Democratic Government in Poland: Constitutional Politics Since 1989

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Democratic Government in Poland Constitutional Politics since 1989

George Sanford

Democratic Government in Poland

Also by George Sanford POLISH COMMUNISM IN CRISIS MILITARY RULE IN POLAND: The Rebuilding of Communist Power 1981–1983 THE SOLIDARITY CONGRESS, 1981 DEMOCRATIZATION IN POLAND, 1988–90: Polish Voices POLAND: World Bibliographical Series (with A. Gozdecka-Sanford) HISTORICAL DICTIONARY OF POLAND (with A. Gozdecka-Sanford) BUILDING DEMOCRACY: The International Dimension of Democratization in Eastern Europe (with G. Pridham and E. Herring) POLAND: The Conquest of History

Democratic Government in Poland Constitutional Politics since 1989 George Sanford Reader in Politics University of Bristol

© George Sanford 2002 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1T 4LP. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The author has asserted his right to be identiﬁed as the author of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2002 by PALGRAVE MACMILLAN Houndmills, Basingstoke, Hampshire RG21 6XS and 175 Fifth Avenue, New York, N.Y. 10010 Companies and representatives throughout the world PALGRAVE MACMILLAN is the new global academic imprint of the Palgrave Macmillan division of St. Martin’s Press, LLC and of Palgrave Macmillan Ltd. Macmillan® is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. 0–333–77475–2 This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Sanford, George. Democratic government in Poland : constitutional politics since 1989 / George Sanford, p. cm. Includes bibliographical references and index. ISBN 0–333-77475–2 (cloth) 1. Poland–Politics and government–1989– 2. Contitutional history–Poland. I. Title. JN6760 .S26 2002 320.9438–dc21 2002020059 10 11

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Printed and bound in Great Britain by Anthony Rowe Ltd, Chippenham and Eastbourne

Contents List of Tables

vii

List of Abbreviations

viii

Preface

xiii

Chronology

xv

1

The Constitution and History Poland’s quest for security and modernization Historical traditions and constitutional values The effects of foreign rule and war on state institutions Constitutions and political frameworks The usable past of Polish constitutionalism

1 1 4 10 11 15

2

The Communist Experience and Legacy The debate on the Polish People’s Republic The communist party-state in Poland The signiﬁcance of communist constitutionalism Judgement on the PRL (Polish People’s Republic)

24 24 27 31 39

3

Democratic Transition and Consolidation The constitutional abdication of communism The controlled transition in practice The consolidation of democracy

50 50 56 60

4

Constitution Making and Consensus Building National sovereignty and citizenship Constitutional engineering and institution building The politics of the temporary: writing the Little Constitution Towards the 1997 constitution The April 1997 constitution

74 74 76 80 85 91

5

Parliament and Democratic Politics Organization, functioning and composition of the Sejm Deputies Legislation Debates and plenary sessions Committees Parliamentary control of government Organization, functioning and composition of the Senate Rationalized parliamentarianism? v

103 105 110 115 120 120 123 124 128

vi Contents

6

The Executive: Dual or Fragmented? The presidency Formation, dismissal and accountability of governments The Council of Ministers The emergence of the prime minister Mechanisms of coalition government From Ofﬁce of the Council of Ministers (URM) to cabinet ofﬁce Ministries What sort of executive in Poland?

138 138 147 151 155 157 162 164 166

7

Government and the Mechanisms of Representation Electoral framework Presidential elections Sejm elections Senate elections Local government elections Dynamics and political consequences of voting behaviour Party system and government

173 173 176 183 188 188 190 192

8

The Active Constitution in Practice The constitutional and state tribunals Organs of state control and rights protection The Lustration Act and process

208 208 216 219

9

Conclusion: the Polish Constitution as a Framework for Democracy

230

Bibliography Index

236 247

List of Tables 5.1 5.2 5.3 5.4 5.5 5.6 5.7 5.8 5.9 5.10 5.11 5.12 6.1 6.2 6.3 7.1 7.2 7.3 7.4 7.5

Polish deputies by gender Polish deputies by age Number of Sejm terms sat by Polish deputies on election Polish deputies by education Polish deputies by occupation Source of legislative initiative The work of the Sejm Sejm committees Political composition of the Senate The work of the Senate Political composition of the Sejm Party control of the Sejm Duration and type of government Size and composition of the Council of Ministers Party composition of governments Presidential election of 25 November–9 December 1990 Presidential election of 5–19 November 1995 Presidential election of 8 October 2000 Percentage of votes and seats and number of seats gained in Sejm elections of 1991, 1993, 1997 and 2001 Size of party membership

vii

111 111 112 112 113 117 119 122 126 127 130 131 150 154 159 178 180 182 184 194

List of Abbreviations AK AWS AWS-RS BBN BBWR BdP BSiE CAP CBOS CDIIIRP COMECON CPSU CUP EBRD EU FDP FJN GATT GDP GKBZpNP

GUC GUS IFiS IMF IPN ISP KAW KIE

Armia Krajowa/Home Army Akcja Wyborcza ‘Solidarno´sc´ ’/Electoral Action Solidarity Akcja Wyborcza ‘Solidarno´sc´ ’–Ruch Spol⁄ eczny/Electoral Action Solidarity–Social Action Biuro Bezpiecze´nstwo Narodowego/National Security Bureau Bezpartyjny Blok Wspierania Reform/Non-Party Bloc for Supporting the Reforms Blok dla Polski/Bloc for Poland Biuro Studiów i Expertyz/Bureau of Studies and Reports (Analyses), Sejm Chancellery Common Agricultural Policy Centrum Badania Opinia Spol⁄ ecznej/Centre for the Study of Public Opinion Chrze´scia´nska Demokracja III RP/Christian Democracy of the Third Republic Council on Mutual Economic Assistance Communist Party of the Soviet Union Centralny Urz ad ˛ Planowania/Central Planning Ofﬁce European Bank for Research and Development European Union Forum Prawicy Demokratycznej/Forum of the Democratic Right Front Jedno´sci Narodowej/National Unity Front General Agreement on Tariffs and Trade Gross Domestic Product Gl⁄ ówna Komisja Badania Zbrodni przeciwko Narodowi Polskiemu/Main Commission for Investigating Crimes against the Polish Nation ˛ Ce⁄l/Main Customs’ Board Gl⁄ ówny Urz ad ˛ Statystyczny/Main Statistical Ofﬁce Gl⁄ ówny Urz ad Instytut Filozoﬁi i Socjologii/Institute of Philosophy and Sociology International Monetary Fund Instytut Pamieci ˛ Narodowej/Institute of National Memory Instytut Studiów Politycznych/Institute of Political Studies Krajowa Agencja Wydawnicza/National Publishing Agency Komisja Integracji Europejskiej/Committee on European Integration viii

List of Abbreviations ix

KERM KiW KL-D KO KOK KOR KPEiR KPEiRRP KPN KPP KRN KRRiTV KRRRM KRS KSAP KSZpNP

KSORM KSRM KUL LOK LRP MON MSW MSZ NATO NBP NFOS NIK

Komitetet Ekonomiczny Rada Ministrów/Economic Committee of the Council of Ministers Ksi a˛zka ˙ i Wiedza/Book and Knowledge Publishers Kongres Liberalno-Demokratyczny/Liberal-Democratic Congress Komitet Obywatelski/Civic Committee Komitet Obrony Kraju/National Defence Committee Komitet Obrony Robotników/Workers’ Defence Committee Krajowa Partia Emeritów i Rencistów/National Party of the Retired and Pensioners Krajowa Partia Emeritów i Rencistów/National Party of the Retired and Pensioners of the Polish Republic Konfederacja Polski Niepodlegl⁄ ej/Confederation for an Independent Poland Komunistyczna Partia Polski/Communist Party of Poland Krajowa Rada Narodowa/National Council for the Homeland Krajowa Rada Radiofonii Telewizji/National Council on Radio and Television Komitet Rozwoju Regionalnego RM/Committee for Regional Development of the Council of Ministers Krajowa Rada Sadownictwa/National ˛ Council for the Judiciary Krajowa Szkol⁄ a Administracji Publicznej/National School for Public Administration ´ Komisja Scigania Zbrodni przeciwko Narodowi Polskiemu/ Commission for Investigating Crimes against the Polish Nation Komitet Spraw Obronnych Rady Ministrów/Committee on Defence Questions of the Council of Ministers Komitet Spól⁄ eczny Rady Ministrów/Social Committee of the Council of Ministers Katolicki Uniwersytet w Lublinie/Catholic University in Lublin Liga Obrony Kraju/League for the Defence of the Country Liga Rodzin Polskich/League of Polish Families Ministerstwo Obrony Narodowej/Ministry of National Defense Ministerstwo Spraw Wewn˛etrznych/Ministry of the Interior Ministerstwo Spraw Zagranicznych/Ministry of Foreign Affairs North Atlantic Treaty Organization Narodowy Bank Polski/National Bank of Poland ´ Narodowy Fundusz Ochrony Srodowisku/National Fund for Environmental Protection Najwy˙zsza Izba Kontroli/Supreme Control Chamber

x List of Abbreviations

NSZ OECD OKP OPZZ OZON PAN PAP PC PChD PiS PKP PKW PKWN PO PP PPPP PPR PPS PR PRiTV PRL PRON PSL PUS PWN PZPR RBN RD-S RIP RLP RP ROAD ROP ROPCiO

Narodowe Sil⁄ y Zbrojne/National Armed Forces Organization for Economic Cooperation and Development Obywatelski Klub Parlamentarny/Civic Parliamentary Club Ogólnopolskie Porozumienie Zwiazków Zawodowych/AllPoland Alliance of Trade Unions Obóz Zjednoczenia Narodowego/Camp of National Unity Polska Akademia Nauk/Polish Academy of Sciences Polska Agencja Prasowa/Polish Press Agency Porozumienie (Partia) Centrum/Centre Agreement (Party) Partia Chrze´scija´nskich Demokratów/Christian Democratic Party Prawo i Sprawiedliwo´sc´ /Law and Justice Polskiej Koleje Pa´nstwowe/Polish State Railways Pa´nstwowa Komisja Wyborcza/State Electoral Commission Polski Komitet Wyzwolenia Narodowego/Polish Committee of National Liberation Platforma Obywatelska/Civic Platform Porozumienie Polskie/Polish Agreement Polska Partia Przyjaciól⁄ Piwa/Polish Party of the Friends of Beer Polska Partia Robotnicza/Polish Workers’ Party Polska Partia Socjalistyczna/Polish Socialist Party Polska Rzeczpospolita/Polish Republic Polskie Radio i Telewizja/Polish Radio and Television Polska Rzeczpospolita Ludowa/Polish People’s Republic Patriotyczny Ruch Odrodzenia Narodowego/Patriotic Movement for National Rebirth Polskie Stronnictwo Ludowe/Polish Peasant Party Polska Unia Socjaldemokratyczna/Polish Social Democratic Union Pa´nstwowe Wydawnictwo Naukowe/State Publishing House Polska Zjednoczona Partia Robotnicza/Polish United Workers’ Party Rada Bezpiecze´nstwa Narodowego/National Security Council Ruch Demokratyczno-Spol⁄ eczny/Democratic-Social Movement Rzecznik Interesu Publicznego/Spokesman for the Public Interest Ruch Ludzi Pracy/Movement for the Working People Rzeczpospolita Polska/Republic of Poland Ruch Obywatelski Akcja Demokratyczna/Democratic Action Civic Movement Ruch Odbudowy Polski/Movement for Rebuilding Poland Ruch Obrony Praw Czl⁄ owieka i Obywatela/Movement for the Defence of Human and Civic Rights

List of Abbreviations xi

ROP RS SD SdRP SGH SGPiS SK-L SL SLD SN SP SP TK TKN TVP UAM UD UMC-S UP UOP UP UPR URM USSR UW WAK WiN WP WRON WSI WUWr ZCh-N ZLP Znak

Rzecznik Praw Obywatelskich/Spokesman for Citizens’ Rights Ruch Stu/Movement of One Hundred Stronnictwo Demokratyczne/Democratic Party Socjal-demokracja Rzeczpospolitej Polskiej/Social-democracy of the Polish Republic Skzkol⁄ a Gl⁄ ówna Handlowa/Main Trade School Szkola Gl⁄ ówna Planowania i Statystyki/Main School for Planning and Statistics Stronnictwo Konserwatywno-Ludowe/Conservative-Popular Party Stronnictwo Ludowe/Peasant Party Sojusz Lewicy Demokratycznej/Alliance of the Democratic Left Stronnictwo Narodowe/National Party Solidarno´sc´ Pracy/Labour Solidarity Stronnictwo Pracy/Labour Party Constitutional Tribunal Towarzystwo Kursów Naukowych/Association of Academic Courses Telewizja Polska/Polish Television Uniwersytet Adama Mickiewicza/Adam Mickiewicz University, Pozna´n Unia Demokratyczna/Democratic Union Uniwersytet Marie Curie-Skl⁄ odowska/Marie Curie-Skl⁄ odowska University, Lublin. University Press Urz ad ˛ Ochrony Pa´nstwa/Ofﬁce for State-Protection Unia Pracy/Labour Union Unia Polityki Realnej/Union of Real Politics Urz ad ˛ Rady Ministrów/Ofﬁce of the Council of Ministers Union of Soviet Socialist Republics Unia Wolno´sci/Freedom Union Wyborcza Akcja Katolicka/Catholic Electoral Alliance Wolno´sc´ i Niezawisl⁄ o´sc´ /Freedom and Independence Wojsko Polskie/Polish Army Wojskowa Rada Ocalenia Narodowego/Military Council for National Salvation ˙ Informacyjne/Military Intelligence Service Wojskowe Sl⁄ uzby Wydawnictwo Uniwersytetu Wrocl⁄ awskiego/University of Wrocl⁄ aw Publishers Zjednoczenie Chrze´scija´nsko–Narodowe/Christian National Union Zwi azek ˛ Literatów Polskich/Union of Polish Writers ‘The Sign’

xii List of Abbreviations

ZNP ZSL ZUS

Zwi azek ˛ Nauczycielstwo Polskiej/Union of Polish Teachers Zjednoczone Stronnictwo Ludowe/United Peasant Party Zakl⁄ ad Ubezpiecze´n Spol⁄ ecznych/Social Insurance Enterprise

