The Constitution of Poland

A Contextual Analysis

Miroslaw Granat, Katarzyna Granat

• Publisher: Hart Publishing
• Year: 2019
• ISBN:
  9781509913954
• Edition: 1
• Topic: Law
• Subtopic: Public Law
• Index: Law

This book focuses on the Polish Constitution of 1997, concentrating on its structure, its substance and some of the institutional choices made by the drafters. The core of the Constitution is similar to other liberal democratic constitutions, but, in addition, it regulates a number of issues – such as public finances and sources of law – that are new to Polish constitutionalism and to constitutionalism in general. It considers in a detailed manner certain institutional choices made in the Constitution, such as the bicameral parliament, the peculiar structure of the executive branch, as well as the principle of independence of courts and judges, fundamental rights and local government. The book is a vital resource for all those interested in Poland's Constitution, and the rich comparative constitutional insights the country offers. In addition to explaining the 1997 Constitution in its political, historical, and social context, the book tackles the radical changes, in particular within the judicial branch, introduced by the new governing majority since 2015. These new regulations, constitutional in character, but without formally changing the Constitution, challenged the rule of law, a key component of membership in the European Union. Despite the negative nature of these recent developments, the anchoring of Polish constitutional law in European constitutionalism presents a source of optimism that the 1997 Constitution will regain its position as the supreme law of the state.

1

Polish Constitutional History and Tradition

Monarchy – Republic – Nobles’ Democracy – First European Constitution –‘Solidarity Movement’ – Independence – Freedom

I.INTRODUCTION

The Republic of Poland (Rzeczpospolita Polska) is a Central European country encompassing a territory of 322,575 sq km, with a population of around 38 million.¹ It has a more than 1,000-year tradition as an independent state, formed from a collection of Slavic tribes around the ninth century. For centuries, Poland was an independent monarchy, first hereditary, then elective. It then lost its independence between 1795 and 1918 and was reborn as a republic following the First World War. Due to its geographical position in the centre of Europe, between Germany and Russia, its territories experienced both world wars, suffering six million casualties in the Second World War alone. The country also endured enormous material damage and losses to its territory when its borders were moved westward after the war. This in turn caused a wave of resettlement of citizens and migration. After the Second World War, Poland came under the influence of the Soviet Union, becoming a Communist state. It took until 1980 for real resistance against the Communist government to emerge, most visibly in the form of the social movement ‘Solidarity’, led by Lech Wałęsa. Because of its repeated suffering over the centuries, Poland has been, not without reason, labelled ‘God’s playground’.² Nowadays, having regained its independence for the most recent time in 1989, Poland benefits from its central position in Europe in the areas of trade, economic cooperation, services and new technologies. Poland today is a member of the North Atlantic Treaty Organization (NATO) (since 1999) and the European Union (EU) (since 2004).

This chapter highlights a number of key aspects characteristic of Polish constitutionalism: the thirst for independence; attachment to freedom, both as a nation and in its citizens; and peaceful conflict resolution. It also traces the development of freedoms and rights, and the formation of independent constitutional review.

Poland and its citizens are characterised by a strong desire for freedom and the perception of the state as Rzeczpospolita, referring not only to the Republic of Poland and thereby denoting the name of the state, but also its republican system and, at a more abstract level, its community of citizens. Poland’s tradition of freedom and independence goes back to the late Middle Ages and these traditions remain meaningful for today’s constitutionalism. In particular, Poland adopted a system called a ‘nobles’ democracy’ (from the fifteenth to the eighteenth centuries) with a number of concepts that were original at the time, such as sovereignty of law and religious tolerance, but also some that led to the eventual failure of the state, for instance, liberum veto, a form of unanimity voting that disabled the functioning of the parliament.

