Volume 9 Numbers 1/2

Winter/Spring 2000

Constitutional Watch
     A country-by-country update on constitutional politics in Eastern Europe and the ex-USSR

Poland - Although Poland is doing relatively well, at least by comparison with its neighbors, current opinion polls confirm the steeply declining popularity of Electoral Action Solidarity (EAS)-a grouping of several organi-zations and parties that constitutes the main party in the governing coalition-and the great popularity of the opposition Democratic Left Alliance (DLA). EAS's loss of popularity does not appear to be the result of any misguided governmental policies. Indeed, the current cabinet has succeeded in pushing through some very difficult reforms of the health-care system, social secu-rity, and local government. But the cabinet has proven unable to defend itself against attacks, to publicize its successes, or to extract even the tiniest bit of favor from the media. This public-relations ineptitude is due mainly to a leadership crisis within EAS. Marian Krzaklewski, the architect of the party's electoral success in the 1997 parliamentary elections, seems to lack clear political objectives. For his part, Prime Minister Jerzy Buzek seems unprepared to lead his party, as he consistently avoids decisive action and postpones major decisions.

Recent squabbles over naming a candidate for the upcoming presidential election, set for November 2000, aptly illustrate the party's lack of cohesion and direction. Since coming to power in 1997, the EAS-Freedom Union (FU) coalition has seen many of its legislative projects killed by the vetoes of President Aleksander Kwasniewski. The coalition holds 261 seats in the Sejm (or lower house of parliament), falling just a few votes short of the three-fifths required to overrule a presi-dential veto. But it seems unlikely that the upcoming election will install a president friendly to the current governing coalition. Recent polls show that incumbent president Kwasniewski, DLA's candidate in the race, is Poland.WINTER/SPRING 2000 29 supported by an impressive 60 percent of the electorate. So far, EAS has been unable to agree upon a candidate.

In April, one of the main parties in the EAS grouping proposed Krzaklewski as the party's presiden-tial candidate. But the nomination of Krzaklewski, who enjoyed just 6 percent support in recent polls, was opposed by several other important parties in EAS. Specifically, the Popular Conservative Party, the Christian National Union, and the Polish Party of Christian Democrats insist that EAS hold internal party primaries to name a presidential candidate. These parties argue that Krzaklewski does not meet the three necessary criteria agreed on by EAS: that the candidate enjoy full confidence and support of all EAS members; that he be endorsed by the entire ruling coalition; and that he be able to dissuade Lech Walesa and Andrzej Olechowski from running in the presidential ballot. (Both have already announced their candidacy. Walesa's popularity-among the public and EAS-is even lower than Krzaklewski's. Olechowski, an independent candi-date, enjoys support from about 10 percent of the electorate.) Krzaklewski and his allies oppose the idea of primaries, arguing that EAS hold regional confer-ences, instead, to drum up support for his candidacy. The matter will be decided in an upcoming meeting of EAS's National Council. FU, EAS's partner in the government, also has failed to name a candidate yet. At this point, it seems unlikely that the party as a whole will support Krzaklewski's candidacy. Deputy Prime Minister and party leader Leszek Balcerowicz, in addi-tion to other groups within FU, support Olechowski; at the same time, still others in the party have suggested naming their own candidate. FU will also decide on a candidate at an upcoming party meeting.

As EAS's leadership stumbles, individual deputies increasingly ignore the party's dictates, threatening the government's ability to rally a parliamentary majority. A recent conflict over the minister of the treasury, Emil Wasacz (EAS), illustrates the point. On December 28, a motion was submitted to dismiss Wasacz, signed by 74 of his fellow EAS deputies. The motion accused him of lacking a coherent vision of the economy and bungling the privatization process. The motion was initiated by advocates of the mass-privatization program, an idea included in the EAS electoral platform, but one for which EAS has since lost its original enthusiasm. The signatories also included some ardent free-market advo-cates from an opposition party.

