The Avant-Garde Comes Late
Recent Constitutional Developments in Poland1

Rett R. Ludwikowski

The first "velvet revolutions" in Poland, Hungary and Czechoslovakia placed these countries in the avant-garde of democratic transformations in east central Europe. The speed with which the three countries purged their basic laws of communist rhetoric allowed the expectation that they would be the first to adopt brand new constitutions in this region. In 1989, Poland announced that its new constitution might be expected on the bicentennial of the country's first Constitution of May 3, 1791. The Preamble of the amended Constitution of Hungary referred to the temporary character of the text. Since the beginning of 1990, Czechoslovakia quickly began to adopt a number of constitutional acts which were expected to be soon collected into one basic law in the very beginning of the nineties. None of these expectations proved true, with the first new constitutions actually being adopted in Bulgaria and Romania, the countries which traditionally were recognized as strongholds of communism.

Paradoxically, the communist governments which retained power were sometimes more efficient in terms of speed of transformation. Although the constitutional changes were not profound enough and the new constitutions still bear communist stigmas, the constitution-drafting process could be quickly completed by the former communists desperately trying to get a reputation as reformists and by the communist-controlled parliaments.

The countries which started their peaceful process of retreat from communism early, such as Poland, Hungary and Czechoslovakia, overestimated the strength of democratic forces and the maturity of their societies' political culture. The factional struggles of deeply pluralized legislative bodies were counterproductive and delayed the legislative processes. The deputies learned how to speak openly and criticize each other faster than to respect the arguments of the opponents. On the one hand, the more "velvet" the first stage of the transition, the more compromises were made, further protracting the process of democratic reform. On the other hand, the process of constitution making cannot be rushed and it may happen that the countries which "come late" will adopt mature constitutions with a well-tested durability.

The work on a new constitutional draft in Poland is advanced but still far from completion.(2) After amending the 1952 Constitution in 1989, a separate constitutional committee was formed in each chamber of the Polish parliament to draft versions of a brand new charter.(3) The conflicts between the two committees which resulted in breaking off all contacts with one another, stemmed mostly from a discussion of the preference for a parliamentary or a presidential system(4) and the procedure for the adoption of a new constitution.(5) As new developments have rendered these drafts outdated and reduced their significance to a merely historical one, they do not warrant a more in-depth analysis in this short report.(6)

In Spring 1991, the Extraordinary Commission of the Sejm [the Polish parliament, Ed.] began working on the project of the constitutional act, "The Constitutional Statute on Appointing and Dismissing the Government and Other Changes Regarding the Highest State Organs," submitted to the Sejm by President Walesa.(7) In response to the Presidential proposal, the Democratic Union, the largest party in the Sejm, prepared and submitted to the Sejm in February 1992, a draft of the interim constitution. The draft, called "The Constitutional Act on Mutual Relations between Legislative and Executive Powers of the Polish Republic," or "The Small Constitution," focused on checks and balances between the Sejm, the President and the Government, leaving other issues to the new Constitution.(8)

In comparison to the amended Constitution of 1952 until recently in force, the draft of the Small Constitution(9) proposed several major changes.(10) First, the 1952 Constitution provided that upon motion of the President, the Sejm shall appoint and recall the Prime Minister. The Small Constitution, however, suggested that the President shall designate the Prime Minister and the Cabinet, which would then need the approval of the Sejm. The procedure for the designation of the Government is elaborate and cunning. The refusal to approve the President's candidate for Prime Minister by an absolute majority gives the Sejm the opportunity to designate a successive candidate by the same majority. If the Sejm then fails, the President would once again designate a Prime Minister, who this time would only need a plurality for approval. If it fails once again, the Sejm may elect its candidate by a plurality of the votes cast in the next round. However, should the Sejm's candidate fail to win the required support, the President can either dissolve the Sejm or appoint a Provisional Government for six months.(11)

Second, the draft of the Small Constitution introduced the so-called "constructive vote of no confidence" providing that in dismissing the Prime Minister the Sejm must simultaneously designate a successor by an absolute majority.(12)

Third, the draft significantly increased the power of the Cabinet. The Prime Minister was made directly responsible to the Sejm and the President was stripped of the power to ask the Sejm for the Cabinet's dismissal. On the other hand, the draft gave the President and the Prime Minister joint power to replace ministers without asking the Sejm for its consent. In contrast to the Constitution in force, the draft allowed the Cabinet to ask the Sejm for permission to legislate by decree.

