Volume 6 Number 2 & 3

Spring/Spring 1997

Feature

The Battle for a Constitution
Pawel Spiewak

If Bruce Ackerman is right, that every country goes through a constitutional moment connected with the breakdown of its old political structures and is characterized by a mobilization of pervasive and widely shared convictions about the shape of a new political order, then we can conclude that in Poland the moment was overlooked or unappreciated. The days when having a constitution was paramount to the public passed by quickly. Poland chose (or rather had chosen for it) an evolutionary approach. A new legal order was adopted through the gradual reconfiguring of the old. Consequently, the legal space after 1989 was filled with new and untested, as well as old and merely modified, institutions on which the new Constitution was subsequently based.

      The legal rules common in the first years after 1989 came to be accepted. As the established rules of the game, along with the political parties’ interests and programs, they determined the shape of the new Constitution ratified on May 25. Had a constitution been ratified immediately after 1989, when almost all the old regime’s institutions were popularly suspect, designing novel institutional solutions would have been easier. Structural resistance at that time would have been negligible. Instead, by the time the new Constitution was eventually created, a dense web of connections and legal solutions had already been spun, the interests of particular state-administrative structures had become sufficiently strong, and the legislators’ memories of real socialism had ebbed.

      Given the circumstances, a genuinely revolutionary constitution, containing innovative solutions, could not have been expected. As the majority of the politicians supporting the new Consti-tution have argued, ratification only consolidated, codified, and sorted out the existing governmental playing field. In other words, ratification legitimized an already evolved legal and institutional order, giving it the rank of a constitutional order. It codified, therefore, not only the legal order, but also the system of political and administrative interests that emerged in Poland during the last few years. A few minor changes aside, this Constitution brings nothing new to the political-legal order of the republic. No solution appears in the Constitution that could change significantly the established state structures as they currently exists.

      The 1997 Constitution is a bundle of compromises. Its authors struck a compromise with existing realities and compromises between various conceptions of the state. The Constitution contains fragments of agrarianism (the basis of the agricultural system is the “family farm,” Art. 23), socialism (an extensive package of social rights enhanced with the Constitution’s protection of state property), Christian democracy (present in the Preamble, and in Art. 18 which defines the family), and liberalism (a few modest remarks on free markets and private property). The political theory behind such a Constitution is naturally illusive. Andrzej Rzeplinski noted correctly that, in the course of parliamentary debates, constitutional compromise was increasingly overwhelmed and obscured by political compromise.

      While the drafting of the Constitution was a lengthy process, it was hastened by the approaching parliamentary elections. Anti-coalition extraparliamentary groups managed to consolidate themselves and gain sufficiently significant popular support to improve their chances in the Sejm’s next term. Aware that their favorable parliamentary position might be lost in the next elections, the ruling coalition wanted to take advantage of its position in Parliament to enact its “own” constitution. The extraparliamentary parties, in turn, attacked the existing establishment as nonrepresentative, even though their election was clearly legitimate. They contested and are still contesting not only the “ruling coalition” and the “constitutional coalition,” but most importantly, the moral and ideological foundations of the order that was established after 1989, and even more after 1993. The political Right holds that the revolution of 1989 was betrayed; those who carried it out and those who supported it were denied the political representation they deserved. They were sold out by the postcommunist elites. In their view, instead of a genuine revolution, Poland fell victim to a creeping counterrevolution. The revolution was brought to ruin which means, first, that Poland’s post-1989 ideological identity was jeopardized or diluted; and second, that the changes initiated in 1989 were carried out inconsequentially and so apolitically that the new state did not embrace a new “qualitative identity.” Old structures and solutions prevailed among the elites and the institutions they dominated. Consequently, ideological identity and the legacy of postcommunism remain of primary importance to them. But I do not intend to argue that the so-called Right—meaning all of the groups covered by this term—stand against democracy, the rule of law, a constitutional process, a free market economy, or integration with Europe and NATO. What is important is that the debate they generated is endlessly concerned with this moment—let us call it a zero sum moment—when the process of creating democracy and law begins.

