Dorota Lis-Staranowicz
Constitutionalisation of political
changes in Poland during the years
1989-2011
Studia Prawnoustrojowe nr 16, 99-115
2012
Dorota Lis-Staranowicz
K ated ra P raw a Konstytucyjnego Wydział P raw a i A dm inistracji UWM
Constitutionalisation of political changes
in Poland during the years 1989-2011
R e c o n str u c tu r e o f a P o lis h c o n s titu tio n a l s y ste m d u rin g th e y e a r s 1989-1992
The y ear 1989 was distinctive for a political tran sfo rm atio n in Poland and oth er countries of E a s te rn and C en tral Europe. It was in th is y e a r th a t th e first free elections were conducted in Poland and th e B erlin w all collap sed in Germany. These events s ta rte d a long way to th e dem ocratization of a political life in post-com m unist countries. The process of dem ocratization m anifested itself, am ong others, in th e rejection of foundations of socialist constitutions.
F o u n d a tio n s o f th e C o n s titu tio n o f th e P o lis h P e o p le ’s R e p u b lic o f 22 J u ly 1952
By b reaking w ith a Polish governm ental tra d itio n the C onstitution of th e Polish People’s Republic of 22 Ju ly 19521 created a system of a socialist s ta te th a t could be transform ed into a com m unist one. It w as based on principles w hich today m ay sound stran g e e.g. th e w orker-peasant union, the sovereignty of th e w orking people of towns and villages, th e Sejm su p rem a cy, the u n ity of sta te power, s ta te ow nership of production resources as well as on th e principle of a leading role of th e com m unist party. The com m unist co nstitution g u a ra n tee d citizens a wide range of freedoms, yet th is reg u la tion h ad a completely preten tio u s character. A legal sta tu s of a citizen was determ ined by an ordinary sta tu te an d exercising righ ts and freedoms was
totally licensed. Modelled on W estern countries socialist constitutionalism in Poland was endowed w ith th e C onstitutional Tribunal. It should be stressed th a t th is organ sta rte d its activity in 1986, th a t is th re e years before the change of a political system in Poland. It was th e only such organ in coun trie s of E a s te rn bloc. Its judgem ents on unconstitu tion ality of a sta tu te were not final an d had to be approved by th e Sejm w hich was a rep resen tativ e of th e com m unist party.
A ch aracteristic featu re of all countries of a people’s democracy was a complete lack of freedom of speech an d free elections. These two freedoms co n stitute a sine qua non of a dem ocratic system ; however, th e term “pe ople’s democracy” did not com prise them . A sine qua non of a dem ocratic system was, on th e o th er hand, a pre-publication censorship of press, radio plays, TV program m es and books, even those addressed to children. In stead of m ultiplicity and equality of political p a rties a people’s democracy offered c an d idates’ com petitiveness w ithin one political option i.e. a socialist-com m u n ist option. O ther political options were forbidden while a freedom of speech w as severely punished. So form ed a political an d social system did not correspond w ith needs an d asp iratio ns of th e m ajority of society th a t supported th e independence movement.
T h e P o lis h R o u n d T ab le o f 1989 a n d A p ril A m en d m en t o f th e C o n stitu tio n
The independence m ovem ent in th e form of postulates of th e first in de p en d ent tra d e unions required som ething m ore th a n th e ratio n alizatio n of a socialist system . At th e beginning of 1989 Poland was h it by a wave of strik es which arose from dissatisfaction w ith a social and economic s itu atio n 2. A more and more w idespread economic crisis and low salaries bro u g h t about the discontentm ent of th e w orking people. The com m unist go v ern m en t was aw are th a t only radical economic reform s would prevent Poland from going b an k ru p t. This led to th e decision about s ta rtin g talk s w ith th e opposition. It w as resolved th a t th e opposition would be allowed to tak e p a rt in governing and in th is way it would be rendered responsible for th e condition of the state. The resu lt of th e talk s betw een th e opposition and th e com m unist governm ent was so-called th e Round Table Talks which la sted from 6 F e b ru ary 1989 to 5 April 1989. The com m unist governm ent tre a te d th e Round Table as an introduction to building Solidarity into a po litical system of th e Polish People’s Republic (Polska Rzeczpospolita Ludowa 2 See g e n e ra lly A. D u d e k , R eg la m e n to w a rew olucja. R o z k ła d d y k ta tu r y k o m u n isty c zn e j
- PRL) w ithout d istu rb ing a leading position of th e Polish U nited W orkers’ P a rty (Polska Zjednoczona P a rtia Robotnicza - PZPR).
The m ain achievem ent of th e Round Table negotiations was a decision about th e legalization of Independent Self-governing Trade U nion “Solidari ty”. F u rth erm ore, th e second cham ber of the p arliam en t and the office of the p resid en t of th e Republic of Poland were to be reactivated. C ontract elections to th e Sejm were a rran g ed - 65% of seats (299 seats) were reserved for the PZPR, ZSL and SD (60%) and for C atholic organizations: PAX, UChS and PZKS (5%) while in dependent candidates were to fight for 35% seats left (161 seats) in free elections. Elections to th e S enate were assum ed to be free. It was decided th a t th e office of th e P resid en t of th e PRL would be formed. Solidarity was to be given access to th e m edia in th e form of th e ir own 30- m inute program m e on TVP channel once a week and an hour of a ir tim e in th e Polish Radio station. O th er provisions included a p o stulate of reg iste rin g a Solidarity weekly and th e introduction of a principle of tra d e union p lu ralism in working places. It was also decided th a t th e system of common courts of law would be reformed.
Provisions of th e Round Table req u ired the am endm ent of the C o n stitu tion of th e Polish People’s Republic. On 7 April 1989 th e com m unist Sejm passed th e am endm ent of the basic law 3. In th is case th e Sejm acted as a voting m achine because its role was lim ited to ratifying political se ttle m ents during th e Round Table ta lk s4. April am endm ent did not b rin g m ajor changes in a political system , th ey were r a th e r of a symbolic n a tu re . F irst and foremost, Poland was still a people’s democracy w ith a leading position of th e com m unist p a rty an d based on th e principle of th e u n ity of state authority. The principle of th e sovereignty of the working people of towns and villages as well as th e w orker-peasant union were also preserved. N e v ertheless, organs typical of Polish co n stitutional tra d itio n suppressed after ap pro priating th e sta te by the people’s governm ent were rein stated . April am endm ent reintroduced th e S enate th a t is th e o th er cham ber of th e p a rlia m en t and th e office of th e p resid en t which had been replaced by th e Council of State in 1952.
