POLAND'S 1997 CONSTITUTION|
Summary of Key Provisions
The National Assembly of the Republic of Poland -- made up of the two houses of Parliament, the Sejm and the Senate -- approved the final draft of the country's first post-Communist constitution April 2, and the majority of Poles voting in the May 25 Constitutional Referrendum, endorsed the draft document. After the Supreme Court upheld the constitutionality of the document, it was signed into law by President Aleksander Kwasniewski on July 16; it goes into effect three months after his signature. The long-awaited constitutional document, the result of several years of intensive debate and negotiations spanning five administrations across the entire political spectrum, is the country's 10th since Poland's first history-making Constitution of May 3, 1791.
That document was the first written constitution in Europe and the second in the world -- preceded only by that of the United States in 1776. Czeslaw Milosz, the Polish Nobel Prize laureate in literature, has described it as "a guide-post showing the direction toward a new type of democracy."
The 1997 Constitution bears many of the characteristics and reflects some of the basic principles of its illustrious progenitors of more than two centuries ago, but its 13 sections and 243 articles include a vast array of prescriptive and exhortatory formulations -- addressing everything from women's rights through the environment, consumer prerogatives, unsanctioned medical experiments, the right to free health care and education to the protection of unborn children, help for the handicapped and an endorsement of motherhood and heterosexual marriage -- all clearly aimed at gaining the broadest possible political consensus in contemporary Poland.
The Constitution defines Poland as "a democratic country based on law, implementing the principles of social justice." It guarantees, among other things, freedom of speech, freedom of religion and conscience, the right of assembly, the right to organize and to strike, the principle of being innocent until proven guilty and the right of habeas corpus, as well as the right to move within the country or outside the country at will.
Everyone is guaranteed equality under the law; no one can be discriminated against in political, social or economic life for whatever reason. There is no statute of limitation for war crimes or crimes against humanity. No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment. Corporal punishment is forbidden. The Constitution provides for the creation of the office of Ombudsman for Children's Rights.
All churches and denominational groups are to be treated equally. Relations between the state and the churches are based on the recognition of the latter's autonomy, on mutual independence, as well as on cooperation for the common good and the good of man. Public authorities will maintain impartiality in matters of religious, world-outlook or philosophical convictions and ensure freedom of their expression in public life. Freedom of religion includes the right to bring up one's children according to one's conscience and to teach any and all religions in schools, without violating the freedom of conscience of others. The Accord between Poland and the Holy See and other laws will define the relations between the Republic of Poland and the Catholic Church.
All Polish citizens belonging to national or ethnic minorities have the right to maintain and develop their own language, customs and traditions and to cultivate their own culture. They have the right to form their own educational, cultural and religious organizations and to participate in matters concerning their cultural identity. The Constitution also recognizes the rights of foreigners to political asylum, and precludes in principle the extradition of a Polish citizen, unless otherwise determined by a [Polish] court.
The new Constitution is prefaced by a preamble which reads: "With concern for the existence and future of our Fatherland, having regained in 1989 the capability to determine its fate in a sovereign and democratic manner,
WE THE POLISH NATION --
all citizens of the Republic, both those believing in God as the source of truth, justice, goodness and beauty, and those not sharing that faith, and deriving these universal values from other sources --
sharing equally in rights and obligations towards the common good of Poland,
grateful to our forefathers for their labor, their struggle for independence attained with great sacrifices; for the culture rooted in the Christian heritage of the Nation and in values common to humanity, with reference to the First and Second Republic (...)"
"Mindful of the bitter experiences from the time when basic freedoms and human rights in our Fatherland were being broken, (...) with a sense of responsibility before God or our own conscience we enact the Constitution of the Republic of Poland (...)."
The Preamble ends with the words: "We call upon all, who for the good of the Third Republic will implement this Constitution, to do so respecting the innate dignity of man, his right to freedom and his duty to solidarity with others and respecting these principles as the steadfast foundation of the Polish Republic."
The basis of the state structure is a parliamentary system which remains much the same as it has been since Poland regained democracy in 1989. It features the separation of powers and balance of powers of the legislative branch (the Sejm and the Senate), the executive branch (the President, and the government made up of the Prime Minister and his cabinet) and the judicial branch (the courts and tribunals). The Constitution is defined as the highest law of the land, with the ultimate power belonging to the people of the nation, exercised through their representatives or directly.
The President gains a number of prerogatives under the Constitution, such as the right to nominate the heads of the country's top judicial bodies -- including the Chief Justice of the Supreme Court, the Chief Justice of the Supreme Administrative Court and the chairman and vice-chairman of the Constitutional Tribunal -- nominations until now made by the Sejm. He also gained the right to name the top military leaders, including the chief of the General Staff and the commanders in chief of the army, air force, and navy. These nominations require the countersignatures of the Prime Minister. The President can ask the Sejm to require a member of the Council of Ministers to appear before the State Tribunal.
However, the President also looses some prerogatives, including the right to veto the budget and to have a say in ministerial appointments, except that of the Prime Minister. His veto powers have been curtailed, requiring only a three-fifth majority in the lower house of parliament, or Sejm, rather than the current two- thirds, to override it. The President has no veto right over budget bills, but may submit them to the Constitutional Tribunal to verify their constitutionality.
The President is to be elected for a term of five years in general nation-wide, direct elections (as currently), and can be reelected only once. Should he or she be unable to perform his/her duties, next in line for an interim period until the next elections is the Speaker of the Sejm, and after that the Marshall (chairman) of the Senate. Neither of the latter can dissolve Parliament.