      One more remark: anticonstitutional parties, which are rightist and conservative and want to build the foundations of the state on the teaching of the Catholic Church and the nation’s Christian traditions (this is how they describe themselves), appear ironically, in this situation, as revolutionary parties. These parties do not want to treat the transitional moment from one system to another merely as a change of some laws, the exchange of political elites, the introduction of necessary pluralism and guarantees of civil rights, but rather as a deep or even a radical transformation of the state, combined with combating the communist legacy. Parties of the constitutional coalition found themselves taking an evolutionary approach to a piecemeal-engineered agenda, even though many of them attach themselves to leftist traditions and identify with progress, the avant-garde, and modernization. They chose partial alterations of the organic whole, carefully and gradually changing existing government structures.

      As a result, the constitutional debate had the character of a fundamental dispute, and not of a dispute over concrete articles and concrete provisions only, although these were bickered over as well. The constitutional dispute was concerned with the large questions: What is Poland? And, what kind of Poland should we aim to create? Second, if this Constitution merely hardens the existing state order, confirming the existing distribution of power and institutional order, then the following questions must be asked. Is the existing state model commendable? Does it answer the needs of a modern economy? And, does it provide for efficient governance while protecting basic human rights? Third, the present Constitution, according to its opponents, legitimizes a system of political power that guarantees the political and economic domination of the old pre-1989 nomenclatura. A separate question raised by the Solidarity politicians, that lay outside the scope of the Constitution itself, was whether the standing Parliament, dominated by a socialist coalition, possessed the moral and political legitimacy to enact a basic law—the most important of all legal acts.

      Although the Constitution has now been ratified, the dispute over its making is not technical or stylistic; it must or should, in the course of time, become a substantive debate. Presently, the debate has a fundamental character, which does not mean it is fundamentalist. It is as if the discussion on a model of the state, principles of justice, and national identity, which did not take place among the opposition during the ancien regime when Solidarity was underground nor during the honeymoon period of the revolution, burst onto the scene, and will now be of crucial importance for future public debate.

The debate on national identity
Discussions about national identity, especially in this part of Europe, usually have a nationalistic hue. The questions boil down to “us” vs. “them,” or to a discussion of the relationship between the Universal Declarations on Human Rights and the principle of rule of law, to particular problems of national identity and the legal order based on it. The contestation is ancient and fierce. The “nationalists” are associated with a less than commendable history and ugly anti-German, anti-Ukrainian, and anti-Semitic slogans. A dispute about identity cannot be expressed in liberal parlance, however. The core of the issue is best articulated by Andrzej Walicki who remarked that “Poles should read Rawls; they can learn a lot from him. This does not mean, however, that we should give up the concept of a common good and separate political community from national identity, which is ex definitione a pluralistic identity determined by a common history and culture. For the majority of Poles, however, the retention of basic elements of national identity, in the foreseeable future, is a matter of the highest importance. In this sense the majority of Poles are nationalistic.” (See Andrzej Walicki, Is Liberal Nationalism Possible?, Znak, 1997, p.48.)

      This theoretical digression is necessary to avoid branding all those who speak about the nation in a passionate manner as “bad” nationalists. The contention concerning the nation is even more significant, because for decades the communists not only falsified history, but also constructed awkward historical genealogies. Through various political devices, they destroyed the structures and institutions that constituted, generally speaking, an anchor for “the Polish essence.” This includes, primarily, the Catholic Church and its associated institutions, as well as all the institutions of civil society (political parties, a free press, free associations, and liberal universities), whose diversified identity had nothing in common with those designed and imposed by the communists. Finally, the 1952 Constitution of the People’s Republic of Poland questioned de jure the continuity of the Polish state. In it there were no references to the former 1935 Constitution. In that situation it was even more urgent to define the relation of the Third Republic to the legal obligations of the Second Republic, and the legality of legal decisions of the People’s Republic. Many critics of the present Constitution have emphasized that it does not clearly define its relationship to the People’s Republic. (The Preamble speaks of 1989 as regaining the sovereignty of the state, but these expressions bear no legal consequences.)