The S enate consisting of 100 m em bers was not equal to th e Sejm becau se th e principle of th e Sejm suprem acy still existed. S enators were elected in universal, direct, secret an d m ajority voting. Each voivodeship elected two sen ato rs except for th e M ałopolskie and a m etrop olitan voivodeship in which th re e senators were chosen. The S enate and Sejm form ed the N atio nal Assembly w hich elected th e P resid en t of th e Polish People’s Republic.
3 A ct a m e n d in g th e PR L C o n stitu tio n d a te d 7 A pril 1989 (J o u rn a l of L aw s no. 19, ite m 101). 4 See W. Sokolew icz, K w ietn io w a z m ia n a K o n sty tu c ji, „P ań stw o i P ra w o ” 1989, no. 6, pp. 5 -6 .
The P resid en t of th e PRL was an executive au th o rity which acted as a head of th e s ta te an d h ad wide prerogatives. F irs t of all, he could in itiate legislation, sign sta tu te s, ask th e C o nstitutional Tribunal to rule a s ta tu te u nconstitu tion al, veto, dissolve th e Sejm and S enate, tak e p a rt in forming th e governm ent, sum m on th e governm ent m eeting to discuss im p o rta n t m a t ters and chair such m eetings, execute political responsibility of th e Council of M inisters, supervise n atio n al assem blies and th e public prosecutor’s office, issue regulations an d orders. W hat can prove num erous righ ts of th e p resi d en t is th e provision which enabled him to dissolve the Sejm in case of p assin g a s ta tu te or a resolution which would m ade th e p resident unable to exercise his con stitutional rights. Official acts were countersigned; however, in practice th is in stitu tio n was not used. The PRL P resid en t was a g u ard of a socialist ch a ra c te r of th e country. His constitutional and sta tu to ry righ ts m ade him an active centre of deciding and executing th e s ta te ’s policy. Taking into account th e fact th a t th e first p resid ent of the Polish People’s Republic was G eneral Wojciech Jaru zelsk i, it should be concluded th a t full dem ocratization u n d e r his supervision was impossible.
Moreover, April am endm ent of th e PRL constitution g u a ra n tee d inde p en d ent judges and courts. It was a n im p o rta n t provision for an aw akening Polish democracy. The com m unist regim e used judges to fight th e opposition. A stren g th en ed s ta tu s of a judge was in h ere n t in th e principles of a demo cratic state. Independent courts an d judges were safeguarded by th e N atio n al Ju stic e Council.
On the one hand, provisions of April am endm ent did not break w ith a com m unist n a tu re of th e state. Its lim ited scope fitted in th e sp irit of th e 1952 C onstitution. The am endm ent w as a legal expression of a “political con tract” concluded betw een p a rt of a dem ocratic opposition an d th e com m unists. On the o th er hand, it triggered off a process of constitu tio n al tra n s form ation. It was a first step tow ards th e dem ocratization of a constitutio n al order in Poland5.
F r e e e le c tio n s o f 4 J u n e a n d D e c e m b e r A m en d m en t o f th e C o n s titu tio n o f th e P o lis h P e o p le ’s R e p u b lic
The first free elections in th e post-w ar history took place on 4 J u n e 1989 an d brought a landslide victory to th e opposition. In th e first round out of 161 seats eligible in th e Sejm th e Solidarity cam p won 160, while in the S enate it took 92 seats out of 100 available. The governm ent coalition had
5 See A. S zm y t, D o ko n yw a n ie z m ia n p rzep isó w k o n sty tu c y jn y c h , [in:] M. Z u b ik (ed.), D w a
only 3 out of 299 seats. The atten d an ce am ounted to 62%. Due to th e fact th a t not all the seats in th e Sejm were filled, it w as necessary to hold the second round, in which th e opposition took yet a n o th er m issing seat in the Sejm and 7 seats in th e Senate. This tim e th e attend ance was only 25%. On 23 J u n e deputies and senators elected from Solidarity lists form ed C itizens’ P a rlia m e n ta ry Club. Tadeusz Mazowiecki, an opposition activist, becam e the head of th e governm ent.
The victory of th e opposition in th e elections of Ju n e 1989 led to a fu rth er radicalization of political clim ate and resulted in yet another am endm ent to th e PRL C onstitution dated 29 December 1989 called December Amendment. This am endm ent was a revision of the constitution which changed its m ajor principles. December am endm ent of the 1952 C onstitution p u t Poland on the way tow ards a g rad u al and slow dem ocratization of political life6.
December revision rejected th e notion of a socialist sta te and society replacing it w ith th e notion of th e sta te and civil society7. Its provisions determ ined the directions of th e reco n structu re of th e state. The principle of th e sovereignty of the w orking people of towns and villages was replaced by th e principle of th e sovereignty of th e nation, w hereas political pluralism replaced a leading role of th e PZPR. P riv ate ow nership forced sta te ow ner ship of production resources out. C itizens’ business activity was allowed, w hich g u a ra n te e d economic freedom . N onetheless, th e m ost significant achievem ent of December 1989 was th e adoption of the principle of a demo cratic s ta te ru led by law. The dem ocratic ch a ra c te r of a s ta te ruled by law corresponded w ith such g u aran tees as freedom of th e form ation of political p a rties and tra d e unions. Public au th o rities were obliged to act according to law and on its basis. F u rth er, th e co nstitution g u a ra n tee d the p articipation of local and professional governm ents in governing th e country. December am endm ent to th e co nstitution did not include in its scope a catalogue of constitutional rig hts and freedoms so im p o rtan t in a dem ocratic state. In ste ad, it contained m any provisions of a symbolic n a tu re which were to prove th a t th e socialist system h ad been gone. Firstly, th e introduction to the co nstitution w as removed. Secondly, th e Polish People’s Republic was re n a m ed th e Republic of Poland. Finally, a form er n atio nal coat of arm s w ith an image of a crowned w hite eagle was rein stated.