Preface Poland has since 1989 enjoyed an unprecedently favourable international situation which has facilitated its political democratization although the process has been hampered by major problems of delayed socioeconomic modernization. Democratic political institutions and constitutional politics have been consolidated. The country’s elites have successfully developed Poland’s historical traditions as well as the evolutionary consensus methods which emerged out of the negotiated revolution which ended communism. The result, examined in this study, has been the gradual working out of a widely accepted institutional balance. Parliamentary sovereignty and judicial review have been deﬁned, executive power has shifted from the president to the prime minister, supported by a more efﬁcient, although still far from perfect, cabinet and civil service and the full powers of the Constitutional Tribunal have all been embodied in the 1997 constitution. This constitutional and institutional dimension has stabilized Poland’s democratic political life despite powerful ideological and socioeconomic cleavages which have produced an exceptionally ﬂuid party system. Electoral volatility was demonstrated most dramatically in the September 2001 parliamentary election which saw the disappearance from the Sejm of the two governing parties (Electoral Action Solidarity and the Freedom Union) which had supported Jerzy Buzek, the outgoing prime minister, since 1997. As this book went to press the issue was whether the near majority achieved by the Union of the Democratic Left, which had been reconstructed in a strongly pro-European and social democratic direction, supported by the 1990’s constitutional compromise, would be strong enough to resist party fragmentation and the electoral success of the populist ‘Self-Defence’ (Samoobrona) movement. Regular cyclical swings against incumbents in Poland since 1991 have been fuelled by popular reactions against the costs of socioeconomic transformation balanced by the desire to restructure sufﬁciently to join the European Union and to achieve consumer prosperity. This study, nevertheless, demonstrates that Poland’s political institutions and traditions have a basic underlying solidity. A strong sense of constitutionalism and rule of law has been hammered out through long drawn out struggles against occupying partitioning powers, the Nazi onslaught and communist rule. They are now rooted deeply in what the Poles consider to be their national tradition, derived from a ‘usable past’ based on adapted memories of ‘gentry democracy’ and the interwar Second Republic. This holds out the realistic likelihood that what outsiders might regard as dangerous forces of instability will be contained as Poland successfully completes its systemic transition. xiii

xiv Preface

Since my ﬁrst stay in Poland for a year of postgraduate study in the History department of Warsaw University during 1965 to 1966, I have visited Poland about 40 times. During the period of East–West ideologicalsystemic struggle, my warmest links were with ‘Third Way’ reformists and patriotic-minded intelligentsia, forces which eventually achieved the compromises which ended communism. They have, subsequently, been a signiﬁcant element of the political elites which have kept the Third Republic on course, achieved the democratic normality examined in this study and done their best to protect Poland and its national culture from the more excessive depradations of democratic capitalism. Of the many, many Poles who I have met over the years it would be invidious to acknowledge my intellectual, and in some cases, personal debt to more than a leading handful of the academics – mainly in my ﬁelds of politics, history and state law – who have supported me at various times, notably Wojciech Sokolewicz; Stanis⁄law Gebethner; Hieronim Kubiak; Jerzy Wiatr; Leszek Garlicki; Ryszard Mojak; Ryszard Zelichowski; Krzysztof Skotnicki; Hubert Izdebski; Stanisl⁄ aw Bielen; Andrzej Paczkowski; Grzegorz Rydlewski; Piotr Winczorek; Wojciech Materski; Wojciech Roszkowski; Wies⁄law Skrzydlo; Zdzis⁄law Jarosz; Eugeniusz Zieli´nski; Karol B. Janowski; Andrzej Rychard; Krzysztof Jasiewicz; Adam Bromke; Zbigniew Pelczynski. Finally – but above all – I would like to dedicate this, my ninth book, to my mother in gratitude for a lifetime of selﬂess support and encouragement. GEORGE SANFORD Bristol

Chronology 10th century 966 1025 12th century 1386 1410 1505 1569 1572–1764 1653 1683 1717 1772 1788–92 1791 1793 1794 1795 1807–13 1815–30 1830–31 1863–64 1867 1918 1920 1921

1926

Piast dynasty establishes distinct Polish state. Mieszko I adopts Christianity. Boles⁄law the Brave crowned King of Poland. The feudal state disintegrates. Jagiel⁄ l⁄ o marries Jadwiga inaugurating the Jagiellonian dynasty which rules until 1572. The Teutonic Order is defeated by the Polish-Lithuanian alliance at the battle of Grunwald. Nihil Novi statute. Union of Lublin formalizes the Polish-Lithuanian Commonwealth. Election of monarchs mainly from the Waza and Saxon dynasties. First use of Liberum veto. Jan Sobieski defeats the Turks at Vienna Russian domination conﬁrmed by the ‘Dumb Sejm’. First Partition of Poland. Four Year Sejm. Constitution of Third of May. Second Partition. Ko´sciuszko’s Uprising. Third Partition ends the Polish Commonwealth. Grand Duchy of Warsaw and introduction of Napoleonic Code. Congress Kingdom and Free State of Kraków are established. Suppression of November Uprising by Russia. Russia puts down the January Uprising. Galicia gains autonomy within Austro-Hapsburg Empire. 11 November Poland regains independence with Pi⁄l− sudski as Head of State. August Bolsheviks defeated by Pil⁄ sudski at battle of Warsaw. Promulgation of democratic constitution of 17 March: Treaty of Riga secures Poland an extended eastern frontier. May coup by Pil⁄ sudski inaugurates growing authoritarian rule. xv

xvi Chronology

1935 1939

1940 1944

1945

1947 1948 1956 1968 1970

1976

1978 1979 1980

1981

1982 1983

April The authoritarian constitution is promulgated; May Pil⁄ sudski dies. Poland, invaded by Nazi Germany on 1 September and the USSR on 17 September; is divided up on the basis of the Ribbentrop–Molotov Pact. Spring–Summer Soviet massacre of over 22 000 Polish Prisoners of War, colloquially known as ‘Katy n ´ ’. Spring Anders corps ﬁghts for Monte Cassino; August–September Warsaw Uprising; December Polish Committee of National Liberation becomes the Provisional Government. Red Army occupation and establishment of communist rule within new frontiers on the Oder–Neisse in the west and around the Curzon Line in the east. Elections and elimination of remaining opposition. Gomul⁄ ka’s downfall; Stalinist domination under Bierut and Rokossowski. June Pozna´n uprising; October Popular unrest returns Gomul⁄ ka to power. March Student and reform opposition is crushed by the anti-Zionist purge. West German recognition of the Oder–Neisse line; demonstrations on the Baltic seacoast are suppressed; Gierek replaces Gomul⁄ ka. Period of growing prosperity and détente ends; June Food price increase is abandoned after Radom and Ursus riots. Suppression leads to dissidence and the Workers’ Defence Committee. Cardinal Karol Wojtyl⁄ a of Kraków is elected Pope. John Paul II’s ﬁrst visit to Poland. Summer Growing protests against the food price-rise. August sit-in strikes in the Baltic dockyards; Gda´nsk, Szczecin and Jastrzebie ˛ Agreements concede rights to strike and to organize free trade unions; emergence of ˛ Solidarity, led by Wal⁄ esa. Consumer collapse and socioeconomic discontent. July The PZPR and Solidarity hold their congresses; Jaruzelski assumes party as well as state power; December The Military Council of National Salvation declares the State of War and suppresses opposition. Organization of underground counter-society. State of War ends: John Paul II visits Poland for a second time.

Chronology xvii

1986 1987 1988

1989

1990

1991

1992

1993

General amnesty: Jaruzelski establishes Consultative ˛ the Solidarity Provisional Council. Council and Wal⁄ esa Narrow failure of referendum. Spring–Summer strikes; August PZPR plenum initiates ˛ sets up Civic reform course; December Wal⁄ esa Committee. January PZPR plenum conﬁrms reform leadership and decision to negotiate with the opposition. 6 February–5 April Round Table negotiations and contract. April Relegalization of Solidarity. June PZPR is defeated in the Sejm and Senate elections. July Jaruzelski is barely elected as president. August Mazowiecki is nominated as prime minister. September Sejm conﬁrms the Solidarityled coalition government with communist participation; signing of EEC trade and economic agreement. December Constitutional amendment excludes PZPR’s leading-role. January Dissolution of PZPR and formation of SdRP and PUS; initiation of Balcerowicz’ economic shock therapy. May Local government election. Summer Resignation of communist ministers: ‘war at the top’ splits Solidarity. November Polish–German Treaty conﬁrms inviolability of their frontier: Tymi´nski eliminates Mazowiecki in ﬁrst ˛ elected ballot of presidential election. December Wal⁄ esa as president. January Bielecki replaces Mazowiecki as prime minister. February Signing of Vi˘segrad Agreement; Solidarity Congress elects Krzaklewski as national chairman. October First fully free election produces a fragmented Sejm. December Olszewski appointed prime minister of a centre-right government; signing of EEC associate membership agreement. May Timetable for withdrawal of Soviet troops in Poland agreed. June Interior minister Macierewicz attempts to release secret ﬁles; Olszewski’s government falls. Pawlak is nominated, but not conﬁrmed, as prime minister. July Suchocka forms a Solidarityorientated coalition. November Promulgation of Little Constitution. ˛ dissolves Sejm after Suchocka loses vote of May Wal⁄ esa conﬁdence. September Last operational Soviet troops leave Poland. October SLD and PSL win a large majority of seats in Sejm election while Solidarity, KLD, PC and

xviii Chronology

1994

1995 March

1996

1997

1998

the national-catholics are excluded. November Pawlak leads an SLD-PSL coalition government. February Poland joins Partnership for Peace. April Formal amalgamation of UD with KLD to form Freedom Union (UW). May Borowski is replaced by Kol⁄ odko as minister of ﬁnance. June Local Government elections. ˛ signs Treaty with Lithuania in Vilnius. July Wal⁄esa Oleksy replaces Pawlak as prime minister: Zych becomes Sejm-Marshal April UW Congress elects Balcerowicz as leader in place of Mazowiecki. November presidential ˛ heads off challenges by Kuro´n, election – Wal⁄ esa Gronkiewicz-Waltz and Olszewski but is just defeated by Kwa´sniewski on the second ballot. December Interior Minister Milczanowski accuses Oleksy of betraying state secrets. March Cimoszewicz takes over as prime minister on Oleksy’s resignation April Suspension of investigation against Oleksy; Constitutional Tribunal rules that the abortion law is unconstitutional. July Sejm postpones ratiﬁcation of Concordat. October Publication of White Book on Oleksy affair. November Bugaj’s Sejm Commission report closes Oleksy Affair. Winter Reform of central ministries. February Bel⁄ ka takes over from Kol⁄ odko as Minister of Finance. March Wilecki dismissed as Chief of Staff; April Sejm passes constitution despite rightist and clerical opposition; AWS elects its co-ordinating committee; Lustration Law passed. May Referendum barely approves constitution on low turnout. June John Paul’s ﬁfth papal visit to Poland; EU Amsterdam summit decides to begin negotiations for full membership entry with Poland. July Serious ﬂooding in southern and western Poland; NATO Madrid Summit endorses Polish membership. September Sejm election produces an ‘Electoral Action’ Solidarity (AWS) and Freedom Union (UW) majority. October Jerzy Buzek forms an AWS-UW coalition government. December Finance Minister Balcerowicz launches an economic austerity programme. January Ratiﬁcation of the Concordat with the Vatican. March Jan Kulakowski appointed Government Plenipotentiary for EU entry negotiations. April Opening of ﬁrst stage ‘screening’ negotiations with EU. June Amended Lustration Law is passed – Nizie´nski appointed Public Interest Spokesman. October Local

Chronology xix

1999 2000

2001

government elections. December Institute of National Memory is established. March Poland becomes a NATO member. June Sixth Papal visit. January Treasury Minister Wasacz ˛ resigns. May Buzek forms a minority government on UW withdrawal. August Lustration Court approves Kwa´sniewski’s and ˛ electoral declarations. September Kwa´sniewski Wal⁄ esa’s vetoes Universal Wealth-Holding Law. October Presidential election – Kwa´sniewski is re-elected decisively on the ﬁrst ballot – Olechowski does well, Krzaklewski poorly. February Formation of PO. April New electoral law. October SLD almost wins a majority of seats in the Sejm and does so in the Senate in the parliamentary elections. The PSL, PO, Samoobrona as well as Catholic and conservative groups win Sejm representation but the AWS and UW fail to do so; Leszek Miller forms SLD-PSL government with Cimoszewicz as Foreign Minister.

