Constitution Making, Peace Building, and National Reconciliation © Copyright by the Endowment of the United States Institute

14 Constitution Making, Peace Building, and National Reconciliation The Experience of Poland

Lech Garlicki and Zofia A. Garlicka

he history of the Polish parliament May 23, 1935. It established the supremacy dates back to the fifteenth century. of the presidency over the other branches of Poland’s first written constitution— government, leaving only residual powers to theT first constitutional instrument in Eu- the parliament. World War II broke out four rope—was adopted on May 3, 1791, but years later, and Poland lost its independence unfortunately, it was never implemented due once again. to the collapse of the Polish state in 1795. After World War II, effective control over Nevertheless, it became a symbol of inde- the Polish territory passed to the Soviet- © Copyrightpendence and progress referred by to by historithe- Endowmentcontrolled government, which imposedof a ans as well as politicians. Soviet-style constitution on July 22, 1952. theIt Unitedwas the rebirth of aStates fully independent InstituteTheoretically, it grantedof Peace quite formidable Poland after World War I that allowed powers to the unicameral parliament (the the creation of a modern constitution. The Sejm), but in reality, the Communist Party so-called March Constitution, adopted on (Polish United Workers Party) monopolized March 17, 1921, was inspired by concepts un- power. The party’s totalitarian grip on Poland derlying the constitution of the Third French relaxed after the social unrest of 1956, but Republic. It provided for a system of gov- the 1952 constitution remained intact. It was ernment based on the preeminent position significantly amended in 1976, but even then, of the parliament, especially its first chamber, its Soviet-oriented nature was preserved. In traditionally referred to as the Sejm. The par- summer 1980, the Solidarity movement, led liamentary system failed, however, to secure by Lech Walesa, started the final decline of proper functioning of the state machinery. the communist system, but another seven- A coup d’etat in 1926 was followed by the teen years passed before the first democratic so-called April Constitution, adopted on constitution in two centuries was adopted.

391 392 Lech Garlicki and Zofia Garlicka

1989: Round Table Agreement ing some of the most sensitive issues. Finally, and April Amendment the Round Table was convened in Febru- Poland’s democratic constitution entered into ary and early April 1989, and a compromise life on October 17, 1997, but the real begin- on most issues was reached and formulated into what became colloquially known as the ning of the end of the communist system 1 began in 1980. The shipyard strikes in sum- Round Table Agreement. The Round Table mer 1980 found their conclusion in so-called as such met only a few times; the real work agreements signed between the workers’ rep- was conducted in smaller committees (so- resentatives and the government. The Poro- called subtables) and working groups, and zumienie Gdanskie (Gdansk Agreement) the most important decisions were made by is the best-known example. This agreement agreement of the leaders of both camps. provided not only for social and economic The April agreement provided for several changes but, at least to some extent, inter- important political changes. First, the exist- vention in the very essence of the structure of ing parliament, the Sejm, would be dissolved 2 government: While it confirmed the “leading and new partly democratic elections would role of the Communist Party,” it allowed the be held in June 1989. Second, the 1952 con- establishment of independent trade unions. stitution would be amended to create the None of the agreements ever found a transla- second chamber of parliament, the Senate, as tion into constitutional law, but they exem- well as a new and powerful office of the pres- plified conflict resolution through peaceful ident. Because it was assumed that General means. In effect, the opposition—centered Jaruzelski would hold that office, the Com- around the Catholic Church and the Soli- munist Party felt assured that it would pre- darity trade union—gained sixteen precious serve control over the executive branch. Thus, months of legal existence. Even if the im- the president was given important indepen- position of martial law in December 1981 dent state powers at the expense of parlia- disrupted attempts at compromise and rec- ment, which the party no longer regarded as onciliation, the idea of political dialogue had reliable. not been discredited and would be revived In implementing the agreement, the first toward the end of the 1980s, in a completely step was for the Sejm, still in its old compo- ©different Copyright international and dome sticby setting. thesition, Endowment to amend the constitution. On Aprilof With the idea of political dialogue intact, 7, 1989, the so-called April Amendment the idea of a roundtable, gathering both the transformed the structure of both political quasi-illegalthe United opposition and representativesStates branches Institute of government. 3of While Peace the Sejm of the official regime, found understanding formally adopted it, the amendment was the and acceptance on both ends of the political product of political compromises concluded spectrum in summer 1988, even though there at the Round Table; the role of the members was no sign of economic recovery in sight and of parliament was limited to voting for what strikes were sweeping the country. The eco- was submitted to them. The amendment was nomic crisis led the moderate wing within the designed to satisfy both sides, and for this Communist Party, led by General Wojciech reason, it was much easier to see it as a tem- Jaruzelski and General Czeslaw Kiszczak, to porary compromise mechanism than it was seek cooperation with the opposition. The to appreciate its later role in restoring demo- parties then spent six months negotiating cratic constitutionalism in Poland. Most organizational aspects of the Round Table. people in April 1989 anticipated a long pe- These negotiations were held in secret, with riod of cohabitation between the old regime the Catholic Church mediating talks involv- and new political forces. Only a few could Framing the State in Times of Transition 393

sense that the entire communist system in and each of the committees established sev- Eastern Europe would collapse within the eral subcommittees and working groups, next nine months. inviting the advice of numerous Polish and foreign experts. The idea was to adopt a new constitution on May 3, 1991, to commemo- 1989–91: Transitory Parliament rate the anniversary of Poland’s first demo- and Constitution Writing cratic constitution, voted on May 3, 1791. The Round Table Agreement and April But the parallel existence of two consti- Amendment, as originally conceived, func- tutional committees resulted in a political tioned only for a very short time. By summer struggle. As Wiktor Osiatynski relates, 1989, it was clear that the Communist Party political ambitions and institutional rivalries could no longer maintain control over the surfaced at this point and have remained central newly elected Sejm, and consequently, Ta-­ to the entire constitution-making process . . . deusz Mazowiecki, one of the Solidarity lead- Initially, the Senate committee was willing to ers, became the prime minister. Six months cooperate with the freely elected 35 percent of later, the Communist Party ceased to exist4 the Sejm committee, but as the relationship be- tween the two houses gradually deteriorated, co- and the amended constitution began to op- operation between the two committees ceased. erate in a completely new setting. Political The Sejm and the Senate eventually produced parties used the democratic potential of the two different drafts. The versions were basically April Agreement to construct rules of parlia- irreconcilable and no arbiter existed who could mentary government. While Jaruzelski kept decide which draft should be submitted to a ref- the presidency until the end of 1990, he never erendum. Constitutional momentum was thus dissipated even before the first transitory Par- attempted to use his constitutional preroga- liament dissolved itself in the Fall of 1991.6 tives. Thus, the April Agreement ceased to guarantee the political distribution of power, Nevertheless, the process of constitution its originally intended principal function. writing had begun, and the drafts prepared At the same time, it became clear that and published by both committees delivered the old constitution had to be replaced with a starting point for further discussion. At the a new document.5 The existing constitu- same time, several political parties and pri- © Copyrighttion was adopted in 1952, atby the peak the of the Endowmentvate persons submitted their own of drafts or Stalinist regime in Poland. It was drafted in theses for the new constitution.7 language redolent with communist slogans Already in autumn 1989, political elites theand lackedUnited sufficient States guarantees and pro- Instituteas well as most scholars of realized Peace that some cedures to be judicially enforceable. While changes should be introduced immediately some important improvements were intro- into the existing constitution. Therefore, duced in the 1980s—particularly the 1982 another method of constitution writing amendment providing for the establishment emerged: fragmented amendments that re- of a constitutional court—there was no way moved most of the obsolete provisions of the to adjust the old text to new conditions and 1952 constitution and introduced new insti- no reason to keep the old constitution alive. tutions and concepts into its text.8 Toward Already in autumn 1989, both chambers the end of 1989, the so-called December of parliament separately appointed constitu- Amendment deleted the first two chapters tional committees and entrusted them with of the constitution and introduced new prin- the task of preparing full drafts of the new ciples of constitutional order, mainly follow- constitution. Both committees were com- ing Western concepts of the rule of law, po- posed of members of the respective houses, litical pluralism, and protection of property. 394 Lech Garlicki and Zofia Garlicka

This time, the constitutional amendment was The most important amendment was meant as an instrument of change and not of labeled the Small Constitution: On Octo- compromise. This courageous attempt to re- ber 17, 1992, a new set of rules concerning write the axiological foundations of the con- the legislative and executive branches was stitution proved to be successful, as it encour- ­adopted, replacing most provisions of the aged the constitutional court to look at its role 1989 April Amendment.11 The main idea in a new light and develop several new con- was to eliminate ambiguities in the April cepts and ideas. During the following years, Amendment and to limit the powers of the the December Amendment—particularly its president of the republic. President Walesa rule-of-law provision—served as a vehicle for had presented first drafts in autumn 1991. several key judicial decisions that filled gaps The Council of Ministers and some political in the existing constitutional texts.9 Another parties presented drafts later. In spring 1992, amendment adopted in March 1990 pro- a special Sejm committee was created with vided for a new system of local government, the task of preparing a final draft of new rules and within the next two years, parliament for the separation of powers between the ­adopted three less important amendments. legislative and the executive branches. The All amendments were elaborated within committee’s final discussions took place af- parliament, where the Sejm political elite ter the fall of Olszewski’s cabinet12 and were was the real center of decisions, but all were marked by an open clash between represen- understood as temporary solutions to the tatives of the president, who was not ready most pressing problems. Therefore, not much to allow limitations of his powers, and the attention was given to the amendments’ co- parliamentary majority, centered around the herence with the original text. Implementing Democratic Union (UD) and the Alliance and interpreting such a constitutional patch- of Democratic Left (SLD). In effect, a com- work soon became a major challenge. promised version of so-called rationalized parliamentarism was adopted, but the presi- dent maintained several important port­ 1991–93: Parliamentary Elections folios, particularly the armed forces and and the Small Constitution ­foreign policy.13 Parliament, meanwhile, was ©The Copyrightfirst stage of the political bytransition the too fragmentedEndowment to survive the full term; of in was completed in autumn 1991, when new May 1993, a vote of no confidence in the Su- parliamentary elections took place (Walesa chocka cabinet prompted Walesa to dissolve hadthe assumed United the presidency ofStates Poland ear- both Institute houses. But the left wonof the Peace new elec- lier, at the end of 1990). The new parliament tions held in September, making a confron- was elected by undoubtedly democratic tation with Walesa unavoidable. rules,10 but more than twenty political par- At the same time, the 1991 parliament ties were represented in the first chamber, continued preparations for the full consti- and the parliament’s political fragmentation tution. Having learned that the parallel ex- did not allow too much optimism for the istence of two constitutional committees in constitution-making process. Thus, the par- the Sejm and Senate was counterproduc- allelism of constitutional preparations had tive, parliament members agreed to establish been maintained: On one hand, the writing a joint committee. On April 23, 1992, the of the full constitution had continued; on the Constitutional Law on the Procedure for other hand, some most pressing changes had Preparing and Enacting of the Constitution to be introduced into the old constitution for was adopted. The law provided for the estab- the government to function. lishment of a constitutional committee com- Framing the State in Times of Transition 395