Decem ber am endm ent changed a political system only fragm entarily. Provisions of th e com m unist constitution of 1952 set in th e previous period
6 J o u r n a l o f L aw s no. 75, ite m 444.
7 D ecem b er A m e n d m e n t o f 1989 w a s n o t a fin a l ch an g e of th e 1952 C o n s titu tio n . O n 8 M a rc h 1990 th e S ejm p a s s e d a n a c t a m e n d in g th e C o n s titu tio n of th e R epublic o f P o lan d ( J o u rn a l o f L aw s no. 16, ite m 94) re in tro d u c in g local g o v e rn m e n ts in P o la n d . T h e n e x t a m e n d m e n t, w h ic h c h a n g e d th e p ro c e d u re o f e le c tin g th e P r e s id e n t o f P o la n d , to o k p lac e on 27 S e p te m b e r 1990 ( J o u rn a l o f L aw s no. 67, ite m 397).
w ere still in force. These deficiencies of th e constitutional order were to be rem edied by judicial decisions of th e C onstitutional Tribunal. F irst, th e con stitu tio n derived from th e principle of a dem ocratic s ta te ruled by law oth er principles ch aracteristic of a dem ocratic s ta te and so far not expressed in th e Polish C onstitution. It served as a norm ative justificatio n for, am ong o th er things, the principle of sep aratio n of powers, a rig h t to a fair tria l, th e principle of a citizen’s tr u s t to the s ta te an d law, lex retro non agit, principles of a good legislation. F u rth erm ore, Decem ber A m endm ent sta rte d th e process of rein terp re ta tio n of th e co nstitution8.
Second, th e C onstitutional Tribunal rein terp re te d existing constitutional concepts. As a re su lt of political changes, a new m eaning was given to constitutio nal provisions from 1952. A good exam ple of an incrim inated p h e nom enon is a principle of u n iv ersality of elections. Its m eaning established in th e e ra of real socialism h a d to be rejected totally. Socialist elections designed to be com petitive w ithin only one political option becam e free and tu rn e d to be a com petition of m any political options. Therefore, w ith no form al change of principles of election law these principles changed “sub stan tiv ely”, which undoubtedly proves th e rein te rp re ta tio n of th e co n stitu tion. New political principles introduced in December 1989 had a n im pact on th e m eaning of oth er provisions of th e 1952 C onstitution and on the way th ey were understood. Ju d icial in te rp re ta tio n of “existing notions” headed tow ards th e ir dem ocratization created by a new political situ a tio n an d new co nstitutional principles. According to a form er judge of the C onstitutional T ribunal Leszek Garlicki, th e rein terp re ta tio n of constitutional provisions of 1952 “was based on th e absorption of axiological bases of W estern democratic constitutionalism ” and “regulations of in te rn atio n a l law, especially in h u m an rig h ts”9. In th is process the C onstitutional Tribunal set its axiological lim its of th e rein te rp re ta tio n of th e co nstitu tio n 10.
L o st c o n s titu tio n a l m o m en t a n d th e L ittle C o n stitu tio n o f 1992
A p o stu late of passin g a new dem ocratic constitution accom panied the political tran sfo rm atio n in Poland from th e very beginning. Pro-democracy feelings am ong th e Polish society an d its rejection of com m unism constituted a sufficient reaso n to s ta r t th e work on a new suprem e sta tu te . A need for
8 See L. G arlick i, A ksjo lo g iczn e p o d s ta w y rein terp reta cji k o n stytu cji, [in:] M. Z u b ik (ed.),
D w a d zie śc ia la t tra n sfo rm a cji..., p. 94 e t seq.
9 Ib id em , p. 96. 10 Ib id em , p. 97.
its am endm ent m et n atio n ’s expectations and we experienced a so-called constitutional m om ent w ithin th e years 1989-1992.
Legal doctrine defines a co n stitu tio n al m om ent as a period durin g which th e n atio n rejects a n existing co nstitutional consensus and changes its a ttitu d e tow ards certain co n stitutional regulations. The co nstitutional mo m en t is complex and tak es th e form of a m ulti-stage process consisting of th e following elem ents: first, signaling a need for political changes, m ost often articu la te d by political elites. Second, it contains a proposal of changes and a public debate in w hich citizens m ay participate. Third, th e final stage involves a codification of changes which have been accepted by th e society. C o nstitutional am endm ents w hich tak e place during th e co n stitutional mo m en t are essential and fundam ental. O th er constitutional am endm ents do not possess such characteristics because they have not been introduced in th is exceptional period11.
The C ontract Sejm elected in th e elections of 4 J u n e 1989 created a C o nstitutional Commission in order to d raft a dem ocratic constitution. In addition, the S enate s ta rte d to work on its own d raft of a suprem e s ta tu te and established its C onstitutional Commission. M embers of th e Commission prom ised th a t th e work on th e tex t of th e co nstitution would be intensive because free Poland required a free constitution. It was assum ed th a t the co nstitution would be p assed on 3 May 1991 th a t is on th e tw o-hundredth an n iv ersary of th e C onstitution of 3 May 1791. The rough d raft of the co nstitution w as prep ared by th e C onstitutional Commission in October 1990, b u t th e final version was accepted by th e Commission only in A ugust 1991. The constitution was not passed despite fast work on it. It was sugge sted th a t a new constitution should be passed by a new Sejm and Senate elected in really free elections. The C ontract Sejm, as sta te d in legal doctri ne, did not have a full political legitimacy. It did not reflect th e will of th e n atio n b u t only a political consensus betw een com m unists an d p a rt of the opposition. As such it h a d n e ith e r political nor m oral au th o rity to pass a dem ocratic con stitutio n12.
C o nstitutional work in th e C ontract Sejm was in te rru p te d due to the sh ortening of the term . A full free elections to th e Sejm and S enate took place on 27 October 1991 and created a dem ocratically legitim ate p arliam ent able to pass a dem ocratic co nstitution of th e Republic of Poland. D uring the first term of th e Sejm an d second term of th e S enate sim ultaneous work on th e L ittle C on stitution13 an d on a new co nstitution of the Republic of Poland began.