1 The Constitution and History

Poland’s quest for security and modernization The achievement of political modernity in Poland has been dominated by the struggle to regain independence lost in the nineteenth century and to protect independence threatened in the twentieth century.1 Against this, the domestic corollary since the eighteenth century has been the continual attempt to achieve constitutional government. Constitutions, therefore, have played a crucial role in this endeavour and are deeply embedded in the national consciousness. In Poland, they have represented important signposts in summarizing the progress achieved and the nature of the project at any particular point. Some of the constitutions achieved are held to have been progressive and ‘real’: mainly those promulgated under conditions of independence. They also proclaimed the principle of the separation, rather than the unity, of state power and thus of democratic rather than authoritarian rule.2 Democratic principle applies in particular to the constitutions of 3 May 1791 and 17 March 1921; the ‘Little Constitution’ of 17 October 1992 and the fully rounded-off democratic constitution of 2 April 1997. Conversely, Pil⁄ sudski’s constitution of 23 April 1935 and the previous ‘Little Constitution’ of 19 February 1947 are held to be less legitimate as they were, in their respective ways, more authoritarian drafts. The communist constitution of 22 June 1952, in the contemporary view, was ‘a document devoid of all meaning’, designed to mask the realities of PZPR hegemonic rule.3 What is undisputed is that constitutions have been crucial to the modern Polish quest for viable and effective statehood.4 The historical signiﬁcance of Poland’s independent constitutions, according to one Polish émigré newspaper, is that they provide ‘evidence of the continuity of the state’s legal system and its individual character in the international arena’.5 Poland’s history as one of the great states of Europe up to early modern times was followed by interrupted statehood from 1795 to 1918 when the partitioned country was ruled by three external empires. In the twentieth 1

2 Democratic Government in Poland

century, a threatened state independence during the interwar period and incomplete sovereignty between 1945 and 1989 have been matched by horriﬁc extremes of subjugation by conquerors in two world wars.6 There have been question marks over Poland’s very existence at times. There have also been continual debates over her frontiers and what constitutes Polish territory as well as the very ethnic and political character of the Polish nation-state.7 Only after 1989–91, with the passing of the communist system and of Soviet control, did the fundamental security issues which had plagued Poland’s history since the seventeenth century achieve a favourable resolution.8 By the beginning of the twentieth-ﬁrst century, Poland had entered NATO and was negotiating her entry, however fraught with difﬁculties, notably over the free movement of labour and capital and agricultural support into the European Union (EU). She had achieved a secure place in a postwar united Europe which safeguarded her against the external German and Russian threats which, since about 1700, had endangered her very existence. The modernization of her society and economy, which had been delayed by external factors for so long, was well under way. This transformation provoked varied reactions by what have been termed socioeconomic losers. However, extremist Catholic-authoritarian and Poujadist protectionist reactions, similar to those in 1950s France, were contained fairly easily. Democracy and market capitalism had been consolidated although long-ingrained patterns of political behaviour continued to affect governmental stability and the evolution of a stable and effective party system. The rule of law had been established and developed. Longstanding social pathologies of group anomie and distrust caused by foreign rule and wartime destruction, interplayed with the alleged Polish cultural vices of excessive individualism. Political scientists noted levels of corruption and clientelism at the political interface between the central political system and the economy, mass media and the emerging provincial and municipal elites. A decade earlier, comparisons tended to be made between Poland and Mexico and India, so progress, of sorts, was being conﬁrmed. Above all, the enormous economic gap between Poland and the EU average and the inevitability that this would dominate and condition Poland’s development for a whole generation loomed menacingly over the political scene. But the normality for which the country had longed, and only achieved for short periods during the twentieth century, now seems safe, short of unpredictable global cataclysms. Poland’s elites have maintained a general consensus and accepted the parameters for the country’s development within the favourable postcommunist European framework. In sum, while the country’s external longterm prospects are positively rosy compared with the experiences of the past three centuries, the short-term domestic problems will, nevertheless, loom large. The fate of large numbers of redundant industrial workers and

The Constitution and History 3

the threat of massive peasant displacements complicated Poland’s EU entry negotiations. Considerable labour movement to the prosperous West may alleviate Poland’s socioeconomic problems at the price of aggravating a serious identity crisis in the country’s modernization drive. The historical factors which have hardened a strongly resilient, independently minded and Catholic national character will, doubtless, be undermined. It is unclear, at this stage, what new secular and market-orientated social synthesis will emerge as a result of the conﬂict between old and new values and interests. It is understandable why Polish studies should have been dominated for so long by issues concerning independence, security and a backward socioeconomic position in Europe.9 Social stresses and strains and political divisions also had an unfavourable impact on the country’s political system, causing major recurrent, often basic, ideological and programmatic political divisions. The country’s political culture has, therefore, often been characterized as being inherently fractious and quarrelsome. Long lines of historical continuity have been traced back to superﬁcially similar patterns of disunity and lack of elite and state cohesion during the later periods of the Polish–Lithuanian Commonwealth, which was in gradual decline from the mid-seventeenth century onwards. A common charge is that internal division and bad state organization were crucial in causing the state’s lack of competitiveness with more ruthlessly centralized and militaristic external rivals and her consequent erasure from the map of Europe. The accusation of Poland’s ‘external anarchy’ was expressed in a most self-serving way by Frederick the Great of Prussia.10 In the nineteenth century this theme was argued, rather more sorrowfully, by the Kraków historical school. It is, therefore, obvious why such a strong connection should have been established during the last two centuries, in both the political consciousness and in academic debates, over the need for effective state and political organization to ensure sovereign independence. But is the opprobrium and low reputation attached to the state and political institutions – as being viewed as important contributory factors to Poland’s disasters – wholly merited? This study argues from the contrary premise: that signiﬁcant institutional and organizational continuities developed even during the divisions of external and partitioned rule. These counteracted the ‘historical discontinuities’ of external political control and rule, varied governmental forms and a changing territorial shape and frontiers as discerned by the American political scientist, Ray Taras.11 A signiﬁcant synthesis of state forms was achieved despite the superﬁcial oscillation between the extremes of parliamentary democracy and guided authoritarianism in the interwar period. Many state and bureaucratic-legal forms continued unchanged, assuming a different character in reality during communist rule. Since 1989, they have blossomed out untrammeled with the consolidation of democracy.

4 Democratic Government in Poland

The Polish political system and its state institutions thus have long historical and developed roots and traditions, although these have evolved dramatically in substance from their original forms. Poland has many indigenous and original features which merit study and comparison with more established and familiar European equivalents. The problem is a somewhat circular one, however, as very little Polish history and politics is taught in university courses in the western world. This study has, therefore, been cast rather more as a monograph than as a student textbook – although the student is invited to refer to the tables which summarize government in Poland up to the present.12 One trusts, however, that both the general reader and the specialist will draw on it for interpretation as well as for reference.

Historical traditions and constitutional values The great issues in Poland’s early history concerned the deﬁnition of its frontiers, territorial shape and internal composition. Although it is a historical simpliﬁcation to contrast a Piast model (named after Poland’s ﬁrst dynasty which ruled from the tenth century until 1370) with the Jagiellonian one (which ruled from 1386–1572, with a short Angevin interlude) what is nowadays important is the popular perception; this highlights the difference between their main orientations. Piast Poland is associated with the idea of an ethnically and territorially compact state, mainly concerned to repel German aggression and to consolidate itself in the West without overstretching itself in the East.13 In practice, there was great expansion eastwards at various times. By the battle of Grunwald in 1410, the Teutonic Knights had also pushed the Poles out of much of Pomerania and East Prussia. The folk memory of the Knight’s extermination of native populations was reinforced by Henryk Sienkiewicz’s great nineteenthcentury novel, The Teutonic Knights (Krzyzacy). ˙ Unfortunately, its historically truthful depiction of Poles as victims jars somewhat with western liberals. The criticism has also been fostered by partisan German and Jewish writers. Universally read by Poles, The Teutonic Knights was made into a powerful ﬁlm by Aleksander Ford during the time of the Polish People’s Republic (PRL); it reinforced the renewed twentieth-century perception, strengthened by the horrors of Nazi occupation, of Germany as the genocidal enemy ‘other’ of the Poles.14 Polish–German relations have been recast following Bonn’s recognition of the Oder–Neisse frontier in 1970, since when Sienkiewicz’ Catholic and mystical themes of forgiveness as the basis of reconciliation have become more relevant. Nowadays the idealized version of Piast Poland is also associated with a strong unitary state. In reality, there was much feudal fragmentation in the twelfth and thirteenth centuries.15

The Constitution and History 5

Poland emerged after 1945 with a new western frontier on the OderNeisse rivers, fairly close to where it had been a thousand years earlier. Its eastern frontier largely followed the Curzon Line, named after the British Foreign Minister who advocated it in 1920.16 It now excluded the bulk of the Ukrainian and Belarusan minorities, gained by the 1921 Treaty of Riga, which were incorporated in 1939–40 in their respective Soviet Socialist Republics. Roman Dmowski, the interwar National Democrat ideologue of integral nationalism, had been closer to the historical Piast reality of eastward expansion into Polish-dominated areas susceptible to, what in modern times may be termed, ‘Polonization’. The redrawing of Poland’s new frontiers at the postwar Yalta Conference produced a compact rectangular territorial shape. Postwar Poland had an area of something over 120 000 square miles as a result of losing 69 290 square miles to the USSR and gaining 39 597 square miles from Germany. The country also rationalized its frontiers. These were reduced from 3445 miles prewar to 1905 miles, but Poland’s Baltic seacoast increased from 87 miles to over 300. Large end-ofwar population movements and transfers expelled the bulk of the Germans, leaving only a few hundred thousand Ukrainians and Belarusans in the new state. Similar numbers of Jews, who had survived the Nazi Holocaust, also remained, but most left, subsequently, at various times. National Minorities made up about a third of the population in the interwar Second Republic, but were at a roughly 4 per cent level at the Polish People’s Republic’s (PRL) inception. By the end of the century, minorities had dwindled to a mere 2 per cent when the country’s population almost reached 39 million. Equally signiﬁcant in terms of territory lost and gained, eastern territories and cities like Lwów (Lv’iv) and Wilno (Vilnius), which had been part of Poland for centuries, were lost irrevocably as a result of the Second World War postwar settlements. This reality has been conﬁrmed by the emergence of independent Lithuanian, Belarusan and Ukrainian national states after 1991. Jagiellonian Poland had, at its peak, stretched from the Baltic to the Black Seas. The residual historical memory is thus that of an intermarium which, if not Polish-dominated, is potentially one of Polish regional inﬂuence. With the permanent loss of the eastern territories being clearer now in the national consciousness than in 1940, the latter formulation, one of regional inﬂuence is residually more relevant to Polish foreign policy. What then is left of the Jagiellonian tradition? Clearly, the idea of a farﬂung, decentralized and loosely organized quasi federal state of various national groupings under general Polish hegemony is today no longer viable. Such a state lurked as a general possibility immediately after the First World War. The successful Polish–Soviet War of 1920 gave interwar Poland its Riga frontier, stretching well into West Ukraine and West Belarus. This frontier went far beyond any strictly ethnic deﬁnitions for

6 Democratic Government in Poland

organizing the borderlands on Jagiellonian confederal principles. Such schemes, despite much misleading historical controversy on the subject, were already recognized as unworkable by Pil⁄ sudski.17 As Poland’s dictator after 1926, Pil⁄ sudski carried out a very realpolitik-minded foreign policy. His domestic policy involved centralized control and ‘Polonization’ of East Slav minorities rather than autonomy. As late as the outbreak of the Second World War, Raymond Buell could write that Poland was ‘dominated by the dream of its greatness during the Middle Ages – a great culture and a vast domain which under one ruler sheltered a large number of nationalities’.18 Poland’s rulers at the time of the Second World War could seriously think ‘in terms of unifying Central Europe’.19 The idea of a centralized unitary state based on a Polish ethnic core has, however, triumphed over any federal or confederal alternative of a Polish-led grouping of peoples in the borderlands (kresy).20 Residues of the latter conception survive in the Polish consciousness but are diminishing to almost zero amongst the young. They have largely been transformed into secondary derivative forms: that Poland has special historical skills and connections and actual regional security and economic interests in the area. On the other hand, as late as 1991, an (admittedly untypical) public opinion poll showed that a majority of Poles still thought that parts of neighbouring countries should belong to Poland itself.21 The new states in this adjacent region, notably Lithuania and Ukraine, have elites that are strongly concerned to consolidate independence within a European framework.22 The contrary Belarusan case of seeking reintegration with Russia is linked to President Lukashenko’s maverick and authoritarian behaviour.23 Since 1989, sentiments of distrust, contempt and fear of Russia as Poland’s most hostile and barbarian ‘other’, fuelled by the original perception of the ‘Return to Europe’ as rejoining European civilization, have abated.24 On the other hand, current pressures for regionalism and decentralization in Poland have a completely different meaning than in the past. Domestic opponents, nevertheless, often resort to archaic Jagiellonian vocabulary and parallels. The socialist experience of modernization had produced an exceptionally homogeneous nation-state. This state faces the global challenge of modern forms of multiculturalism rather than ethnic conﬂicts of the post-Yugoslav type, although defensive reactions against modernization are too easily depicted as forms of nationalist particularism.25 The other main strand of Jagiellonian state organization – estates or gentry democracy – however, remains far more germane in any discussion of Polish cultural patterns. From the second half of the ﬁfteenth century onwards, the country’s magnates, supported by a gentry (szlachta) class, which together was estimated as, at various times, totaling around 6–9 per cent of the population, controlled local assemblies or Dietines (Sejmiki). Siemienski deﬁnes this as the ‘fundamental unit’ of the Polish system: these were ‘territorial communities (communitates) operating in the shape of

The Constitution and History 7

assemblies at which those present decided in the name of all’.26 The landed gentry became increasingly differentiated in terms of property, but remained equal in legal status. They began an irresistible drive towards domination of the central executive and representative institutions. The fairly homogeneous Piast monarchy was transformed into a multiethnic commonwealth which turned increasingly into a ‘Republic of Nobles’. As early as 1454, the general assembly of the gentry of Greater Poland forced the monarch into concessions embodied in the Statute of Nieszawa – described as ‘the charter of Polish parliamentarianism’.27 The King accepted the joint say of the Dietines and general assemblies over constitutional change and the declaration of war. These powers were gradually extended over the following century, especially over the Sejm which was the legislating body.28 An acceptable balance existed until the death of Zygmunt II Augustus, the last Jagiellonian, in 1572. The system allowed, what was for its time, a remarkably free and developed political life to ﬂourish. The national parliament or Sejm (the Diet) assumed a recognizably modern form in 1493. The Senate representing the senior magnates and clerics began to sit separately from the lower house representing the ordinary, but legally equal, gentry. Wacl⁄ aw Uruszczak has argued that henceforward ‘the question of parliament constitutes the central problem of the history of the political system of old Poland’.29 For its time, this produced an extremely wide and broadbased electorate which elected the deputies to the Sejm. However, this originally progressive development degenerated. Politically destructive, culturally negative and socially exclusive values developed to justify gentry rule. While the Szlachta was extolled as a Sarmatian noble warrior class, racially distinct from ordinary Poles, it gradually declined into xenophobia and megalomania as well as excessive hospitality and an empty ceremonial.30 The Nihil Novi statute of 1505 enshrining the principle of no taxation – and eventually legislation – by the monarch without parliamentary approval, contributed to a Golden Age of Renaissance culture. Early balanced constitutional development initially prevented the emergence of absolute monarchy and provided an acceptable framework for the varied religions and ethnic groups within the extensive Polish–Lithuanian union. The principle of toleration was extended to Protestants in 1555 and formalized by the Confederation of Warsaw of 1573.31 The Polish–Lithuanian kingdom, based for a long time purely on a hereditary Jagiellonian dynastic union, was institutionalized by the Union of Lublin of 1569.32 This transformed it into the Commonwealth of Poland and Lithuania. The crucial innovation was that the separate Sejms of both countries now met as a single parliament in Warsaw to enact national legislation. Kraków, consequently, lost its political signiﬁcance and was replaced by Warsaw as the national capital in 1596.