posed of forty-six Sejm members and ten Professor Osiatynski—who at that time Senate members—10 percent of the parlia- was one of the experts of the constitutional ment’s entire composition. Representatives committee—indicated later that of the president, cabinet, and constitutional this constitution-making procedure was the court were included in the committee, but result of a heated debate and compromise be- without the right to vote. The right to sub- tween Parliament and the president. The pro- mit drafts of the constitution was given to cedure’s purpose was to prevent solutions from the committee itself, to the president, and to being imposed by a temporary majority and any group of at least fifty-six parliamentary then over-turned when a new majority emerged. The constitutional status of the 1992 Law (it members. Drafts had to be submitted within could be changed only by a two-thirds major- six months of the committee’s inauguration. ity in both houses of Parliament) was meant After all drafts were submitted, the Sejm to guarantee the durability of rules governing would hold a general debate on the prin- the constitution-making process. Unfortunately, cipal constitutional issues, as suggested by these rules did not prove adequate to overcom- ing the formidable obstacles to the creation of the committee. Then the committee would the new Constitution.14 prepare the consolidated draft of the consti- tution and submit it for a first reading in a The members of the constitutional com- national assembly—that is, the Sejm and the mittee were elected separately by both houses. Senate convened as one body. The assembly The committee inaugurated its proceedings had a choice between rejecting the draft and on October 30, 1992. The deadline for sub- directing it back to the committee to prepare mitting drafts of the constitution ended on a final version. Once such a version had been April 30, 1993. Thus, parliamentary drafting completed, a second reading in the national of the constitution was suspended for more assembly would take place. At this stage, in- than a year. Until the end of April 1993, the dividual deputies could propose amendments committee met seven times. On January 13, to the committee’s draft. Then the vote would the committee adopted a standing order pro­ take place. Incorporating individual amend- viding for the establishment of a coordinat- ments and enacting the constitution would ing council, composed of representatives of require a two-thirds majority of votes and the all parliamentary groups and acting as ad- © Copyrightpresence of at least 50 percent by of the membersthe Endowmentvisory body for the chairmen of of the com - of the national assembly. The president could mittee. Further, the standing order provided submit his amendments within sixty days; in for six standing subcommittees on drafting, thesuch aUnited case, a third reading States would take place. Institutegeneral matters, and introductoryof Peace provisions; After debate, the assembly would first vote foundations of the political and socioeco- on each of the presidential amendments (an nomic system; sources of law; the legislative absolute majority being sufficient to incorpo- and ­executive branches and local govern- rate them into the final text) and then on the ment; protection of law and administration final version of the constitution (a two-thirds of justice; and rights and duties of citizens. majority of votes needed and a quorum of at The committee, as well as all subcommittees, least 50 percent required). The last stage in could appoint permanent experts and also in- the proceedings would be a referendum, to vite other state agencies or nongovernmental take place within four months of the final na- bodies to prepare opinions and participate in tional assembly vote. The constitution would the proceedings. On March 24, the commit- then be accepted by more than 50 percent of tee appointed all six standing subcommit- voters participating in the referendum. No tees and their chairpersons from among its participation minimum was required. members. 396 Lech Garlicki and Zofia Garlicka

The constitutional committee accepted parliamentary group and later (December seven drafts: the so-called Senate draft of 1995) became the president of Poland. On March 24, 1993, submitted by fifty-eight January 18, 1994, the committee adopted its members of parliament and repeating most new standing order, identical in most provi- of the draft prepared by the Senate consti- sions to the standing order of 1993. During tutional committee of the former parlia- the same meeting, the committee appointed ment; the SLD draft of April 28, submit- all six permanent subcommittees and their ted by members representing the Alliance chairpersons. of the Democratic Left; the UD draft of However, because the 1992 constitutional April 29, submitted by members represent- law provided that constitutional drafts could ing the Democratic Union; the Peasant be submitted within six months of the in- Party (PSL)-Union of Labour (UP) draft of auguration, no substantive discussion would April 30, submitted mostly by members of start before May 9, 1994. At the same time, those parties; the presidential draft of April the new coalition agreed that the 1992 con- 30; the Confederation of Independent Po- stitutional law should be amended. The po- land (KPN) draft of April 30, submitted by litical background of this decision was the members representing the Confederation of realization that several center and right par- Independent Poland; and the Center Alli- ties had lost elections and were not repre- ance (PC) draft of April 30, submitted by sented in parliament. Thus, new procedures members mostly representing the Center were proposed to gain more legitimacy for Alliance. Four further drafts were submit- the parliamentary decisions. The amend- ted by parties and organizations that did not ment was finally adopted on April 22, 1994. have sufficient parliamentary representation. It allowed the possibility to submit popular They could not be officially accepted by the drafts of the constitution, if they were signed committee and were regarded as sources of by at least 500,000 voters; continuous va- information. lidity of the drafts submitted to the former In May, the committee decided first to parliament; and the possibility to conduct discuss all drafts. It managed to discuss four a prereferendum on principles of the future before the president dissolved parliament on constitution.16 ©May Copyright29, 1993. by the ThreeEndowment new drafts were submitted of to the constitutional committee before May 9, 1994: the presidential draft of May 6, the 1993–97:the Drafting United the New Constitution StatesUD Institute draft of May 9, and theof SLD Peace draft also New elections were held on September 19, of May 9. All these replaced drafts submit- 1993.15 In the Sejm, the SLD-PSL coalition ted in spring 1993. Four other 1993 drafts gathered a clear majority. Thus, it became retained their validity, but the authors of the obvious that the speed and substance of con- PC draft decided to withdraw it from fur- stitutional drafting would now depend on ther proceedings. In June, the committee the postcommunist wing of the parliament. attempted to discuss all drafts17 but could Immediately after the parliament’s inau- not go beyond that because of the April 22 guration on October 14, 1993, both houses amendment, which established a deadline appointed their members of the constitu- of September 5 to submit popular drafts to tional committee. On November 9, the new the committee. Only one draft was submit- committee was inaugurated, conferring the ted, signed by almost one million voters and chairmanship to Aleksander Kwasniewski, politically sponsored by the Solidarity trade who at the time was the leader of the SLD union and its leader, Marian Krzaklewski.18 Framing the State in Times of Transition 397

In the meantime, the committee decided narily accepted all drafts, not using its power on the list of organizations and groups to be to reject any of the drafts at this time. It was invited to participate permanently in its de- then a matter for the constitutional commit- liberations. The standing order gave the right tee to produce a final draft of its own. to participate to the authors of all drafts sub- But creating the draft proved quite diffi- mitted to the committee or inherited from cult for the committee. Already in autumn the former term of parliament. Beyond that, 1994, it became clear that the constitution it was agreed that invitations would be sent would be an important issue in the coming to all political parties that presented national elections, for president in autumn 1995 and lists in the last elections, independently of parliament in autumn 1997. The SLD-PSL their electoral results.19 Furthermore, invita- coalition had a safe majority in both the tions were sent to twelve trade unions and constitutional committee and the national professional organizations and to eleven assembly, but it still needed support from churches and religious groups.20 There was at least two other parliamentary groups to no separate representation of the military.21 build the two-thirds majority necessary in The committee agreed also on a list of per- the assembly for the final enactment of the manent experts: Five law professors were constitution. The UP and the UD—later re- appointed and participated actively in all named the Union of Liberty (UW)—were committee meetings as well as the work of two potential allies, but their support would subcommittees. Initially, in June 1994, the require several compromises, and particu- group of experts was composed of professors: larly for the UW, some compromises could Kazimierz Dzialocha (chairman), Osiatyn- be rather costly. At the same time, the con- ski, Pawel Sarnecki, Piotr Winczorek, and stitution had to be accepted by popular ref- Leszek Wisniewski. In March 1996, due erendum, and this was the stage at which the to the resignation of Osiatynski and the right wing of the political scene hoped to election of Dzialocha to the Senate, two play an important role. It was also clear to other professors—Maria Kruk and Marian the SLD that no referendum could be won if Grzybowski—joined the expert group, and the Catholic Church openly disapproved of Winczorek became its chair. Together with the new constitution. Thus, the role of some © Copyrightrepresentatives of the president, by the thecouncil Endowmentopposition groups, particularly the of Church, of ministers, and the constitutional court, the went far beyond their formal positions in the participation of which was mandated by the constitutional committee. the1992 Unitedconstitutional law, thisStates was a group of InstituteAt first, the committeeof Peace tried to clarify about twenty outside persons actively partic- some of the more difficult issues before writ- ipating in writing the constitution and en- ing the final version of the constitution. In larging the political spectrum of discussions. the beginning of October 1994, the commis- Having received all drafts of the constitu- sion selected several problems to be discussed tion, the committee sought to act promptly by the Sejm, as the 1992 constitutional law and, according to the declarations of Kwas- provided that after all drafts had been sub- niewski, its chairman, hoped to have the con- mitted, the Sejm would hold a general de- solidated version ready by December 1994. bate on the principal constitutional issues.22 On September 21–23, 1994, the national as- Deputies also received a large publication, sembly convened for the first reading of all Basic Constitutional Dilemmas, prepared by submitted drafts. The debate did not move committee experts. The Sejm debate took far beyond mere formal presentation of all place on October 21, but was mostly limited drafts. In conclusion, the assembly prelimi- to declarations supporting particular drafts. 398 Lech Garlicki and Zofia Garlicka