11 B. A c k erm a n , We the People. F o u n d a tio n s , 1993, p. 287 e t seq.
The co nstitution reg u latin g relation s betw een legislative and executive powers and th e local governm ents, commonly know n as th e L ittle C o n stitu tion was passed on 17 October 1992 and was an effect of a three-y ear political transform ation. The constitution was assum ed to regu late a politi cal system during a tra n sitio n period and be in force u n til a new co nstitu tion was passed. Solutions adopted by th e constitution resu lted from expe rience associated w ith functioning of th e sta te in new political conditions. F irs t and foremost, it consolidated a dem ocratic direction of changes in Poland. Moreover, it introduced a principle of sep aratio n of powers, incom-
pa tib ilita s, a free deputy’s m an d ate, and rejected th e principle of the Sejm
supremacy. R elations betw een an executive power and the P a rlia m e n t suited a p a rliam e n ta ry governm ent whose m an ifestatio n w as th e p articip ation of th e Sejm in th e form ation of the Council of M inisters, political responsibility of the governm ent and countersigning legislative acts of th e p resid e n t14.
Article 77 of the L ittle C onstitution revoked th e C onstitution of 22 July 1952 m ain tain in g in force some of its provisions. The m ain tain ed provisions of C h apter 1, 4, 7, 8, 9, 10 an d 11 constituted 60% of the revoked 1952 C onstitution. Such a legislative operation was symbolic; it showed th e rejec tion of th e previous socialist regim e as well as socialist values of th e sta te an d society. On the oth er hand, the preserved provisions were in force not because the com m unist p a rty w anted so b u t because of th e will of a demo cratically elected p a rliam e n t and becam e an expression of th e Polish n a tio n ’s a tte m p ts to have a dem ocratic state. Chosen in free elections th e Sejm and S enate confirmed a dem ocratic legitim acy of m ain tain ed provisions depri ving th em of th e odium of a previous political system1 5.
Among th e m ain tain ed C hapters of the 1952 C onstitution th ere were provisions concerning individual rig h ts and freedoms. It m ean t th a t in a de m ocratic s ta te ru led by law a s ta tu s of an individual w as determ ined by a socialist co nstitutional legislator. It should be sta te d paren th etically th a t in th e 1950s an d 1960s people believed th a t th e 1952 C onstitution as well as individual rig h ts and freedoms it defined were not norm ative b u t resulted from gained experience co n stituting a sort of political profit an d loss account.
13 I n th e C o n tra c t S ejm th e y re a lis e d a n e ed to p a s s th e L ittle C o n s titu tio n w h ic h w ould re g u la te a p o litical, social a n d econom ic sy s te m o f th e s ta te tem p o rarily . T h is n e e d re s u lte d fro m th e fa ct t h a t a c o n s titu tio n a l com prom ise w a s difficu lt to re a c h w h e re a s a social a n d p o litical r e a lity d iffered m u c h from w h a t th e a m e n d e d c o n s titu tio n of 22 J u ly 1952 sta te d . W h a t w a s n e ed e d w a s a c o n s titu tio n w h ic h w o u ld re g u la te a lo t o f n ew p ro b lem s re la te d to th e w a y s ta te a u th o r itie s a c te d in a n ew p o litica l re ality . C o n seq u en tly , on 5 O c to b er 1991 th e C ouncil o f M in is te rs s u b m itte d a d r a ft o f a c o n s titu tio n - so-called L ittle C o n s titu tio n . T he S ejm re je c te d th e d r a ft of th e L ittle C o n s titu tio n d u rin g a c o n s titu tio n a l d e b ate.
14 M. K a lla s, M a la K o n sty tu c ja w p ra k tyc e ustro jo w ej R P , „ P rz eg ląd Sejm ow y” 1993, no. 2, p p. 2 5 -4 0 .
15 See L. G arlic k i, K o m e n ta rz do art. 77 M a lej K o n sty tu c ji, [in:] K o m e n ta rz do K o n sty tu c ji
Rights and freedoms were enjoyed to th e ex ten t defined by an ordinary law- -maker. Such an approach to rig h ts and freedoms should be rejected in a dem ocratic state, w hereas m ain tain ed provisions should be in terp reted according to values of such a state. Therefore, an im p o rtan t role was played by th e C onstitutional T ribunal whose activity was focused on reinforcing a legal s ta tu s of a h u m an being. It gave rights an d freedoms approved in 1952 a new m eaning concurrent w ith ongoing processes of dem ocratization of a political, social and economic life. It rein terp re te d th em referrin g to the experience of E uro p ean courts including th e E urop ean C ourt of H um an Rights. In th is case an in te restin g phenom enon could be observed: while the id en tity of th e contents was m ain tain ed , its m eaning changed. Hence, it can be sta te d th a t a su b stan tiv e change of provisions of th e constitution in line w ith th e expectations of th e Polish society took place.
The society still w aited for a new constitution which could determ ine a political system of the sta te and completely b rea k w ith a socialist past. To fulfill th is postulate an act on th e procedure of draw ing up and adopting th e C onstitution of th e Republic of Poland was passed on 23 April 1992. P u rs u a n t to its provisions th e C o nstitutional Commission of th e N ational A ssem bly (the combined cham bers of th e p arliam ent) was appointed. The Commis sion received 7 drafts of th e constitution an d h a d 9 m eetings; however, no d raft was a subject of th e debate during th e N ational Assembly. In M ay 1993 P resid en t Lech W ałęsa dissolved a politically divided parliam ent. The deci sion of th e head of the s ta te in te rru p te d th e work on a suprem e sta tu te . In th is way th e constitutional m om ent was lost.
T he C o n s titu tio n o f th e R e p u b lic o f P o la n d o f 2 A p ril 1997 a n d a c h a n g in g p o litic a l c o n te x t o f its a p p lic a tio n
It was after eight years of a political tran sfo rm atio n 16 th a t a new con stitu tio n was p assed for th e Polish nation. On 2 April 1997 th e N ational Assembly adopted a suprem e s ta tu te by a v a st m ajority of votes. 451 m em bers of th e N ational Assembly voted in favour of th e constitution, 40 ag ainst it while 6 abstained. P resid en t A leksander K w aśniew ski called a national referendum to be held on 25 May 1997. About 42% of those eligible to vote took p a rt in univ ersal voting and only 53% of those who voted approved of th e constitution. It can be noticed th a t th e attendan ce was not high if we tak e into account its im portance for Poland and its nation. This situ ation resu lted from th e fact th a t a Polish co nstitutional legislator did not m ake
16 See M. K ru k , T ransform acja polskiego p o rz ą d k u kon stytu cyjn eg o w la ta c h 1 9 8 9 -1 9 9 7 , [in:] W. Sokolewicz (ed.), Z a s a d y p o d sta w o w e p o lsk ie j K o n stytu cji, W arszaw a 1998, p. 57 e t seq.
use of th e co nstitutional m om ent a t th e beginning of th e political tra n sfo r m ation. The Polish society was no longer so involved in a form al change of th e system , b u t it longed for a real change of th e ch aracter of th e state.
