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THE PRINCIPLE OF SEPARATION OF POWERS IN THE CONSTITUTION OF THE REPUBLIC OF POLAND

100%
Piotrowski R.
Przegląd Sejmowy
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2007
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issue 4(81)
113-126
EN
The principle of separation of powers is among those rules governing proper functioning of the State which accompany the reflection about the exercise of State authority since it has become the subject of discussion concerning the attributes of a government the people deserve. This question attracts interest of constitutionalism since its birth. At the same time, the separation of powers principle has become the subject of many critical assessments and comments focused on the practice of functioning of constitutional systems based on that principle. However, their functioning is not free of mistakes and failures; and the principle itself helps the governments justify their lack of effectiveness and discourages the ordinary citizens from participation in public life. It is also perceived as an anachronism , as compared to the opportunities of new technologies and challenges of development. It might be said, however, that this principle, typical of democratic state governed by the rule of law, constitutes - especially in the context of threats to modern democracy - a determinant of identity of constitutionalism, on account of its importance for the affirmation and guarantees of human rights and its role in shaping the structure and rules of functioning of a democratic State. The separation of powers principle is articulated in Article 10 of the Constitution and in the State structures established by the Constitution and mechanisms provided for their functioning as well as constitutional values determining the limits of authority. Specifying the definition of constitutional democracy, the Constitutional Tribunal stressed that such system of government is characterized by the lack of the supreme organ of the State authority, while the principle of supremacy of constitution provides a foundation of the State. In the opinion of the Constitutional Tribunal, the separation of powers principle means that the legislative, executive and judicial branches of power are separated, and that there must be balance and cooperation between them. However, this principle has no merely organizational nature, since it is aimed at protection of human rights by preventing any branch of power from the abuse of its authority. The jurisprudence of the Tribunal gives us awareness that constitutional democracy consist in the limitation of power of the majority by the right of the individual. Of great significance, from the point of view of separation of powers in a democratic State, is the issue of relations between the legislative and executive powers. The parliamentary system established by the authors of the constitution in relation to these relations, is called by the doctrine 'rationalized parliamentarism'. The advantage of the legislative power is closely connected with the role given to statute by the authors of the constitution to guarantee the rights and freedoms of the individual. It seems that they even rely on statute and judicial power, rather than on the potential role of the separation of powers principle for protection of the individual against possible threats, particularly from the executive power.
2
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THE FUNCTIONING OF THE CONSTITUTION OF THE REPUBLIC OF POLAND OF 2 APRIL 1997

100%
Sarnecki P.
Przegląd Sejmowy
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2007
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issue 4(81)
33-47
EN
Poland's Constitution of 2 April 1997 is a result of fundamental transformations of Poland's political system, initiated probably in April - September 1989 and manifested in numerous legislative acts in the years 1989-1997. During these 8 years several constitutional acts were temporarily in force, Poland ratified the European Convention on the Protection of Human Rights and Fundamental Freedoms and other significant conventions, many important laws were adopted and the political practice typical of modern democracies was established. In this context, the new constitution has rather incorporated those transformations that have proved to be effective, with only slight corrections, and not departed from the practice of the preceding 8 years. Nevertheless, the Constitution of the Republic of Poland, as a comprehensive legal act, reveals its current role of an act of the highest rank in the hierarchy of legal acts. The article provides an analysis of such influence on many levels corresponding to its formal structure and, particularly, its division into chapters. Such influence usually implements constitutional principles and values, which is particularly confirmed by the content of legislation and jurisprudence of the Constitutional Tribunal and other courts. However, in the author's opinion, it has also some defects. Among such defects are, above all, the lack of independence of public prosecutors from the government administration and the practice of frequent reconstructions of the composition of the Council of Ministers performed in fact by the Prime Minister, with only formal participation of the President of the Republic and without approval from parliament. This raises doubts whether we can really speak about the functioning of the government enjoying the confidence of parliament (its lower chamber), as provided for by the Constitution.
3
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SUBORDINATION OF THE STATE TO THE INDIVIDUAL AND TO HUMAN RIGHTS AS A CENTRAL IDEA OF POLAND'S CONSTITUTION OF 2 APRIL 1997: A GOAL OR AN ACHIEVEMENT?