Fourth, the amended 1952 Constitution provided that a separate statute would determine which acts of the President needed to be countersigned by the Prime Minister. The statute, however, has never been passed. The draft provides a list of actions which do not need the countersignature of the Prime Minister or one of the ministers, such as calling elections of the Sejm, dissolving it, vetoing the Sejm's legislation and appointing judges. In other actions the President must cooperate with the Cabinet. The President has important checks on the Sejm (veto power) and the Government (veto over its decrees). In contrast, should the President attempt to bypass the Sejm by means of a referendum, the cooperation of the Senate is required.(13)

The draft of the Small Constitution was widely praised as result of a clever compromise which could be recognized as a "success of Polish democracy."(14) It has also been attacked by the Center Alliance and the Movement for the Republic, headed by former Prime Minister Jan Olszewski, which claimed that the draft gave preference to the presidential system.(15) Despite the opposition of these two parties, the Sejm adopted the draft by a two-thirds majority on August 1, 1992.(16) The draft was submitted to the Senate which returned a heavily amended version. For final adoption the interim "Small Constitution" again needed the vote of a two-thirds majority of the Sejm in order to override the Senate's opposition.(17)

The procedure of the Sejm's voting over the Senate amendments became a matter of major controversy. The Sejm's procedural rules provided initially that the Sejm should vote on the amendments twice, once to reject an amendment and then to accept it if the amendment has not been voted down. In both instances a two-thirds majority was required to decide about the future of an amendment. It was suggested, however, that this procedure may result in a legislative deadlock. If one-half of the Sejm deputies vote against the amendment, it is not rejected because a two-thirds majority is needed for this purpose. If, however, the other half of the deputies supports the amendment it will not be acccepted due to a lack of the required two-thirds majority. The amendment is neither rejected nor accepted as is the whole act, a constitution or a regular statute, which has been subject to the amendment process. The described scenario causes a clear legislative impasse.

The rules of procedure were changed in July 1992 when it was decided that the Sejm would vote only once: a two thirds majority is needed to reject the Senate's amendments, but when they are not rejected, they are automatically adopted. This immensely increased the role of the Senate, because a support of one-third of the Sejm's deputies would be sufficient to adopt the Senate's amendments.

Confronted with the heavily amended version of the Small Constitution, the Sejm decided to change the rules of procedure again in October 1992. The new procedure distinguishes between regular statutes and constitutional acts: where regular statutes are concerned, the Sejm votes twice, with a two-thirds majority needed to reject the Senate's amendments and a plurality required to accept them. The possibility of a deadlock was decreased but not eliminated. In the case of constitutional amendments it was decided that the Sejm should vote only once; a majority of two-thirds of the vote is necessary to adopt the amendment, but if the amendment is not adopted, it is automatically rejected. This time the role of the Senate was reduced: if a one-third plus one of the Sejm deputies voted against the adoption of the Senate's constitutional amendment, the Senate’s amending action would be annulled.

The decision to change procedural rules was challenged as unconstitutional in the Constitutional Tribunal which delayed the process of the adoption of the Small Constitutionn by one month.(18) In mid November the Constitutional Tribunal ruled in favor of the Sejm's action and on November 17, 1992, President Walesa signed a new interim Polish Constitution which is to become an important component of a brand new constitution, the completion of which is not expected before the end of 1993.

Rett R. Ludwikowski is Professor of law at the Catholic University of America.

