female representatives of “Black Protest”. The Prosecutor’s Office refused to instigate its proceedings. However, the District Court for Warszawa-Śródmieście ruled, on 3 February 2017 (Ref. No. II Kp 2672/16), that the refusal of criminal proceedings was premature. It also pointed out that the case of overstepping the rights contained in the housekeeping regulations resulted in the depriving a group of citizens of their constitutional right to free access to sittings of collective bodies of public authority formed by universal elections and that the gravity of these infringements was considerable. The court also recommended that an evaluation be made whether such an infringement does not constitute an arbitrary and legally ungrounded prevention of the exercising of a constitutional right by making it impossible to be exercised in a way provided for in the Constitution.

Housekeeping regulations and a lack of reference to constitutional rights have become an increasing problem for citizens. This leads us to another matter, which has not yet found a positive outcome before the courts, namely the procedure of accessing the Sejm’s plenary sittings under the principal procedure, i.e. requesting a pass to the public gallery from the Marshal’s Guards’ Pass Office. Pursuant to par. 47.4 of the Marshal’s Regulation No. 1, individuals accessing the gallery to observe a sitting shall use the “SI entrance” (known as the entrance for groups). We tested this path twice and twice we were prevented from exercising our constitutional right to record sound and image. Indeed, the guards at the “entrance for groups” asked the entrants to leave all their personal items in the lockers, including cameras, voice recorders and mobile phones.

The matter of civic access to parliament is not just linked to the current political debate. Provisions contravening the Constitution appear already in the regulation of the Marshal of the Sejm. In practice, the Marshal’s Guards are convinced that the regulation is but “a refinement to the Constitution”. Also the Marshals use their regulations rather freely, as confirmed by the statement of Marshal Karczewski [of the Senate] mentioned above and by the introduction by Marshal Kuchciński [of the Sejm] of a temporary suspension of access to the Parliament in July 2017. These developments are disturbing and a single individual finds it difficult to argue his or her cause when faced by the Guards. Society is reduced to organised efforts, long court battles and legal debates of about the hierarchy of the law.

Szymon Osowski and Katarzyna Batko-Tołuć, Sieć Obywatelska Watchdog Polska.

Szymon Osowski is the President and Legal Head of Sieć Obywatelska Watchdog Polska, while Katarzyna Batko-Tołuć is the Programme Director and she also acted as a guinea pig in trying out the existing procedures of entry to the Sejm and Senate.

The piece was published in the legal insert (“Prawnik”) to the Dziennik Gazeta Prawna daily of 17 October 2017.

Translated by Paweł Pilch

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