Volume 6 Number 2 & 3

Spring/Spring 1997

Feature

A Brief History of the Constitution
Wiktor Osiatynski

On May 25, the new Polish Constitution was adopted by national referendum. It was accepted by a narrow margin: 53 percent in favor and 46 percent against. In the final weeks before the referendum, the Constitution-passed by the National Assembly on April 2-was violently attacked by the right-wing parties, Solidarity Union, and the Catholic Church, all of which urged Poles to turn out for the referendum and reject it. Only about 43 percent of eligible voters participated in the referendum. The Constitution will come into force three months after it is signed by the president, presumably in mid-September.

      From the outset, the Constitution was the subject of a political conflict that centered more on the legitimacy of its adoption than on its content. In 1989, all those involved in the process failed to foresee the need to demarcate constitution-making from current politics. On the contrary, the Consti-tution was to be the crowning achievement of the political process. We have now come to realize that a constitution, which is concerned with the boundaries and not the content of politics, should be accepted by Parliament, but should probably not be written by those preoccupied with everyday politics.

      The mingling of the Constitution with ordinary politics was the cardinal reason for its repeated delays in Parliament. Because the drafting process took place in the lion's den of daily politics, the very legitimacy of the framers was repeatedly called into question. This also had a significant impact on the final content of the document. More often than not, compromises were struck by adding into the draft constitution everything that everyone wanted. As a result, the 1997 Constitution teems with declarations and promises. On the other hand, Art. 81, which limits by statute some constitutional rights, does distinguish between mere promises and enforceable rights, affording the latter efficient protection (for example, with the right of constitutional complaint).

      Considering the way the Constitution was prepared, the final version is surprisingly good. Its enactment by the National Assembly appears truly extraordinary, if we recall the numerous hurdles it had to leap. As late as the fall of 1994, the Constitutional Committee had managed to prepare only the first versions of a few articles. With these, President Lech Walesa, Solidarity, the members of the Episcopate, and the extra-parliamentary opposition called for the rejection of a constitution which, at that time, did not yet exist.

      A review of how Poland's new Constitution was created brings us to a surprising conclusion: the Constitution was a victim of the concurrent processes of democratization and constitution-making; and democracy, with good reason, was no less desired than the constitution itself. Understanding how difficult it was to prepare a new constitution after 1989, helps us to appreciate better its miraculous ratification.
A torturous path
It is always difficult to enact a constitution, especially in a democratic system. (In nondemocratic ones, a king, a dictator, or some "leading force" can easily octroyer, reject, or amend the constitution.) In democratic systems, existing institutions of authority use legal means to resist changing the rules of the game in a way that would limit their power. The process of amending the Swiss Constitution has already been drawn out for three decades.

      Passage of a constitution is easiest when a new state is being born, because at that moment there is a general drive to be grounded on some foundation. After 1989 in Czechoslovakia, the main political forces could not agree on a new constitution. But immediately following the decision to divide the country, both Czechs and Slovaks prepared their constitutions in record time, in only a few months.

      A constitution also can be enacted in the wake of a revolution, provided that a draft already exists, because the revolutionary moment is short. Solidarity had no such draft, because before the Roundtable Talks it foresaw neither the rapid collapse of the Communist Party nor the possibility of having exclusive authority over the country. Additionally, because the institutions and forces of the old system were still very much alive, the change in the system was evolutionary. This limited the potential for deep structural reforms.

      Hungary, in the same position as Poland, did not even try to enact a new constitution. The Hungarians decided to amend their old Consti-tution several times, and later on, crafted a workable and even admirable constitutional order by a whole series of special statutes and by the decisions of their Constitutional Court.

      The December 1989 amendments to Poland's communist Constitution were partial only. At the time, this seemed an adequate solution, because everyone assumed that a new constitution would be enacted on May 3, 1991, comparable with the one promulgated exactly 200 years before on the same day. But May 3 came and went, and in its wake historical forces left no constitution. The once grand and united "Solidarity movement" had fallen into disunity. The then-acting Sejm had decided on its own dissolution, and two constitutional committees (one in the Sejm and the other in the Senate) were preparing separate and quite irreconcilable drafts.