Notes

1. The text of this article has been compiled out of several chapters of the study, "Constitution Making in the Countries of the Former Soviet Dominance: Current Development," forthcoming in The Georgia Journal of International and Comparative Law, Vol. 23, No. 2 (1993).

2. Some Polish constitutional experts believe that the Polish Sejm lost momentum after the completion of the Round Table negotiations. "The biggest mistake the Government has committed since the changes began," says Szczepanek of the office of Deputy Kazimierz Barczyk, "was to neglect putting forth a constitutional draft quickly: trying it out to see if it succeeds and if it does not then discarding it.:" Interview with Deputy Kazimierz Barczyk and two members of his staff, Mr. Szczepanek and Mr. Gadowski, June 29, 1992.

3. The precise date when the commissions were appointed is not clear. Andrzej Rapaczynski mentions early 1990, when other commentators date the beginning of the constitutional works to December 1989. Rapaczynski, "Constitutional Politics in Poland: A Report on the Constitutional Committee of the Polish Parliament," University of Chicago Law Review, vol. 58 (1991), 595, 60l; "Constitution Watch," East European Constitutional Review, Spring 1992, 2.

4. Ibid.

5. "Minutes of the Legislative Commission of the Polish Sejm," Biuletyn, February 5, 1992; February 11, 1992, February 14, 1992; also the Constitutional Bill on "The Procedure of the Adoption of a New Constitution," submitted by the Sejm's Speaker Wieslaw Chrzanowski, March 10, 1992.

6. The Polish Constitutional drafts prepared in 1989-1991 years were published by Wydawnictwo Sejmowe [Sejm Register] as "Projekty Konstytucyjne 1989-199l" [Constitutional Drafts 1989-1991], Warsaw 1992.

7. The full title of the act is: "The Constitutional Statute on Appointing and Dismissing the Government and Other Changes Regarding the Highest State Organs." See the draft of the act submitted to Wieslaw Chrzanowski, Speaker of the Sejm, by President Lech Walesa on March 12, 1991.

8. "Jaka Konstytucja" [What Constitution], Gazeta Wyborcza, June 29, 1992; Wiktor Osiatynski, "Skazani na Oryginalnosc" [Doomed to Originality], Gazeta Wyborcza, August 29, 1992; "Special Reports: Interim Constitution Approved in Poland," East European Constitutional Review, Spring 1992, 12-13.

9. The text of the "Small Constitution," titled "Ustawa Konstytucyjna z 1 sierpnia 1992 r. o wzajemnych stosunkach miedzy wladza ustawodawcza i wykonawcza Rzeczypospolitej Polskiej oraz o samorzadzie terytorialnym" [Constitutional Principles of August 1, 1992, on Mutual Relations Between the Legislative and the Executive Power and the Local Government], was published in Ekonomia i Prawo, August 7, 1992, Nr. 185, at VIII.

10. Lech Mazewski, "Wzmocnienie Panstwa," Rzeczypospolita , September 18, 1992.

11. "Jaka Konstytucja," Note 8.

12. "Constitution Watch: Poland," East European Constitutional Review, Vol. (Spring 1992), 2.

13. "Jaka Konstytucja, " Note 8.

14. Osiatynski, "Skazani na Oryginalnosc," op. cit.; Zbigniew Witkowski, counselor for the Senate Constitutional Commission, is of a different opinion and claims that the draft "is not a great success for Polish democracy. It is rather evidence that we do not know how to achieve democracy. " "Jaka bedzie ta mala? Gazeta Wyborcza, September 18, 1992.

15. "Interim Constitution Approved in Poland," Note 8.

16. "Mala Konstytucja Uchwalona," Gazeta Krakowska, October 17-18, 1992.

17. "Regulamin niekonstytucyjny," Gazeta Wyborcza, October 19, 1992.

18. Wlodzimierz Bieron, "Regulamin Sejmu przed Trybunalem," Rzeczpospolita, October 20, 1992.


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