The C onstitution of 2 April 1997 came into force in J a n u a ry 1998. In this w ay th e process of a constitu tio nal tran sfo rm atio n came to a n end. The adopted constitution was based on th e experience of countries in W estern Europe and took into account a Polish co nstitutional tra d itio n an d our expe rience of the period of political transform ation. It sealed th e devotion of Poland to democracy and th e sta te ru led by law. Yet, th e m ost im p o rtan t was th e fact th a t th e co nstitution d eterm ined again a legal sta tu s of an individu al giving him a wide ran ge of rig h ts an d freedoms as well as in stru m e n ts of th e ir protection. It confirmed a native an d inalienable ch aracter of dignity of a m an w hich was a source of rig h ts and freedoms. It was preceded by a pream ble w hich expressed values essen tial for th e Polish n atio n such as h u m an dignity, justice, beauty, welfare, solidarity. All in all, th e C onstitution of 2 April 1997 broke off political ties of th e Republic of Poland w ith socialist constitutionalism .
P o la n d ’s m e m b e r sh ip o f th e E u r o p e a n U n io n as a fa c to r in f lu e n c in g th e c o n te n ts o f th e c o n s titu tio n
D espite th e fact th a t th e C onstitution of 2 April 1997 was passed not a long tim e ago, it is in force in new political conditions w hich resu lt from o ur m em bership of th e E uro pean Union. Fifteen years after th e first free elections Polish nation, in compliance w ith dem ocratic procedures, expressed th e ir support for m em bership of th e E uro pean Community. In 2004 th e T reaty of Accession was signed and th e sam e y ear Polish citizens elected m em bers to th e E uropean P arliam ent. The accession to th e E uro pean U nion did influence th e co nstitution which u n d erw ent so-called E u ro p eanisation 17. This phenom enon can in sho rt be described as the influence of legal reg u la tions of th e E uropean U nion on th e contents of th e constitution. The process of E urop eanisation m ay tak e the form of a formal, b u t also as a su bstan tiv e am endm ent to th e C onstitution.
It should be explained th a t th e Polish C onstitution of 1997 came into force w hen Poland trie d to become a m em ber of NATO and th e E uropean Com m unities and yet it does not know such concepts as NATO, th e E urope
17 M ore in: K. W ojtyczek, P rze k a zy w a n ie k o m p ete n cji p a ń s tw a p o lsk ie g o orga n iza cjo m
m ię d zy n a ro d o w y m , K ra k ó w 2007; J . G a lste r, D. L is-S tara n o w icz , O z ja w is k u eu ropeizacji p o l skiego p r a w a k o n stytu cyjn eg o , „P rzeg ląd Sejm ow y” 2010, no. 2, p. 29 e t seq.; M. D obrow olski,
D. L is -S tara n o w icz , P o d sta w o w e z a s a d y u stro ju R P w eu ro p ejskich orzeczen ia ch T r yb u n a łu
an Com m unities or th e E uro p ean Union. N evertheless, auth ors of the Con stitu tio n of th e Republic of Poland reg u lated a procedure of ratifying an in tern atio n al agreem ent on th e basis of which th e Republic of Poland m ay delegate to an in te rn atio n a l organization or in te rn atio n a l in stitu tio n the competence of organs of s ta te au th o rity in relatio n to c e rtain m atte rs (Article 90). Additionally, it regu lated a place of E uropean law in th e h ierarchy of sources of law sta tin g in Article 91.2 th a t an in te rn atio n a l agreem ent r a ti fied upon prior consent g ran te d by s ta tu te shall have precedence over s ta tu tes if such a n agreem ent cannot be reconciled w ith th e provisions of such statutes.
The first an d only am endm ent to th e C onstitution of th e Republic of Poland w hich resu lts from our m em bership to th e EU is an am endm ent to Article 55 which forbade an extrad itio n of a Polish citizen and as such it m ade impossible for Poland to execute a fram ew ork decision th a t introduced th e E uro pean A rrest W arrant. The problem of im plem enting th e EU decision by a Polish legislation was widely analyzed by legal doctrine which w as not unanim ous as to the constitutionality of the E u ropean A rrest W arran t (here in after referred to as EAW). A co nstitutional regulation w hich tried to m eet th e needs of a m u tu a l E urop ean policy in judicial m a tte rs becam e a subject of a decision of the C onstitutional Tribunal.
In th e decision of 27 April 2005 th e C onstitutional Tribunal considered a legal question about the adherence to the RP C onstitution of n ational m eans im plem enting th e fram ew ork decision of th e Council of th e EU of 13 Ju n e 2002 on th e E uro p ean a rre s t w a rra n t18. The C onstitutional Tribunal decided th a t a n in stitu tio n of th e E u ro p ean a rre s t w a rra n t defined in th e Polish Code of C rim inal Procedure did not comply w ith Article 55.1 of the C onstitution of the Republic of Poland. The T ribunal postponed th e date of nullifying the provision of th e Code by 18 m onths claim ing th a t “in a s itu ation w hen nullification of th e provision said to be unconstitu tion al could lead to th e b reach of in te rn atio n a l obligations of th e Republic of Poland, th e in stitu tio n of prolonging its application becomes im p o rta n t in th e term s of in te rn atio n a l obligations of th e s ta te ”. On 8 Septem ber 2006 the Sejm am en ded Article 55 of th e C onstitution w hich now reads: “E x trad itio n of a Polish citizen m ay be g ran ted upon a req u est m ade by a foreign s ta te or an in te r n ation al judicial body if such a possibility stem s from an in te rn atio n a l tre aty ratified by Poland or a s ta tu te im plem enting a legal in stru m e n t enac ted by an in te rn atio n a l organisation of which th e Republic of Poland is a member, provided th a t the act covered by a req u est for extradition: was com m itted outside th e territo ry of th e Republic of Poland, and constitu ted an offence u n d er th e law in force in th e Republic of Poland or would have
c o n stitu ted a n offence u n d e r th e law in force in th e Republic of Poland if it h ad been com m itted w ith in th e territo ry of th e Republic of Poland, both at th e tim e of its com m itm ent and a t th e tim e of th e m aking of a req u e st”.