In the end, no resolutions or conclusions on January 20 was discussed, revised, and­ were adopted. Thus, the debate was of no adopted by the committee on that day. Meant help to the committee. Politicians were sim- to merge the seven submitted drafts into one, ply not ready to discuss constitutional ques- the draft was composed of 215 articles and tions; most of the questions that the com- eleven chapters. Further committee proceed- mittee submitted seemed too technical for ings would concentrate on this unified draft. most Sejm members. Thus, it was clear that the committee did At the same time, two procedural contro- not want to accept Solidarity’s idea to grant versies already indicated that it would not be special treatment to the popular draft. The easy to get the opposition to accept the con- Uniform Draft did not solve all problems, stitution. The first was related to the prerefer- however; in almost all controversial matters, endum provided by the 1994 amendment to the committee presented alternative propos- the 1992 constitutional law. The opposition als. Thus, it was clear that the constitution- demanded such prereferendums on several writing process would not end in the im- major issues, hoping to gain an opportunity mediate future. Nor had the general political to obtain political support among the vot- situation suggested any compromises. ers. For exactly the same reason, the majority In the beginning of 1995, the conflict be- did not want any prereferendum campaign. tween President Walesa and the parliamen- From a more technical perspective, it was de- tary majority reached its climax. A shaky termined that it would be extremely difficult compromise was finally reached in April.24 to draft short questions to be submitted to Leading politicians had neither time nor in- the people. Thus, no prereferendum was held terest to think about the new constitution, under the pretense that the constitution’s fi- and the constitutional committee remained nal draft was too advanced to return to basic inactive during the four months of crisis. In questions.23 late spring, politicians began to focus on the The second controversy was related to upcoming presidential elections and did not the question of how the so-called popular want to open debates by presenting a final draft of the constitution should be treated. draft of the constitution. Aleksander Kwas- Already in autumn 1994, Krzaklewski de- niewski—then chairman of the constitutional ©manded Copyright that this draft be submitted by to the a committee—won Endowment the presidential election, of national referendum as an alternative to the but the losing side undertook a last attempt draft prepared by parliament. This would to launch espionage accusations against the requirethe amending United the 1992 constitutionalStates prime Institute minister and, indirectly, of other Peace leading law, as it would place the Solidarity draft at SLD politicians. It took another two months a higher level than all remaining drafts and before the political situation stabilized and would transform constitutional discussion the new cabinet, led by Wlodzimierz Cimo- into a political confrontation between the szewicz, was formed. current majority and the emerging extrapar- The presidential election and the -subse liamentary opposition. quent crisis affected the constitutional com- Nevertheless, the constitutional committee mittee in a double sense. Kwasniewski had managed to conclude the first stage of its pro- to devote most of his time to the presiden- ceedings with only a brief delay. On January tial campaign and, after his election, had to 26, 1995, the committee adopted the “Uni- be replaced. In December 1995, his position form Draft of the Constitution.” The draft was taken by Cimoszewicz, but two months prepared by the subcommittee for drafting, later, Cimoszewicz accepted the position of general matters, and introductory provisions prime minister and the committee again had Framing the State in Times of Transition 399

to find a new chairman. In February 1996, matters, and introductory provisions adopted Marek Mazurkiewicz, a professor of law, a new version of the Uniform Draft, accept- was elected to chair the committee until the ing most of the experts’ suggestions. This end of its existence. In the meantime, lead- material was submitted to the constitutional ing politicians were so occupied with current committee for final preparation. Over the political problems that they neglected their next five months, the committee discussed committee duties. Thus, there were problems all the constitution’s chapters again. This obtaining a quorum, which often made it im- time, there was no possibility of adjourning possible to make any decisions. Nevertheless, decisions on controversial matters, and the the committee tried to do its best. It was dif- committee—or rather, the politicians who ficult to reach a political consensus, but still led its work—had to make final decisions. A possible to work on detailed problems. This constitutional coalition of four parliamen- allowed more room for experts, who played tary parties, the SLD, PSL, UP, and UW, an important role in this period of constitu- emerged; the two smaller partners, the UP tion writing. and UW, knew quite well that without their The constitution-writing process finally support, it would be impossible to obtain a accelerated in spring 1996, as the coalition— two-thirds majority. Thus, they sought more particularly the SLD—understood that suc- concessions than their numerical strength cessfully completing the constitution might suggested they could.27 On the other hand, increase its chances in parliamentary elec- it was clear that other parliamentary parties tions. Over the next three months, the com- and, more important, Krzaklewski’s Solidar- mittee managed to conclude preparation on ity group, which was about to form Electoral subsequent chapters of the document. On Action Solidarity (AWS), had already cho- June 19, 1996, the committee adopted the sen confrontation and would not support Uniform Draft, now composed of 221 ar- anything short of the full acceptance of the ticles and thirteen chapters.25 This time the 1999 popular draft. Thus, for the constitu- committee decided not to include any al- tional coalition, the position of the Catho- ternative proposals in the text. According to lic Church was crucial: Without at least Ryszard Chrusciak, friendly neutrality, the referendum would be © Copyrightthe period between January 26, by 1995 and the June Endowmentlost. Several amendments introduced of to the 19, 1966 constituted the most important part Uniform Draft at the end of 1996 and begin- of the constitutional preparations. . . . It would ning of 1997 were intended to give necessary thenot United be an exaggeration, if weStates assume that active Instituteconcessions to the Church of andPeace divert it from participation in the constitution writing had supporting the so-called anticonstitutional been undertaken only by a dozen members of 28 the Committee. They were supported, in a com- coalition led by the AWS. petent and effective way, by the Committee’s The committee intended to conclude its experts who prepared proposals of subsequent debates on December 19, 1996. But at the articles and delivered the necessary informa- last moment, the PSL—technically still a tion. They were also real authors or co-authors coalition partner of the SLD—submitted of many amendments submitted by the Com- 26 still more amendments and declared that it mittee members. would not support the new constitution un- The Uniform Draft was submitted to- an less these amendments were included in the other group of experts who were asked to final version. After one month of discussion, edit it technically for language coherence a compromise was reached, and on January and other editorial matters. On August 27, 16, 1997, the committee adopted its ultimate 1996, the subcommittee for drafting, general version of the new constitution, now 237 ar- 400 Lech Garlicki and Zofia Garlicka

ticles in thirteen chapters. One of the most the final text yet again, submitting another important last-minute changes was to intro- 5 amendments). On March 22, the assembly duce a preamble referring to God, adopted to adopted the constitution—now 242 articles soften the Catholic Church’s criticism of the in thirteen chapters. Out of 560 members, constitution. The committee also submitted 497 took part in the vote: 461 voted for it, 31 forty-seven so-called minority motions to be against it, and 5 abstained. voted by the national assembly.29 The president then had sixty days to sub- mit his amendments to the constitution. However, because time was running out,30 on January–April 1997: Conclusion March 24, the president submitted amend- of the Parliamentary Procedure ments relating to forty-one articles of the On January 24, the national assembly be- constitution. Most of the important amend- gan its second reading of the constitution. ments dealt with church-state relations, pres- As chairman of the constitutional commit- idential powers to appoint the highest judi- tee, Mazurkiewicz presented the draft. Later, cial officers, and military appointments. On representatives of the parliamentary groups March 26, the constitutional committee ex- expressed their positions. While the consti- amined the amendments and recommended tutional coalition—the SLD, PSL, UP, and that the assembly adopt thirty-one of them. UW—supported the draft, the parties on the The national assembly’s third reading took right declared their opposition to the pro- place on April 2, 1997. It first voted on the posed version of the constitution. The floor presidential amendments and later took the was also given to Krzaklewski, who was not final vote on the constitution. Out of 497 a member of parliament, on behalf of the members who took part, 451 voted for it, 40 popular draft. He criticized the committee’s against it, and 6 abstained. Thus the constitu- draft proposal and asked to conduct an alter- tion was adopted: Its final version had 243 native referendum on both drafts. It became articles in thirteen chapters. The parliamen- open season for constitutional amendments. tary stage of the proceedings was now com- In further discussions held February 25–28, plete, and the constitution faced a national over two hundred members took the floor referendum. ©and submittedCopyright almost five hundred by amend the- Endowment of ments, some of a quite substantial character. The constitutional committee discussed May 1997: Constitutional Referendum the amendments United together with States the minority The Institute 1992 constitutional of law Peace provided that motions that committee members had sub- the president should set the date for a refer- mitted in March. Because some amendments endum on the constitution within fourteen had been withdrawn by their authors, the days of the national assembly adopting it. The committee decided on 362 amendments, rec- referendum also had to take place within four ommending 113 amendments for adoption. months of the constitution’s passage in par- The second assembly reading continued liament. To seize the moment, Kwasniewski on March 21. The assembly adopted almost issued the referendum order on April 2, set- one hundred amendments (i.e., not all the ting the referendum for May 25. Each voter amendments that the committee recom- had a choice between voting for or against mended) and two minority motions. Aside the entire text of the constitution. from the preamble, 70 articles were amended The referendum offered the AWS-led an- and 5 new articles added to the constitu- ticonstitutional coalition a last chance. While tion. The constitutional committee checked the AWS had no chance at all to win any Framing the State in Times of Transition 401