      The subsequent Parliament consisted of 29 parties, which made it impossible to marshal a constitutional majority. In the spring of 1992, however, Olszewski's government "managed" to unify a broad coalition against itself. This anti-governmental coalition enacted the "Little" Constitution. At that time, a bill on the method for preparing a "big" constitution was enacted, postponing its actual enactment into the remote future.

      While I took part in this process, I now regret it. Suffice it to say, in proposing a fairly complicated method for enacting the constitution, I had hoped that the constitution-making process would become an occasion for the public's civic education. I believed that after the various politicians had reached an agreement among themselves on the text of the constitution, they would together persuade society to accept it.

      Today, I am a little wiser. I know that a majority of politicians will use every available opportunity for enhancing their political careers or for securing some other personal benefits. They have no desire to educate the public, and the arrogance stemming from the possession of an elected office, a "democratic mandate," makes many of them incapable of learning. In a particular way, this is confirmed by the history of failures accompanying the drafting process.

      In 1992, Walesa's legal advisor, Lech Falandysz developed the idea of passing a constitution in parts: the Little Constitution should be added to the Charter of Rights and Freedoms, and later on, an act on the judiciary and the Constitutional Tribunal could be added, leaving Poland with a constitutional order similar to the Hungarian and British ones. President Walesa presented a proposal on the Charter of Rights and Freedoms, which granted members of the public the power to apply it directly in defense of their rights.

      No sooner was the proposal put forward, however, than it was subject to attack from the ombudsman, Tadeusz Zielinski, whom the charter deprived of his monopoly of making the people "feel good." Parliamentary debate on the project was a spectacle. Here, in modern Europe, MP Marian Pilka (Christian Democratic Union [CDU]) spoke against the prohibition of torture, and in the Constitutional Committee, Marek Jurek (also of CDU) defended corporal punishment and the right to spank children. This laughable but sobering spectacle finally came to an end when the president dissolved the Sejm.

      After 1993, a parliamentary majority existed that was sufficient to enact a constitution; and Aleksander Kwasniewski became the new chairman of the Constitutional Committee. It was not clear that this parliamentary majority would be shortlived. And instead of immediately focusing on generating a draft constitution, debate shifted to writing a statute on the constitution's ratification. The statute called for a popular referendum to accept the project enacted by the National Assembly. At this point, however, the Union of Labor (UL) proposed a so-called preconstitutional referendum in which the public would first resolve some particular constitutional issues before a constitution was actually drafted. UL's proposal was an attempt to win popular support before the municipal elections, which were expected to be combined with the referendum. UL was seeking to win that part of the public who would favor eliminating the Senate and halting privatization, and would support the constitutionalization of far-reaching welfare benefits.

      The idea of a preconstitutional referendum was dubious, but in an immature and naive democracy, still revelling in its new-found freedom, few dared to question openly the people's right to participate in the drafting process. The representatives of the major parties said that they would first vote for the project, and later find a way to strike it down. That actually happened, but at the expense of more delays and unnecessary conflicts between the Sejm and President Walesa.

      Walesa and Falandysz warned that any attempt to change the statute on the procedure for enacting the constitution would result in their proposing the civil constitutional initiative project. This project was initially rejected in its first reading after a heated debate in the Sejm. But it was later restored (in a limited version), when the Democratic Left Alliance sought to make peace with Walesa. In any event, the armistice did not last long.

      At the end of 1994, when the Constitutional Committee had finally just begun work on its own project, four powerful social forces were calling for a rejection of the still nonexistent constitution: President Walesa, part of the Episcopate, the extra-parliamentary Right, and the Solidarity labor union. The issue was not, however, the content of the constitution, but to whom the constitution would "belong." For the same reason, the extra-parliamentary opposition is still hostile to the project passed by the National Assembly, even though the project reflects numerous concessions to the bishops, the Right, and Solidarity.

Democracy vs. the Constitution
The most opportune moment for the enactment of a new constitution was immediately after 1989. Unfortunately, we overlooked that moment, committing countless and avoidable mistakes. We had no draft project in hand, convinced that there was no need to hurry, and we created two separate constitutional committees (in the Sejm and in the Senate), without conclusively establishing their rank in relation to each other or determining how their segregated work would be coordinated and later joined-all this demonstrates our shortsightedness.

