21 November 2014

Polish Constitutionalism and the Constitutional Judiciary in Poland

1. INTRODUCTION

I have very pleasant associations with the capital of Hungary. Not only because the city – as you well know – is beautiful, but also because it is close to me.

I was born in Przemyśl, a small town in the southeast corner of Poland. During the First World War the town was a fortress which protected Austria–Hungary against Russia. In the first and second siege of the fortress many Hungarians died. The Memorial to the Defenders of the Fortress of Przemyśl – situated at Gyóni Géza Square, near Margaret Bridge, on the right side of the Danube, in Buda – commemorates those tragic events. The Memorial also reminds us that Poland and Poles have much in common with Hungary and Hungarians, that a large part of Polish history is at the same time Hungarian history. That there are so many places which are important for both Poles and Hungarians.

Poland and Hungary have much more in common than only the past. We also face a lot of common problems today. Some of them are related to the area that I deal with in everyday life and to which the conference is devoted – constitutionalism.

I have prepared a short lecture on the history of Polish constitutionalism and constitutional judiciary in Poland. I will focus only on the basic issues. Therefore you should not treat my lecture as the one to exhaust the broad and interesting issue of constitutionalism in Poland.

2. THE CONSTITUTIONAL TRADITION

The first Polish constitution was passed at the end of the 18th century. Adopted by the Sejm – the Polish parliament – on 3 May 1791, it was the second constitution in the world after the American one and, enacted three months before the first French constitution, the first one in Europe. The Constitution of 1791 applied to the state that covered the territories of today’s Lithuania, Belarus, Ukraine and – of course – Poland. Therefore, it is the common legal tradition of those modern-day nations.

The Constitution of 1791 implemented a lot of political reforms necessary at that time in Europe but unfortunately, the reforms were abolished soon afterwards and four years later Poland ceased to exist at all. Nevertheless, this act was – and remains until today – an important symbol of Polish Statehood and a successful programme for reform. So it was not without cause that after the revival of the Polish independent state in 1918 after the First World War the Constitution of 1921 referred in its preamble directly to that act of 1791 alluding to a sense of continuity of the Polish State. The reference emphasised that Poland did not come into existence in 1918, but rather that it came back to life.

The Constitution of 1921 was an act based on democratic principles of sovereignty of the people, separation of powers and guarantee of civil rights. The political system introduced by the Constitution of 1921 was based on the one defined by the Constitution of the Third French Republic. In the parliamentary system of the Third French Republic the parliament was in a much stronger position than the government. As you know very well, there has to be a stable political majority in the parliament so that this political system could function properly. Unfortunately at that time in Poland – like in most countries in Europe tormented by social changes after the Great War – it was extremely difficult to attain such a parliamentary majority. As a result, the political system introduced by the Constitution of 1921 did not work as it should have. It was one of the main reasons for introducing the amendments to the Constitution of 1921 in 1926, and later for the adoption of the Constitution of 1935. Moreover, at that time, still before the adoption of the second Constitution of interwar Poland, the power in the state was taken over by one of the political groups – the one gathered around the creator of the reconstituted Polish State, Marshal Józef Piłsudski.

The Constitution of 1935 was based on completely different principles than the one of 1921. Although it was a part of the phenomenon of authoritarianism which had spread all over the European continent at that time, it did not lead to a totalitarian regime in Poland. The Constitution of 1935 gave a dominant position to the President. When the office of the President was being created, many thought that Marshal Piłsudski would be the right person for the job. Unfortunately, he died a month after the adoption of the Constitution. While the Constitution provoked much controversy and still does today, it should be noted that thanks to it Poland managed to maintain the constitutional continuity of the authority of the state after 1939, during the Second World War. Under the Constitution of 1935 the President could appoint his successor for wartime. It explains why the communist authorities imposed upon Poland by the Soviet Union after the Second World War had a really big problem justifying their legitimacy. However, the Allies withdrew their recognition of the Polish government in London and the history of 45 years of communist totalitarianism in Poland began.

The communist authorities declared the Constitution of 1935 illegal and, in consequence, not legally binding. In the first constitutional act of communist Poland – the act of 1947 – they referred to the basic principles of the Constitution of 1921. The reference to the first Constitution of interwar Poland was obviously only formal and non-serious. Constitutional practice after 1945 had nothing to do with the Constitution of 1921. In fact it was the communist party that played the key role in the political and public life, and the sovereignty of Poland was limited with regard to the Soviet Union.