votes within the national assembly, it could turity as well as their freedom of conscience still convince the majority of voters to reject and beliefs; and of giving state finances to the constitution. The AWS had no alterna- a powerful agency beyond anyone’s control, tive but to condemn the constitution and ask because Article 227 established the Mon- Poles to vote against it. The referendum was etary Policy Council, which was to deter- preceded by an extensive information cam- mine annual monetary policy guidelines. paign, sponsored and coordinated mainly by Opponents also criticized the preamble for the state electoral commission,31 intended to failing to condemn communist rule and for acquaint the public with the substance of the promoting a New Age god rather than the new constitution and the main arguments for Catholic god. The debate also had a more se- and against it. This effort largely descended rious dimension, though it was significantly into an electoral campaign in the nature of less prominent. Most constitutional and legal propaganda rather than education. Oppo- experts pointed out that the new constitu- nents of the constitution used rather unso- tion represented important progress in rights phisticated arguments against its authors.32 and liberties, that most of its provisions met The state electoral committee strictly regu- European standards, and that, whatever its lated television coverage of the campaign and shortcomings, it would serve its purpose very decided that two deputies and two senators, well.35 representing views for and against the con- The Catholic Church’s position on the stitution, would host programs. In addition constitution was not fully clear. While ini- to public television programs, private radio tially the Church refused to follow AWS in- and television stations, newspapers, and pe- vitations to condemn the new constitution, riodicals presented discussions and debates. the final statement of the Episcopate of Po- President Kwasniewski’s staunch support of land was reserved36; it could be interpreted as the new constitution and active promotion a suggestion to vote against the constitution. of it, not only during the television programs The referendum took place on May 25, stipulated by the electoral commission, but 1997. The campaign’s intensity did not con- also during his extensive travels around the vince voters to mass participation: Only country, provoked the greatest controversy.33 42.86 percent (i.e., 12,137,136) of eligible © CopyrightOn April 23, the AWS filed by a formal the com- Endowmentvoters decided to cast a ballot. Thus, of the con- plaint with the state electoral commission, stitution had to gather at least 6,068,569 claiming that the president should discuss affirmative votes. It received 6,396,641 sup- thethe constitutionUnited neutrally Stateswithout stating his Instituteporting votes, or 52.7of percent. Peace This was opinion. On April 30, the commission issued enough to have the constitution confirmed, a reply in favor of the president.34 but the result demonstrated the mounting The debate’s tone largely ignored substan- support for the AWS.37 tive constitutional issues. Opponents of the On July 15, 1997, after having examined constitution accused its authors of intending 433 challenges, the Supreme Court decided to deprive Poland of its sovereignty, because that the referendum had been valid, and on Article 90 provided for the possibility of a July 16, the president ceremonially signed the transfer of powers of the national govern- constitution. It was published in the Journal ment in certain areas to an international of Laws on the same day. According to Ar- organization or an international agency; of ticle 243, the constitution became effective intending to take children away from their three months later, on October 17, 1997. parents, because Article 48 stipulated that Thus, almost eight years after the Sejm and parents should consider their children’s ma- Senate had appointed the first constitutional 402 Lech Garlicki and Zofia Garlicka

committees, the constitution-writing process tion writing to political negotiations but also in Poland came to a successful conclusion. agreed to numerous compromises that could hardly coexist in one constitutional docu- ment. The April Amendment played a very Constitution Writing important role during the first months of and the Reconciliation Process transformation—it paved the way for demo- cratic elections and allowed the opposition to General Issues enter the parliament—but by autumn 1989, the whole structure of the Round Table The Function of the Constitution-Writing Process agreement had disintegrated and the amend- To a large extent, a constitution-writing pro- ment, with its strong presidency, became an cess depends on the nature, duration, and obstacle to the normalization process. intensity of the political conflict, and on the The 1992 Small Constitution thus role that a constitutional amendment or new emerged as a type of peace instrument, but constitution should play in solving that con- the dimension of the conflict was com- flict. Sometimes, a new constitution is under- pletely different than in 1989. While the stood as a vehicle of transformation; such was 1989 amendment was included in a resolu- the intent of those who wrote Poland’s 1791 tion fundamental to the future of Poland, constitution, though in the existing political the 1992 Small Constitution was intended circumstances and international setting, this to end a conflict within the ruling elites and constitution had to fail. To a lesser extent, to create the possibility of cohabitation be- those who wrote the 1921 constitution also tween President Walesa and the parliamen- had transformation in mind, and they used it tary majority. Thus, the constitution-writing quite successfully to breathe new life into the process was concentrated within parlia- Polish state. The aims of the three constitu- mentary committees that served as forums tional documents that emerged between 1989 for reaching compromises. But the process and 1997, however, were less ambitious. of transformation was already advanced in The 1989 April Agreement was the best Poland, and it was not crucial whether the example of a constitutional change that was Small Constitution would come into life at ©closely Copyright related to the “peace negotiations”— by theall, norEndowment what its content would be. of that is, the Round Table talks—and was un- The 1997 constitution was understood derstood as one of the implementation tools as an instrument of normalization, but the ofthe the agreement United concluded States between the conclusion Institute of its writing processof wasPeace not in- ancien regime and new revolutionary move- tended to solve any immediate crisis. A new ment. But the connection between political constitution was necessary to give the trans- agreement and constitutional amendment formation process a modern framework, but was so close that the constitution-writing probably nothing would have changed if the process lost its authenticity. As most of the constitution had been adopted in 1996 or amendment was agreed to and even written 1998. Of course, enacting the new constitu- during the Round Table negotiations, parlia- tion was regarded as a success, particularly mentary participation in the proceedings was for the SLD. The SLD understood, however, rather formal and did not leave any room for that because the new constitution would sig- discussion or change. The real decisions were nificantly weaken the presidency—held at made elsewhere. This was easily explained by that time by Kwasniewski—it could better the limited level of legitimacy of the exist- help the AWS in case the party won parlia- ing Sejm. It not only subordinated constitu- mentary elections. Thus, the SLD attempted Framing the State in Times of Transition 403

to rewrite presidential powers at the last mo- there was an almost immediate opening of ment and rather unsuccessfully. In sum, the the constitution-writing process. The initial long-term effects of the 1997 constitution idea, supported mainly by Mazowiecki and were understood as prevailing over short- Bronislaw Geremek, was to enact the new term effects. At the same time, the last stage constitution promptly, preferably for the of constitution writing opened the floor for a two-hundredth anniversary of the 1791 con- serious political conflict between the consti- stitution. But political developments, in par- tutional coalition, which was identified with ticular the so-called war at the top,38 made it 1989 Round Table partners, and the new impossible to agree on the constitution. AWS movement, which represented a more Hence, parallel paths of constitutional radical approach to the past. Thus, in the change evolved, including the writing of a short term (summer 1996 to spring 1997), the new “full” constitution and an effort to revise constitution-writing process not only failed fragments of the old constitution through to resolve existing conflict, but was used as a an amendment process. Such an approach pretext to mount a political conflict of major meant that the old constitution would con- dimensions. This conflict was resolved once tinue its existence, at least for the immedi- the AWS won parliamentary election. Only a ate future. Some portions of the constitution few months later, both sides understood that had been revised already in the 1980s (the some degree of cohabitation would be nec- establishment of the constitutional court essary and that it could be done within the was the most important change), and it was rules that the new constitution provided. simply impossible to ignore its existence. At Enacting the 1997 constitution was de- the same time, the problem of the old law tached, in time and political context, from was much broader and had to be solved for concluding the “peace agreement” at the all statutes and regulations adopted under 1989 Round Table. The constitution-writing the communist system. Some supported a process incorporated into the peace agree- so-called zero option—that is, declaring the ment had been clearly visible in drafting the total invalidity of communist laws—but it April Amendment, but it was absent in the was obvious that such a move would produce second half of the 1990s, when the 1997 con- legal chaos and the population would not ac- © Copyrightstitution was drafted. That time,by the thedrafting Endowmentcept it. The zero-option would haveof invali - process was concentrated within parliament dated most of the social entitlements legis- and mostly interested only a small group of lation in place and affected the structure of thepoliticians United and experts, and States there was no ex- Instituteagricultural private property,of Peace a major concern ternal peace agreement to be incorporated in Poland. Thus, old laws had to be regarded into the constitution. as valid. It was the task of the parliament and cabinet to replace them as soon as necessary. In the meantime, it was the task of the judi- Constitution Writing and the Old Constitution ciary to reinterpret old laws according to a From the very beginning of the transforma- new situation. tion process, it was clear that the 1952 con- The same approach applied to the- con stitution could not survive the fall of com- stitution. Some of its provisions had already munism; a new constitution was required. In been revised by April 1989, but several re- late autumn 1989, it also became clear that mained unchanged. Amendments modified the new constitution would follow Western mainly structural parts of the constitution; examples, departing sharply from the tradi- only the 1989 December amendment enu- tion of socialist constitutionalism. Therefore, merated new constitutional principles. The 404 Lech Garlicki and Zofia Garlicka

courts also did not enforce some of the old conventions and no possibility of having a constitutional provisions. Instead, judges, par- democratically elected convention before es­ ticularly in the constitutional court, referred tablishing a constitutional foundation for to the new constitutional principles, mainly democratic elections. Besides, the amend- the Rechtsstaat principle, and in some cases, ment was regarded only as a temporary so- rewrote them using both new constitutional lution: As already mentioned, it was drafted principles and provisions of the European within the Round Table structure and with Convention on Human Rights. In this way, the assistance of Round Table experts. The the judicial branch civilized and modernized role of the (old) parliament was limited to its the old constitution and prepared a relatively formal approval and enactment. From 1991 smooth transition to the post-1997 consti- on, when full democratic elections came into tutional order. being, new parliaments enjoyed a sufficient level of legitimacy to draft the constitution. Hence, no serious proposals concerning Structure of the Process separate constitutional conventions were ever There are numerous possibilities regarding submitted. the authority that can be given constitution- After the unfortunate experience of par- making power. In Poland, theoretically, the allel constitutional committees in the Sejm constitution could have been drafted by a and Senate (1989–91), it was agreed that the specially elected constitutional convention or only way to conclude constitutional prepara- by the parliament itself. Another possibility tions successfully would be to fix rigid pro- would have been a combination of executive- cedural rules and create a joint parliamentary branch drafting and popular referendum committee. This explains how the 1992 con- confirming the draft; such a procedure was stitutional law and the constitutional com- used in France in 1958 and Russia in 1993. mittee of the national assembly came into However, the latter procedure would have being. Although the committee was formally bypassed the parliament and contradicted subordinated to the parliament, it enjoyed a the Polish constitutional tradition. Also, a considerable degree of autonomy; most of constitutional convention would not have Poland’s leading politicians became com- ©been Copyrightpracticable in the specific conditionsby the of mittee Endowment members, and members of the comof- Polish political developments. It would have mittee were designated by all parliamentary been premature to establish such a conven- groups, according to their strength. It was tionthe in spring United 1989. Later, it wasStates the timing clear Institute that the new constitution of Peace would be and manner of parliamentary elections that drafted mainly within the committee. became the main political issue. Once a new, Committee membership was a mix of democratically elected parliament emerged pure and expert politicians. As mentioned in 1991, it had full legitimacy and compe- before, at least a dozen members were active tence to write the constitution. Because all in the actual writing process. Most of the Polish constitutions in the past had been writing was done in subcommittees, usually drafted within the legislative branch, another with considerable participation by commit- way could hardly be regarded as legitimate. tee experts, all leading scholars in constitu- The choice between parliament and con- tional law, none of them directly involved in stitutional convention did not exist in spring political activity.39 1989, when the April Amendment was There were no specific provisions regard‑ drafted. There was no time to convene any ing judicial review of the actions of the Framing the State in Times of Transition 405