      In the fall of 1989, however, no one expected that events would unfold so rapidly and especially that the so-called society's side at the Roundtable Talks, that is Solidarity, would become divided and disputatious after only a few months. It was also totally unexpected that, after their spectacular defeat in the June 1990 elections, the parties of the old system would re-emerge so quickly and that the greater part of society, suffering from reform exhaustion, would cast its allegiance with the political forces that preached egalitarianism, economic security, and nostalgia for the times of real socialism.

      Additional to this, bear in mind that Solidarity's leadership, in the aftermath of the Roundtable Talks, was not focused on the construction of an ordinary democracy. Even in the fall of 1989, many Solidarity leaders believed that it would be possible to create in Poland some "new model" of democracy without political parties-on the foundation of the independent civil society that had emerged in 1970s and 1980s and was reflected institutionally in the Civil Committees movement. But as soon as the committees disintegrated, political parties sprung up quickly. A party system arose as if by an invisible political hand. Poland's democracy was founded on this party system, and in this respect, its democratic development was no different than what is found in other contemporary democracies. There was, we discovered, no new model.

      The problem was that the process of democratizing the state began to obstruct the creation of the constitution. Whereas, in developed Western countries, democracy and constitutions complement each other, the transitions to democracy and to constitutionalism constitute two very separate processes. But in postcommunist states, these processes were necessarily concomitant. After 1989, the countries of East-Central Europe were faced with the necessity of creating concurrently the foundations of democracy, of market economies, and of constitutional legal orders. Such a triple transformation had, and has, no historical precedent. Typically, the "old" democracies created markets first which they protected constitutionally, and only afterwards did they democratize their political systems.

      Many political scientists, economists, and constitutionalists doubted that such a concurrent transformation process could be well-managed in the region. They said: economic reforms require quite a long period of austerity on the part of society. But if the majority possesses political authority, it may object to suffering the pain of economic reconstruction. In this situation, reform-minded political elites must eke out from the majority a compromise between hard economic necessities and antireformist desires. In short, constitutions in this region were to presuppose mechanisms for making compromises between democracy and economy, which were unnecessary in the West.

      These fears are corroborated by numerous examples from states that enacted constitutions at the beginning of their transformations, but failed to construct democracies. Even more numerous were the examples where democratization obstructed or even halted market reforms. In this regard, Poland was an exception. We managed to create an energetic market economy, as well as a democratic political system, but for a number of years, marketization and democratization continued at the expense of the creation of a basic law. This was all the more frustrating for Poles, since it was Poland that had the first written constitution in modern Europe.

Two currents in the river
Genuine democracy requires that citizens have choices among parties and political programs. In Western democracies, political parties emerged at the end of a very long social process. First strong craft guilds, merchant associations, professional associations, local self-government, and interest groups were created; in short, everything characterizing what we call a civil society. At the outset of democratization, newly created political parties represented the interests of strong social groups, and parliaments were the forums where the battling over, and balancing of, interests took place, through the mediation of political parties themselves.

      In Poland, this process was reversed. Parliament was created first and then, not long afterwards, the parties. These parties and the state were left to build civil society, which elsewhere had been the foundation, not the product, of democracy.

      At the beginning, the parties that were created "from the top"-from the post-Solidarity leadership-represented only their leaders and the party machines gathered around them. To survive, they had to generate social support, which was not such an easy task given the newness of democratic politics. To recruit and mobilize followers, the new parties had to create distinctions among themselves; and the most efficient way to accomplish this was to manufacture political contentions and conflicts among themselves. In addition, to be noticed by potential voters, the parties had to push these contrived differences into the limelight. Obviously, Parliament was the most visible and the cheapest forum for political advertising. Contemporaneous-ly, the same Parliament was charged with drafting a constitution, which required two-thirds of its members' consent. Hence politicians and parties had to invent quarrels to attract supporters, while at the same time, they had to reach agreements on the content of a draft constitution. The whole parliamentary mess resembled the confluence of two rivers, flowing in opposite directions, but in a single river-bed.