8 Democratic Government in Poland

The Polish word for both Commonwealth and Republic is Rzeczpospolita so the post-Lublin arrangements are often described in terms of a republican commonwealth organized on the principles of gentry democracy. There had been continual and long-drawn-out conﬂict between the Jagiellonian monarchs and the gentry, who demanded an extension of their privileges (the ‘Execution of the Laws’ movement); a balance was nevertheless maintained.33 The extinction of the Jagiellonian dynasty in 1572, however, allowed the gentry to replace what had been the de facto hereditary basis of the monarchy with election by the szlachta assembled in a convocation Sejm presided over by the Roman Catholic Primate of Poland as Interrex.34 This principle was enshrined in the ‘Henrician Articles’ produced by the very ﬁrst such election; these have been described as the Rzeczpospolita’s fundamental law, if not proto-constitution.35 The direct sovereignty of the general assembly, allowing the supreme power of the whole of the legally qualiﬁed gentry, was thus established at the expense of rather less comprehensively representative, but more effective, parliamentary forms. The monarchy was weakened further by having to promise an increasing range of privileges, including exemptions from taxes and military service and guarantees of legal immunity and equality of rights, in a package known as the pacta conventa, in order to gain sufﬁcient support to ensure election.36 Foreign candidates also competed for ownership of the Polish state, from the contested royal election of Henri de Valois in 1573, onwards, with disastrous and debilitating consequences. Although the reigns of Stefan Batory and of the ﬁrst two Wazas, Zygmunt III and Zygmunt IV, partially camouﬂaged the decline of royal power, the consequence was ever-increasing weakening of the state’s international competitiveness. Gentry privileges prevented social, economic and urban development and caused military weakness and civic and cultural decay. Pawel⁄ Skwarczy´nski summarized the main constitutional features of the Commonwealth as being ‘the contractual conception of the state, elective monarchy, the reality of royal power, the organization of the diet and dietines’. He argued that three centuries of ‘organic evolution’ became ‘fully crystallised in the Polish state of the sixteenth century’ but that the latter was deformed and warped in the run up to the Partitions.37 The historic shift from the English ‘King-in-Parliament’ model to the gentry-dominated form of estates democracy, aggravated by such principles as the ‘Imperative Mandate’ and the Liberum veto, was, however, the root cause of the problem which affected Poland’s constitutional and international viability. The former doctrine of representation regarded the Sejm not as a Burkean body of representatives free to take decisions in the national interest but as a meeting place of mandated delegates. Instructions from the provincial Dietines became fully binding from the end of the sixteenth century onwards. The Dietines also increasingly became dominated by the selﬁsh, short-sighted and contentious interests of the landed mag-

The Constitution and History 9

nates.38 The Sejm, in Raymond Buell’s expressive words, became ‘less a legislative body than a miniature League of Nations, composed of delegates from 50 to 60 sovereign “palatines”’.39 Stanisl⁄ aw Kutrzeba has also shown how the size of both the Sejm and Senate ﬂuctuated considerably over time, thus worsening its unwieldy and quarrelsome character.40 The ‘Golden Freedom’ of the gentry thus degenerated into the ‘anarchy’ expressed in the principle that ‘Polska nierz adem ˛ stoi’ (Poland is governed by unrule). From 1652 onwards, when it was used for the ﬁrst time by Wl⁄ adysl⁄ aw Sici´nski, most Sejm’s (45 out of 55 in fact between 1652–1772, including all except one out of 14 during the reign of Augustus III) were incapacitated by the exercise of the Liberum veto.41 This allowed a single deputy to veto, not just a bill under consideration, but all the legislation passed earlier by the sitting Sejm, thus ‘exploding’ it.42 The practice of confederation also degenerated by the early seventeenth century into the rokosz, a form of institutionalized insurrection, directed as often as not against the king. As a result, Poland was unable to hold its own in the international arena. The country was undermined by Chmielnicki’s uprising which resulted, before too long, in the loss of half the Ukraine by the Truce of Andruszowo in 1667. Poland was ravaged by the Swedish ‘Deluge’ of the 1650s and unable to prevent the rise of its greatest external enemies, Prussia and Russia. The gentry commonwealth went down with a ﬂourish with Jan III Sobieski’s victory over the Turks at Vienna in 1683. After his death in 1696, Poland became a Russian satellite. The complacent rule of two Saxon kings, Augustus II and Augustus III, turned the country into the plaything and victim of Muscovy’s conﬂicts with Sweden, France, Prussia and Austria.43 The interplay between reforming and conservative confederations and a challenge to Russia’s overall hegemony in Poland precipitated the First Partition in 1772.44 The determined attempt to reform the country’s political and educational structures during the reign of Stanisl⁄ aw August Poniatowski, which culminated in the constitution of 3 May 1791, however, also provoked the ﬁnal partitions of the country in 1793 and 1795.45 The signiﬁcance of this belated attempt to produce political and social regeneration and a modern state is that it helped the Polish nation to create the constitutional values and historical memories which allowed it to survive the very extinction of that state.46 The Gentry Parliament would have been a wholly negative memory in the Polish historical consciousness without its transformation into a recognizably modern one by the Third of May constitution in 1791; Dyboski describes it as the foundation of all Polish modern development.47 Stefania Ochman, a major constitutional scholar, also points out that ‘parliamentary reform was an integral part of every programme aimed at improving the political system of the Commonwealth’.48

10 Democratic Government in Poland

The effects of foreign rule and war on state institutions After the downfall of the old Commonwealth, different parts of Poland were subjected to Russian, German and Austrian rule as well as an initial period of very strong French links. Napoleon did not restore a greater Poland to balance his dynastic enemies in the east, only a short-lived rump, the Duchy of Warsaw, in 1807. Even that was ruled by the King of Saxony, although it was extended somewhat in 1809.49 French practices and the Napoleonic Code, conﬁrming the uniform and equal legal and administrative treatment of citizens, were introduced while serfdom was abolished. Although short-lived, such reforms were to affect popular memory as well as interwar Poland.50 William Rose considers that the code set ‘a new standard for civic relations’ and that ‘many of its principles can be discerned as lasting over’ into its successors.51 The Duchy only survived until it was replaced by the Russian-controlled Congress Kingdom in 1815 where the Sejm had some advisory powers.52 Its autonomy was curtailed after the 1831 Uprising and completely subordinated after the 1863 insurrection. Prussia and Austria also reclaimed much of their respective Polish gains at the Congress of Vienna whose territorial arrangements for Poland remained largely unchanged until the First World War.53 The history of the country’s rule by the partitioning powers, punctuated by uprisings, political emigration as well as the development of strong nationalist, revolutionary and anti-state traditions and mentalities, does not concern us directly.54 What is relevant are the consequences for the independent Polish state and twentieth-century political institutions and practices. Much of the country’s social and economic backwardness, in Austrian-controlled Galicia and Russian-run eastern Poland, could justiﬁably be blamed on their partitioning powers. Prussia on the other hand is held to have instilled better levels of labour discipline and even middle-class entrepreneurship in Pozna´n, Pomerania and Silesia. Jerzy Jedlicki argues that this instilled a schizophrenic attitude towards modernity in the mind of Poles by identifying it with a superior national rival.55 Poor civic traditions and distrustful Polish attitudes towards the state have been traced back to Russiﬁcation and Germanization and authoritarian rule. The Austrian partition is held to have fostered more responsible conservative and peasant political elites through its post-1867 decentralization.56 Although mixed and patchy, the economic, social and civic-political legacy of nineteenth-century partition rule was largely negative. All authorities agree, however, that the dominant consequence was the creation of a strongly resilient Polish nationalist and predominantly Roman Catholic counter society to oppose the occupying powers.57 Mark Brzezinski also points out that the Poles ‘asserted and further reﬁned their constitutional values’ through the political programmes and constitutional drafts mooted in the 1830–31 and 1863–64 uprisings.58

The Constitution and History 11

The integration of society with the state and the development of more normal civic and economic attitudes and behaviour inevitably caused difﬁculties after independence. Writers such as Jerzy Jedlicki and Marcin Król argue that past heroic struggles and literary models made it difﬁcult for twentieth-century Poles to come to terms with the prosaic nature of everyday life under democratic capitalism; Wiktor Herer and Wl⁄ adysl⁄ aw Sadowski also stress the schizophrenic effect of economic backwardness coexisting with a highly self-conscious intelligentsia and developed levels of western culture in Poland.59 The coming together of state and society to support civic democratic politics of the Western European type was, however, to be delayed by the destruction of two World Wars. The PRL experience was also very diverse, with initial Stalinism mellowing into pluralist authoritarianism and domesticist nationalism by its end.

Constitutions and political frameworks The constitution of 3 May 1791 and the failure of constitutional modernization The last 30 years of the Commonwealth, coinciding with the reign of Stanisl⁄ aw Augustus Poniatowski (1764–95), were marked by two quite contrary constitutional tendencies. The Cardinal Laws of 1668 and 1775 and reactionary confederations, notably of Radom in 1767 and Targowica in 1792, attempted to conﬁrm the system of gentry privileges and local magnate rule under Russia’s external patronage. The Czartoryski clan, however, worked for Sejm reform and constitutional monarchy through the 1768 Confederation of Bar and the Education Commission (established in 1773).60 A modern-looking governmental institution, the 36-strong Permanent Council (1775), elected by the Sejm, assumed many royal powers. Its ﬁve departments began to function as quasi ministries. The Council’s policies were, however, profoundly ambiguous and contradictory, reﬂecting the conﬂicting currents which preceded the Four-Year Sejm of 1788–92. The doubling of that Sejm’s size by new elections in 1790 allowed reform elements to seize the initiative. They attempted to proﬁt from a favourable international situation, Catherine the Great’s temporary weakness and the 1790 treaty with Prussia.61 The result was the Constitution of 3 May 1791, the world’s second modern written constitution after the American Constitution, and a most evocative part of Poland’s political consciousness.62 Drafted by Ignacy Potocki and Hugo Kol⁄ l⁄ ataj, ˛ with the support of King ˛ (litStanisl⁄ aw Augustus, the constitution, described as an ‘Ustawa Rzadowa’ erally Government Law), was organized succinctly in a preamble and 11 articles.63 It aimed to limit magnate and gentry excesses by strengthening the powers of parliament, creating a government responsible to it and producing a constitutional monarchy close to the English model of the

12 Democratic Government in Poland

time. The formal equality of rights of the landed gentry were maintained, but the landless (zagrodowa) section was deprived of its capacity for causing political mischief. The middle and urban classes beneﬁted from the declaration of liberal individual rights to justice, property and freedom of political life and religion (while maintaining the primacy of Roman Catholicism). The Liberum veto, the imperative mandate and right of confederation, were abolished while the elective monarchy was replaced, in principle, by a hereditary one. The constitution declared that the nation was sovereign – ‘all authority derives from the will of the nation’ – but restricted the deﬁnition of the political nation in practice.64 The peasant question was barely broached where this infringed gentry rights and this was left to Ko´sciuszko’s Polaniec Manifesto during the 1794 insurrection.65 Montesquieu’s threehold separation of the powers was accepted in the form of a bicameral parliament (an indirectly elected and constitutionally dominant 204-strong Chamber of Deputies and a 132-strong nominated Senate). The newly organized Cabinet of Ministers were accountable to parliament which could dismiss it by a two-thirds vote of both houses. The much reduced crown prerogative and the rule of law was to be supervised by this novel executive body, the ‘Guardians of the Laws’ (Stra˙z Praw). Ministerial violation of laws could also be dealt with through an early form of constitutional responsibility to a Sejm Court, which was drawn from both chambers. The constitution was an imperfect and compromise document by modern criteria but it reﬂected the best ideas of the Enlightenment and the views of the most progressive sections of Polish society of the time.56 By itself it could do little to prevent, and may have actually precipitated, the Second and Third Partitions by threatening Russia and Prussia with domestic Polish regeneration.67 A wide range of authorities, however, conﬁrm that it became a ‘symbol of Poland’s national identity – an identity based on the values of constitutionalism, and limited, enlightened government’ during the long period of lost statehood and after.68 Democracy and the Second Republic: parliamentary sovereignty versus the strong executive Independent Poland was resurrected in November 1918 and the Second Republic soon assumed a parliamentary dominated form of democracy.69 This became more authoritarian upon Józef Pil⁄ sudski’s armed seizure of power in May 1926.70 The Sejm’s powers were limited by the constitutional amendment of 2 August 1926 which strengthened the presidency. Pil⁄ sudski did not, despite election, however, assume the post. He ruled indirectly through his nominee, Ignacy Mo´scicki, who remained in-ofﬁce until September 1939. The initial four-year period of ‘rationalized parliamentarianism’ saw conﬂict between Pil⁄ sudski and the Sejm, headed by its Marshal,