­constitution-making bodies, and it remains suggestions, and gain votes for the next par- an open question as to what extent the con- liamentary elections. stitutional court has jurisdiction over con- Public participation requires a certain de- stitutional laws and amendments. As none gree of transparency and information about of the Polish constitutions has ever had any the drafting process. This was the role of the unchangeable provisions (e.g., Article 79, drafting body, but it could not be reasonably Section 3 of the 1949 German basic law or achieved without the press and electronic Article 89, Section 5 of the 1958 French media. An independent media was one of the constitution), no substantive review of con- crucial prerequisites for genuine participa- stitutional amendments is permitted. But it tion in the constitutional deliberation. Gen- is not impossible that the court would accept erally speaking, public participation further its jurisdiction with regard to procedural requires certain avenues of bottom-to-top review if the procedure to enact a constitu- communication that are the purview of not tional amendment were not followed. No only an independent media but also political challenges have been raised to the drafting parties and other interest groups. A genuine process of the 1997 constitution.40 constitutional discussion can take place only after civil society has reached a certain level of maturity. In Poland, modern civil society be- Public Participation in the Process gan to emerge during the first Solidarity era In Poland, constitution writing took place (1980–81) and the period of martial law. By in parliament (1992 and 1997) or within 1988–89, both an organized opposition and the Round Table talks (1989). The level of an active general public were in place when democratic representation in deciding or co- the Round Table ideas were prepared and deciding actual content was crucial for legiti- discussed. The following years completed the mizing the process (see next section). At the initial stage of shaping an emerging civil soci- same time, direct and indirect participants in ety. When constitutional discussions entered the drafting process had to maintain at least their final stage (1996–97), all the necessary some contact with the general public. Thus, components of a civil society were in place. public participation played an input and an A distinction should be made between © Copyrightoutput role. The input role byinvited thethe gen- Endowmentthe constitutional education of theof general eral public to influence the writing process public and constitutional advocacy. The lat- by communicating suggestions and demands ter resulted from the necessity to have the theto the United political decision makersStates and parlia- Instituteconstitution confirmed of in thePeace popular refer- mentary drafters (active input) as well as endum. That was why all political decision forcing the drafters to calculate in advance makers became very interested not only in whether their decisions would be accepted informing the general public about the con- in the referendum. The real chance that dif- stitution but also to convince it to vote for ferent groups’ and organizations’ suggestions or against the draft. Another distinction and proposals would be adopted depended relates to education (advocacy) and partici- on the political strength of their authors. In pation. The general public had only one for- this respect, the crucial role belonged to the mal ­avenue of participation: the referendum. Catholic Church. The output role permitted Participation in the drafting process had the use of drafting discussions to educate the to be exercised through different bodies, in general public in constitutional matters, en- which active members of the public were or- courage the active return of comments and ganized: political parties, including those not 406 Lech Garlicki and Zofia Garlicka

represented in parliament; trade unions; and the document. Therefore, both proponents many other similar organizations. and opponents of the constitution had an The April 1989 amendment was written interest in communicating with the general during closed sessions of the Round Table’s public. The third was politics, as the draft- subcommittees, and agreement on the most ing process became closely connected with important parts was reserved for a small parliamentary elections in its final stage. The group of leaders acting outside the Round constitution thus played an important role in Table structure. Except for regular press and electoral campaigns. The constitutional co- television information on the progress of alition tried to use enacting the constitution talks, the general public was never formally as an asset in its preelection propaganda. The involved. At that time, all media were still anticonstitutional opposition did its best to controlled by the Communist Party and the criticize the constitution and especially those public did not trust them. Solidarity politi- who had drafted it. cians demanded and received certain access For the above reasons, constitutional prob­ to radio and television, but their access re- lems were constantly present in political dis- mained limited and controlled by the gov- cussions and mass media at least until the ernment. However, this represented enor- May 1997 referendum. While the constitu- mous progress compared to the situation in tional committee as such had no responsibili- the past. For most people who had an inter- ties for public education, the task was under- est in politics, there were other ways to keep taken partly by President Kwasniewski and informed, as the Polish general public has al- partly by political parties and other groups. ways been quite smart in receiving and pass- Thus, it was not regarded as necessary to ing on information by word of mouth. organize any formalized constitutional dis- In 1992, the situation changed. On one cussion, led by the committee.41 Neverthe- hand, drafting of the Small Constitution re- less, every household received a copy of the mained in the hands of a small group of poli- constitution, mailed by the president’s office, ticians and experts, and unlike in 1989, the with an encouragement to read and support general public did not perceive the process as it in the referendum. Political actors did their crucial for the future of Poland. Thus, there best to attract the general public and con- ©was relativelyCopyright limited interest in by it. On thethe vince Endowment voters of their ideas and proposals. ofThis other hand, free media had already emerged did not mean, however, that their attempts in Poland by that time, and again unlike in were successful. Low participation in the ref- 1989,the there United was no problem inStates communi­ erendum Institute (42.86 percent) demonstratedof Peace that cating or obtaining information. Neverthe- the majority of the general public was nei- less, the writing process remained concen- ther interested in the constitutional discus- trated within parliament, and public input sions nor attracted by the political contro- was limited. versies surrounding them. While there was a Public participation gained importance general trend of political passivity in Poland, during the drafting process of the 1997 con- it was not accidental that participation in the stitution. There were three contributing fac- constitutional referendum was lower than in tors. The first was time, as the drafting process the parliamentary elections of 1997 (47.93 lasted long enough for public discussions to percent) and 2001 (46.29 percent).42 take place. The second was the referendum, Generally speaking, public participation as the requirement to have the constitution in the constitution-drafting process has had confirmed by a popular vote made the gen- different levels and dimensions. While its eral public a necessary partner in enacting effect was not particularly evident between Framing the State in Times of Transition 407

1992 and 1996, the situation changed once a constitution is to start with democratic political parties understood that they could elections and draft a new constitution af- use constitutional discussions to rally citi- terward. But who should create the rules zens around their programs. Unfortunately, to conduct the first democratic election if in many cases, constitutional discussions no truly representative institutions existed were a tool to achieving other political goals under the departing regime? Poland had to and were not intended to modify the consti- answer this question in spring 1989. As the tution meaningfully. existing Sejm, “elected” in 1986, was not suf- Regarding the usefulness of the referen- ficiently legitimate, it was necessary to cre- dum requirement, three remarks should be ate an extraparliamentary body—the Round made. First, the referendum was conducted Table—to launch the transition process. The only after the final text of the constitution had Round Table had a bipolar structure of rep- been adopted. Thus, there was no possibility resentatives of the existing government ver- of modifying its text; the only choice was to sus representatives of the opposition because approve or reject it. Because most voters had it resulted from a peaceful agreement, not a been unwilling or unable to study the entire revolution. There was no problem in defining text, their decisions were influenced mainly who should represent the opposition. As the by political sympathies. Second, the draft- illegal Solidarity trade union had survived ers well understood the necessity of winning martial law, it was clear that Walesa and his the referendum. Thus, the (passive) effect of advisers would appoint the oppositional rep- public opinion was that the drafters had to resentation. Finally, the Church’s represen- concede to powerful social groups and avoid tative officially sat at the Round Table, and solutions that could provoke public opposi- several key decisions resulted from Church- tion. This was also well understood by some arranged political mediation. This gave some social partners of the drafting process, espe- legitimacy to the Round Table agreement cially trade unions and the Catholic Church. and, consequently, to the April Amendment Third, the constitution’s confirmation in the and June parliamentary election. But it was referendum legitimized the document and very clear that this legitimacy was temporary, contributed to the public’s accepting it.43 and by autumn 1989, a legitimacy conflict © CopyrightThe question remains by whether the a preref- Endowmenterupted between both houses that ofprevented erendum, conducted in the early stages of the 1989 parliament from adopting a new the drafting process, would enrich public constitution. theparticipation United in the drafting States process. We do InstituteThe 1991 and 1993 of parliamentary Peace elections not know the answer, but given the political produced democratic legislatures. Hence, the realities of the mid-1990s, it is very prob- legitimacy problem ceased to exist. There was able that such a referendum would soon no doubt that constitution drafting could have been transformed into another political take place within the existing parliament— campaign, in which constitutional problems that is, that the task should be given to po- would be used only as a pretext for political litical parties represented in parliament. This confrontation. was finally decided in the 1992 constitutional law providing for establishment of the na- tional assembly’s constitutional committee. Democratic Representation The committee was composed exclusively of A legitimate constitution can only be the members of parliament, as all parliamentary product of a democratically legitimate as- groups had proportional representation. The sembly. Thus, the easiest way to legitimize choice of the parliamentary process—a pro- 408 Lech Garlicki and Zofia Garlicka