      What is more, the newly created parties discovered that work on the constitution could easily profit their immediate political objectives. Public constitutional debates became an occasion to emphasize different opinions, make promises, and criticize other groups. The declarations on the rights of citizens and various philosophical issues were especially attractive to party leaders. Rights issues are convenient for politicians, because they do not ordinarily require the kinds of tangible promises for which one might be accountable before the voters, say new roads or a construction project. The Union of Labor's preconstitutional referendum proposal was an example of this party-building and electoral strategy. Other parties directly satisfied their interests with constitutional provisions. For example, the Polish People's Alliance demanded-and got in a diluted version-provisions in the Constitution on the protection of family farms, where its electoral base, the peasant, was squarely based. The proliferation of philosophical conflicts and the short-term, but rational, political interests of various parties obstructed the coming together of a constitutional majority. While it was possible to garner a two-thirds majority, for instance, on the church-state issue, it was not likely for the same coalition to agree on such issues as the division of powers or the preservation of social rights. Given Poland's parliamentary bog, the solution employed in Hungary after 1989 seems in retrospect ingenious. There, a special catalogue of "constitutional acts" was created, which required a two-thirds parliamentary majority for each act's adoption. With this approach, it was possible to create separate coalitions on each issue. In Poland, all sensitive constitutional issues had to be agreed upon as a package, which was far more knotty, if not impossible.

      Conflicts between the parties were accompanied by turf wars between state bodies, each seeking to protect and enlarge its own competencies. There were three distinct battle grounds. The first, between the Sejm and the Senate, was especially acute between 1989 and 1991, but it lingered on during the enactment of the Little Constitution in 1992, and was still around during the last votes in the National Assembly. The second was between the Sejm and the president; and the third was between president and prime minister.

      These last two conflicts lasted for the entire duration of the drafting process, and from time to time, were explosive. They simmered down only after Kwasniewski unseated Walesa as president. But then the conflict between the National Assembly and extraparliamentary opposition seized center stage. The process of drafting a constitution became an occasion for attempting to delegitimize the Sejm elected in 1993. The creation of a constitution by this very Parliament was presented as "evil," irrespective of what the future document would contain. This criticism persisted even after the National Assembly included some of the extraparliamentary opposition's proposals into the draft constitution.

Twelve principles
Miraculously, the Third Republic of Poland now has its Constitution. All of its provisions are important and all are legally binding, except the solemn Preamble. All of them bind equally the citizenry and the public authorities. But some provisions are more important than others. For an ordinary citizen, there are several crucial issues. I see twelve principles underlying the 1997 Constitution and the legal and political system established by it.

Sovereignty of the people
The duty of modern constitutions is to confirm the sovereignty of the people. This principle is realized through the equal rights of citizens and unencumbered access to influence public life and the law-making process.

      Not all constitutions support the norm of equal participation in public life. For example, Poland's 1935 April Constitution departed from this rule, holding that a citizen's right to influence public life was measured by the value of his "efforts and merits for the public good." But how to put a value on "efforts and merits" went undefined.

      The public's sovereignty takes two forms-passive and active voting, and the right to participate in referenda and in legislative initiatives. All of these institutions have found their place in the new Constitution, and contrary to previous drafts, referenda and legislative initiatives are not restricted by subject.

Equality
The equality rule is recognized by equal participation in law-making and also equal treatment by public authorities and before the law. This is found in the prohibition on discrimination. For example, Art. 26 of the U.N. International Covenant on Civil and Political Rights (March 23, 1976), prohibits discrimination on the grounds of race, color, gender, language, religion, political or other opinions, national and social origin, ownership, birth, and other features of social status. In the new Constitution, this rule has been provided for in Arts. 32 and 33. The anti-discriminatory formula was the subject of considerable debate. The first draft enumerated discriminatory behavior, ending with the expression, "and for any other reasons." In mid-1995, the Constitutional Committee included a "sexual orientation" provision that provoked protests from the Catholic Church and several conservative parties. As a result, the committee restrained itself from listing all discriminatory acts in favor of a general declarative statement: "No person shall be discriminated against in political, social, or economic life, for any reason whatsoever." Further, Art. 33 was added guaranteeing equal rights for men and women.