The Constitution and History 13

the Polish Socialist Party leader, Ignacy Daszy´nski. This culminated with Pil⁄ sudski’s Sanacja (Moral Renewal) movement, organized in 1928 into a Nonparty Bloc for Cooperation with the Government (BBWR), gaining a majority in 1930 after opposition ﬁgures had been imprisoned in the Brze´sc´ camp.71 Even then, the April 1935 constitution, which completed the turnaround in the balance of powers a few weeks before Poland’s de facto dictator died, had to be passed by subterfuge. All this gave ammunition for foreign enemies and critics. They depicted interwar Poland as a saisonstaat (temporary state) which had failed to achieve a workable constitutional balance.72 The power struggle between Pil⁄ sudski, as Head of State (1918–22), and Roman Dmowski and the National Democrats, was settled initially in the latter’s favour by the March 1921 constitution. That document conﬁrmed most of the key aspects of parliamentary supremacy outlined in the temporary ‘Little Constitution’ of 20 February 1919 produced by the Constituent Sejm elected that January.73 The ‘Little Constitution’ subjected Pil⁄ sudski’s acts as Head of State, to countersignature by the appropriate minister and subordinated both him and the government formally to the Sejm, thus limiting the principle of the separation of the powers.74 The 1921 document was made up of 126 articles grouped under seven chapters while its preamble began with a religious invocation – ‘In the name of God Almighty’.75 It was modelled on the theory of the French Third Republic and the practice of 1921–26 closely paralleled its behaviour.76 The fundamental democratic principles of the sovereignty of the nation, the division of powers and the guaranteeing of civic and individual rights were conﬁrmed. But the key feature was that the president (elected for a seven-year term by a National Assembly composed of the Sejm and Senate) was ‘more or less a ﬁgurehead’ while the prime minister was ‘helpless unless he could command a majority in the House’.77 The Sejm controlled the government very closely through almost unchecked powers of appointment, censure and dismissal. Both the 444-strong Sejm and the 111-strong Senate were elected by direct and universal suffrage. The latter was clearly inferior although it could participate in legislation and could agree to a presidential request for the dissolution of the two parliamentary chambers. Deputies had no formal checks, such as the threat of dissolution, on their capacity to maintain control over the government as well as individual ministers through repeated votes of conﬁdence and censure; the same applied to their powers over the budget and legislation. Independent Poland’s early political life thus became fragmented, quarrelsome and extremely unstable. The ﬁrst president, Gabriel Narutowicz, was both elected – and murdered by a right-wing fanatic – in December 1922. His successor, the socialist Stanisl⁄ aw Wojciechowski was, in reality, deposed by Pil⁄ sudski in May 1926. Proportional representation produced a large number of parties in the Sejm, representing a wide range of Catholic,

14 Democratic Government in Poland

nationalist, conservative, peasant, leftist and national minority groupings.78 During 1921–35 about 28 communists (KPP) were also elected to the Sejm, supported by two dozen Belarusan and Ukrainian leftists, but they largely played a disruptive role.79 Party fragmentation was counteracted by the formation of blocs, such as the National Democrat-dominated Christian Alliance of National Unity in November 1922.80 Overall, Poland had 13 governments between January 1919 and May 1926, on average, lasting a mere seven months.81 Five were coalitions and eight minority or non-party specialist governments. About a third of the 90 or so political parties established in this ‘turbulent’ period gained Sejm representation;82 but the 23-month-long government of Stanisl⁄ aw Grabski in 1923–25 also demonstrated that crisis conditions provoked stabilizing behaviour and party support.83 The initial Stalinist tendency in the PRL was to stress the ‘bourgeoisfeudal landowner’ character of the Second Republic. Interpretations after October 1956 admitted the democratic value of the 1921 constitution in consolidating national independence and its progressive nature in relation to Pil⁄ sudski’s authoritarianism.84 Church-State relations were also regulated, not by the 1921 constitution, but by the Concordat signed with the Vatican and ratiﬁed by the Sejm in 1925. This remained in force until it was revoked in 1945. The three Catholic rites (Latin, Greek Catholic and Armenian) were given full organizational and religious autonomy, although the president could object to nominations of archbishops and bishops.85 Pope Pius XI also adjusted diocesses in late 1925, as agreed, to ﬁt in with Poland’s state boundaries. The Roman Catholic church played a dominant role in interwar Poland’s public life; it beneﬁted from a privileged position in relation to minority faiths although this was not enshrined constitutionally.86 Minority religions still had not been regulated by 1939 because of their close connection with national minority issues. The constitutional amendment of 2 August 1926 was made up of eight articles revising or replacing six articles in the March 1921 constitution. The changes tightened the government’s control over the passing of the budget, allowed the president to dissolve the Sejm before the expiry of its term and to issue decrees with the force of law subject to subsequent Sejm approval. Parliament became less capable of ‘ambushing’ a government by voting on a motion of censure at the same sitting as it was introduced. The 1935 constitution aimed to produce a presidentially dominated system.87 The Sanacja ideologue, Sejm Marshal Stanislaw Car, justiﬁed political unity in terms which were to be echoed by hardline postwar communists.88 The constitution declared that the Polish state was ‘the common good of all its citizens’; it concentrated ‘united and undivided state power’ in the hands of a constitutionally irresponsible president answering only to God and History.89 The president did not bear parliamentary responsibility as he was not subject to ministerial countersignature. On the other hand,

The Constitution and History 15

the government now became politically responsible to the president. He appointed and dismissed both the government and individual ministers and had unlimited powers of dissolution over both the Sejm and Senate. A new electoral system allowed Sanacja to pack both these bodies with its members and so constitute the majority of the college electing the president. In the event of conﬂict over the succession, an outgoing president could nominate an alternative candidate to challenge parliament’s choice in a vote by universal suffrage. In the case of war, the president could nominate his successor, as Mo´scicki did with Wl⁄ adysl⁄ aw Raczkiewicz on internment in Romania. Guided Democracy, of this type, based on principles of a Strong State and social solidarity, was tailor made for Pil⁄ sudski but it was promulgated just prior to his death. Poland was run, subsequently, by a triumvirate of President Mo´scicki, Marshal Edward Smigl⁄ y-Rydz, who controlled the army, and Foreign Minister Józef Beck. Their power struggles permitted a fair bit of de facto pluralism in the four years before Nazi Germany and Soviet Russia joined forces to destroy the country.90 Prewar experience is signiﬁcant in that Sanacja, although a hegemonic force after 1926, and an unquestioned one after 1930, was forced to work through the Sejm and to evolve an authoritarian form of Guided Democracy.91 It was unable to dispense wholly with democratic institutions and to set up a fascist corporate state. Although the ideological content of the PRL was wholly different, there were notable structural state-society similarities between interwar and postwar Poland.

The usable past of Polish constitutionalism The Second Republic had a difﬁcult job in establishing its frontiers, gaining its western border at Versailles and extending its eastern one by the 1921 Treaty of Riga, after winning the Polish-Soviet war the previous year.92 The new democracy also made considerable progress in the long-drawn-out process of unifying the different governmental, economic, ﬁnancial, postal and transport systems inherited from the three partitioning powers.93 It is, therefore, a very debatable matter to ascertain the extent to which this reconstruction was affected by older native traditions as against imposed foreign inﬂuences. Hubert Izdebski argues categorically that ‘as a result of the absence of Polish statehood in the nineteenth century the home-grown model of public administration, which crystallized in the Stanisl⁄ awian period, could not have any inﬂuence on shaping the institutions of public administration’ in independent Poland. He goes on to argue, however, that the Second Republic adopted ‘the Austrian model of administrative procedure and justice, the principles of the Prussian model of territorial organization and Russian patterns of ﬁnancial institutions’.94 This may well have been true in purely technical terms. There is, however, a considerable

16 Democratic Government in Poland

weight of authority that the Poles referred back to, and adapted, many of the forms and values, and certainly the nomenclature, of their older native models and traditions. But irrespective of the inﬂuence of pre-partition traditions, one is undoubtedly on ﬁrmer ground in arguing that the diverse institutions and values of the Second Republic proved remarkably resilient in surviving the Second World War and communism. The overview of Polish constitutionalism in this chapter has aimed to demonstrate that Poland inherited long-lived, tenacious and varied parliamentary traditions from its pre-communist history.95 Extending all the way from gentry to modern forms of parliament they, in the short space of the two interwar decades, ran the whole gamut from one extreme of assembly, to another of executive, dominance. The PRL thus inherited a very mixed legacy of parliamentary traditions.96 The traumatic Second World War experience and the vast postwar socioeconomic transformations were unable to obliterate the historical roots of Poland’s political culture and many of its similarities to western Europe. External Soviet factors determined that the legacy of such experiences and values were to prove incapable of altering the formal structures of communist rule in the PRL period. The 1956, 1970 and 1980 upheavals, however, certainly had crucial implications, as will be argued in Chapter 2, on the manner and processes of that rule. As with Pil⁄ sudski’s rule before them, the communists had to adapt, work within and eventually concede to many traditional Polish values and forms. Geoffrey Pridham considers that long-established historical patterns of cultural values produce historical memories which affect the forms and limits of national identity when democratization occurs.97 Poland’s ‘usable past’ has, in this respect, been a very peculiar combination indeed. On the one hand, nineteenth-century independence seeking revolutionary traditions dominated until the Second World War and enjoyed a rebirth with the KOR-Solidarity generation.98 On the other hand, the democratic tradition has itself been rather bifurcated between gentry-Stanisl⁄ awian reform memories and interwar civic republican values. As we have seen, political memories of gentry democracy culminated in, and have been conﬂated, with the liberal constitutionalism of 3 May 1971.99 A cyclical pattern of activist-passive, idealist-realist reactions to a lost, or incomplete, independence was gradually eroded during the PRL until 1989 produced the opportunity for the breakthrough to full sovereignty and constitutional democracy.100 Reverting to Pridham’s typology, one can argue that the post-communist Third Republic developed a form of ‘political learning’ which drew conclusions from the lack of constitutional balance and executive weakness in gentry democracy and the Second Republic up until 1926. For understandable reasons, the rehabilitation of interwar and ‘London’ Poland has protected Pil⁄ sudski’s system from general condemnations of its authoritarianism. As we shall see, such political learning from historical

The Constitution and History 17

memory affected the detailed speciﬁcs of constitution making in the Third Republic. Overcoming the burden of Poland’s historic legacy thus produced a general elite consensus on the priority of achieving workable institutions and an effective constitutional balance. The dispute over whether all, or just part, of the PRL legacy should be dispensed with reﬂected a major cleavage in the Third Republic’s politics. It is not always appreciated, however, that this is part of a wider long-term division regarding the responsibility for Poland’s delayed and incomplete modernization.

Notes 1 The list of main general histories rightly starts with Norman Davies, A History of Poland: God’s Playground 2 vols (New York: Columbia University Press, 1981). Its English-language rivals are for the most part heavily dated: Vaclav L. Benes, Poland (New York: Praeger, 1970; Aleksander Gieysztor et al., History of Poland 2nd rev. edn (Warsaw: PWN, 1979); Oskar Halecki, A History of Poland 2nd edn revised by Antony Polonsky (London: Routledge and Kegan Paul, 1983); William Fiddian Reddaway (ed.), The Cambridge History of Poland 2 vols (Cambridge: Cambridge University Press, 1941, 1950). Jerzy Lukowski and Waclaw Zawadzki, A Concise History of Poland (Cambridge: Cambridge University Press 2001) is a more recent work. More popular overviews are provided by Jerzy Topolski, An Outline History of Poland (Warsaw: Interpress, 1985) and Adam Zamoyski, The Polish War (London: John Murray, 1987). 2 See Wojciech Sokolewicz, The Principle of the Separation of Powers in Law and Constitutional Jurisprudence of the Republic of Poland, Polish Contemporary Law, no. 1–4/109–12 (1996), p. 17. 3 Deputy Jan Maria Rokita, cited in Mark Brzezinski, The Struggle for Constitutionalism in Poland (Basingstoke: Macmillan, now Palgrave Macmillan 1998), p. 1. 4 There has naturally been much Polish interest in the contrasting British case and in recent trends towards more ‘written’ forms of constitutionalism and arguments such as those put by Charter 88 for a Bill of Rights in Britain; see also Maria Kruk, Nowe projekty brytyskiej konstytucji pisanej, Pa´nstwo i Prawo, XLVIII, no. 8 (1993), 69–78. 5 Grzegorz L⁄ ukomski, Konstytucje Rzeczpospolitej Niepodleglej, Tydzie´n Polski, 5 May 2001. 6 For the modern period, see: Marian K. Dziewanowski, Poland in the Twentieth Century (New York: Columbia University Press, 1977); Robert F. Leslie (ed.), The History of Poland since 1863 (Cambridge: Cambridge University Press, 1983), Wl⁄ adysl⁄ aw Pobóg-Malinowski, Najnowsza historia polityczna Polski, 1864–1945 3 vols (London: B. Swiderski, 1956–60). 7 On Poland’s changing historical frontiers, consult the following: Richard Crampton and Ben Crampton, Atlas of Eastern Europe in the Twentieth Century (London: Routledge, 1996), Wl⁄ adysl⁄ aw Czapli´nski and Tadeusz Ladogórski, ⁄ Atlas historyczny Polski 4th edn (Warsaw: PPKW, 1979), lwo Cyprian Pogonowski, Poland, A Historical Atlas (New York: Hippocrene Books, 1987).