cess controlled by political parties—resulted PSL was not an easy partner), which was from the sufficient legitimacy of the existing strong enough to control committee deci- parliament; the relative strength of the exist- sions; second, within the constitutional co- ing political parties, as at least the partners of alition, in which two other parties—the UP the constitutional coalition have managed to and UW—were necessary to reach the two- survive to this day; and the relative homoge- thirds majority required in the national as- neity of Polish society. With no major ethnic, sembly); and third, outside the coalition, to religious, or regional conflicts, it was possible win the referendum.45 to link the constitution-drafting process al- Of course, not all minority interests found most exclusively to the political preferences full access to the constitutional coalition. For of Polish voters. many of them, the supermajority require- Since 1993, the constitutional committee ment in the national assembly and the has been controlled by postcommunist par- subsequent referendum constituted sufficient ties, the SLD and PSL, whereas the political guarantees to be heard, but other interests right has had very weak parliamentary rep- remained too weak to attract the support of resentation. It could not negate the legiti- political parties. Additional guarantees, how- macy of the 1993 Sejm because the under- ever, were provided by international law, par- representation of the right had resulted from ticularly from the European Human Rights its inability to attract voters as well as from Convention. the operation of the 1993 electoral law44—a The lustration (vetting) problem surfaced law was adopted by the 1991 parliament, in Poland in summer 1992, but necessary in which the majority belonged to those statutes were not adopted before spring 1997. center-right parties that were to lose the next Thus, the constitution had been drafted and elections and disappear from the 1993 par- adopted before the lustration process started. liament. However, it still produced a certain The lack of a prior lustration process did feeling of uneasiness among the majority not affect the substance or the quality of the parties. Thus, several efforts were made to constitution. The later experience with the enlarge the representative character of the lustration process in Poland could hardly be constitutional committee. The new commit- evaluated as positive. Had it started earlier, ©tee acceptedCopyright drafts submitted to theby former the it would Endowment have only provided another field of of committee, even if the drafts’ authors were political controversy. no longer represented in parliament. Perma- nentthe invitations United to participate inStates committee Institute of Peace proceedings were issued to extraparliamen- The Timing and Sequencing of the Constitution- tary parties, particularly Solidarity and its Making Process political emanation, the AWS. The possibil- Constitution writing in Poland took a rela- ity of submitting popular drafts was opened tively long time—nearly eight years. There to large groups of citizens. Also, the commit- were three separate stages to this process: en- tee recognized the specific role of the Cath- actment of the April Amendment (February– olic Church, as its representatives received April 1989), writing of the Small Constitu- a permanent invitation to participate. The tion (December 1991–October 1992), and Church accepted this invitation, and played writing of the final constitution (October a significant role in drafting the constitu- 1992–April 1997). In the first stage, a provi- tion. Thus, the decision-making process led sional regulation was adopted quickly. It al- to establishing compromises on three levels: lowed parliamentary elections to be held in first, within the SLD-PSL majority (and the June 1989 and a constitutional dimension to Framing the State in Times of Transition 409

the transition process to begin. Once Solidar- and at the same time, important experiences ity had built a majority coalition within the were gathered and lessons learned. It was Sejm, in August 1989, its initial idea was to particularly important that the Walesa presi- proceed fast and adopt a new constitution on dency demonstrated the need for very pre- May 3, 1991. Political developments in 1990 cise regulation of the relations between the made this impossible, and the constitutional executive and legislative branches. But what moment was lost. Another provisional regu- became clear in 1996 and 1997 was not clear lation was thus adopted—the Small Consti- at all in 1990 and 1991. Therefore, gradual tution—while preparations for the full con- writing of the constitution allowed Poland to stitution continued with deliberate speed. introduce significant institutional and proce- The longevity of the constitution-drafting dural guarantees that checked the power of process was due to several circumstances. the political branches of government. First, it was impossible to predict the political A similar observation relates to Poland’s dynamics affecting developments in Poland bill of rights. The 1997 constitution was and Europe. The April Amendment origi- drafted after Poland had ratified the - Eu nally intended to allow a peaceful cohabita- ropean Convention on Human Rights and tion of the Communist Party and Solidarity other important international documents. political forces. In spring 1989, no one could The constitution drafters had no alterna- have known that six months later, the War- tive than to accept and repeat the conven- saw Pact would disintegrate and communist tion’s provisions on personal and political rule in Poland would cease. Also, in fall 1989, freedoms. In the area of social and economic no one could have known how fast Solidarity rights, the authors of the 1997 constitu- would split into new political groups or how tion knew that the social cost of transition fast postcommunist parties would be able could be much higher than predicted in to win democratic elections. Thus, no time 1990. They also knew that the constitutional limits could have been set in the beginning, court could not be expected to ignore con- and the target date of May 3, 1991, became stitutional provisions concerning social and completely unrealistic. economic rights. Thus, the 1997 constitution Most of the constitution writing took was careful in promising those rights. The © Copyrightplace in the 1993 parliament, by with the the legis- Endowment1997 constitution also had been drafted of after lature setting the time limit of completion by the Concordat treaty with the Vatican had September 1997. The parliament managed been signed.47 While the SLD-PSL major- theto beat United the deadline by severalStates months, but Instituteity postponed the Concordat’s of Peace ratification, it the new constitution entered into effect only was clear that new constitutional provisions two days before the inauguration of the next had to be adjusted to the treaty. Finally, the parliament. 1997 constitution was drafted in an interna- The longevity of the constitution-writing tional situation that allowed Poland to inte- process had some clear advantages as well as grate into the North Atlantic Treaty Organi- some disadvantages. Of course, the process zation (NATO) as well as with the European looks different from today’s perspective than Union. Accordingly, appropriate provisions it appeared in 1991 or 1993. Many authors were inserted into the constitution’s text. regretted then that the “constitutional mo- Generally speaking, the eight years of ment” had been definitely lost.46 The absence transition allowed the 1997 constitution to of a full constitution caused several problems. be drafted in a more mature way than would However, all these problems were solved un- have been the case in 1990–91. The experi- der various interim constitutional provisions, ence of the following years (1997–2002) 410 Lech Garlicki and Zofia Garlicka

demonstrated that this constitution could Poland’s turbulent history during the past function as both a vehicle for the peaceful century, this is no small achievement. change of parliamentary majorities and Po- land’s advancement toward integration into the Western world. The Role of the International Community It would be difficult to draw any general The international community played a crucial lessons from the time and sequencing of role in supporting the first Solidarity move- constitution writing in Poland. But at least ment (1980–81) and in encouraging the three conclusions can be made. First, at the Round Table talks in 1988–89, as well as in beginning of the transition process, it was helping to organize the process of transition. necessary to promptly produce an interim Foreign experts have been present constantly constitutional document allowing demo- in the parliament, significantly contribut- cratic elections. This document could be ing to the process of rewriting communist considered a peace agreement. Second, it is legislation. They also participated in the usually impossible to predict the dynamics ­constitution-drafting process, particularly of any future transition process; setting time in the 1989 parliament. At the same time, limits and target dates might not be produc- however, some factors limited the foreign tive. Third, it may be risky to live under an experts’ role. First was the language problem. interim constitution, particularly if the ex- Only a few foreign experts spoke Polish well ecutive branch tries to expand its powers. enough to be able to take part in the meet- However, if a country and its democracy are ings and discussions. Only a few of them lucky enough to survive a longer period of were experts in constitutional law. Second, interim constitutions, it becomes easier to because most of the experts were invited draft a constitution for the twenty-first cen- personally (or at least confirmed) by the ad- tury. Such a constitution could be regarded ministration of the parliament or directly by not as a peace agreement, but an instrument political parties, many experts were associ- of normalization and stabilization, allowing ated with definite political sympathies. Nev- for a robust political, social, and economic ertheless, the participation of foreign experts climate. Hungary’s experience suggests simi- in drafting the constitution was very useful. ©lar conclusions.Copyright by theMost Endowment of them did their best not to show of po- There is always the danger that a prolonged litical sympathies and acted as neutral advis- process of constitution writing would allow ers, providing comparative information. The somethe factions—in United Poland, the Statespostcommu- number Institute of foreign experts beganof toPeace diminish nist faction—to gain an unfair advantage and in the mid-1990s, perhaps due to limited fi- consolidate power before a democratic con- nancial resources. Once Poland became rec- stitution can be adopted. Poland managed to ognized as a stabilized country, most of the avoid this danger. Even if the 1997 constitu- foreign aid was shifted further to the East. tion had been adopted by a parliament dom- Finally, there was also a considerably large inated by postcommunist parties, its enact- group of Polish scholars who could deliver ment did not save those parties from losing the necessary information on comparative parliamentary elections in 1997 and did not law and foreign constitutions. Liberalization help the center-right parties not to lose the of academic contacts with Western univer- 2001 elections. In short, the constitution has sities had already begun in Poland in the allowed a smooth trading of places of par- 1970s. Thus, the pool of Polish experts with liamentary majority and opposition. Given considerable Western experience was deeper Framing the State in Times of Transition 411