At the beginning of the 1950s preliminary work on the new Constitution was carried out. It was clear that it would be patterned – just as in other communist states – on the Soviet Stalinist Constitution of 1936.

The Constitution of communist Poland was hence passed in 1952, during the darkest period of Stalinism. It is believed that Stalin himself amended the contents. The Constitution of 1952 – the document can be seen in a Warsaw museum – replaced the principle of separation of powers with the principle of the so-called “unity of authority of the state”. The Sejm was defined as the supreme authority of the state. Other authorities, including administrative authorities and courts, were subordinated to it. The office of the President was abolished and replaced by the office of the Council of State. In spite of the formal superiority of the Sejm the country was in fact governed by the communist party.

The most important amendments to the Constitution of 1952 were passed in 1976. They defined Poland as a socialist state. The leading role in building socialism in Poland was vested in the communist party. Moreover, the friendship with the Soviet Union was established as one of the bases of the Polish foreign policy. The amendments of 1976 sanctioned the already existing constitutional practice.

The Constitution of 1952 proclaimed numerous civil freedoms and rights. As you probably guess, this proclamation did not imply the intention to respect them. From the very beginning the authorities treated the Constitution of 1952 only as a declaration. Polish society experienced that in 1981 when martial law was introduced, contrary to the Constitution of 1952. The consistent ignoring of the Constitution over time led to the total devaluation of its role and significance.

The retreat from the socialist constitutionalism did not begin until the 1980s. Of course, the communist authorities did not introduce the reforms voluntarily. The changes were initiated thanks to the events of summer 1980 and particularly thanks to the wave of massive workers’ strikes that led to the creation of Solidarity, the great social movement which was independent of the communist party. Despite numerous difficulties, the first institutional guarantees of protection of the rule of law were in place at last. First of all, the Chief Administrative Court was created in 1980. It could pass judgements on the legality of certain administrative acts. Secondly, the Constitutional Tribunal was established in 1985. I will speak about the Tribunal a bit later. Thirdly, in 1987 another important organ of public authority appeared – it was the office of the Defence of Human Rights. The Human Rights Defender (the Ombudsman) is an independent organ of public authority to which citizens can lodge a complaint about the state authorities violating their freedoms and rights. In such cases the Human Rights Defender can take appropriate legal steps to put a stop to such violations.

Why the communist authorities decided to water down their ideological wine is not clear. Was it to give the appearance of legality to their exercise of power in the eyes of the international community? Or staying in power thanks to some concessions? Or maybe it was just a consequence of social pressure? It is difficult to give unambiguous answers to these questions. Nevertheless, there is no doubt that the changes that began in the 1980s and the economic crisis in Poland that accompanied them led to the final fall of the communist authority in Poland. The Constitutional Tribunal played its part in the dismantling of the old constitutional system.

3. THE CONSTITUTIONAL TRIBUNAL AND ITS ROLE IN BUILDING CONSTITUTIONALISM IN POLAND

The Constitutional Tribunal started its work in very difficult circumstances. Its original form – that was in principle maintained until 1997 – was not one that a constitutional court normally has. The Tribunal’s jurisdiction was limited and its judgements on the non-conformity of statutes to the Constitution were not final – they could be rejected by the parliament with a two-thirds majority vote. An example of a restriction imposed on the Constitutional Tribunal was the fact that it could not examine the conformity of the decree of 1981 on martial law to the Constitution of 1952. It was done only in a judgement passed in 2011 in which the Tribunal stated that the decree was unconstitutional.

While such restrictions imposed on the Tribunal were understandable from the viewpoint of the communist authorities, it is difficult to understand the fact that they were not raised after 1989. However, the Constitutional Tribunal managed to secure an independent position in the system of state bodies in Poland. Thanks to this fact it also gained prestige and social trust. In particular two important factors contributed to this situation: the democratic legitimacy of the judges of the Tribunal and the Tribunal’s case law that built the foundations of a democratic Polish state ruled by law.