18 Democratic Government in Poland 8 This is the underlying thesis of George Sanford, Poland, The Conquest of History (Amsterdam: Harwood Academic Press, 1999). 9 The constant reinterpretation of Poland’s history to reﬂect the needs of the time as well as pre-1989 cyclical swings between political idealism and realism, is examined by Adam Bromke, The Meaning and Uses of Polish History (New York: Columbia University Press, 1987). 10 Cited in William H. Hagen, Germans, Poles and Jews: the Nationality Conﬂict in the Prussian East, 1772–1914 (Chicago: University of Chicago Press, 1980), p. 36 ff. 11 Raymond Taras, Consolidating Democracy in Poland (Boulder CO: Westview Press, 1995), Ch. 1. 12 Politics specialists of my own generation lament the decline in the viability of student textbooks for even medium-sized countries like Poland. This was conﬁrmed to me by Vincent Wright before his untimely death in 1999. As the distinguished author of books that included The Government and Politics of France, widely regarded as one of the best textbooks on France ever written, which both described and interpreted the politics of the Fifth Republic, Wright’s judgement was both authoritative and depressingly realistic. 13 Jerzy Krasucki in Polityka, 26 December 1993. 14 Cf. Michael Burleigh, The Knights, Nationalists and the Historians in Ethics and Extermination, Reﬂections on Nazi Genocide (Cambridge: Cambridge University Press, 1997), pp. 10–11. 15 See Witold Hensel, The Beginnings of the Polish State (Warsaw: Polonia, 1960); Pawel Jasienica, Piast Poland (New York: Hippocrene, 1985); Paul Knoll, The Rise of the Polish Monarchy: Piast Poland in East-Central Europe, 1320–1370 (Chicago: Chicago University Press, 1970); Tadeusz Manteuffel, The Formation of the Polish State: the Period of Ducal Rule, 963–1194 (Detroit: Wayne State University Press, 1985). 16 Cf. Tytus Komarnicki, The Rebirth of Poland (London: Heinemann, 1957). See also George Sanford and Adriana Gozdecka-Sanford, Historical Dictionary of Poland (Metuchen NJ: Scarecrow Press, 1994), p. 54. 17 Cf. Marian K. Dziewanowski, Joseph Pil⁄ sudski: a European Federalist, 1918–1922 (Stanford CA: Hoover Institution Press, 1969). 18 Raymond Leslie Buell, Poland: Key to Europe (London: Jonathan Cape, 1939), p. 45. 19 Ibid., p. 43. 20 For the interplay between Piast and Jagiellonian ideas in the interwar Endek and Sanacja camps, see Jaros⁄law Ksia˙˛zek, Historyczne i wspólczesne watki idei Jagiello´nskiej w narodowodemokratyczne publicystyce i historiograﬁi okresu mie˛ dzywojennego, Studia Polityczne, no. 4 (1995), 147–63. 21 Klaus von Beyme, Transition to Democracy in Eastern Europe (Basingstoke: Macmillan, now Palgrave Macmillan, 1966), p. 155. 22 The ﬁlming of Sienkiewicz’s great Trilogy was completed with the appearance of ‘With Fire and Sword’ (Ogniem i Miecziem) in 1999 – an historical romance set against the background of Chmielnicki’s uprising. It is symptomatic that the director, Jerzy Hoffman, was generally praised for diverging from the author’s more primordial stereotypes in presenting a very sympathetic picture of the Ukrainian Cossack anti-hero, Bohun. 23 See George Sanford, Nation, State and Independence in Belarus, Contemporary Politics, III (1997), 225–45.

The Constitution and History 19 24 Cf. Ilya Prizel, National Identity and Foreign Policy, Nationalism and Leadership in Poland, Russia and Ukraine (Cambridge: Cambridge University Press, 1998), pp. 129–37. 25 On the former, see David Bennett (ed.), Multicultural States. Rethinking Difference and Identity (London: Routledge, 1998) Chs 1–6. On the latter, see inter alia Andreas Klinke, Ortwin Renn and Jean-Paul Lehners (eds), Ethnic Conﬂicts and Civil Society. Proposals for a New Era in Eastern Europe (Aldershot: Ashgate, 1997). 26 See J. Siemienski, Constitutional Conditions in the Fifteenth and Sixteenth Centuries, in William Fiddian Reddaway, J. H. Penson, Oskar Halecki and Roman Dyboski (eds), The Cambridge History of Poland. From the Origins to Sobieski (To 1696). (Cambridge: Cambridge University Press, 1950), p. 417. 27 Roman Dyboski, Outline of Polish History 2nd edn (London, George Allen & Unwin, 1931), p. 68. 28 Jerzy Michalski (ed.), Historia Sejmu Polskiego, volume 1. Do schyl⁄ ku szlacheckiej Rzeczypospolitej (Warsaw: PWN, 1984). 29 Wacl⁄ aw Uruszczak, in Juliusz Bardach (ed.), Parlamentaryzm w Polsce w wspólczesnej historiograﬁi (Warsaw: Wydawnictwo Sejmowe, 1995), p. 55. 30 See Gieysztor et al. History of Poland, pp. 297–9. 31 Cf. Janusz Tazbir, A State without Stakes: Religious Toleration in Reformation Poland (Warsaw: PWN, 1973). 32 See Harry E. Dembinski, The Union of Lublin in the Golden Age (New York: Columbia University Press, 1982). 33 See Pawel Jasienica, The Commonwealth of Both Nations (Poland and Lithuania). The Silver Age (New York: Hippocrene, 1985). 34 On the historical role of clerics in parliament, see Marian Kallas and Jerzy Gutkowski, Ko´sciól⁄ a Sejm Polski (Warsaw: Wydawnictwo Sejmowe, 1999). 35 Cf. Marian Kallas, Historia ustroju Polski, X–XX w. (Warsaw: PWN, 1999), pp. 87–93. 36 See Oskar Halecki, A History of Poland, op. cit. Chs 13–15. 37 The Constitution of Poland before the Partitions, in The Cambridge History of Poland, 1697–1935, op. cit., p. 49. 38 But see the balanced appraisal by Wojciech Kriegseisen, Sejmiki Rzeczypospolitej szlacheckiej w XVII i XVIII wieku (Warsaw: Wydawnictwo Sejmowe, 1991) which revises the Sejmiki’s negative popular stereotype. 39 Buell, op. cit., p. 48. 40 Stanisl⁄ aw Kutrzeba, The Composition of the Polish Sejm, in Wl⁄ adysl⁄ aw Czapli´nski (ed.), The Polish Parliament at the Summit of its Development (Wrocl⁄ aw: Osolineum, 1985), pp. 13–20. 41 Henryk Olszewski, Sejm Rzeczypospolitej epoki oligarchii, 1562–1763 (Poznan ´: Wydawnictwo UAM, 1966). 42 Wl⁄ adysl⁄ aw Konopczy´nski, Le Liberum Veto. Étude sur le development du principe majoritaire (Paris: Bibliotheque Polonaise, 1930). 43 See Wl⁄ adysl⁄ aw Konopczy´nski in The Cambridge History of Poland (1697–1935), chs 1 and 2. Jerzy T. Lukowski, Liberty’s Folly: The Polish-Lithuanian Commonwealth in the Eighteenth Century, 1697–1795 (London: Routledge, 1991). 44 Herbert H. Kaplan, The First Partition of Poland (New York: Columbia University Press, 1962). 45 Jerzy T. Lukowski, The Partitions of Poland 1772, 1793, 1795 (London: Longman, 1999).

20 Democratic Government in Poland 46 This is stressed in the older and classical interpretations by Reddaway, Dembinski and Kukiel in The Cambridge History of Poland (1697–1935) Chs 5–8, but downplayed by Lukowski in the work cited in the previous reference. 47 Dyboski, op. cit., p. 133. 48 Stefania Ochman, Plans for Parliamentary Reform in the Commonwealth in the Seventeenth Century, in Czapli´nski, op. cit., pp. 163–87. 49 Cf. B. Grochulska, Ksiestwo ˛ Warszawskie(Warsaw: Wiedza Powszechna, 1966) and J. Holland Rose, Napoleon and Poland in The Cambridge History of Poland (1697–1935). 50 See Marceli Handelsman in ibid., Ch. 11; Marian Kallas, Konstytucja Ksi˛estwa Warszawskiego (Torun ´ : PWN, 1970). Wl⁄ adysl⁄ aw Soboci´nski, Historia ustroju i prawa Ksi˛estwa Warszawskiego(Toru´n: PWN, 1964). 51 See William John Rose, The Rise of Polish Democracy (London: Bell, 1944), p. 11. 52 See Marian Kukiel, Dzieje Polski porozbiorowe, 1795–1921 (London: Puls, 1993). See Anna Rosner, Sejmy Ksi˛estwa Warszawskiego i Królestwo Polskiego, in Bardach, Parlamentaryzm w Polsce, op. cit. 53 The fate of Poland’s institutions under their rule is discussed by Andrzej Ajnenkiel, Historia sejmu polskiego volume 2, part I. W dobie rozbiorów (Warsaw: PWN, 1989). Along with the Congress Kingdom, up until 1830, the other semiautonomous region was the Free City of Kraków; see Wojciech Bartel, Ustrój i prawo Wolnego Miasto Kraków 1815–1846 (Kraków: Wydawnictwo Literackie, 1976). 54 See Stefan Kieniewicz, Historia Polski, 1795–1918 (Warsaw: PWN, 1987); Robert F. Leslie, Polish Politics and the Revolution of November 1831 (London: Athlone Press, 1956); Robert F. Leslie, Reform and Insurrection in Russian Poland, 1856–1865 (London: Athlone Press, 1963); Piotr Wandycz, The Lands of Partitioned Poland, 1795–1918 (Seattle: University of Washington Press, 1975). 55 See Jerzy Jedlicki, A Suburb of Europe: XIX Century Polish Approaches to Western Civilization (Budapest: Central European University Press, 1999). 56 See Józef Buszko, Sejmowa reforma wyborcza w Galicji, 1905–1914 (Warsaw: PWN, 1956) and Polacy w parlamencie Wiedenskim, 1848–1918 (Warsaw: Wydawnictwo Sejmowe, 1996); Stanisl⁄ aw Grodziski, Sejm Krajowy galicyjski, 1861–1914 (Warsaw: Wydawnictwo Sejmowe, 1993); Konstanty Grzybowski, Galicja, 1848–1914. Historia ustroju politycznego na tle ustroju Austria (Wrocl⁄ aw: Ossolineum, 1959). 57 Cf. The Cambridge History of Poland (1697–1935), Chs 13–19. 58 Brzezinski, op. cit., p. 47. 59 Contained in a highly thought provoking and much discussed symposium – Stanisl⁄ aw Gomulka and Antony Polonsky (eds). Polish Paradoxes (London: Routledge, 1990). 60 See Juliusz Bardach, Bogusl⁄ aw Le´snodorski and Michal⁄ Pietrzak, Historia pa´nstwa i prawa polskiego, (Warsaw: PWN, 1976) Ch. 7; Ryszard L⁄ aszewski, Sejm polski w latach, 1764–1793 (Warsaw: PWN, 1973); Michalski, Historia Sejmu polskiego, vol. 1, Ch. 6. 61 Jerzy L⁄ ojek, Geneza i obalenie Konstytucji 3 maja: polityka zagraniczna Rzeczypospolitej, 1787–1792 (Lublin: Wydawnictwo Lubelskie, 1986). 62 Cf. Jerzy Kowecki, Sejm Czteroletni i jego tradycje (Warsaw: PWN, 1991). See also Bogusl⁄ aw Le´snodorski, Dziel⁄ o Sejmu Czteroletniego, 1788–1792. Studium historyczno-prawne (Wrocl⁄ aw: Ossolineum, 1951); Rett Ludwikowski and William Fox, The Beginning of the Constitutional Era: a Bicentennial Comparative Analysis of

The Constitution and History 21

63

64 65 66 67

68

69

70 71

72

73

74 75

76

77

the First Modern Constitutions (Washington DC: Catholic University Press of America, 1993). The text is in Jerzy Kowecki (ed.), Konstytucja 3 Maja 1791 (Warsaw: PWN, 4th edn 1991). The traditional view on Stanisl⁄ aw Augustus’ positive role in producing the constitution presented by Emanuel Rostworowski, Ostatni król Rzeczypospolitej, Geneza i upadek konstytucji 3 Maja (Warsaw: Wiedza Powszechna, 1966) has been challenged by Jerzy L⁄ ojek, Upadek konstytucji 3 maja. Studium historyczne (Wrocl⁄ aw: Ossolineum, 1976). Andrzej Ajnenkiel, Polskie konstytucje (Warsaw: Wydawnictwo Szkolne i Pedagogiczne, 1991), pp. 62–75. Wojciech Bartel, Ustroj wl⁄ adz cywilnych powstania Ko´sciuszkowskiego (Wrocl⁄ aw: Ossolineum, 1959). Cf. Andrzej Zahorski (ed.), Konstytucja Majowa (Warsaw: PWN, 1991). Hertzberg, the Prussian Minister in Poland, conceded that the constitution of 3 May 1791 ‘was much better than the English’ one and that ‘a numerous and well-governed nation’ now posed a basic threat to Prussia’s territorial gains and state interests. Cited in Gieysztor et al., History of Poland, p. 320. See Brzezinski op. cit., p. 45; Manfred Kridl, Józef Wittlin and Wl⁄ adysl⁄ aw Malinowski (eds), The Democratic Heritage of Poland (London: George Allen & Unwin, 1944), pp. 43–4. For a detailed overview situating interwar parliamentarianism in its historical context; see Andrzej Ajnenkiel, Parlamentaryzm II Rzeczypospolitej (Warsaw: Wiedza Powszechna, 1975). Some of the best examinations remain the contemporary overviews by Buell, op. cit., and Robert Machray, The Poland of Pil⁄ sudski (London: Dutton, 1937). Joseph Rothschild, Pil⁄ sudski’s coup d’etat (New York: Columbia University Press, 1966). Andrzej Chownowski, Pil⁄ sudczycy u wl⁄ adzy. Dzieje Bezpartyjnego Bloku Wspól⁄ pracy z Rz adem ˛ (Wrocl⁄ aw: Ossolineum, 1986). Andrzej Garlicki, Od maja do Brze´scia (Warsaw: Czytelnik, 1981). But even such a Germanophile and pro-Pil⁄ sudski history like that of Hans Roos reached more balanced conclusions – see Roos, A History of Modern Poland (London: Eyre & Spottiswoode, 1966), pp. 168–9. For the reality, see Ryszard Mojak, ‘Ewolucja polskiego konstytucjonalizmu w okresie Drugie Rzeczpospolitej’, in Artur Korobowicz et al., Zarys dziejów konstytucjonalizmu polskiego (Lublin: Wydawnictwo UMC-S, 1996). The 30-strong Constitutional Committee produced the Little Constitution within a week. Kronika Sejmowa, First Sejm, nos 2–3, 30 January–12 February 1992, pp. 47–50. Cf. Stanisl⁄ aw Krukowski, Geneza konstytucji z 17 marca 1921r (Warsaw: Ludowa Spol⁄ dzielna Wydawnicza, 1977). Kallas, Historia ustroju Polski, pp. 307–8. For a discussion of the rival preliminary drafts and its ﬁnal contents, see Leon Grosfeld and Henryk Zieli´nski (eds), Historia Polski, vol. IV, part 1 (1918–1926, Chs 1–13), (Warsaw: PWN, 1969), Ch. 12. For the constitutional and political debates, see Andrzej Ajnenkiel, Spór o model parlamentaryzmu polskiego do roku 1926 (Warsaw: KiW, 1972). See also Tomasz Nal⁄ ecz, ˛ Spór o ksztal⁄ t demokracji i parlamentaryzmu w Polsce w latach 1921–1926 (Warsaw: Wydawnictwa Prywatnej Wyzszej Szkol⁄ y Businessu i Administracji, 1994). See Rose, op. cit., p. 162.