than in many other emerging democra- has developed and reinforced the constitu- cies. In fact, international organizations fre- tion’s written text. quently included Polish constitutionalists Finally, the constitution has proven to be in consultative missions to countries of the effective as a framework for political change. former Soviet Union seeking constitutional After the constitution was adopted, on April change. 2, 1997, three parliamentary elections took place. Each time, the former majority be- came a minority, and each time, that change Essential Issues of Substance was conducted smoothly, in full respect of The concept of immutable principles has constitutional rules. On two other occasions, never been adopted in Poland, and there in 2000 and 2004, the parliamentary major- were no serious proposals to include such ity disintegrated and the cabinet lost clear principles in the 1997 constitution. How- parliamentary support. Despite the inabil- ever, international standards relating to the ity to create a new majority in the House, substance of the constitution, particularly the (now minority) governments managed its human rights standards, act as quasi- to survive until the end of the parliament’s immutable principles because it would be four-year term. Constitutional provisions extremely difficult to ignore or reject them. on relations between the legislative and the But care must be taken in developing a list of executive contributed to resolving the cri- immutable principles beyond that. Declaring ses peacefully. Also, the next crisis, in 2007, too many principles untouchable could soon was solved peacefully and entirely within the produce a conflict with changing social and ­framework provided by the 1997 constitu- political context and a document that risks tion. This time, the disintegration of the par- becoming quickly obsolete. liamentary majority prompted Prime Mini- ster Jarosław Kaczyński to dissolve the 2005 parliament. The November 2007 elections Conclusion shifted Kaczy ´nski’s party into the opposition At this point in time, the longevity of the benches, and the new cabinet was formed by 1997 constitution allows for three gen- a coalition led by Donald Tusk. © Copyrighteral conclusions. First, the constitutionby the has EndowmentThus, the 1997 constitution of can be- re proven to be particularly stable. Its 1997 text garded as a success and a demonstration has never been amended, and there was no that the long time spent on its drafting was theserious United attempt to do so untilStates 2006. In spring Institutenot wasted. It can beof said Peace that the consti- 2006, the president introduced a proposal to tution contributed to developing a stable amend Article 55, Section 1 of the constitu- democracy, or at least to the recognition tion to harmonize it with European Union that there are certain rules of political pro- legislation on the so-called European Arrest cess and change. However, that assessment, Warrant.48 Parliament adopted the amend- generally shared among scholars and (less ment on September 8, 2006; it entered into unanimously) among politicians, remains re- life on November 7 of the same year. stricted to Poland’s political and intellectual Second, the constitution’s stability re- elites. The constitution is still too young to sulted not only from the stability of Po- become a symbol of national reconciliation, land’s internal and foreign position but also and the storminess of Polish politics may from numerous judicial decisions, particu- prevent it from becoming such a symbol in larly those of the constitutional court, which the future. 412 Lech Garlicki and Zofia Garlicka

Notes 5. See Andrzej Balaban, “Developing a New Constitution for Poland,” Cleveland State Law Re- 1. See Mark F. Brzezinski and Lech Gar- view, vol. 41, no. 3 (Summer 1993), pp. 503–09. licki, “Polish Constitutional Law,” in Legal Reform in Post-Communist Europe: The View from Within, 6. Wiktor Osiatynski, “Poland’s Constitu- eds. S. Frankowski and P.B. Stephan III (London: tional Ordeal,” East European Constitutional Re- Kluwer, 1995), pp. 29–30. view, vol. 3, no. 2 (Spring 1994), p. 30. 2. It was agreed that while the Senate seats 7. The total number of drafts reached eleven would be open to free election, the Sejm seats would (for all texts see Projekty konstytucyjne 1989–1991, be preassigned, so the opposition could gain no ed. M. Kallas (Warsaw: Wydawnictwo Sejmowe, more than 35 percent of seats in the First House. 1992). 3. See Brzezinski and Garlicki, “Polish 8. It was too early to have any comprehen- Constitutional Law,” pp. 30–32; L. Garlicki, “The sive view on the constitutional issues that had to be Development of the Presidency in Poland: Wrong handled immediately; the first priority was economic Institutions or Wrong Persons?” in Poland in a World reform (later known as Balcerowicz’s Plan). To avoid in Change: Constitutions, Presidents, and Politics, ed. conflicts with the Communist Party, reforms of re- K.W. Thompson (Lanham, MD: University Press of lations between the parliament and the executive America, 1992), pp. 80–91. branch had to be put off. Therefore, the first priority 4. One of the first challenges of the transi- was rewriting the general principles of the constitu- tion process was to establish political parties capable tion; its symbolic expression was the restoration of of functioning in the new political environment. the crown on the head of the Polish white eagle. The Solidarity trade union could not be trans- 9. See M.F. Brzezinski and L. Garlicki, formed into a political party, but its politicians organ- “Judicial Review in Post-Communist Poland: The ized at first the Democratic Union (Unia Demokra- Emergence of a Rechtstaat?” Stanford Journal of In- tyczna, or UD), led by the first non-Communist ternational Law, vol. 31 (1995), p. 35; H. Schwartz, prime minister, Mazowiecki, that later was trans- The Struggle for Constitutional Justice in Post- formed into Union of Freedom (Unia Wolnosci, or Communist Europe (Chicago: University of Chicago UW). Later, the liberal wing of that group organized Press, 2000), p. 49. the Civic Platform Party (PO) that won the parlia- 10. The 1991 Sejm Electoral Act introduced mentary elections in 2007. Another group of Solidar- the proportional system: Political parties and other ity activists established, in 1990, the Center Alliance organizations submitted lists of candidates for (Porozumienie Centrum, or PC), led by the brothers about fifty multiseat constituencies. The seats were Kaczynskis. In 1996, the Center Alliance and several allocated within each constituency following the other political organizations formed the Electoral Saint Lague method (slightly modified). In addi- Action Solidarity (AWS), and this organization won tion, sixty-nine seats were allocated on the national ©the 1997Copyright parliamentary elections but disintegratedby the level, Endowmentproportionally to the electoral results of comof- four years later, giving way to the creation of the Law peting parties. This system gave preference to small and Justice Party (PiS), led by the Kaczynskis, that and medium-size parties and led to political frag- wonthe the 2005 United parliamentary elections. States Another party mentation Institute of the parliament. Seeof M.T. Grzybowski,Peace that emerged from the opposition movement was Electoral Systems of Central Europe (Krakow: Kielce, the Confederation of Independent Poland (KPN), 1996), p. 43. more to the right in the political spectrum. 11. The Small Constitution did not contain In the beginning of the 1990s, the more lib- any bill of rights; appropriate provisions of the 1952 erally oriented group of former Communist Party constitution still remained in force. They clearly did activists organized the Alliance of the Democratic not fit to the new system of government, and the Left (SLD), the party led initially by Kwasniewski task of adjusting them to new realities had been un- (from 1995–2005, the president of Poland) that won dertaken by the judicial branch, particularly by the parliamentary elections in 1993 and 2001. Another constitutional court. By the end of 1992, Poland smaller political party of the left was the Union of ratified the European Convention for the Protec- Labour (UP), cooperating with the SLD in the sec- tion of Human Rights and Fundamental Freedoms. ond half of the 1990s. At the same time, President Walesa submitted a Finally, there was the Peasant Party (PSL), draft bill of rights proposed as a constitutional law, situated more in the center and participating in the supplementing gaps in the Small Constitution. See parliamentary majority on several occasions. W. Osiatynski, “A Bill of Rights for Poland,” East Framing the State in Times of Transition 413

European Constitutional Review, vol. 1, no. 4 (Fall p. 15. The SLD politicians, however, did not want 1992), p. 29. An interesting discussion developed an open confrontation with Walesa. They proposed among scholars, but the politicians were not par- another version of the “public initiative,” raising the ticularly interested in supporting presidential initia- threshold to 500,000 citizens’ signatures. President tives, and the dissolution of the parliament in June Walesa unwillingly accepted, and his representatives 1993 ended the life of the presidential draft as well. returned to the committee. 12. In May 1992, the Olszewski cabinet 17. “Unfortunately . . . only 16 of 56 Commit- sought to disclose some alleged secret service files, tee members bothered to attend the presentation demonstrating that many current politicians had ties ceremony. Absent a quorum, the Committee could with the Communist political police. It provoked a not dispose of even the formalities and preliminary serious political crisis. Olszewski was dismissed by items of business” See “Constitution Watch: Po- the Sejm (upon the motion of Walesa), and a new land,” p. 15. cabinet, led by Suchocka, was appointed in late July. 18. For the English translation of the draft, See L. Garlicki, “The Polish Interim Constitution of see Constitution-Making Process, ed. M. Wyrzy­ 17 October 1992,” in The Presidency and Governance kow­ski (Warsaw: Institute of Public Affairs, 1998), in Poland: Yesterday and Today, ed. K.W. Thompson pp. 143–90. (Lanham, MD: University Press of America, 1984), 19. Invitations were sent to eight parties, but pp. 68–69. none of them actually participated in the commit- 13. See Brzezinski and Garlicki, “Polish Con- tee proceedings. See R. Chrusciak, Przygotowanie stitutional Law,” pp. 39–45. Konstytucji RP z dnia 2 kwietnia 1997 r. Przebieg 14. Osiatynski, “Poland’s Constitutional Or- prac parlamentarnych (Warsaw: Dom Wydawniczy deal,” p. 29. Elipsa, 1997), p. 25. 15. The old parliament managed, in May 20. As far as trade unions were concerned, 1993, to adopt the new Sejm Electoral Act. The they systematically participated through representa- principle of proportional representation was main- tives of two major unions: OPZZ and Solidarnosc. tained, but one of the goals of the new act was to More sporadic was attendance by representatives of prevent an excessive fragmentation of the chamber. the Solidarnosc 80 trade union, Confederation of The Saint Lague method of allocating seats was Polish Employers, and the Central Council of Phy- thus replaced by the d’Hondt method and a so- sicians. As far as the churches were concerned, repre- called electoral threshold, by which seats could be sentatives of the Catholic Church (as well as of two allocated only among parties that obtained at least smaller churches) attended regularly, and the repre- 5 percent of the votes at the national level. In ef- sentatives of two other churches attended sporadi- fect, only six parties were able to obtain seats in the cally (Chrusciak, Przygotowanie Konstytucji, p. 25). Sejm—see Grzybowski, Electoral Systems, p. 49. 21. The Polish military had been important 16. Writing the amendment was surrounded © Copyright by the Endowmentin preparing and executing martial law inof the 1980s. by sharp political controversies. Two drafts were Even if General Jaruzelski had been prime minis- submitted initially (by the KPN and the UP); later ter (1981–86) and chairman of the Council of State President Walesa made another proposal. “The the United States Institute(1986–89), mainly his fellowof generals Peace ran the coun- president proposed to extend the right to submit drafts of the constitutions to groups of 100,000 try. Generals like Jaruzelski and Kiszczak, supported citizens, who would thereby have the “public initia- by the liberal wing of the Communist Party, were tive.” Representatives of the citizens’ groups could also architects of the Round Table talks in 1989. But participate actively in the work of the constitutional from 1990 on, the role of the military returned to its committee and would have the right to submit normal dimension, and there was no suggestion to motions. The presidential proposal stirred severe include the military in either political decision mak- criticism among the deputies, and on the motion ing or the constitution-writing process. of the UP, the Sejm rejected the presidential draft 22. The committee submitted questions related amendment on the first reading. After the draft was to three general areas. First was the political system: rejected, the president said that he would now “stop what version of the separation of powers should be cooperating with Parliament in the creation of the adopted; whether the parliament should be com- Constitution.” Subsequently, he also withdrew his posed of one or two chambers; what the position representative from the constitutional committee. of local government should be; and how relations See “Constitution Watch: Poland,” East European between the state and churches should be regulated. Constitutional Review, vol. 3, no. 2 (Spring 1994), Second was social rights: whether the constitution 414 Lech Garlicki and Zofia Garlicka

