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THE SMALL CONSTITUTION OF 1947 AND THE POLISH CONSTITUTIONAL TRADITION

100%

Czarny P.

Przegląd Sejmowy

2007

issue 5(82)

57-73

The article deals with a 60 year-old act, the Constitutional Act of 19th February 1947 on the system and scope of operation of the supreme organs of the Republic of Poland, which is also called the Small Constitution. The main purpose of the article is to examine whether, and to what extent, this Act could be treated as part of the Polish constitutional tradition. The first part presents the origins of the Small Constitution. The Act is seen as the realization of the concepts promoted by the political camp gathered around the Communist Party, which took power in 1944 and succeeded in the parliamentary election to the legislative Sejm in January 1947. As that was not a democratic election, the Legislative Sejm was not adequately legitimized to adopt a new constitution, even if some minor political opposition still existed at the moment. According to the Small Constitution the system of government of the State was to be based on the principle of temporariness and principle of separation of powers as well as the superior position of the Legislative Sejm guaranteed as a unicameral parliament shaping basic assumptions of the State policy. The applied system resembled to a large extent the parliamentary cabinet model. Many provisions of the Small Constitution were incorporated directly from the March Constitution of 1921. The new institution, inconsistent with a Montesquian division of powers, called the Council of State (composed of the President of the Republic, and Marshal [Speaker] and Vice-marshals of the Sejm) was established. It was modelled on the solutions existed in the Soviet Union. In practice, the process of exercise of power in Poland did not conform to the provisions of the Small Constitution. Under the then existing system of government, called people's democracy, the basic law had to play a special role, to legitimize a 'new authority' and not limit its powers. An important thing, from this point of view, was that the Small Constitution completely ignored the issue of human rights. The hegemonic position of the Communist Party led to the situation in which political decisions were, in fact, made by party organs. Even if the Small Constitution is assessed negatively in the Polish literature, in a relatively long period of operation (i.e. until 1952) it enabled to retain domestic solutions of constitutional law and to strengthen some elements of the Polish constitutional tradition..

THE SMALL CONSTITUTION OF 1992

100%

Chrusciak R.

Przegląd Sejmowy

2007

issue 5(82)

89-110

The Constitutional Act of 17 October 1992 on the mutual relations between the legislative and executive institutions of the Republic of Poland and on local self-government, called popularly the Small Constitution, is the third constitutional act in Poland's modern history characterized by a limited scope of regulation and temporary (provisional) nature. The one and a half year period of preparation and adoption of the Act was an essential element of shaping the concept of a democratic constitutional order. The essence of this process was to depart from the system based on the principle of uniformity of power and on formal supremacy of the Sejm, and to strive to build the constitutional system based on the principles of a democratic state governed by the rule of law. Another important background of this course of action was the protracted work on a comprehensive and new basic law. The Constitutional Act of 17 October 1992 contained the provisions concerning mostly the Sejm, the Senate, the President of the Republic of Poland, the Council of Ministers and local self-government. Its adoption has made it possible to repeal the Constitution of 1952, however some provisions of the latter was continued in force. So, it was decided that the Small Constitution (composed of 78 articles) was in effect together with 62 articles of the Constitution of 1952 continued in force. Moreover, the Constitutional Act of 23 April 1992 governing the procedure for work on a new basic law was in force. The most significant solutions implemented by the Small Constitution of 1992 include: the tripartite division of powers; regulation of the relations between the executive and the legislative branches of power on the basis of mechanisms typical of the parliamentary system of government (particularly a vote of no confidence); the enhanced status of a Deputy and Senator; improved and modernized legislative and budgetary procedures; altered powers of the President of the Republic (particularly by introducing the requirement of countersigning); strengthening the position and increasing autonomy of the Council of Minister and Prime Minister. High political tensions, in particular between President Lech Walesa and the Sejm, as well as imperfection of adopted regulations, has caused that the practice of application of the Constitutional Act of 17 October 1992 was accompanied by frequent disputes on competence, as well a applications being addressed to the Constitutional Tribunal. As a transitional act, the Small Constitution was in force from December 1992 to October 1997. Nevertheless, many of its solutions, especially those concerning the relations between the legislative and executive branches of power were maintained in the Constitution of the Republic of Poland of 2 April 1997.

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2 Przegląd Sejmowy

1 Chrusciak R.

1 Czarny P.

2 2007

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THE SMALL CONSTITUTION OF 1947 AND THE POLISH CONSTITUTIONAL TRADITION

THE SMALL CONSTITUTION OF 1992