      The debate about Poland’s essence has, as it appears, an “ideological” dimension as well as a juridical and practical one. The “ideological” dimension leads us to the question of the place of Christianity in the history of Poland, and consequently, of the place of Christian values, and the Catholic Church as an institution, in the legal order.

      The political Right argues emphatically that Poland survived communism because of the Church, and for this reason alone, the Church merits appreciation and guarantees of a “special” position in the post-1989 order. In the course of the constitutional debate, under the strong influence of the Episcopate, instead of endorsing the classic formula of state neutrality in religious affairs, a formula of amicable cooperation was adopted (Art. 25.3). But such a strong and decisive union of Polish identity with Catholicism requires the endorsement of certain philosophical doctrines characteristic of Church teachings as well. Natural rights is a case in point.

      In numerous articles critical of the new Constitution, the same phrase appeared: “This Constitution places positive law above natural law.” In May, Wroclaw Cardinal Henryk Gulbinowicz said in Gazeta Polska, “The positive law, instead of being a concrete and detailed elaboration of moral law in given circumstances of place and time, hovers in the air, detached from existential foundations and from the conscience.” In another article in Tygodnik Solidarnosc, Andrzej Woznicki concurred: “Lack of guarantees in the Constitution that natural law stands over positive law leads to the relativization of human rights that are now dependent on the legislative majority.” Senator Piotr Andrzejewski (Solidarity) said: “The law stands over values. The authorities and the elites do not want to put on the “muzzle” of conformity with values. This Consti-tution perceives the political elites in absolute terms. Where can that take us? To any situation, including totalitarianism.” Such remarks were common during the constitutional debate. They are based on the oppositions’ moral absolutism, their opposition to relativism (that is, legal positivism), and their support of natural rights. Almost all those formulations are consistent not only with the papal encyclicals, but also express the attitudes typical of American conservatism in the 1940s and 1950s. (John Hallowell’s Moral Foundations of Democracy, recently translated, is very popular in Poland). This attitude—for lack of a better term let us call it conservative—is summarized in the Episcopate’s declaration. The bishops proclaimed: “The Constitution raises significant moral doubts.… Do its provisions sufficiently protect the life of every human being, the right of parents to raise their children as they see fit, the values that constitute the foundations of our Polish identity, the sovereignty of our Fatherland?”

      A specific concern of the Catholic Church and rightist groups (and which demonstrates the problem with positive law thinking) is raised by Art. 48.1-2 which reads: “Parents shall have the right to rear their children in accordance with their own convictions. Such upbringing shall respect the degree of maturity of a child as well as his freedom of conscience and belief and also his convictions. Limitation or deprivation of parental rights may be affected only in the instances specified by statute and only on the basis of a final court judgment.” The Church criticizes this article for taking away, in part, the rights of parents over their children. According to constitutional lawyers, it has two flaws. It follows some current pedagogical fashions, but the Constitution is not the place to reflect what is in vogue. Additionally, according to Andrzej Rzeplinski, the “provision shatters the coherent conception of rights and freedoms between the individual and the public authority, creating instead a horizontal relationship between parents and children.”

      This defectively created hierarchy of law mistakes or even damages the conception of God included in the Preamble. God is a “decoration,” said Cardinal Gulbinowicz, and Woznicki used even stronger words: “God was defined in the Preamble as the source of truth, justice, good, and beauty. God so understood is a god of philosophers, and possibly masons, but not of Christians for whom God is, first of all, a God of love.”

      One may have an impression that this criticism of the Constitution, and especially its Preamble, is a reflection of a more fundamental and deeply held conviction that it expresses at worst a spirit of atheism, or at best of fideism. Atheism in this understanding is associated with Marxist materialism and the “philosophy of death” present in the consumerism and hedonism of Western cultures. Jerzy Ciemniewski, one of the authors of the Consti-tution, remarks on the point in Rzeczpospolita: “Natural law may not be enacted as positive law. If we wrote about the superiority of natural law as an element of the legal system we would cease to understand what we are talking about. The problem arises as to who decides and in what manner are the relations between natural and positive laws specified. There are, however, certain values in this Constitution recognized in natural law as well, and that is core of the problem.”