Self-government
The principle of decentralized public authority and local self-government is extremely important in the postcommunist countries, because the communist state model was excessively centralized, requiring that all state decisions were made at the highest state level. In Chapter VII, decentralization has been mandated by the separation of the national government from local governments, by enhancing respect for the local governments' autonomy, transferring some of the powers and competencies to local authorities in which the national government cannot intervene, and also by making it easier for local governments to discharge local tasks (local taxes for example). Local communities have the right to levy taxes and decide on local matters in referenda. Articles 163-173 of Chapter VII regulate local government rights. The debate on this issue was especially focused on Poland's intermediate level (powiat) administrative units. Initially, Freedom Union and the Social Democrats supported strengthening the administrative units, so reference to them was still in the draft constitution as late as December 1996. But at the last moment, the Polish People's Alliance changed its position, which led the Social Democrats to do the same. In the end, all the parties agreed on a solution that guarantees the state's decentralization (Art. 15.1), but the term "powiat" was omitted. The new Constitution leaves the specifics of territorial division to future legislation which is to take into consideration the "social, economic, and cultural ties" of the territorial units, and their capacity to perform public duties (Art. 15.2).

Autonomy
Local self-government is connected with the wider problem of state-society relations, and with the guarantees of social autonomy against excessive state intervention. In theory, communism eliminated any distinctions between state and society; but in practice the state subordinated society. This is why the separation of state and society is one of the preeminent-beside reforming social relations that do not fall under state control-tasks of the transformation, as well as one of the main goals of the Constitution. Three remedies rivaled to address this problem during the drafting process. One, prevailing among the Polish People's Alliance and Labor Union, suggested far-reaching intervention and protection for the state industrial sector. Jerzy Ciemniewski (Freedom Union) just once presented the liberal position which rejected any state intervention into social and economic life, and proclaimed the need to justify any attempt at such intervention. After both of these were rejected, principles common in Christian social thought, such as auxiliarity, also referred to as subsidiarity, gained increasing support. According to this principle, society has a priority over the state in solving its problems. The state should serve to aid in matters that go beyond the abilities of communities to solve. The subsidiarity principle is consistent with decentralization and self-governance, in that superior state and local authorities can take the initiative in matters that exceed the abilities of lower-ranking communities and townships. It certainly considers the question of solving economic and social problems.

      The subsidiarity principle does not apply to those state duties, such as making and enforcing laws, defending the state from external threats, or ensuring domestic security. The subsidiarity principle was invoked many times during the drafting process, but putting it into the basic law proved difficult. Finally, it was housed in Arts. 163 and 164.3 on local government rights, and in the Preamble in the form of the expression, "We create the Constitution of the Republic of Poland, as the basic law for the state based on respect for freedom and justice, cooperation between the public powers, social dialogue, as well as on the principle of aiding [subsidiarity] in the strengthening of the powers of citizens and their communities."

      This wording resulted from a compromise arrived at in the Constitutional Committee. In the General Assembly, Art. 20 was added giving priority to the private sector economy: "A social market economy, based on the freedom of economic activity, private ownership, and solidarity, dialogue, and cooperation between social partners, shall be the basis of the economic system of the Republic of Poland." This article has the potential to protect the free market economy from the state.

      Social autonomy is protected also in other ways, especially in the superior provisions included in Chapter I titled "The Republic." It consists of the freedom to form and operate political parties (Art. 11), and institutions independent from the state, such as labor organizations, social and professional farmers' organizations, citizens' movements and other voluntary associations and foundations (Art. 12). The public interest is expressed with the insurance of a free press and other media (Art. 14). These provisions were not questioned, but because of outside pressures, an article was added forbidding "political parties that appeal to the totalitarian methods and practices of Nazism, fascism, and communism."

      The problem of public autonomy is related to the regulation of church-state relations. On the one hand, it consist of guarantees of religious independence from public authorities, and on the other hand, that state policies cannot follow the orders of any religion. As we know, this was one of the most controversial issues during the drafting process.