22 Democratic Government in Poland 78 Jerzy Holzer, Mozaika Politycznej Drugiej Rzeczypospolitej (Warsaw: KiW, 1974). Andrzej Micewski, Z geograﬁi politycznej II Rzeczypospolitej (Warsaw: Znak, 1964). 79 Their activities were naturally played up during the PRL; see Tadeusz Daniszewski, Posl⁄ owie rewolucyini w Sejmie, 1920–1933 (Warsaw: KiW, 1961). Such discussions, however, raised issues about the Marxist-Leninist attitude towards democracy and parliamentarianism; cf. Andrzej Gwi˙zd˙z, Posl⁄ owie Komunistycznej Frakcji Poselskej o ustroju pa´nstwowym Polski przedwrze´sniowej, Pa´nstwo i Prawo XIII, no. 12 (December 1958). 80 Antony Polonsky, Politics in Independent Poland, 1921–1939 (Oxford: Clarendon Press, 1972) Chs 2 and 3. 81 Michal⁄ Pietrzak, Rz ady ˛ parlamentarne w Polsce w latach 1919–1926 (Warsaw: KiW, 1969), pp. 309–10. 82 Peter D. Stachura (ed.), Poland Between the Wars, 1918–1939 (Basingstoke: Macmillan, now Palgrave Macmillan, 1998), p. 5. 83 Equivalent to the Mendès-France phenomenon in the French Fourth Republic in 1954. Philip Williams, Crisis and Compromise. Politics in the Fourth Republic (London: Longman, 1972), pp. 45–6, 419–21. 84 Cf. Andrzej Gwizd ˙ z, ˙ Przyczynek do genezy i losów konstytucji marcowej, Pa´nstwo i Prawo, XLII, no. 12 (December 1977). 85 Jerzy Wisl⁄ ocki, Konkordat Polski z 1925r: zagadnienia prawne-polityczne (Pozna´n: Wydawnictwo UAM, 1977). 86 Kallas, Historia ustroju Polski, pp. 349–56. 87 Ewa Gdulewicz, ‘Niektore zagadnienia ustroju politycznego w Konstytucji z 23 kwietna 1935r’, Pa´nstwo i Prawo, XXX no. 3 (March 1975). 88 Cf. Jacek Majchrowski (ed.), Stanisl⁄ aw Car – polska koncepcja autorytarizmu (Warsaw: Wydawnictwo Sejmowe, 1996). 89 Dz. U. RP, 1935, n. 30, position 227. 90 See Hanna and Tadeusz Je˛ druszczak, Ostatnie lata Drugiej Rzeczypospolitej, 1935–1939 (Warsaw: KiW, 1970); Edward D. Wynot, Polish Politics in Transition. The Camp of National Unity and the Struggle for Power, 1935–1939 (Athens GA: University of Georgia Press, 1974). 91 Cf. Zbigniew Zaporowski, Sejm RP 1919–1939 (Lublin: Wydawnictwo UMC-S, 1992). 92 Paul Latawski (ed.), Poland between the Wars, 1918–1939 (London: Macmillan – now Palgrave Macmillan, 1992). 93 Cf. Wojciech Roszkowski and Zbigniew Landau, ibid. 94 Hubert Izdebski, Administracja publiczna. Zagadnienia ogólne (Warsaw: LIBER, 1998), p. 69. 95 Cf. George Sakwa, The Role of Parliament in a Communist Political System: the Polish Sejm, 1952–1972 (University of London PhD dissertation, 1974), pp. 27–8. 96 Some authorities consider that the ‘rich and broad inheritance’ of Polish constitutionalism makes it difﬁcult to call on any single dominant tradition. See Jan Wawzryniak, Zarys Polskiego ustroju konstytucyinego (Bydgoszcz: Branta, 1999), p. 56. While I agree, to some extent, with the residual Marxist view that constitutions are speciﬁcally located in their historical and social contexts I feel that countries also develop continually recurring patterns of values which can be regarded as autonomous and long-term traditions. 97 See Geoffrey Pridham, Conﬁning Conditions and Breaking with the Past: Historical Legacies and Political Learning in Transitions to Democracy, Democratisation VII (Summer 2000), 36–64.

The Constitution and History 23 98 On the relationship between nation building, Romantic Nationalism and revolutionary stirrings for constitutional democracy within an independent statehood, consult the seminal works by Andrzej Walicki: Philosophy and Romantic Nationalism: the case of Poland (Oxford: Clarendon Press, 1982); The Enlightenment and the Birth of Modern Nationhood: Polish Political Thought from Noble Republicanism to Tadeusz Ko´sciuszko (Notre Dame IN: University of Notre Dame Press, 1989). 99 In my view, Arista Cirtautas underestimates the domestic roots of Polish liberal constitutional values in her attempt to identify Solidarity and the Polish revolution of 1989 with the tradition of the American revolution, The Polish Solidarity Movement, Revolution, Democracy and Natural Rights (London: Routledge, 1997). 100 Adam Bromke, Poland’s Politics: Idealism versus Realism (Cambridge MA: Harvard University Press, 1967).

2 The Communist Experience and Legacy

The debate on the Polish People’s Republic Since the fall of communism there has been a great debate on the place of the Polish People’s Republic (PRL) in Polish history. Should it be viewed as an externally controlled Soviet satellite run on Marxist–Leninist principles completely alien to the Polish tradition?1 Or is this just one more case of Poland subverting foreign rule from within and eventually producing an original Polonized synthesis? If it was the former, then it represented a basic discontinuity. Both the Solidarity and national-Catholic political camps have argued that communism had to be purged from both political consciousness and practice. If it was the latter, the PRL was a legitimate and continuous section of Polish history, comparable to the nineteenth-century experience; many of its features, in this light, could be regarded as leading on organically through the ‘Negotiated Revolution’ of 1989 to the democratic period. The key issues of the degree of subjugation to the Soviet Union and whether the PRL can justly be described as ‘totalitarian’, remain one of the most important cleavages in contemporary Polish political life. At the end of the Second World War, communist rule was imposed on Poland via Red Army occupation and the Yalta and Potsdam Great Power agreements.2 This involved suppression of the successors to Polish Home Army (AK) resistance, the cowing of the population and the gradual elimination of opposition within the communist-dominated Provisional Government coalition of 1945–47. The lack of popular support for the Soviet-backed Polish Workers’ Party (PPR) and the falsiﬁed nature of electoral consultations such as the referendum of 30 June 1946 and the Sejm elections of 17 January 1947, have now been amply documented.3 Kenney has, however, also shown how such campaigns mobilized support for the PPR and its Polish Socialist Party (PPS) ally.4 PPR political success in recruiting membership and drawing on genuine support for rebuilding the country as well as for nationalization, social welfare, educational, health and land reforms, has been downplayed since the PRL’s demise. But the 24

The Communist Experience and Legacy 25

dispute over the balance between external and domestic factors, mirroring the political cleavages of the 1990s, is in many respects a secondary matter. The real controversy, in my view, lies over the character of the Stalinist system which developed after 1947 and the extent to which it was either modiﬁed or replaced from 1955 onwards. The communists had achieved their monopoly of power by 1948. In that year the PPS was amalgamated forcibly with the PPR in the Polish United Workers’ Party (PZPR) which ran the PRL until its demise.5 The First Secretary, Wl⁄ adysl⁄ aw Gomul⁄ ka, an authoritarian who nevertheless took Poland’s domestic factors into account, was replaced in that post by a grey bureaucrat, Bolesl⁄ aw Bierut, who had spent the war in the USSR.6 The Muscovite team which he headed during the late 1940s and early 1950s were both totally subservient to Stalin and genuine believers in the Soviet form of ideological Marxism–Leninism.7 Hilary Minc established a command and directive economy with industrialization concentrating on heavy industry.8 Jakub Berman imposed totalitarian controls over education and Socialist Realist norms in culture. But in Poland the pace and degree of Stalinization and the amount of general political terror differed noticeably from that of Hungary and Czechoslovakia during the same time, let alone the USSR in the 1930s.9 Gomul⁄ ka and his supporters survived to play a crucial role in 1956; the communist elite in Poland was not traumatized and retained a signiﬁcant capacity to struggle for its survival. The collectivization of the agriculture was very incomplete except in the Recovered Territories (i.e. territory recovered from Germany in 1945).10 The conﬂict with the Roman Catholic church was restricted to the trials of Bishop Kaczmarek of Kielce and a few priests as well as the house arrest of the Primate, Cardinal Stefan Wyszy´nski. This is not to deny that Poland, on Stalin’s death in March 1953, was superﬁcially very similar to other Soviet Satellites.11 One can rightly describe the system as having been totalitarian and quasi sovereign for that short period. But the rapidity and ease with which it was subsequently transformed, supports doubts about the strength of its entrenchment. The Polish experience was also unusual in that most political violence occurred during the near civil war conditions of the period of takeover of power, 1944–47 (12–15 000 deaths), rather than in the subsequent Stalinization of 1948–54.12 The periodization of the PRL can be listed under the following headings: takeover and consolidation of power (1944–47); monolithic Stalinism (1948–54); social challenge and political restructuring (1955–57); the Gomul⁄ ka (1956–70) and Gierek (1970–80) regimes; Solidarity (1980–81); Martial Law (December 1981–Summer 1983); and the subsequent Jaruzelski regime.13 There was an enormous debate, at the time, about the extent to which the gains of October 1956 (known in Poland simply as October) represented an original and permanent form of pluralist authoritarianism.14 In practice, the boundaries of the compromise were continually fought over

26 Democratic Government in Poland

in subsequent conﬂicts between the communist state and Polish society. The Gomul⁄ ka, Gierek and Jaruzelski regimes15 also underwent considerable internal evolution and were not homogeneous. Political historians, in the meantime, debated the signiﬁcance of subperiods such as Gomul⁄ ka’s ‘Little Stabilization’ (1958–64),16 Mieczysl⁄ aw Moczar’s Partisan challenge and its aftermath (1968–70),17 or the three periods of Gierek’s rule – O˙zywienie (political liveliness and reform, 1971), upswing and the great leap into the economic abyss (1972–76) and decline (1976–80).18 The literature on Poland is littered with now forgotten studies that discuss Solidarity’s capacity, in 1980–81, for achieving fundamental transformation by institutionalising economic and social pluralism,19 the nature of military rule and the chances of the Jaruzelski regime being able to consolidate (1982–86)20 or reform sufﬁciently in the Gorbachev period (1987–89) in order to survive.21 These dramatic events in Poland set political scientists some intrinsically interesting questions on the capacities of ‘actually existing’ or ‘Real Socialism’ in Poland to accommodate political, social and intellectual pluralism within a One-Party modernizing fold. Many key academic questions were formulated – in the more settled and ‘normal’ periods of PRL life – on PZPR crisis management and its ideological and social compromises.22 But such academic questions were usually squeezed out and overshadowed by what the victorious 1989 camp and earlier dissident literature interpreted as the great duel between Polish society on the one hand and the PZPR and its external protectors on the other.23 In this perspective, the near civil war of 1945–47, which saw the destruction of the AK and of an independent political system; October 1956 which limited PZPR capacity to rule; the workers’ revolt in December 1970 (and even more so, August 1980 which saw a fundamental working class and societal challenge); developed in the 1980s into a statement of developments leading in 1989 to the downfall of the communist system. This standard interpretation mirrors the East–West ideological-systemic conﬂict of the 1980s; it weaves together the strands of the regaining of national independence and the replacement of a Marxist–Leninist by a democratic capitalist system. Past controversies continued into the new era. One important political cleavage remained the decommunization issue. Another was lustration – the disqualiﬁcation of all communist party ofﬁcials from holding elected or public ofﬁce in a new democracy. Had the PRL represented just one long and continuing struggle of the Polish nation against foreign rulers and their stooges? In that case historical justice demanded the punishment and removal of all traces of the latter from public life. Alternatively, did the continually varied, and often surprisingly innovative, PZPR reactions to the 1956, 1970, 1980 and 1988, outbursts represent pluralist renewal and national transformation culminating in the qualitative leap of 1989? The debate between revolutionary and evolutionary interpretations is as old as Ko´sciuszko’s Insurrection of 1794, the Napoleonic Legions and the nine-