      Perhaps the Right does not mean to say that, by granting natural law a privileged position in the Constitution, the Church would be consequently assigned a significant role, because it is the Church that considers itself competent to discern the “signs of times” and to render a binding interpretation of natural law. Instead, Christian groups may simply want the Constitution to recognize the religious sphere and express a deeper, not only worldly, dimension of human existence. In the words of Pope John Paul II whose pronouncements are frequently relied on in public debates here: “A postulate not to admit in any way a dimension of sanctity to social and public life is a postulate reflecting the atheization of the state and has little in common with ideological neutrality.”

The problem of the state
As mentioned above, this Constitution codifies, and partially sorts out, a political-legal system that already exists. Critics of the Constitution, therefore, criticize the condition of the state, and point out that the Constitution by and large freezes the present order in place and hence preserves its flaws. These arguments, even though formulated also by the proponents of natural law, do not have anything logically in common with them. What flaws does this Constitution entrench?

      The most succinct criticism of the condition of the Polish state is contained in the report prepared by the Lech Walesa Institute (released in March 1997): “The state is weak because of the weakness of the executive branch and the excessive ambitions of ruling officials eager to control all forms of social life. The Sejm’s retaking of the principal ruling position in 1989 resulted in an exaggeration of the representative branch’s role in governing. A return to the office of a postcommunist formation caused direct and indirect intrusion of the state, among others spheres, into the economy.” Further on, the report enumerates the following deficiencies of the political system: a slowdown in the development of self-government, the non-realization in practice of the principle of social assistance, the weakness of the state in attending to all forms of crime (including obviously corruption), and the public’s alienation from political and economic reforms. The institute’s criticism of the present condition of the state is focused on the most important matters, among them the domination of politics by Parliament, and through this intermediary, by the political parties. This results in the new Constitution’s failure to fulfill its most basic objectives. The division of powers is not guaranteed and short-term political considerations define the economy, the state, and the administration of justice. It follows, too, that human rights are not well protected by the state. Moreover, the state is weak, excessively divided, and at the same time, still very centralized and reluctant to grant any forms of self-government. In my opinion, these objections are very important.

      Let us proceed sequentially. No critic of the Constitution has ever questioned the significance of political parties in the creation of democratic politics and in representing the public’s interests and desires. Critics emphasize, however, that the current election law (in which the so-called national lists play an important role for the stronger parties), the centralized structure of the state,—the competences and financial resources of municipal governments are very weak—as well as the existence of a politicized civil service, subjugates the whole state to victorious, but not necessarily representative political parties. A victorious party not only chooses the government, but also fills all the high administrative posts. These public officials are utterly dependent on political circumstances, and in such a situation, they are usually more inclined to support (in conformity with required procedures) their political patrons. As various concessions and privileges start to play an important role in the economy and the government procurement system expands, it becomes very easy to support one’s own nomenclatura—and indirectly one’s party’s finances—through officials nominated by the parties.

      The new Constitution, in the opinion of its critics, serves only to perpetuate, if not to solidify, the state’s structural flaws. First, nothing was done (apart from declarations) to strengthen municipal institutions in order to broaden the base of the balance of power and to weaken administrative centralism. According to the Right, the Constitution addresses neither decentralization nor public administration reform. Second, inclusion in the Constitution of the proportional representation election system makes the flaws of the present election system worse. The basic deficiency of the proportional election law is that it obstructs communication between a party’s top and bottom. As they see it, a member of Parliament is in reality a nominee of his party’s leaders, not a representative of his constituents. (See Zbigniew Romaszewski, Rzeczpospolita, May 10-11, 1997.)