As far as the first factor is concerned, I need to explain briefly how the first judges of the Tribunal were selected. There were twelve judges chosen to the first bench of the Constitutional Tribunal. Half of them were appointed for a four-year term, the others for an eight-year term. The term of the judges appointed for a four-year term ended after the Polish Round Table Agreement and after the parliamentary election of 1989, won by Solidarity. Thanks to this fact six new judges of the Constitutional Tribunal, who were appointed in 1989, were chosen by political groups which had public support. As a result, the Tribunal earned its legitimacy and without any major difficulties maintained its institutional continuity in spite of the changes of 1989. It was rather an exceptional situation. For instance, the bench of the Supreme Court was changed root and branch, as in the second half of the 1980s the Supreme Court had passed its judgements in accordance with the spirit of the communist state.

The second factor that enabled the Constitutional Tribunal to maintain its institutional continuity after 1989 was its case law. Already in the first years of its activity, yet before the changes of 1989, the Tribunal proved its independence from the state authorities. In its first judgements the Tribunal also established principles and concepts concerning law-making which are still valid today.

Despite the changes of 1989, the Constitution of 1952 was formally binding right up until 1997. The changes in its text and the changes in the political system generally moved slower than the political changes. For example the constitutional provisions concerning the socialist character of the Polish State, the leading role of the communist party and the friendship with the Soviet Union were removed at the end of December 1989 – six months after the first partially free post-war parliamentary election and four months after the appointment of the first post-war non-communist government.

Another example was the Constitutional Tribunal itself. Strictly speaking it concerned the oath formula of the judges of the Tribunal. In spite of the changes of 1989, it still contained words referring to the allegiance to the political, social and economic principles of the socialist system. These words were removed only at the beginning of 1990, after the judges of the Tribunal elected in 1989 refused to swear an oath that included these words. In this situation the parliament rapidly changed the oath’s content.

Apart from the removal of some provisions of the Constitution of 1952 in December 1989, some new ones were added. They concerned, among others, political pluralism, freedom of economic activity and protection of property. However, the most important provision was the one which defined Poland as a democratic state ruled by law and implementing the principles of social justice. The new provisions gave the Constitution of 1952 – the act created during the Stalinist period – completely new axiological bases. The clause of the democratic state ruled by law played the key part in this respect. The reference to the analogous clause included in the Fundamental Law for the Federal Republic of Germany and, consequently, to the case law of the German Federal Constitutional Court and the German legal doctrine was made on purpose. The German heritage has always been a major influence on the Polish Constitutional Tribunal. Nevertheless, as far as the model of a constitutional court is concerned, Poland refers less to German and more to Austrian constitutionalism. Among other things the Polish Constitutional Tribunal, like the Austrian, adjudicates on the unconstitutionality of a statute but does not adjudicate on its invalidity. A judgement of the Polish Constitutional Tribunal does not apply retroactively, but prospectively.

Due to such contradictions in the text of the Constitution of 1952 the Constitutional Tribunal had to interpret both the old and new provisions of the Constitution in a creative way. The task of adapting the Constitution of communist Poland to the new social, economic and political reality – that was reflected in the text of the Constitution only to a small extent – meant that no one had the idea of referring to originalism as a principle of interpretation of the Constitution, the notion of originalism coming from American constitutionalism. After 1989 referring to the meaning that the historical – meaning communist – legislator gave to the provisions of the constitution would have had negative effects on the protection of civil freedoms and rights. Therefore, the Constitutional Tribunal adopted a totally different approach: activism. It used the clause of the democratic state ruled by law to give a completely new content to the Constitution of 1952. The clause became a sort of a key to open the door to many rules and principles typical of a democratic state. The Tribunal stated that although they are not written explicitly in the Constitution, they can be derived from it indirectly.

Thanks to this practice the Constitutional Tribunal in fact “supplemented” the text of the Constitution of 1952. A lot of rules and principles derived by the Tribunal from the clause of the democratic state ruled by law figure explicitly in the Constitution of 1997. This is the case of, for example, the legal protection of the human life, the right to a fair trial and the right to privacy.

After 1997 the Constitutional Tribunal uses the clause of the democratic state ruled by law more cautiously. This is because the Constitution of 1997 has democratic legitimacy and also because it contains a clear charter of freedoms and rights of citizens. Today this clause, unchanged from 1989, mainly expresses the so-called principles of good legislation which specify the constitutional rules of law-making, like an obligation to keep an appropriate period of vacatio legis, a ban on retroactive effect of law or the principle of protection of the rights fairly acquired.