E uro peanisatio n of th e C onstitution th e Republic of Poland m ay tak e the form of its rein terp re ta tio n . The C o nstitutional Tribunal does not reject an am endm ent to th e contents of a co n stitutional rule by a so-called pro-Euro p ean in terp retatio n . Such a m easure was used in case of Article 62 of the said C onstitution. Article 62 sta te s th a t if, no la te r th a n on th e day of vote, he h as a tta in e d 18 y ears of age, Polish citizen shall have the rig h t to p a rtici p ate in a referendum an d th e rig h t to vote...19. In case no. K 18/04 the applicant dem anded th a t Article 19.1 of th e tre a ty establishing th e E uropean C om m unity sta tin g th a t every citizen of th e U nion residing in a M ember S ta te of which he is not a n ation al shall have th e rig h t to vote and to stan d as a candidate a t m unicipal elections in th e M em ber S ta te in w hich he resides, u n d e r th e sam e conditions as n ationals of th a t S tate, be declared u n constitutional. The applicant observed th a t th e com m unity reg u lation b re ached Article 62 of th e said C onstitution because due to the ratificatio n of th e tre a ty of accession individual rig hts were unlaw fully extended to indivi duals who are not Polish citizens, b u t are citizens of th e E urop ean Union. In th e opinion of th e C onstitutional Tribunal Article 62 of th e C onstitution does not give Polish citizens an exclusive right to elect or to be elected. It does not prohibit EU citizens p erm an en tly residing in Poland from exercising these rig h ts2 0.
Poland’s m em bership to th e EU also influences constitutional principles. It is due to th e fact th a t delegating to th e E uropean U nion th e competence of a u th o rities of th e Republic of Poland resu lted in some of th e functions which used to be reserved for th e sta te being ta k e n over by an foreign entity. Law m ade by th is e n tity is in force w ithin the territo ry of th e Republic of Poland an d h as a rig h t of priority in relatio n to a sta tu te passed by a natio nal p arliam ent. The U nion and its auth o rities are not subject to th e n atio n ’s superior au th o rity and do not b ear responsibility to the Polish sovereign. Before, all th e s ta te ’s task s used to be perform ed by its auth orities. Now the legislative power h as lost a large p a rt of its competence w hereas th e sta tu s of th e Council of M inisters has been stren g th en ed because it is in charge of E uro pean policy, form ulates its directions and p resents it in th e sittin g of the Council of th e E uropean Union. In addition, it m akes legislative and political
19 I n leg al d o c trin e a n e c e ssity o f a n a m e n d m e n t to th is p ro v isio n a n d th e e x te n sio n of rig h ts to e lect a n d to b e e lecte d to a local g o v e rn m e n t to a c itiz e n of th e E u ro p e a n U n io n h a s b e e n ra is ed .
20 I n th is case th e C o n s titu tio n a l T rib u n a l d id n o t d e clare th e q u e stio n e d re g u la tio n u n c o n s titu tio n a l. Yet, it d id n o t decide t h a t it w a s in com pliance w ith th e C o n stitu tio n . I n o th er w o rd s, it a d o p te d a Solom onic so lu tio n s ta tin g t h a t A rticle 62 of th e C o n s titu tio n is a n u n s u ita b le m odel of a n a s s e s s m e n t o f a q u e stio n e d re g u la tio n .
decisions on th e E uropean forum2 1. This competence shift betw een th e P a r liam en t and th e Council of M inisters is a fact w hich shows the E uro p ean isa tion of th e Polish governm ent system . Such a situ a tio n has m ade th e m e aning of even th e principle of th e n atio n ’s sovereignty and of th e division of powers change due to Poland’s m em bership to th e EU2 2. C onstitutional doctrine in Poland m akes efforts to redefine these principles tak in g into account th e new context. It observes th a t Poland’s m em bership to th e E u ro p ean U nion also requires a new approach to m ajor political solutions. The m eaning of constitutional principles has to tak e into consideration a c h an ging political reality.