State and tradition
The debate concerning state and tradition ballooned into a philosophical and political free for all over such topics as national identity, Polish traditions, and historical continuity. The drafters made peace with these issues by putting them in the Preamble. In it is found the concept of the nation as its citizens, and it also appeals to God as a source of values. But the Preamble recognizes other religious and philosophical persuasions for those who do not believe in God. It refers to Poland's Christian heritage and its state traditions, connects Polish citizens with Poles living abroad, recalls the experiences during periods of anarchy and state violence, and imposes on the nation-the creator of the Constitution-responsibility to God and the individual's conscience. The confusing Preamble attempts to include everything that relates to Poles in a way that excludes none from the term "nation." Therefore everyone can feel as a creator of the Constitution.

State powers
The next important issue concerns state power, its authority and organization, and whether its organization is efficient in its functions. A constitution should guarantee the ability of a parliament to legislate, to appoint and control government, and to enact a state budget. Ours then should insure the efficiency of the Sejm's decision-making process and of the government's pursuit of its economic and social goals. It should create a system whereby the government is responsible to the Sejm and society, but at the same time, is protected from sudden changes in public opinion and against easy dissolution by the Sejm. The Sejm and government must have the ability to carry out their programs, so Parliament should be protected against dissolution before the end of its mandate. The prime minister and government should control public administration which, at the same time, ought not be totally dependent on politicians; and the appointment of public officers should not occur after every parliamentary election.

      The 1997 Constitution meets these requirements better than did the Little Constitution. With the introduction of the constructive vote of no-confidence, it is no longer possible to dismiss a government without appointing a new one at the same time (as happened with Hanna Suchocka's government). This approach protects the government from the public's sudden mood swings, excessive political grandstanding from Parliament, and blackmail from small parties (if, for example, they are in a coalition government). Parliament may be dissolved only if it fails to seat a new government or pass the national budget, allowing the parliamentary majority and government, in both of these, to take the initiative. Finally, the explicit description of the role of the premier, as well as the introduction of the notion of civil service, encourages a less centralized and less politicized public service.

Parliament and the government
A constitution must also envisage division of powers principles, so that the organs of state, while having the ability to function, can restrain, at the same time, any efforts by one organ to accumulate excessive power to itself.

      The new Constitution delineates competencies more precisely and diminishes the areas of potential conflicts-mainly by reducing and clarifying the formerly hazy competencies of the president. It makes clear that the president is the head of state, and that the premier is the head of government.

      The president can influence legislation through legislative initiative and his veto power. His right of veto was clipped, however, so it is more difficult for him to paralyze the Sejm. The Senate was retained as a chamber of prudence and deliberation, but it was not given wide competencies (like the power to dismiss the president) as set forth in a Union of Labor proposal.

      The Constitution guarantees that the authority of every state organ will be limited, none can gather exclusive power to itself, and the unavoidable conflicts over power among politicians will be, in theory, less destructive. Furthermore, officials, having the proscribed powers to carry out their tasks, will be responsible for their actions-not only before their superiors but also before the public. The public is entitled to claim redress before a court for damages caused by the actions of officials.

Rights of citizens
Chapter II serves to protect the people against the state and public officials, and contains the catalogue of rights and freedoms of man and citizen. Its standards are compatible with international human rights standards, and some of the rights-like the right to information (Art. 61) and the restrictions on public officials to acquire information on private citizens (Art. 51)-are more expansive than are the international standards.

      Constitutional rights may be limited only by statute and only for the purpose of protecting higher values set forth in Art. 31.3. This means that it will not be possible to limit rights or that they will be abused through substatutory acts of the government, or a minister, or through other means.

      From this point of view, the provisions in Chapter III, concerning the sources of law, have tremendous importance. They provide, inter alia, that resolutions of the government, and orders of the premier and ministers, possess an internal character and are binding only on subordinate officials. They may not, therefore, constitute the basis of decisions addressing citizens, legal entities, and other subjects (Art. 93). Hence duties and taxes (Art. 217) may be levied only by statute. The resolutions, orders, and other legal acts of an internal character cannot result in revenue obligations.