The President designates the Prime Minister, who proposes his cabinet of ministers. The Prime Minister chooses all his cabinet members, who must be approved by the Sejm. The Sejm also can express a vote of no confidence in the Council of Ministers and propose a new Prime Minister at the initiative of 46 deputies; if passed by majority vote in the Sejm, the President names the new Prime Minister. In an effort to minimize cabinet crises, the Constitution also allows the Prime Minister to replace members of his cabinet without Sejm approval. The Prime Minister also heads an apolitical civil service. Members of the cabinet can face charges only before the Tribunal of State, at the motion of the President and a three-fifth majority vote of the Sejm. In keeping with the continental or French model, the Prime Minister appoints and oversees all of the country's governors, or voivods, who act as conveyors of central government policy and financial resources in the respective provinces.
The President has the right to dissolve the Sejm if it is not able to accept a government proposed by the Prime Minister-designate after three tries or if it fails to pass the budget on time. The time allowed the President to sign a bill passed by Parliament is reduced from 30 to 21 days. If the Parliament does not pass and forward a budget bill to the President for his signature within four months of the time it is introduced (up from three months currently), the President can dissolve Parliament within 14 days.
The President is the supreme commander of the armed forces in peace time, and executes this function through the Minister of Defense. The armed forces are to remain neutral in political matters and are subject to civilian and democratic control. In time of war, the President, at the recommendation of the Prime Minister, names a Supreme Commander of the Armed Forces.
The Sejm will be comprised, as at present, of 460 deputies and the second chamber of 100 senators, all elected for a concurrent four-year term. Elections to the Sejm are by general, direct proportional [party list] secret ballet, while those to the Senate are by general, direct, secret polling. The voting age is 18. Either the Sejm or the President, with the consent of the Senate, can call for a nation-wide referendum on matters of particular significance to the state. The results of the referendum will be binding if more than one half of those eligible to vote take part in the voting.
As is the case now, parliamentarians are protected by immunity, which means that a parliamentarian cannot face criminal charges without the consent of the Sejm or the Senate. A seat in parliament cannot be combined with the functions of chair of the National Bank of Poland, of the Supreme Chamber of Control, of the Council of Monetary Policy, and of the Ombudsman's Office for Children's Rights, or their deputies, or with membership on the Council for Monetary Policy, on the National Council for Radio and Television, or with ambassadorships or employment in the chancellories of the Sejm, the Senate, the Office of the President, or the government administration. This ban does not apply to members of the Council of Ministers and deputy ministers in the government administration.
In addition to parliamentarians, the President and members of the government, any group of 100,000 citizens has the right to introduce legislative initiatives. These must contain both the proposed bill and the financial consequences of its implementation.
According to the Constitution, the verdicts of the Constitutional Tribunal will be binding for all laws going into effect after the passage of the Constitution; Constitutional Court verdicts concerning older laws can be overridden by the Sejm for a two-year period from the time of the Constitution's going into effect. The Constitutional Tribunal will not provide generally binding interpretation of the law, but it will be able to decide jurisdictional conflicts between government institutions as well as consider citizens' complaints about the violation of their constitutional rights.
The Constitution goes to great lengths and detail on economic and fiscal matters. It stipulates the economic system of the Republic of Poland to be a social market economy based on freedom of economic activity, private property as well as solidarity with and dialogue of the social partners. It calls for fiscal discipline in national policy by, among other things, spelling out the principles of acquiring real estate or the issuance of bonds by the Treasury.
It prohibits the National Treasury from taking loans or issuing guarantees which would result in the national public debt exceeding three-fifth of the value of annual gross domestic product (GDP). The method of calculating the value of GDP and the national public debt is to be defined in a separate decree.
In case constitutional means are not adequate to deal with dangerous threats to the nation, the President, at the request of the government, may introduce martial law or a state of emergency. The Council of Ministers may introduce a state of natural disaster. The extension of the duration of these extraordinary states can only be made with the consent of the Sejm. For the duration of these extraordinary states, certain civil rights and freedoms may be curtailed but this does not apply to rights concerning, among other things, human dignity, citizenship, protection of life, religion or access to courts.
On the basis of an international agreement, the Republic of Poland can delegate to international organizations powers belonging to institutions of the state. This must be agreed to in each case by both the Sejm and the Senate. This can also be done by a country-wide referendum.
Marriage -- defined as a union of a woman and a man -- family, motherhood and parenthood are under the protection and care of the Republic of Poland. This provision precludes legal recognition of single-sex marriages. The Constitution specifically bans gender discrimination, particularly in respect to education, employment, promotions, equal pay, access to social services and a variety of appointments and state honors.
The Constitution requires mandatory education to the age of 18. Schooling in public schools is free, but the law can allow for the provision of certain educational services by public schools for payment. The right to the protection of health is also guaranteed. Citizens, regardless of their financial situation, are guaranteed by the authorities equal access to health services; handicapped persons are assured help in securing their livelihood, adaptation to work and public transportation. Families in difficult financial circumstances, particularly single-parent families and families with many children, have the right to particular help from the public authorities.
[For more information or a full English translation for re-publication contact: Polish Business Center, 3727 Albemarle Street, NW, Washington, DC 20016, USA, Tel: (202) 244 3840; Fax: (202) 364 8396; e-mail]