      Third, although decisions of the Constitutional Tribunal will become final after this Constitution has been in force for two years, and even though the highly-valued institution of constitutional complaint was introduced, the Tribunal was deprived, nevertheless, of the right to deliver generally binding interpretations of statutes. A method for proceedings before the Tribunal was not established, and constitutional complaints may not deal with court judgments or administrative decisions, but only with the statutes on which a particular decision or judgment was delivered. (See interview with Professor Janusz Trzcinski, vice president of the Constitutional Tribunal, in Gazeta Prawna.) The consequences of this are evident. Constitutional complaint may not be directed against a statute in abstracto, which includes not only situations where harm was sustained because of an erroneous law, but also where we think that a particular provision is potentially dangerous to ourselves (like provisions concerning the Bureau of the State) regardless of whether we were affected by its existence. Citizens may not avail themselves of constitutional complaint against court inaction, even though they are entitled to judicial decisions without unjustifiable delay (Art.45). And apart from Art. 45, no rules concerning the election of Tribunal judges, who possess wide competences, were introduced. We can presume, therefore, that their candidacies will be, like they were before, dependent on political connections. The parliamentary clubs of the political parties are, according to law, supposed to nominate candidates for constitutional judgeships. Moreover, the Constitution’s broad social and economic rights may be reviewed by the Constitutional Tribunal, and in the future, petitions are certain to be brought by the political parties and the trade unions, causing an avalanche of cases where the state will be accused of failing to deliver on its constitutional commitments.

      Fourth, the Senate has become an institution of secondary importance and loses significant influence over the legislative process, in part because its veto right was drastically reduced.

      Fifth, the competences of the president are so limited that it makes little sense for him to be popularly elected. The president de facto no longer has any executive power, although he was given the right to appoint the presidents of the highest courts. The proponents of the Lech Walesa Institute’s views believe that the 1997 Constitution reduces the role of the president, leaving it only decorative functions.

      Sixth, the Constitution introduces an expansive interpretation of parliamentary immunity, allowing members protection not only in their public functions but also as private citizens. (According to the Institute report, immunity protects the members of Parliament against any liability, and the so-called right of intervention disturbs and often makes impossible the legal functioning of public institutions. Members of Parliament influence the outcomes of government procurements, and later on, oversee the public and private interests connected with them.)

      Seventh, the Constitution, even though so expanded and detailed, contains nothing concerning the public prosecutor’s office, an institution that is crucial for the maintenance of order and security. It is now reduced to a bureau within the Ministry of Justice. According to Grzegorz Szacon and Pawel Szafranski: “The issue of the competences of the public prosecutor is left to regulations that are more susceptible to changes, including the most dangerous ones—those of a political character.”

      Eighth, the Constitution lacks clear guidelines on the protection of national property, which may amount, in the opinion of numerous politicians on both sides, to the continuation of privatization without sufficient public oversight. Unless this is attended to, it is possible that huge amounts of national property will be seized by the party nomenclaturas.

      In sum, the new Constitution, in the opinion of many of its critics, is weak in its principal functions and congeals the existing structure which could be described, generally, as a partycratic and Sejmocratic system. State officials, even acting in conformity with the law, will support their favorites because of structural incentives. Moreover, judicial protection of the rights of individuals will be very difficult and time-consuming because of the current inefficiencies of courts. The Constitution fails to address this in any respect. From 1990 to 1995, the number of cases decided by courts increased by 140 percent, but new judgeships grew only by 30 percent. In 1996, 5 million cases were filed with the courts, in addition to the 1.5 million outstanding cases from the previous year. When the Criminal Procedure Code was amended in 1996, the courts were assigned new duties, (for example, the courts, rather than the public prosecutors, decide on temporary detention). Courts also decide on the so-called annulment of decisions. Increasingly Poles have turned to the European Tribunal of Human Rights (especially in cases concerning tax matters, inheritance, and real estate registries), because in Poland the courts are overwhelmed and in Strasbourg, after a few years, they can at least “have their day in court.”

      Representing various traditions, attitudes, and interests, and attempting to avoid any historical repetition of the times of real socialism, the authors of the new Constitution, reached a difficult political compromise.(A great deal of time was devoted to determining the circumstances justifying the introduction of martial law and the competences of executive branch.) The framers did not, it seems, consider the criticisms of the existing governing structure. There are no traces of successfully dealing with the recurring tensions after 1989, except in one instance where the position of the government was strengthened. The principle of a constructive vote of no-confidence was introduced, but at the same time, group responsibility of the government was established. It is now more difficult to remove one minister at a time. Critics wrote in connection with this that it “jeopardized the maintenance of executive responsibility, and in addition, executives had no fear of social discontent because their appointments did not depend on the public but on the decisions and nominations at the ‘top’.”