      On the subject of rights and obligations, it is worth remembering that, in this Constitution, regulating relations between the citizenry and the state does not interfere with social, personal, family relations, or moral matters. These issues are regulated through different legal norms, statutes, and codes, as well as through moral norms and customs. The only exception in the Constitution deals with the special protection of the rights of children (Art. 72). The analogy between a citizen, defenseless against state coercion, and a child, defenseless against the violence of the world of adults, very well substantiates this exception.

      The Constitution confirms the freedom of its citizens and limits the competencies of the state's organs. Article 7 provides that public authorities act on the basis, and within the boundaries, of law. Thus no state organ may do what it pleases and a citizen may always demand to be presented with the legal basis upon which an organ undertook its concrete acts. Article 31, in turn, guarantees civil freedoms: the public may do anything that is not prohibited by law, and no one can force on it anything that the law-meaning by statute (within the limits of the above mentioned provisions on the sources of law)-does not order. This is an absolute reversal of communist practice, when the authorities could do anything, free of accountability, and the citizens could do only that which the authorities permitted.

      This is the Constitution's most important general norm. For the first time in Poland's history, the boundaries between state power and the citizens' civil liberties are clearly drawn. As a consequence, everyone will know what he or she may and may not do, and they will know what the authorities may and may not do. The gray area of uncertainty which fed our fear of officials and the police has been brought into the light.

      Contempt for human life, corruption, forced obedience, and blackmail grew out of this sphere. When a person applied for a passport, sought permission to start a business, or anything else, he could not remind the official with whom he was dealing that he was entitled to his endeavor-and very often he could not refuse when pressured to show loyalty or cooperate with state officials. Now he is protected from authorities abusing his freedom, and the more so, his conscience is free. Protection of rights From the citizen's point of view, the most important element of every constitution are the provisions defining the means for protecting rights and freedoms. Constitutions exist also in dictatorships and often include many rights and freedoms. Civil and human rights are thus naked declarations unless buoyed with the means to protect and enforce them.

      The 1997 Constitution includes a wide range of protective devices. The leading provision, Art. 8.2, holds that the provisions of the Constitution are directly effective. Articles 77-80 provide for the right of redress when rights and freedoms have been violated, the right of judicial protection, the right to appeal a court decision, the right to address the ombudsman, and most importantly, the right of constitutional complaint.

      These guarantees are made complete with the constitutional independence of the judiciary, and the explicit expression that judges are subject not only to the statutes, as it used to be before, but also to the Constitution (Art. 178.1). At the same time, they are subject only to the Constitution and statutes-and not to anyone or anything else.

      The introduction of judicial complaint and constitutional complaint is equaled with a departure from the tutelary model of the protection of rights-only via the media or the ombudsman. The institution of the ombudsman was retained; it may serve an irreplaceable role, especially in its advocacy of the vulnerable who, on their own, lack the ability or the means to protect themselves against injustice and abuse from state authorities. Now, every person can address personally the state and its officials-not as a subject, but as an equal.

Social rights
An important issue in every constitution is the manner in which social rights, the principles of social policy, and the social and economic objectives of the state are carried out. In this regard, moderation and self-restraint, between the constitutional limitations of the authorities and their objectives within the framework of the political process, is crucial. We can assume that in a democracy, the society can reasonably distribute its social resources. A constitution should not then contain promises that are impossible to fulfill. But the contemporary experiences of the older democracies show that the majority can be at times indifferent to the fate of minorities, including also the poor, ill, old, and indolent. This potential callousness-observed in some of postcommunism's new rich-justifies the constitutionalization of basic social rights.

      It is worth remembering that constitutionally protected rights should be limited to assurance of elementary social welfare-they can not generate claims to well-being, economic equality, or other benefits. Benefits exceeding the safety minimum should be the subject of the annual budget. The 1997 Constitution codifies a realistic approach to social rights. Making the public authorities responsible for them gives them, also, judicial protection. Benefits in excess of the minimum standard are left to the discretion of the legislature (on the basis of Art. 81).