88%
Piechowiak M.
Przegląd Sejmowy
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2007
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issue 4(81)
65-90
EN
The article deals with relations between the individual and human rights on the one hand, and the State on the other, in the context of the Constitution of the Republic of Poland. The author poses the question whether the idea of subordination of the State to the individual is really a central idea of that constitution. He puts forward many arguments against such suggestion. These arguments relate, above all, to the arrangement of the constitution: a chapter concerning human rights is chapter II, while chapter I deals with foundation of the State; the goals of the State are specified in the preamble including the following initial phrase 'the existence and future of Poland as our Homeland' and in Article 5 where human rights are as subject of protection by the State is mentioned after independence and integrity of (its) territory; a general concept of human rights protection adopted in the constitution is dominated by the structures typical of law in its objective sense; the way of regulation admissible limitations on human rights differs from international standards; possibility of claiming human rights is constitutionally guaranteed, mostly by constitutional complaint which is above all aimed at correction of legal system, rather than claiming of rights by the individual; Article 1 ('The Republic of Poland shall be the common good of all its citizens') interpreted as referring to Article 1 paragraph 1 of the April Constitution of 1935, one of the main ideas of which was precedence of the State over the individual. He also analyses the arguments in favour of the recognition of the idea of subordination of the State. Nevertheless, they cannot be accepted as resolving the question of whether it is a central idea of the constitution. These arguments include in particular: the principle of subsidiarity contained in the preamble, even if it has not been appropriately emphasized there; recognition of inherent and inalienable dignity of the person, but it was not until Article 30 that this provision has been contained and it does not determine the relations between the human dignity and rights and the State. The author suggests that the only conclusive way to justify the subordination of the State in relation to the individual as a central idea of the constitution is by means of Article 1. Taking into account, above all, preparatory work, we should reject the interpretation of that article referring to the April (1935) Constitution. Essential interpretative context may be found in preparatory work and social teachings of the Catholic Church, referred to therein. In that case, the common good means the entirety of the conditions of social life which favour the human development. These conditions include above all the respect for human dignity. Such interpretation of Article 1 gives priority to proposals on what the State should be to serve the individual rather than to safeguard obligations of citizens in relation to the State.
4
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THE AXIOLOGY AND SPIRIT OF THE CONSTITUTION OF THE THIRD REPUBLIC OF POLAND

88%
Stawrowski Z.
Przegląd Sejmowy
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2007
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issue 4(81)
49-64
EN
The author makes an assumption that any text of the constitution cannot properly be understood without its historical, cultural and political contexts. Therefore, he presents in detail the historical context of work on a constitution of democratic Poland, starting with the debates of the Round Table. In this respect, he distinguishes three stages of systemic transformations, delineated by successive terms of parliament: first stage prior to the first partially democratic election when the constitution of the Polish People's Republic was changed, the office of President of the Republic elected by the National Assembly was introduced and new act on elections to the Sejm and the Senate was adopted; the second stage - the period of functioning of the 'contractual parliament' when the name of the State was restored and ideological phrases about the alliance with the Soviet Union and the leading role of the PUWP were deleted from the basic law, and the provision stating that Poland is a democratic State governed by the rule of law and implementing the principles of social justice was introduced together with the principle of universal election of the president; the third stage - the functioning of a parliament chosen in a fully democratic election, when the constitutional acts were adopted, including: the Act on mutual relations between the legislative and the executive power of the Republic of Poland and the local self-government (the so-called Small Constitution) and on the procedure for the preparation and adoption of a constitution of the Republic of Poland; the fourth stage - the period of functioning of a parliament elected in 1993, when the (1997) Constitution of the Republic of Poland was adopted. In this historical context, it is difficult to give an unequivocal answer to the question about the date of establishment of the Third Republic of Poland. The author makes a distinction between the letter and the spirit of the constitution. The Constitution of the Third Republic of Poland is entirely driven by the sprit of compromise. The philosophy of compromise which motivated work on a draft of a basic law, has mostly given Poland's Constitution an eclectic shape. The slogan of constitutional compromise hid a consistent implementation of the purposes of the then leading bloc, i.e. the protection of interests of the post-communist formation. Concessions made by the authors of the constitution to win the required majority of votes, concerned matters (in their view) of minor importance. The coming into force of the Constitution of the Third Republic of Poland meant an achievement of the goal declared by its promoters, which was a definitive confirmation of national reconciliation and closing historical accounts which date back to the period of the Polish People's Republic.
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