This motion sparked a political storm, and EAS's party elite pressed the motion's authors to withdraw it. Withdrawal, however, proved impossible for proce-dural reasons. FU opposed the dismissal, while PPP and DLA declared they would vote in favor of it. EAS's ability to discipline its own unruly deputies thus became the key issue in the vote. Some of the signato-ries distanced themselves from the motion, claiming they had been misled by those collecting signatures and had thought the motion was simply to discuss Wasacz's policies within the EAS parliamentary faction. Nevertheless, a sizable group of deputies openly declared they would vote to dismiss Wasacz. On January 22, 229 deputies voted in favor of his dismissal, just two short of the number necessary. Although Wasacz ultimately retained his portfolio, that 21 EAS deputies supported the initiative and 47 abstained clearly illustrates the party's internal dissension.

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Over the last months, the ruling coalition has attempted several major reform projects-the most important concerning the tax system. The efforts of Deputy Prime Minister Leszek Balcerowicz (FU) to streamline the tax regime have proved unpopular. An earlier proposal to introduce a flat tax led to his party's defeat in the 1998 local elections, and recent reform initiatives have fared no better. His latest proposal was fairly modest, envis-aging a gradual scaling down of tax rates in tandem with the abolition of tax benefits, calculated to offset the resulting decrease in public revenues. Eventually, the ruling coalition proposed three tax rates: 19, 29, and 36 percent in 2000; 19, 28, and 35 percent in 2001, and just two rates-18 and 28 percent thereafter. The bill also eliminated many tax deductions, with only the house-renovation benefit and a provision for families with two or more children remaining intact.

The bill passed its first reading on November 12 and progressed to the parliamentary committee, where the government had expected only a few additional amendments to be proposed. At that point, however, opposition deputy Maciej Manicki (DLA) and several other DLA deputies proposed an ocean of minor amendments with the intent of stalling the legislation in committee. At first, these delaying tactics appeared successful-according to tax regulations, the slew of amendments needed to be debated, and the legislation pushed through second and third readings by the last day of November. But the coalition resorted to its own legislative maneuvering and exploited a provision in the parliamentary rules that allowed it to bypass the fili-buster. At a committee session on November 15, Stanislaw Kracik (FU) proposed that the bill be rejected in its entirety. He then reintroduced the same bill as a minority motion, pushing it through a second reading. The lower house adopted the bill immediately, and the Senate approved it soon thereafter.

The story seemed headed for a happy ending until November 28, when President Aleksander Kwasniewski (DLA) vetoed the tax bill, asserting that it violated the social-justice principle called for in Art. 2 of the Constitution, and that its passage had been highly irreg-ular. Kwasniewski's move outraged the government. Balcerowicz considered resigning, setting off shock-waves in the economy-the zloty weakened, and the stock market took a dive. On December 2, parliament responded to the presidential veto, with 200 deputies voting to uphold and 225 voting to overrule. Because the proponents of tax reform fell significantly short of the majority (265 votes) they needed to overrule a pres-idential veto, the previous tax rates were preserved.

On December 16, the amended Family Code, introducing the institution of legal separation, went into effect. The amendment makes legal separation possible for those who do not believe in divorce. Separation will presumably be easier to obtain than divorce, since the former requires only a "complete" marital breakdown, whereas the latter requires a "complete and irretriev-able" breakdown over an extended period. Unlike divorced couples, separated spouses may not remarry or assume their former names. According to the amend-ment, a separated couple's property will be divided between the two spouses.

Parliamentarians have also recently attempted to amend the new Criminal Code, which has been in force for just over a year and has been widely criticized for laxity. Skeptics of the legislative solution have pointed out that the problem lies less in the code's lenient sentences than in the tendency of judges to sentence defendants to minimum penalties or hand down suspended sentences. Attempts to fine-tune the code soon escalated into a nationwide scandal. On December 16, parliament's lower house approved amendments increasing penalties for sexual assault, gang rape, and rape with extraordinary cruelty, and categorizing these offenses as felonies. Those convicted of these crimes will now face three to fifteen years in prison. (Previously, it was two to twelve years, and the courts often sentenced defendants to two to three years and suspended the rest of the sentence.)

