 |
Why in Self-government |  |  |  |
 |  |
Why in Self-government
Michał KULESZA
Self-governments of particular professions operate in accordance with acts based on article 17 paragraph 1 of the Constitution of the Republic of Poland. The only condition a profession has to fulfil to organize its functioning in a form of self-government is that it is a profession in which the public repose confidence.
To such self-governments the state transfers its all or some supervisory powers over proper performance of these professions, contrary to other professions for which such competence either belongs solely to public administration (like in the case of taxi drivers or teachers for instance) or simply does not exist because their proper practice is best verified by "the invisible hand" (like in the case of cooks for example).
It would not be good for the interested (service recipients) if the performance of doctor's, notary's, lawyer's or architect's profession were to be verified only by "the invisible hand". The nature of a profession in which the public repose confidence means among other things that a client (an accused person, a patient, an investor, etc.) must trust their lawyer, doctor or architect for their professional knowledge is of a specific character and the performance is a subject to rigorous moral standards. Therefore the nature of professions in which the public repose confidence means also that these are professional corporations which - pursuant to article 17 paragraph 1 of the Constitution - " shall concern themselves with the proper practice of such professions". Retransferring these competence to the state impairs professional ethos and is contrary to clients' interest. It is not true what numerous supporters of the state's omnipotence in Poland think that the function of a guard supervising proper practice of professions in which the public repose confidence will be performed best by a state official. For us it is history - it was in communist times that the state apparatus exercised control over every aspect of social life. In democratic countries, and Poland has been recognized as such for almost twenty years, the division of power and competence between the state (the government) and local, professional and other self-governments is a natural thing, and whether or not self-governments use their rights according to the letter and spirit of law - is finally verified by the court.
It is not true either that membership in professional self-governments (professional corporations) is compulsory (obligatory). There is no dilemma here at all - compulsory or voluntary membership - because self-government is not a social organization or an institution which you can or have to join - obligatorily or voluntarily. Self-government - both local and professional - is a constitutionally and statutorily sanctioned form of organizing collective life, through which the state transfers its governing powers to the most interested - for example municipality residents or people of the same profession. Thus this membership is not compulsory; it is attributed by virtue of law, it is "automatic" in a sense. Similarly, by virtue of law, we are "automatically" given Polish citizenship only because we were born from parents of Polish citizenship; by virtue of law, we "automatically" become members of local self-governing community (for example municipality) because this is a legally defined consequence of having our residence on the territory of this community. In the same way, by virtue of law - lawyers, doctors, tax advisers and other professions in which the public repose confidence form their chambers which are communities of people of the same profession.
That is why the dilemma put forward by the Ombudsman is completely false. It is necessary to add that the Ombudsman's suggestion that professional self-governments infringe the freedom to practice a profession or limit the freedom to undertake economic activity and thus are unconstitutional is a big misunderstanding. The quoted provision of article 17 of the Constitution shows clearly that it is included in the second paragraph which refers to self-governments other than professional, which is absolutely understandable, because such restrictions must result from special circumstances. The Constitution makes them dependent on recognizing (by Sejm) a profession as the one in which the public repose confidence. Consequently, if Sejm recognized a profession as the one in which the public repose confidence and established its professional self-government - it cannot be perceived as the abuse of rights.
Professor Michał Kulesza, University of Warsaw; co-author of the administrative reforms in the Third Republic; in the years 1992-1994 and 1997-1999 the government's commissioner for the public administration reform
ARTICLE 17 OF THE CONSTITUTION OF THE REPUBLIC OF POLAND
1.By means of a statute, self-governments may be created within a profession in which the public repose confidence, and such self-governments shall concern themselves with the proper practice of such professions in accordance with, and for the purpose of protecting, the public interest.
2.Other forms of self-government shall also be created by means of statute. Such self-governments shall not infringe the freedom to practice a profession nor limit the freedom to undertake economic activity.