Contemporary Polish constitutionalism is represented by the Constitution of 1997, which was adopted by the National Assembly on 2 April 1997. The Constitution was then approved by the nation in the referendum of 25 May 1997. It was supported by 53.45 per cent of the eligible voters, with a turnout of 42.86 per cent.³ It entered into force on 17 October 1997.⁴ It is a comprehensive tract, consisting of 243 articles. It contains, inter alia, a catalogue of fundamental rights and freedoms, provisions on the bicameral parliament (the Chamber of Deputies and the Senate), the executive (the President and the government), the judiciary, local self-government, public finances and the procedure for constitutional amendment. The Constitution of 1997 has been a symbol of a free Poland, based on the values of human dignity and the rule of law, and guaranteeing both the state’s independence and the freedom of its citizens.

For over 20 years, under the 1997 Constitution, various government majorities held power. In 2015, the Law and Justice party (Prawo i Sprawiedliwość) won the parliamentary elections and began to make radical changes to the state system. These changes were effected in the form of statutes rather than formal constitutional amendments.⁵ The Law and Justice government, despite retaining relatively broad support from the electorate, does not have a sufficient majority in the parliament to amend the Constitution. The negative changes that have taken place in Poland since 2015 concern the judiciary to the largest extent and as a consequence pose a threat to constitutional freedoms and rights.⁶

II.INDEPENDENCE AND REPUBLICANISM

A.Independence

Poland’s statehood, in the form of an independent kingdom, took shape over the tenth and eleventh centuries. In 966, Mieszko I, the leader of the Polans (Polanie) tribe that inhabited the territories of what would eventually become Poland, converted to Christianity and was baptised, an event that has been called the ‘Baptism of Poland’. The baptism greatly strengthened the country and Christianity quickly became the state religion. In 1025, the first king, Bolesław Chrobry, was crowned, which further stabilised the state and its authority. In the fifteenth and sixteenth centuries, the Polish court was one of the strongest in Europe, reflecting the political and economic status of the country at the time. In 1569, Poland joined into a union with the Grand Duchy of Lithuania, creating the Polish-Lithuanian Commonwealth (Rzeczpospolita Obojga Narodów). The Commonwealth spread over a vast territory of 1,000,000 sq km, governed by a monarch who was both the King of Poland and the Grand Duke of Lithuania. Until its fall in 1795, the Commonwealth remained a dualist state consisting of the Kingdom of Poland and the Grand Duchy of Lithuania. This was the only period during which Poland was a federation.

In the eighteenth century, due to frequent wars, the reign of nobles who were landowners of vast terrains and a lack of reforms of state institutions, the country’s importance diminished. It gradually lost its territories as a result of wars or on the basis of threats from foreign courts. Poland, in the form of an independent kingdom, existed until the end of the eighteenth century.

In 1795, Poland lost its independence and its territory was partitioned between the Russian Empire, the Kingdom of Prussia and Habsburg Austria. One of the reasons for the fall of the state was the anarchy caused by the nobility, who perceived themselves as being beyond the law, which undermined the state institutions, for example, making it impossible to conduct the necessary military reforms that would have strengthened the country. Attempts at reforms that followed the ideas of the Enlightenment were not sufficient to save Poland, which as a result disappeared from the maps.⁷

Poland regained its independence in 1918 thanks to the favourable political situation following the defeat of Austria and Germany in the First World War and the revolution in Russia. For over 120 years, the Catholic Church, the faith, and education played an important role in maintaining the spirit of independence. Great uprisings – in November 1830 and January 1863 – were bloodily suppressed by the invaders. The Little Treaty of Versailles specifically concerning Poland (1919), signed the same day as the main Treaty of Versailles, ‘restored to the Polish nation the independence of which it had been unjustly deprived’.⁸

Poland resurfaced as a republic instead of a monarchy, a unitary instead of a federal state. The Constitution of 1921 (‘the March Constitution’) proclaimed that ‘the Polish state is Rzeczpospolita’.⁹ Rzeczpospolita¹⁰ (Republic of Poland) was the formal name of the country, relating to the tradition that existed before 1795, and thereby underlining the continuity of Polish statehood. The notion of Rzeczpospolita, in Latin res publica (common good, common wealth), is still used in Poland as a synonym for a republican system and in the official name of the country.