should focus on individual rights or state goals; and that presidential powers should be substantially re- whether social rights should be guaranteed at the duced. There were frequent conflicts with Walesa, constitutional or statutory level. Third was sources and the possibility that he would be elected for a of law: what the fundamental sources of law should second term was quite real. This convinced the be and what the place of international law in the parliamentary parties that the future constitution domestic legal order should be. should strengthen the position of the prime minis- 23. The motion to conduct a prereferendum ter at the presidency’s expense. After Kwasniewski’s was submitted by the UP members of the commit- victory in December 1995, the SLD, realizing that tee on September 27, 1995, and discussed in the it might not win parliamentary elections in 1997, constitutional committee during the fall of 1995. quickly rediscovered the virtues of a strong presi- Initially, it seemed that it would gain support of the dency. But the UW and the UP, as well as the PSL, main political forces in the committee. In October, did not share this view and successfully defended the committee appointed a subcommittee to exam- the original draft of the constitution. ine the motion. On December 6, 1995, the subcom- 28. At the time, there was no alternative to mittee supported the motion and proposed four the constitution adopted within the assembly and questions related to the structure of parliament (one the AWS draft. The Church leadership realized that or two chambers); the structure of local govern- if the new constitution were rejected in the referen- ment; the mode of presidential elections (popular dum, no new draft would emerge in the foreseeable vote or parliamentary appointment); and church- future. Thus, the real alternative was either to accept state relations. As another referendum, related to the new constitution as submitted by the constitu- property matters, had already been scheduled for tional committee or to live with the old 1952 con- the spring of 1996, the idea was to conduct both stitutional provisions, which were not particularly referendums simultaneously. On December 20, the friendly toward religion. constitutional committee accepted the subcommit- 29. Among them were the so-called Senate’s tee’s proposals, but decided to limit its recommen- draft and the so-called popular draft. dation to general support of the prereferendum and 30. Two important events should be consid- abstained from submitting concrete questions to the ered. On one hand, parliamentary elections had to national assembly. This suggests that not all com- take place in September, and it would be impossible mittee members were fully convinced of the politi- to hold the electoral and the referendum campaigns cal usefulness of the prereferendum. The assembly simultaneously. On the other hand, the Pope’s visit discussed the matter twice—on December 22, 1995, to Poland was scheduled to begin in the end of May, and January 19, 1996—when the discussion was and it would be highly improper to carry out the rather unexpectedly adjourned. Two days later, the referendum campaign during his stay. Thus, the ref- assembly voted to reject the committee’s proposal erendum had to take place before the Pope’s visit. ©to conduct Copyright the prereferendum (222 members by voted the The Endowment electoral campaign would start immediatelyof to reject, 131 to accept, and 18 abstained). The main after his departure. argument, raised by the SLD, was that because the 31. This body is composed of nine members, constitutionalthe United committee had already States prepared the appointed Institute in panels of three byof the chief Peace justice of uniform draft of the constitution, it was too late to the Supreme Court, chief justice of the High Ad- return to basic choices. See Chrusciak, Przygotow- ministrative Court, and president of the constitu- anie Konstytucji, p. 91. tional court from among judges of each court. 24. Osiatynski, “A Letter from Poland,” East 32. “Constitution Watch: Poland,” East Euro- European Constitutional Review, vol. 4, no. 2 (Spring pean Constitutional Review, vol. 6, nos. 2–3 (Spring– 1995), p. 35. Summer 1997), p. 26. 25. M. Mazurkiewicz, “The Draft of the 33. It should not be forgotten that Kwas- Constitution of the Republic of Poland (1996),” in niewski was instrumental in the constitution- Constitution-Making Process, p. 115. For the English ­writing process, as both the chairman of the consti- translation of the draft, see pp. 191–250. tutional committee and the president later. Thus, his 26. Chrusciak, Przygotowanie Konstytucji, pp. degree of identification with the new constitution 89, 91. seemed to be more visible than in the case of some 27. One example relates to the role of the other SLD leaders. new presidency. Until the end of 1995, all parties 34. “Constitution Watch: Poland” (Spring– of the constitutional coalition were of the opinion Summer 1997), p. 26. Framing the State in Times of Transition 415

35. Ibid., p. 26. percent. Because no minimum participation had 36. “We call on everyone to make in their been required by the 1992 Constitutional Law, the conscience a decision expressing their responsibil- Supreme Court did not have any problems dismiss- ity before God and nature, because the text of the ing the challenge (judgment of June 15, 1997). Constitution rouses serious moral reservations.” See 41. Any formalized discussion could also evoke “Constitution Watch: Poland” (Spring–Summer unpleasant associations with the past. It should be 1997), p. 26. remembered that such discussions were typical in 37. The success of the May referendum did the process of constitution writing in Communist not save the SLD-PSL coalition from losing the countries. In Poland, “constitutional discussions” September parliamentary elections. The AWS took place in 1952. According to the official data, emerged as a big winner and, together with the more than 11 million citizens took part in more UW, constructed the Sejm majority and the cabinet. than 200,000 meetings within nine weeks. Needless However, because Kwasniewski held the presidency, to say, there was no room for any criticism, and the some kind of cohabitation had to be adopted. This whole campaign had a purely decorative character. was the moment in which the AWS understood That was why, forty-five years later, any attempt to some virtues of the new constitution. Had the 1997 copy such a procedure would produce more distrust constitution been rejected in the referendum, the than support among the electorate. Poland’s general AWS would have had to confront a more powerful public has always been very sensitive to historical president, as shaped by the 1992 Small Constitu- comparisons, particularly in the negative sense. tion. The 1997 constitution, with its strong prime 42. But participation was much higher than minister and weaker president, offered more to the in the property restitution referendum held on Feb- parliamentary majority. Ironically, the AWS did not ruary 18, 1996, when only 32.4 percent of voters regret acting under the new constitution, which participated. it had attacked so sharply before the referendum. 43. See J. Wawrzyniak, ““AksjologiaAksjologia referenreferen-- Hence, criticism of the constitution was soon aban- dum konstytucyjnego,” in Referendum konstytucyjne doned, and the AWS never made any serious at- w Polsce, ed. M.T. Staszewski (Warsaw: Friedrich tempt to revise the constitution thereafter. Ebert Stiftung, 1997), pp. 189–93. 38. This was the slang term for the conflict 44. The Sejm Electoral Law provided for a between Walesa and Mazowiecki, which meant the proportional system with threshold requirements of end of the unity of the Solidarity movement. 5 percent for parties and 8 percent for coalitions. 39. That said, it was easy to detect the political Since the parties on the right had been fragmented, sympathies of most experts. Only the first chairman they did not manage to form sufficiently strong of the expert group, Dzialocha, a former justice of coalitions and most of their lists did not reach re- the constitutional court, later entered the political quired thresholds. In effect, more than 30 percent of © Copyrightfield, becoming a member of parliament.by the Another Endowmentthe votes were lost. of expert, Grzybowski, became a justice of the consti- 45. See Osiatynski’s distinction between in- tutional court four years after the constitution had ternal and external compromises in “Kilka uwag na thebeen enacted.United States Institutetemat trybu uchwalania Konstytucjiof Peace III Rzeczypos- 40. However, in 1992, when the Small Con- politej,” in Tryby uchwalania polskich konstytucji, ed. stitution was enacted, it had been preceded by an M. Wyrzykowski (Warsaw: Instytut Spraw Pub-Pub- amendment to the Sejm Standing Order. The licznych, 1998), p. 91. amendment changed the rules of voting on the Sen- 46. See, e.g., R. Chrusciak and W. Osiatynski, ate’s amendments to constitutional laws, making it Tworzenie konstytucji w Poskce w latach 1989–1997 easier for the Sejm to reject such amendments. It (Warsaw: Instytut Spraw Publicznych, 2001), p. 62; was challenged before the constitutional court, but, Osiatynski, “Poland’s Constitutional Ordeal,” p. 30. in a judgment on November 17, 1992, the court de- 47. The Concordat is an international treaty, cided that the amendment to the Standing Order concluded with the Holy See, that regulates the was constitutional. Thus, indirectly, the court- de position of the Catholic Church in a given coun- clared that the Small Constitution had been cor- try. In Poland, the Concordat was already signed in rectly enacted. 1993 by the Suchocka cabinet, but the subsequent In 1997, the validity of the constitutional ref- change in parliamentary majority delayed the rati- erendum was challenged on the grounds that the fication process (ratification of treaties is made by participation in the referendum did not exceed 50 the president upon a consenting statute adopted 416 Lech Garlicki and Zofia Garlicka

by parliament), and formal ratification took place by judicial authorities of any other EU member. In much later, in December 1997. Nevertheless, it was Poland, the parliament decided initially that deliv- clear to the constitutional committee that any at- ery did not equal extradition and, hence, was not tempt to negate the Concordat provisions would be covered by the constitutional prohibition. However, suicidal, as it would prompt the Catholic Church to in April 2005, the constitutional court held this in- join the anticonstitutional opposition and to sug- terpretation to be unconstitutional and invalidated gest to Poles to vote no in the referendum. portions of the code of the criminal procedure on 48. Art. 55, sec. 1 provides that “the extradi- the European Arrest Warrant implementation. The tion of a Polish citizen shall be forbidden.” The pro- court indicated that to comply with EU obligations, cedure of the European Arrest Warrant, adopted in Poland’s constitution had to be amended within the beginning of the current decade, requires all EU eighteen months. member states to deliver their citizens if so requested

© Copyright by the Endowment of the United States Institute of Peace