The case law of the Constitutional Tribunal not only guaranteed the Tribunal itself an appropriate position, but also adapted the Constitution of 1952 to the new reality. Besides, it played a fundamental part in rebuilding the prestige and significance of the Constitution as the most important normative act in the state. The Constitution was not considered any more a political declaration that is not legally binding. It also became a useful mechanism of protection of human rights. In various political and social discussions and debates, people often come forward with the claim that a given measure or disposition is not in conformity with the Constitution. Even if their arguments are sometimes questionable, they prove that in Polish society awareness of the Constitution as the most important normative act in the state is increasing, which is an important achievement of the past 24 years.

As for the history of the Constitutional Tribunal itself, I should add that the Constitution of 1997 significantly changed the organisation and the rules of action of the Tribunal as well as the legal effects of its judgements. Firstly, the number of judges was changed: there are now 15 judges instead of 12. Secondly – what is much more important – the basic limitation imposed on the Constitutional Tribunal, namely the fact that its judgements on the non-conformity of statutes with the Constitution were not final, was abolished. However, this change did not yet come into force in 1997. Under the rule of the Constitution of 1997, in the first two years the parliament could still reject judgements on the non-conformity of the statutes passed before the adoption of the Constitution of 1997 (with an exception for the judgements passed in one of the procedures in the Constitutional Tribunal – the procedure of the question of law, referred by a court) by a two-thirds majority vote.

Moreover, the new Constitutional Tribunal Act, enacted in 1997, raised other restrictions. Firstly, the Constitutional Tribunal was allowed to adjudicate on the conformity of the normative acts passed before 1982, when the amendments to the Constitution of 1952 establishing the Constitutional Tribunal were adopted. Secondly, the restriction which prohibited the Tribunal from adjudicating on normative acts five years after the day they were promulgated was lifted. Thirdly, neither the Council of Ministers, nor the President of the Council of Ministers, nor the President of the Republic of Poland can refer the case to the Tribunal for reconsideration any more.

The Constitutional Tribunal had to pay a certain price for these changes. It lost its competence to consider cases ex officio. The Constitutional Tribunal Act of 1997 fully introduced the principle of accusatorial procedure into the Polish constitutional court procedure.

Nevertheless, it needs to be underlined that the Constitution of 1997 and the Constitutional Tribunal Act of 1997 significantly strengthened the position of the Constitutional Tribunal in the system of state bodies in Poland.

4. RECAPITULATION

I began my lecture by mentioning an event from the recent common history of Poland and Hungary. Let me now finish by mentioning another historical fact. I would like to remind you of the marriage of Jadwiga of Angevin – a Hungarian princess and a descendant of Polish kings –, the queen of Poland, to Jogaila, the Grand Duke of Lithuania. Thanks to this marriage, the Jagiellonian dynasty, which came from Lithuania, became more powerful and later its members ruled throughout the states of Central Europe – Poland, Lithuania, Hungary and Bohemia, today’s Czech Republic. Our countries shared for some time the same dynasty which was at that time one of the most powerful in Europe. It reigned from the Adriatic Sea to the Baltic Sea, from Smolensk to Buda and Prague. The marriage of a Hungarian princess to a Lithuanian duke initiated the history of the great, multiethnic Polish–Lithuanian–Ukrainian state in which the Constitution of 1791 was passed. The idea of constitution was realised for the first time in European history in our part of the continent. And Jadwiga of Angevin herself, a woman of Hungarian descent, was pronounced – almost six hundred years after her death – a saint of the Catholic Church and the patron saint of Poland.

I would like to believe that it is not only the past that unites the countries of Central, Eastern and Southern Europe. The common cultural heritage and the attachment to the same values, reflected in the Constitutions of our countries, constitute also a bond between our nations. I am convinced that the chance to share our ideas and thoughts will be a very good opportunity to listen carefully to the current problems of our countries, also in the perspective of American constitutionalism.

(This text is an abridged version of the lecture that I gave on 25 September 2013 during the conference “Constitutionalism – American and European ways. Fundamental rights and values in Anglo-Saxon and continental models”, organised by the Central European Policy Centre on 24–26 September 2013 in Budapest.)