D ra fts o f a c ts a m e n d in g th e C o n s titu tio n o f th e R e p u b lic o f P o la n d
W hat is em phasized in legal doctrine is a necessity of an am endm ent to th e co nstitution in th e form w hich would contain the regulation of the re la tion of the Republic of Poland w ith th e E uropean Union, a new definition of 21 T he p ro b lem o f th e p re s id e n t p a rtic ip a tin g in E U po litics h a s b e en a su b je ct of th e d is p u te b e tw e e n th e P r e s id e n t a n d th e C ouncil of M in is te rs . T he d is p u te co n cern ed a q u e stio n of w h ic h of th e s ta te a u th o r itie s (th e P re s id e n t o r th e C ouncil o f M in iste rs ) is e n title d to r e p re s e n t th e R ep u b lic o f P o la n d d u r in g s ittin g s of th e E u ro p e a n C ouncil in o rd e r to p re s e n t th e s t a te ’s s ta n d p o in ts th e re . T he c o n s titu tio n a l re g u la tio n s c o n ce rn in g fo reig n policy c o n s titu te d a b a s is for th e d e lib e ra tio n s o f th e C o n s titu tio n a l T rib u n a l. T he T rib u n a l d id n o t notice t h a t a p a r t from d o m estic a n d fo reig n policies th e r e is also E U policy w h ic h d iffers from th e s e tw o c lassic fo rm s o f g o v e rn m e n ta l a ctiv itie s. T h ere fo re, th e s e ttle m e n t o f th is d is p u te on th e b a s is o f th e c o n s titu tio n to w h ic h th e E u ro p e a n U n io n is a n a lie n in s titu tio n could n o t b rin g a n ex p ected r e s u lt. T h e T rib u n a l b a s e d its d e cisio n on th e o rd e r o f co o p era tio n b e tw e e n th e C ouncil o f M in is te rs a n d th e P rim e M in ister, a n d th e P re s id e n t. M oreover, in th e o p in io n o f th e C o n s titu tio n a l T rib u n a l th e p re s id e n t a s P o la n d ’s h ig h e s t re p re s e n ta tiv e m ay, p u r s u a n t to A rticle 126.1 of th e C o n s titu tio n , ta k e a d ecisio n a b o u t h is p a rtic ip a tio n in a p a r tic u la r s ittin g of th e E u ro p e a n C ouncil if in h is op in io n it is n e c e s s a ry to ex ec u te h is d u tie s d e fin e d in A rticle 126.2 o f th e C o n stitu tio n . N o tw ith s ta n d in g th is , acco rd in g to A rticle 146.1, 146.2 a n d 146.4.9 of th e C o n s titu tio n th e C ouncil of M in is te rs d e te rm in e s a s ta n d p o in t of th e R ep u b lic o f P o la n d for a s ittin g o f th e E u ro p e a n C ouncil, w h ile th e P rim e M in is te r r e p re s e n ts th e C ouncil of M in is te rs d u rin g a s ittin g of th e E u ro p e a n C ouncil a n d p r e s e n ts th e a p p ro v ed s ta n d p o in t. In m a tte r s r e la te d to th e ex ecu tio n o f h is ta s k s defined in A rticle 126.2 of th e C o n stitu tio n the P re s id e n t h a s a r ig h t to e x p re ss h is o pinion c o n cern in g th e sta n d p o in t a d o p te d th e C ouncil of M in isters. See a decision o f th e C o n stitu tio n a l T rib u n al of 20 M ay 2009, case n u m b e r K p t 02/08.
22 T h is p ro b lem h a s also b e e n n o tice d b y th e C o n s titu tio n a l T rib u n a l. I n its o p in io n th e d ev elo p m en t of th e E u ro p e a n U n io n in m a n y cases re q u ire s a n ew a p p ro a c h to leg al issu e s a n d in s titu tio n s w h ich , in m a n y y e a r s ’ tr a d itio n (so m e tim es e v en m a n y c e n tu rie s ’ tra d itio n ), h a v e b e e n e s ta b lis h e d , e n ric h e d b y ju d ic ia l d ecisio n s a n d d o c trin e, a n d w h ic h h a v e becom e d eep ly ro o ted in th e c o n scio u sn ess o f g e n e ra tio n s o f law y ers. T he n e ed to re d e fin e som e e x itin g a n d so f a r u n c h a n g e d in s titu tio n s a n d co n cep ts h a s a ris e n . I ts source is a n E u ro p e a n in te g r a tio n w h ic h m a y so m e tim es b rin g a conflict b e tw e e n a u s u a l in te r p r e ta tio n o f c o n s titu tio n a l re g u la tio n s a n d a n e ed for a n effective re a c tio n on th e fo ru m o f th e E u ro p e a n U n io n w h ic h w ould be in com pliance w ith c o n s titu tio n a l p rin c ip ia . See a decisio n o f th e C o n s titu tio n a l T rib u n a l o f 11 M ay 2005, case n u m b e r K 18/04.
th e essence of sovereignty of a Polish state. In addition, th ere is also a need to define th e competence of public au th o rities in relatio n to E uropean issues in p a rticu la r th e p articip atio n of organs rep resen tin g th e n atio n in d eterm i ning and executing EU policy. P ostu lates of legal doctrine to reg ulate pro blem s concerning Poland’s m em bership of th e E uropean U nion have been reflected in drafts of an act am ending th e Constitution.
Two d rafts w hich address th e above-m entioned issues were subm itted to th e Sejm durin g its th e sixth term . They p lan to add additional ch ap ter Xa en titled “The Republic of Poland’s M em bership of the E uropean U nion” or “D elegation of Competence to an In te rn atio n a l O rganization or an In te rn a tional O rgan” to th e C onstitution of 2 April 1997. These two d rafts refer to such issues as a procedure of ratifying agreem ents of accession, ratifying agreem ents changing th e EU, Poland’s secession from th e E uropean Union or competences of sta te au th o rities in EU issues.
The d raft of th e P resid en t of th e Republic of Poland, Bronisław Komo- row ski23, addresses th e larg e st nu m b er of issues related th e Poland’s m em b ership of th e E uropean Union. F irst, it looks to th e fu tu re an d p repares the Polish constitution for joining th e eurozone. Second, it regulates the rig h t to elect and th e rig h t to be elected to th e E uro pean P a rlia m e n t an d gives EU citizens a rig h t to particip ate in local elections. Third, it reg ulates a proce dure of passing sta tu te s which im plem ent EU laws.
N evertheless, the m ost im p o rtan t proposal sub m itted by the P resid en t is A rticle 227a of th e d raft w hich s ta te s th a t th e Republic of P oland is a m em ber of th e E uropean U nion which respects sovereignty and natio nal id en tity of its m em ber states, observes principles of subsidiarity, democracy, a sta te ruled by law, respect for inborn and inalienable h u m an dignity, freedom and eq u ality as well as ensu res the protection of h u m an freedoms an d rig h ts com parable to th e protection of such freedom and rig h ts in the constitution. According to the d raftsm an th is provision is to define axiologi- cal foundations of Poland’s m em bership of the E uropean Union. A ju s tif ic a - tion of th e draft reveals th a t th is provision fulfills th re e functions. The first one is th a t it constitutes a co nstitutional basis for our m em bership of th e EU. The second defines th e objectives of Polish EU policy. Polish EU policy h as to reflect th e values m entioned in Article 227a. The la s t function of the drafted provision is th a t it has to determ ine a “m eaning” and “q u ality ” of our m em bership of th e EU. As long as th e EU is an organization w hich respects th e values m entioned in Article 227a of th e draft, Poland m ay be its member. O therw ise, the sta te a u th o rities will have to secede from th e E uropean U nion in order to alleviate th e condition of non-compliance w ith th e C onsti tu tio n of th e Republic of Poland. Poland does not have a constitutional
obligation, as th e justificatio n of th e d raft states, to exercise EU law w hich is contrary to th e values protected by th e analyzed provision.