      The Constitution specifically protects family and maternity (Arts. 71 and 18), marriage and parenthood (Art. 18), children (Art. 72), veterans (Art. 19), and family-run farms (Art. 23). With the exception of farming, special state protection is afforded to those whose capacity for self-reliance is limited.

      An additional guarantee of society's social security is the retention in Art. 2-in spite of the protests from liberals-that the republic's objective is social justice. Since 1989, this principle has constituted a basis for the ombudsman's interventions, as well as numerous Constitutional Tribunal decisions.

      Connected to these state objectives there is also the extent to which the Constitution defines fiscal and monetary policy. The Constitution does more than create the institutional preconditions for the Central Bank's independence. Article 216.5 was added, placing an upper limit on the public debt, three-fifths of annual gross domestic product. This is well motivated: during the pre-election period there was a strong temptation to "buy" votes (What democracy has not been so tempted?) by the ruling party through increased wages, grants-in-aid, and state-financed subsidies. Additionally, this provision strikes the right balance between state intervention and non-intervention.

States of emergency
The Constitution as the supreme law necessarily requires special protection. Article 2 serves this purpose by stressing that Poland is a democratic state of law and that the Constitution is the supreme law. It is followed by many provisions-most importantly, constitutional review of statutes, the special method for amending the Constitution, and clear criteria and methods for imposing states of emergency.

      As we already know, constitutional complaint is a commonly available device for protecting the Constitution. The provision that is equally important provides for the review of resolutions and orders-acts of internal law-for their compatibility with the generally binding law (Art. 93.3).

      A crucial problem is posed by emergency situations. It could be said that the real test of constitutionalism is the question: Who, when, for what reason, as a result of what procedure, and to what degree may the Constitution's provisions be suspended? The 1997 Constitution describes in detail (in Arts. 228-234) the procedures for states of emergency, when they may be declared and the consequences of such. Even under martial law (a state of emergency) the rights protecting human dignity, citizenship, life, principles of criminal responsibility, humanitarian treatment, judicial protection, protection of personal interests, freedom of conscience and religion, right of petition, and the rights of families and children can not be limited. During natural disasters, the state may limit even fewer rights (Art. 223.3). This means that even during emergency situations, citizens will be able to feel relatively safe, free of arbitrary state power.

      The last means of protection of the Constitution is the prevention of its easy amendment. Some means to revise a constitution must exist, because as Thomas Jefferson held: The living should not impose their will on their descendants. Equally important, though, is its protection against political caprice, because almost all political men have the desire to change the rules of the game to secure for themselves more power, and for as long as possible.

      The new Constitution, in Art. 235, takes the middle road to protect itself. An amendment can be introduced by a two-thirds majority in the Sejm, and within a period of 60 days, it must be confirmed by an absolute majority in the Senate (the Senate cannot make changes to the Sejm's proposal). A proposal to amend the Constitution may be offered by at least one-fifth of the statutory members of the Sejm, the Senate, or the president. This means that amendments cannot be initiated by statutory initiative of citizens.

      Any changes approved by the Sejm to Chapters I, II, or XII may be put to a popular referendum for approval. This means that the rights and freedoms of citizens are better protected against parliamentary changes than the rest of the Constitution.

Common good
A good constitution restrains the state, but at the same time makes it possible to treat the state as the common good of all the citizens. The state is admittedly a common good and has tremendous duties to carry out. Nevertheless, experience shows that, sooner or later, an unlimited state loses its ability to realize its tasks, ceases to guard the common good, and starts to protect the interests of the authorities. In the course of time, such a state loses its strength. The state becomes weak, not because its abilities to coerce and harm wane, but because it loses the support of its citizens.

      The new Constitution contains a sufficient number of the safeguards against abuses of power, and most importantly, sufficient means of defense against such abuse. By its content, Poles can respect this Constitution as a guardian of order, security, and the common good.

Wiktor Osiatynski is University Professor at the Central European University. In 1990-1996, he was an advisor to the Constitutional Committee of Poland's first-term Senate and to the Constitutional Committee of the National Assembly. This article is based on two articles published in Gazeta Wyborcza and on the author's book, Twoja Konstytucja (Your Constitution).

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