Poland in 1918 was not a newly established state, but rather one that was reborn after a period of suppression and partition. It was the same nation that existed at the end of the eighteenth century. This idea was incontestable in terms of public perception. The March Constitution in its preamble confirmed the continuity of the nation and state, referring to, amongst other things, the historic Constitution of 3 May 1791 discussed below. The period between 1918 and 1939 was prosperous: it was possible to merge the territories that were previously under partition, to operate public institutions and to rebuild the economy.

In 1939, Nazi Germany and the Soviet Union, breaching all of their international obligations, invaded Poland. The invaders divided Polish territories between themselves according to the border delineated in the secret Ribbentrop-Molotov Pact of 23 August 1939. The occupiers introduced a system of terror, extermination and deportation of the citizens. The Nazis funded and operated concentration and extermination camps. The largest of the Nazi camps was Auschwitz-Birkenau, where 1.1 million people were killed.¹¹ The Soviet Union was responsible for a series of crimes, amongst them the infamous Katyń massacre (1940), a mass execution of Polish army officers and a mass deportation of Poles to Siberia. The Second World War was the cruellest experience for the nation and the state.

The peace treaties of Yalta and Potsdam (1945) that ended the Second World War pushed Poland into the Russian sphere of influence. Between 1945 and 1989, Poland functioned as a totalitarian Communist state. The Communists were violently suppressing demonstrations – such as ‘the Poznań 1956 protests’ or ‘December 1970 protests’ – directed against their government. The apogee of the Communist oppression was the introduction of martial law in 1981. The Soviet system of government implied that all power was in the hands of the Polish United Workers’ Party (Polska Zjednoczona Partia Robotnicza, PZPR). This party was dependent upon and supported by the Soviet state security apparatus and its military. This situation created a ‘protective umbrella’ over the state authority at the time, which eliminated its enemies and paralysed any social resistance. However, the Catholic Church offered some resistance and fostered the development of social opposition by appealing to the Communist powers for respect towards fundamental human rights and supporting democratic opposition in various forms. At that time, the Catholic Church provided, among other things, an open meeting and discussion space for the opposition.¹² The eventual fall of the Communist system took place in a peaceful manner, manifested in the idea of the ‘Round Table’ talks (February–April 1989), with discussions between the Communist government and the opposition, and was finalised in the Round Table Agreement of 5 April 1989.

Taking its history into consideration, it is understandable that the Polish Constitution of 1997 underlines the importance of an independent country and the security thereof. The Preamble expresses gratitude to Polish ancestors for ‘their struggle for independence achieved at great sacrifice’ and ‘our culture rooted in the Christian heritage of the Nation and in universal human values’. The Constitution recalls that in 1989, the nation ‘recovered the possibility of a democratic determination of its fate’ after the Communist dictatorship of 1944–89.

According to the Constitution, the first task of the Republic of Poland is to safeguard the independence and integrity of its territory.¹³ The Constitution assigns the fulfilment of this task to the Armed Forces, which also ensure the security and inviolability of state borders.¹⁴ At the same time, the Armed Forces remain politically neutral and subject to civil control. The Constitution also involves other state organs in this function. The President is designated as the guardian of sovereignty and security of the state, as well as of the inviolability and integrity of its territory.¹⁵ The government ensures the external security of the state.¹⁶ These provisions prove how important the nation’s independence was for the drafters of the Constitution.

B.Rzeczpospolita

As discussed above, the notion of Rzeczpospolita has a rich and specific content. It functions as the name of the Polish state (Rzeczpospolita Polska) and features in the full name of the Constitution. In this sense, it can be translated into ‘the Republic of Poland’. However, limiting this notion to this translation would be insufficient. Rzeczpospolita functions in a number of other contexts and each of them is meaningful.

First, Rzeczpospolita is the name of the Polish state, differentiating it from other countries. The Constitution’s preamble distinguishes between the firs...