The p resid en tial d raft of th e act am ending th e constitution regulates powers of s ta te au th o rities in respect of EU issues. It delegates all EU policy to be dealt w ith by the Council of M inisters w hereas the p articip ation of the n atio n ’s rep resen tativ e organs th a t is th e Sejm, th e S enate and the P re si dent is little. Article 227h of th e d raft sta te s th a t th e Council of M inister conducts Polish EU policy w hereas th e Sejm and S enate have competences given to n atio n al parliam en ts in tre a tie s being th e E uropean U nion’s base in th e scope and forms defined in th ese treaties. The P resid en t is only a n organ cooperating w ith th e Prim e M inister and a m in ister in charge of EU policy on th e basis determ ined in th e act (Article 227h.3 in relatio n to Article 227h.4).
The problem of Poland’s m em bership of th e E uropean U nion is viewed differently in a d raft subm itted to th e Sejm by a group of deputies. F irst and foremost, Poland m ay not be a m em ber of th e E uropean U nion if the system or activities of th e U nion cannot be reconciled w ith exercising consti tu tio n al principles and objectives of th e Republic of Poland. Poland m ay not be a m em ber of th e U nion if it closes th e way to secession. The decision about P o lan d’s accession to th e E u ro p e an U nion req u ires a n approval expressed in an sta tu te passed in an ordinary procedure (Article 227b.2). An ordinary procedure is a s ta tu te passed in the Sejm and the S enate by a sim ple m ajority of votes. In th e opinion of th e d raftsm an such a m ajority is required to secure th e sta te ag ain st a political m inority blocking the m ajority of th e n atio n which w ants to secede from th e E uropean Union.
The p a rlia m e n ta ria n d raft reg ulates m u tu a l relations betw een the Co uncil of M inisters, th e P resid en t an d P a rlia m e n t in EU m a tte rs quite diffe rently. F irst, it ensures a bigger influence of organs elected by the natio n on EU politics. Thus, the Sejm expresses its approval of appointing a person to be in charge of a certain function in th e EU. Second, according to th e draft, th e sta tu te is to define rules of cooperation betw een th e Council of M inisters and the Sejm an d S enate in m a tte rs related to Poland’s m em bership of an in te rn atio n a l organization to which th e Republic of Poland has delegated competence of th e sta te au th o rities in some m atte rs. Third, th e sta tu te has to define m a tte rs in relation to which a decision about Poland’s standpoint concerning a d raft of an act of an in tern ation al organization is m ade, on the request of th e Council of M inisters, by the P resident of the Republic of Poland upon the approval expressed in th e act, as well as types of m atters in relation to which such a decision is tak e n by the Council of M inisters upon the appro val of the Sejm, or the Sejm and th e Senate. A failure to tak e a decision following this procedure will resu lt in a representative of the Republic of Poland supporting a rejection of th e d raft of an act in a given issue.
The Sejm’s C o nstitutional Com m ission of th e c u rre n t term (the sixth term ) has been working on th e am endm ent to the C o nstitution of th e R epu blic of Poland w hich will reg u late EU problem s. It appears th a t upcoming elections to P a rlia m e n t will in te rru p t th e work on a “E urop ean am end m ent” to th e Polish C onstitution. A new p arliam en t will have to face th ese pro blem s and pass a E uro p ean chapter. It would be u n th in k ab le for a m em ber sta te of th e EU to have th e co nstitution to which th e E urop ean U nion is a completely alien institu tio n .
C o n c lu sio n s
To sum m arise, it should be sta te d th a t firstly, political changes influence th e contents of constitution to a large extent. Secondly, political changes m ay lead to an am endm ent to th e constitution, passing a new constitution or the re in te rp re ta tio n of con stitutional provisions. Thirdly, the process of th e re in te rp re ta tio n of Polish constitutions w ithin th e years 1989-1997 was guided by values of dem ocratic constitutionalism an d sta n d a rd h u m an rights determ ined by judicial decisions of th e E urop ean C ourt of H u m an Rights. Fourthly, th e process of the re in te rp re ta tio n of th e Polish C onstitution of 2 April 1997 is a consequence of Poland’s m em bership of th e E uropean Union. A changing political context has influenced su b sta n tia lly th e way in w hich con stitutional provisions are applied and in terp reted . Fifthly, Poland’s m em bership of th e EU raises a need of an am endm ent to th e C onstitution of 2 April 1997.
S tr e s z c z e n ie
K o n sty tu c jo n a liza c ja zm ia n p o lity c zn y c h w Polsce w la ta c h 1989-2011
Słow a kluczow e: K o n s ty tu c ja , O k rą g ły Stół, now elizacja.
Mówi się, że K onstytucja stanow i rodzaj umowy społecznej m iędzy e lita m i rządzącym i a rządzonym i, określa granice władzy państwowej i zabezpie cza podstawowe praw a człowieka. Umowa ta je s t również m anifestem poli tycznym - w yraża wolę narodu, a wola ta je s t przedm iotem suw erennej władzy. K onstytucja gw arantu je praw a i wolności obywateli, ja k również zapew nia in stru m e n ty realizacji tych praw.
K onstytucja może zaw ierać tzw. przepisy niezm ienne, wyłączone z proce su zm ian w celu zapew nienia jej stałości, jed n a k nie je s t odporna n a prze m iany polityczne i społeczne w państw ie. To w łaśnie te zm iany przyczyniają
się do jej nowelizacji. Może się zdarzyć, że popraw ki do K onstytucji uchw alo ne przez odpowiednie organy nie n ad ążają za tem pem zm ian politycznych. Wówczas zachodzi niezgodność pomiędzy rzeczywistym system rządów a sys tem u konstytucyjnym .
W niniejszym arty k u le m am zam iar odpowiedzieć n a pytanie, ja k zm ia ny polityczne w okresie transform acji politycznej wpłynęły n a zaw artość pol skiej Konstytucji. Skupię się n a dwóch zjaw iskach istotnych dla system u Rzeczypospolitej Polskiej - dem okratyzacji życia politycznego i uczestnictw ie Polski w U nii Europejskiej. N iektóre omówione w tej pracy aspekty nie m ają c h a ra k te ru aksjologicznego, ale diagnostyczny.