A stormy debate erupted over provisions concerning pornography. Previously, the production and dissemination of hard-core pornography (defined as pornography involving children under the age of 15, animals, or violence) was prohibited, and dissemination of pornography to minors was punishable. According to the new amendments, the involvement of children under the age of 18 now qualifies as hard-core pornog-raphy, and a significantly severer penalty was introduced for the dissemination of such pornography-previously it had been five years' imprisonment, but the new amendments upped it to ten years.

Then the amendments went to the upper house for a vote. During a Senate committee debate, the amendments passed, but EAS subsequently tacked on a complete ban on pornography. The measure, which was approved by a one-vote margin (40 to 39, with 7 absten-tions), made illegal the distribution of any and all pornography. Specifically, the provisions stipulated a two-year sentence for "producing or publishing pornog-raphy," a five-year sentence for pornography that involved pedophilia, bestiality, and sadomasochism, and a fine for "producing and publishing pornography for profit." With these amendments, the Polish Senate had adopted the toughest antipornography law in Europe.

The amendment then went back to the lower house for approval. (According to Art. 121.3, an amendment proposed by the Senate "shall be consid-ered accepted unless the House of Representatives [Sejm] rejects it by an absolute majority vote in the pres-ence of at least half of the statutory number of deputies.") Opponents of the legislation failed to muster the support to defeat it, and the provision was passed by a vote of 210 to 197 with 19 abstentions. At this point, President Kwasniewski entered the fray. He vetoed the law on the last possible date, March 27. The president justified his veto with the claim that educa-tion- not a ban-could best combat pornography. Moreover, the president and many of the ban's oppo-nents disliked the law because it did not define pornography, handing dangerous discretionary powers to judges and prosecutors, who could apply the law unpredictably, according to their personal views.

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A president has yet to be appointed to the Institute of National Remembrance, the body that will control the files of the pre-1989 secret services. In order to achieve the three-fifths majority it needs to make this appoint-ment, the ruling coalition must have the support of the opposition Polish Peasant Party (PPP). DLA, which holds approximately one-fourth of parliament's seats, is flatly opposed to the institute. PPP, however, refused to support the first candidate proposed. The second candidate, Andrzej Chwalba, came close to securing the required number of votes, but, at the very last moment, DLA's newspaper revealed that he had concealed his membership in the Polish United Workers Party (the Communist Party in the previous regime). Chwalba, for his part, claimed that no one had ever asked if he had been a member. He was subse-quently dropped as a candidate and was forced to take a six-month leave of absence from his university post in Warsaw. FU's two candidates, Karol Modzelewski and Bogdan Borusewicz, also failed to secure the required majority. Another prospective candidate who seemed to have a good chance of winning the three parties' support announced that he had no interest in being nominated. For the time being, the institute remains a dead letter. Some fear that the institute may not begin its work by the end of the present parlia-mentary term (the next elections will be held in 2001). In the next term, its operation will become even less probable, as DLA, which may want to torpedo the institute, is likely to return to power.

The vacillation in appointing an institute presi-dent is indicative of the government's attempts to legislate lustration. Perhaps the most notable instance of this was the prolonged battle in 1998 to name judges to a screening court that was to review state-ments made by public officials about possible collaboration with the pre-1989 secret services. The court could not be formed because judges were reluc-tant to fill its ranks; ultimately the Warsaw Court of Appeals was charged with the screening duties. (See Poland Update, EECR, Vol. 7, No. 4, Fall 1998.) It is difficult to staff lustration offices when the candidates themselves do not endorse the projects wholeheart-edly and sometimes, like Chwalba, have unclear relationships with the pre-1989 regime.

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A law to impose a limit on the earnings of local govern-ment officials united all the parliamentary caucuses. The level of these officials' salaries has been a source of public outrage for some time. A large group of council-lors and mayors of cities, towns, and districts (Warsaw itself has a few hundred of them) have been drawing salaries significantly higher than those of parliamentar-ians, the president, and the prime minister. Parliament put an end to this on January 20, adopting a law limiting the earnings of local government officials and chairmen of state-owned companies. According to the recent law, these individuals cannot earn more than the president or prime minister. Local government officials protested, and, in revenge, Warsaw's councillors prohibited the sale of alcohol in parliamentary restaurants on the grounds that it is illegal to sell alcohol in workplaces.

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