Volume 6 Number 2 & 3

Spring/Spring 1997

Feature

Introduction:
When Polish Constitutionalism Began
Irena Grudzinska Gross

In a solemn ceremony on April 2, both chambers of the Polish Parliament accepted the text of the new Constitution. Eight years after the regime change, the new Constitution seemed to result from a political compromise between two powerful social-political forces. Schematically speaking, a deal was struck between the nationally-oriented and the civic-minded. But the beginning of the post-WW II process of “creeping constitutionalization” can be discovered much earlier than 1989, in the post-1968 reality of the Soviet East bloc. Arguably the 1968 Prague Spring and subsequent invasion of Czechoslovakia spelled the end of the vitality of communist ideology. The invasion was a kind of suicide—Soviet power doomed itself by refusing to consider ideological innovation. Following the 1968 crisis, Moscow was compelled to search, not entirely consciously, for other ways to legitimate and secure its power. In the early 1970s, several Soviet bloc communist parties were instructed to amend their Stalinist, declaratory constitutions by explicitly incorporating into them the Communist Party’s actual political role. (Jakub Karpinski, Countdown: The Polish Upheavals, Karz-Cohl, New York, 1982, pp. 184-188.) During the next few years, the constitutions of Bulgaria, Hungary, and East Germany were amended to proclaim, among other things, the socialist character of the state, the “leading” role of the Communist Party, and fraternal ties to the Soviet Union. Thus, even before the signing of Helsinki Accords in 1975, which was itself an indication of a serious ideological reorientation (and weakening) of Soviet communism, constitutional law was in a way reviving in the Soviet East bloc states.

      In Poland, however, the “constitutionalization” of Communist Party rule was delayed, in part, because of the 1970 workers upheavals and the resulting change in party leadership. First proposed four years before, the party Congress revisited the “legal” problem in August 1975, and produced new guidelines for constitutional amendments. The draft provoked a rebuttal by the Polish Catholic Church, and independently, an open protest letter signed by fifty-nine intellectuals. This first gesture by the Polish opposition had, in a modest format, all the characteristics that made the Solidarity movement, just five years later, so unique: the combination of patriotism with realism, the use of the Church’s strength while keeping a separate identity, and the peaceful, open, and legalistic character of protests. This was the blueprint from which the entire East European opposition grew and developed. It might even be said that the velvet revolutions of 1989 started long before that date, with the defense in Poland of the 1952 Stalinist Constitution.

      This initial effort to constitutionalize Soviet domination, fifteen years prior to the “revolutions,” usefully illustrates the gradual change that permitted the peaceful and orderly transitions of 1989. Although it was difficult, even perhaps impossible, to understand it at the time, the fateful decisions had already been made in the second half of the 1970s. First and foremost, in their civic, patriotic, and sometimes nationalistic fight against Soviet and domestic tyrants, the dissidents reached for, and scrupulously used, the language of law. This approach was eventually followed by the entire East European opposition movement which styled its fight as a series of legal appeals. Given the withering of communist ideology, the language of law was also taken up more and more frequently by state and communist authorities. For those in power, there was probably no other option. The gradual process of “globalization”—that is the mutual interaction of various markets and political bodies—opened access to international organization. Joining international bodies, in turn, required conformity with international laws and norms. In Poland, Edward Gierek’s heavy financial borrowing in the early 1970s opened the country to scrutiny by Western lenders, and by and large, precluded the use of extreme violence against dissidents—even assuming that the deideologized regime was prepared to use it so late in the game. This opening of the international arena to the countries of the East bloc was expressed in a language of law, as if in preparation for the writing of the future European constitution. (See Andrzej Korybski, “Uniwersalne Reguly Gry Politycznej i Spolecznej,” Lettre Internationale. 2, 1995, II. )

      In the late 1980s, the institution of a human rights ombudsman was introduced in Poland, and it was put to very effective use by its first incumbent, Ewa Letowska. This office was the last in a series of state bodies created by the communist establishment to protect civil rights. In 1980, the High Administrative Court was introduced, followed by the Tribunal of State in 1982, and the Constitutional Tribunal in 1985. As Ewa Letowska wrote: “establishing institutions such as the Constitutional Tribunal or the Commissioner [ombudsman], which are by their very nature democratic and citizen-oriented, was supposed to make the liberalizing policies of those in power appear credible to the international community and to the domestic public.” (Ewa Letowska, “The Commissioner for Citizens’ Rights in Central and Eastern Europe: The Polish Experience,” Saint Louis-Warsaw Transatlantic Law Journal, 1996, p. 3.) Similar changes, although proceeding at a slower pace, were occurring in the other East European countries, disclosing the general direction in which the postcommunist system was evolving. The ideological exhaustion of communism, illustrated clearly in the August 1968 “self-invasion” of Czechoslovakia, lent credence to the convergence theory.

      No surprise, therefore, that in the 1989 revolutions, the negotiating parties reached for the language of law to guide and consolidate a non-violent transition. State authorities were conscious of being caught up in a network of international agreements and interdependence. This awareness of involvement with international agencies limited their freedom to use force, yet it also protected them from force being used against them. Their options were the following: either they could unleash whatever force they had in their police and army, knowing that victory by such violence would be short-lived, or they could claim that their power was legitimate (and it was to some degree) and negotiate its modifications. The dissident side was compelled to negotiate, having neither army nor police, and not wishing to unleash popular unrest. The two sides used the only language they shared—law. It was their common terrain.

      This “creeping legalism” is the proper historical context in which to understand the new Polish Constitution, and the articles below illuminate the final destination point—so far—of this intense legal and political journey. All four of the contributors to this symposium participated, in varying degrees, in the creation of the 1997 Constitution or in the debates surrounding it. Their informed interpretations are marked, therefore, by a deep sense of involvement. Wiktor Osiatynski’s succinct history and summary of the Constitution illustrate the principal critical moments in the negotiations and the resulting textual compromises. Ewa Letowska analyzes the functional aspect of the Constitution, that is its responsiveness to the needs of individual citizens. Lech Garlicki presents the historical and political roots of the choices made in the new Constitution in relation to presidential power. These three authors support the new Constitution, while criticizing the politicization of the constitutional debate. The fourth author, Pawel Spiewak, takes a different position. He is very critical of the final text of the Constitution, and his article presents the arguments of the political Right, which consistently opposed it. Although the Constitution has now been ratified, the arguments he rehearses are by no means to be ignored. In the upcoming parliamentary elections, the Right may well gain substantial representation, and one of its electoral promises is to amend the Constitution. Whether we should expect a determined effort to implement the new Constitution or a new round of constitution-writing remains, therefore, unclear.

Irena Grudzinska Gross is Associate Professor in the Department of Comparative Literature at New York University.

back {content}A Quarterly Published by New York University Law School and Central European University