      Poland now finds itself with a parliamentary-cabinet system based on a centralized model of the state in which the most crucial political role has been assigned to the political parties and their leaderships. Society is generally demoralized, local self-government is weak, and the civil service remains politically biased. Given this, and the fact that, up to now, the leaders of political parties form and dominate governments and executive authority, and even though retaining significant competences, they will be dependent on political circumstances, especially on temporary ruling coalitions formed by the parties. This makes executive authority (and state administration) inefficient, and at the same time, leaves it constantly suspected of corruption.

The communist legacy problem
It is difficult to imagine that now, almost a decade after the great transformation, the Right would decide (after its hoped-for parliamentary victory) to construct a state free from the communist legacy on the basis of a virtually new constitution, and that the state structure would be built so as to eliminate the old nomenclatura and with them their old bureaucratic habits. The Right is unlikely to accomplish an extensive inspection of the capital owned by the postcommunist nomenclatura (it is this nomenclatura that had an advantage over all the other entrepreneurs, because the market game began while the last communist government was still in office), nor will it succeed in excluding from public life those who played a significant role in the old system. Even though the intentions of the radical anticommunists are unrealistic, we can still consider whether this Constitution, apart from what it says, deals successfully with the near and “horrible” past.

      The Right managed to gain significant support from some political parties and the public for its program of political lustration. (In its least radical version, this would include a review of all the persons applying for the highest state positions connected with the secret political police, the intelligence service, and counterespionage, and would grant every citizen the right to examine his or her file held in the vaults of the former Ministry of Internal Affairs.) But the problem of background checks could be resolved through an ordinary statute. The real issue, therefore, is the constitutional system itself. I mentioned already the issue of the legality of at least some of the acts passed after 1944. On a very practical level, this problem involves a reprivatization of a considerable amount of property (difficult to appraise), including land, factories, houses, and land parcels designated for construction. Further-more, there is also the matter of the legality of judicial decisions rendered in violation even of the then-existing communist Constitution and laws, and in blatant violation of judicial procedures. Finally, there is the matter of annulling the decisions that stripped Polish citizenship from those who were forced to emigrate, or for certain reasons did not want to return to Poland, once it was ruled by the communists. There are a lot of similarly detailed problems. Although these can be resolved with concrete statutes, the new Constitution provides no basis for decisions and solutions concerning them. In this sense we can say that the new Constitution is neither pro- nor anticommunist, but that it makes no mention of the recent past and does not broach the legacy of the Second Republic.

Summary
The results of the constitutional referendum demonstrate that the majority of Polish citizens consider the Constitution irrelevant. They identify neither with the document nor with the political parties that supported or opposed it. Once more a theory widely held among Polish sociologists proved true, that the majority of citizens do not participate in public life, that their identification with political parties is low, and finally, that fatalism is preponderant. The people regard themselves more as victims than as participants in the political process. The results of the referendum also reveal that those who are politically active are very deeply divided. They are divided not only over concrete economic and political matters, but also over ideological ones; and the latter constitute the foundations of the Constitution. If they ever have the power, the anticonstitutional parties will seek, if not to replace the whole document, then at least to amend it considerably.

      We can therefore venture that the life of this latent Constitution will not be very long, and that its authority will be recognized only by a part of society. As a consequence, this Constitution will fulfill its integrating functions only to a limited extent. What brings some consolation, however, is that, despite all the contentions and political disturbances that accompanied the Constitution’s enactment, all parties agree with its recognition of human rights and share the opinion that a political democracy is, and must be, the foundation of the Polish state. But wordy and imprecise, full of ambiguities and even contradictions, this Constitution is incapable of rousing confidence in the state and law. Lacking inspirational verve, the new Constitution is very unlikely to establish, in an enduring fashion, the rule of law.

Pawel Spiewak is Professor of Sociology at the Institute of Sociology, Warsaw University.

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