The Communist Experience and Legacy 27

teenth-century uprisings.24 But there are also additional dimensions for controversy over whether the PRL created a modernized and secular society, despite its cyclical pattern of political and social blockages, political outbursts and economic stagnation and failure, especially after 1978. Another great controversy concerning the PRL is whether the communists were forced into their peaceful abdication of power as a result of abandonment by Gorbachev and the USSR, total economic failure, the political25 and social26 blockages caused by unrelenting societal opposition to anything short of systemic reform27 and the growth of ‘political capitalism’.28 The details concerning the course and outcome of Poland’s Negotiated Revolution are discussed in the chapters that follows.29 Jacek Kuro´n, a leading anti-communist from the 1960s onwards, when he cowrote The Open Letter to the Party with Karol Modzelewski,30 claimed that ‘totalitarian dictatorship had been defeated by society and the opposition.’31 One can agree with Andrzej Walicki, however, that the totalitarianauthoritarian and national counter society/developmental – modernizing antinomies – are part of the PRL’s rich and paradoxical complexity. Walicki gives a resounding negative to the question ‘was the PRL a totalitarian state?’32 Critical political scientists such as Andrzej Paczkowski and Wojciech Roszkowski have conceded the PRL’s major transformation in 1956 and 1980 but contended that its fundamental systemic character remained Soviet-dependent and thus, wholly illegitimate.33 The contributors to this very inﬂuential debate in the Catholic weekly, Tygodnik Powszechny, in 1994–95, also argued that change in the PRL never became qualitative in character (Jerzy Turowicz); furthermore, its totalitarianism was weak and ineffective (Krystyna Kersten and Jerzy Szacki). It collapsed because it repressed the Poles’ freedom, religion and national identity while failing to deliver consumer prosperity (Andrzej Friszke).34 On the other hand, Jerzy Holzer pointed out that the PRL had neither systemic nor international choice between 1945–89 although the country and its elites wrested the maximum possible freedom of manoeuvre. Advocating a cautious comparative perspective to PRL achievements and failures, he concluded that ‘all that happened in Poland during the years 1945–89, is part of Poland’s history’.35

The communist party-state in Poland A major dichotomy exists between popular and academic deﬁnitions of the concept of totalitarianism. The former derives from Hannah Arendt’s formulation of the totalitarian state – run symbolically in the form of a concentration camp with power-holders exercising unlimited social control.36 Such updated forms of tyranny are expressed through ideology, the cult of the leader’s personality, as well as modern technological methods of surveillance, brainwashing, social control and mobilization. George Orwell

28 Democratic Government in Poland

reﬂected this terrifying vision in 1984 where even language is engineered to make heretical thinking impossible. Totalitarian explanations emphasized hysterical unpredictability and the atomization of all intermediate organizations and state-society linkages, resulting in isolated and alienated individuals controlled through transmission belts. Political scientists, however, discerned much institutional regularity and increasing procedural predictability in the mechanisms of post-Stalinist rule – even in the six features (single ideology; single party; terror; economic, cultural and weapons monopolies) identiﬁed by Friedrich and Brzezinski’s generally accepted categorization.37 Leonard Schapiro later added strong leadership and the absence of rule of law and facilitated acceptance of looser, almost comparative, conceptions of totalitarianism.38 Communism worldwide had, however, changed, producing different roads to socialism in different countries.39 The domestic shift from Stalinism to successor forms within various countries after 1956 was particularly striking in Yugoslavia and Poland, and before long in Hungary as well.40 Schapiro’s argument that communist parties still had totalitarian control reﬂexes, and that destalinization had not altered the essential contours of the totalitarian paradigm, inﬂuenced western public opinion and this intensiﬁed in the 1980s. Conservatives such as Reagan and Thatcher equated ‘Totalitarian Stalinism’, whose crimes and failures were being revealed under Gorbachev – as they had been earlier, by Khruschev – with all forms of communism in their domestic neo-liberal drives. Solzhenitsyn’s inﬂuential Gulag literature, and dissidents such as Leszek Kol⁄ akowski in the West and Jacek Kuro´n and Adam Michnik within Poland, reinforced the popular view that intrasystemic reform of communism was impossible. By 1988, Michnik described Polish communism most evocatively as ‘totalitarianism with broken teeth’.41 The development of a differentiated and polycentric communist world naturally encouraged a wide range of comparative communist approaches and explanations within the political science community.42 The key was the shift from the totalitarian to the authoritarian model. The extent of pluralism, and even democratization, possible within the one-party fold was much debated. H.G. Skilling distinguished between integral, fundamental and speciﬁc forms of opposition within communist states as well as between totalitarian, authoritarian-pluralist and democratising forms of communism.43 Numerous economic reforms, largely of the institutions and procedures of command economic planning, were also accompanied, especially in Yugoslavia, in Kadar’s Hungary, and in Poland, by increasing discussion of how market indicators and mechanisms could co-exist with socialism. The literatures on the ‘oppositionless state’ highlighted the centrality of the concepts of monopolistic and monolithic rule in communist systems and how these dimensions had been eroded.44 Kremlinology gave way to interpretations based on elite, bureaucratic and, eventually, social pluralism.45

The Communist Experience and Legacy 29

The apparats of the party-state were held to achieve increasing degrees of consciousness of their own distinctiveness and self interest.46 This produced a form of quasi politics which resolved leadership and policy conﬂicts, notably (in the USSR) in the Brezhnev and (in Poland) the Gierek periods. The mass of empirical evidence prompted the professional view that communist systems could be categorized along a spectrum ranging from independent and major reform of the party-state in Yugoslavia to residual Stalinist tyranny in North Korea and Albania. The USSR and its ﬁve closest allies (Poland, Czechoslovakia, Hungary, Bulgaria and East Germany), who collaborated within the Warsaw Pact, COMECON and, on a party-to-party level, were held to be intermediate. But even here, the party-society balance in Poland and Hungary, and for a while in 1963–68 Czechoslovakia, was fundamentally different to the situation in the conservative-stabilizers: Bulgaria, East Germany and Romania. An enormous literature discussed the relationship between Marxism and Leninism and whether the ideological synthesis between the two was the essence of communist systems or used purely functionally by power holders in the alleged states of the ‘Dictatorship of the Proletariat’ who were building socialism.47 Again, the whole debate has been transformed by the collapse of communist systems in Europe. Since then western Marxists have attempted to salvage their ideological core from the debris of what Brzezinski rightly calls, in his book of the same name, The Grand Failure.48 What one should note here is that there was a long drawn out redeﬁnition of the ‘Dictatorship of the Proletariat’ and the constitutionalphilosophical framework for the exercise of PZPR hegemony. The Stalinist formulation, that People’s Democracy was an inferior variant developing towards the Soviet model, was replaced by Gomul⁄ ka’s national domestic ﬂexibility – although he supported ideological homogeneity, albeit of a looser type, within the Soviet bloc.49 Gierek wished to redeﬁne the PRL as a form of advanced socialist democracy in which national unity prevailed over class struggle.50 Jaruzelski, within his Marxist commitments, was open minded. He countenanced the discussion of ideological innovations concerning party rule and pluralism in his attempts to broaden his power base and increase his regime’s legitimacy.51 In Poland, constitutional and state lawyers, in general, played a positive, although reformist rather than revolutionary, role by institutionalizing and codifying the boundaries of state power, and often pushing them back as well. What might have seemed anodyne and highly specialist legal-philosophical disputes about the leading role of the communist party, Democratic Centralism, Marxist theories of state power, or Montesquieu and the separation of the powers, had important implications for civic freedom and the limits of pluralism and debate.52 It was a debate that even led some continental political scientists to argue that the PRL represented a compromise between Soviet and European parliamentary models.53

30 Democratic Government in Poland

One can, therefore, understand why the very idea of ‘communist government’ should have been contentious as well as blurred. The importance of state institutions was therefore understated, given ofﬁcial doctrines of the unity of state power and subordination to communist party bodies. Communist party rule has now been extinguished in Europe. Its survival – in the major Chinese exception and the residual Cuban, North Korean and Vietnamese cases – may well be largely tied up with the lives (and eventual passing) of leaders.54 So, would it be fair to conclude that a large part of communist studies, concerning the internal organization, decision-making processes, membership base and role in society of communist parties, has become of only antiquarian interest?55 The answer depends on two factors. Firstly, whether there is still a signiﬁcant legacy of PRL rule which needs to be overcome, destroyed or democratized.56 Secondly, and the most important factor from the viewpoint of this study, one can ask a number of signiﬁcant questions about how the communist party actually ran the state institutions and public bodies. Did the latter achieve a degree of autonomy which permitted their character as well as formal organization to carry over into the democratic era?57 The general answer to this latter question is that the charge that parliaments and representative bodies had only a formal and ceremonial role in ratifying and publicizing party decisions, despite communist constitutions formally locating legislative authority in them, is correct; but the problem lay mainly in strict communist control of elections and of the party system. When the party’s leading role loosened, under popular or reformist pressure – as in Poland in 1956 or Czechoslovakia in 1968 – the signiﬁcance of representative assemblies, even of their plenary, as against committee, proceedings, increased.58 In post-1956 Poland, as in Yugoslavia, parliamentary committees and caucuses were also much more important than elsewhere – giving more than a hint of their potential.59 Overall, there was a grudging admission by western political scientists than the Sejm was, at least, ‘a minimal parliament’, despite PZPR control.60 The Polish literature from Gierek onwards rehabilitated Poland’s historical parliamentary traditions extremely strongly and publicized the activities of the Sejm.61 The formal executive government, heading the state institutions, was a large Council of Ministers composed of the chairman (colloquially the premier) and his deputies who had coordinating functions as well as numerous ministers heading highly differentiated ministries. In the full Council of Ministers, chairmen of state bureaux and provincial governors controlling what was known as territorial self-government, would be added.62 The key to understanding the party-state relationship is that the state bodies were shadowed at every level by a party committee, which in practice was always superior to it. Hence, the politburo supervised the Council of Ministers, while Central Committee secretariats controlled individual ministries in their ﬁelds. Economic and planning secretariats

The Communist Experience and Legacy 31

supervised larger factories and enterprises directly. The decision- and policy-making process was highly centralized in the party bodies whose committees were subject to vertical and largely top-down subordination in the party column while themselves enjoying horizontal control over the state organizations.63 The rather schematic picture, however, was much more complicated in practice.64 Central Committee ofﬁcials and secretariats suffered from excessive work overload. The state bodies gained varying degrees of control, through policy preparation and implementation as well as through evaluation. The Soviet podmenya tendency mentioned above was denounced by communist leaders who regularly attempted to shift the blame for bureaucratic incompetence and corruption onto state organs.65 On the other hand, reform proposals attempted to redeﬁne the communist party’s leading role, in terms of moral inspiration and general policy oversight, while leaving the state bodies to get on with their specialized administrative tasks. The PZPR Statute passed by the Extraordinary Ninth Congress in July 1981 attempted to introduce inner-party democracy and free discussion through the election of ofﬁcials at every level; it also wanted to separate party, state and social organization ofﬁce holding, at least on the same level of the hierarchy.66 Conversely, Ceausescu’s Romania went to the other functional extreme in fusing party and state ofﬁces.67 Overall, the dynamically changing, intertwined and overlapping character of the partystate relationship in implementing communist rules and policies can readily be conceded.68 So can Paul Lewis’s argument that such a process was as likely to produce over-institutionalization, deﬁned as failure to adapt institutional and policy-making blockages sufﬁciently to prevent crises, as legitimacy.69 Recurrent crises, however, prompted reform responses. Something like a primitive form of rule of law and institutional autonomy emerged as a precursor of democracy.70

The signiﬁcance of communist constitutionalism In a socialist state, the constitution was the ‘basic’ or ‘fundamental’ law and was superior to all other law. It was also argued that it was essentially conﬁrmatory rather than programmatic.71 Stefan Rozmaryn, writing in the authoritative PRL commentary, said that ‘the social function of a socialist constitution is to give expression to, and consolidate the new political, social and economic system which has emerged as the result of revolution’.72 Social and economic progress in turn necessitated the promulgation of a new constitution to reﬂect such changes – as in the replacement of the transitional ‘Little Constitution’ of 1947 by the more advanced 1952 document. Likewise, the Sixth PZPR Congress resolved, in December 1972, that the 1952 constitution had ‘served its role’.73

32 Democratic Government in Poland

Marxist state lawyers categorized Marxist–Leninist constitutions under the headings of transitional (examples include Poland 1947 and USSR 1924), People’s Democratic (Poland 1952 and the ﬁrst wave of East European constitutions, generally in the 1950s) and those of ‘completed socialist building’ (USSR 1936).74 Czechoslovakia in 1960, Romania in 1965, Yugoslavia in 1963, East Germany in 1968, Bulgaria in 1970 and, even, Hungary which was given an exemption in 1971, were all conﬁrmed by the Kremlin as having reached the latter stage and allowed to declare themselves Socialist Republics. Khruschev preserved the USSR’s most advanced status in the 1961 CPSU programme’s formulation that it was now an all-people’s state, building the foundations of communism.75 Despite Gierek’s own wishes, the PZPR was deemed not to have achieved a high enough level of building socialism and was denied a wholly new constitution in the mid-1970s. Lovenduski and Woodall have stated that Poland’s experience demonstrates ‘that there are important cultural and historical components in a state’s afﬁnity to particular kinds of regime’; such ‘cultural receptivity’ or otherwise had ‘a determining effect on elite-legitimation struggles’.76 In the PRL, this caused positive appraisals of parliamentary traditions and interwar democratic institutions as bulwarks against fascism and authoritarianism.77 The Dictatorship of the Proletariat could thus be built ‘through making use of old legal norms’.78 In practice, the PRL adapted the Sejm, as well as numerous other ancient institutions, practices and historical names, within the Marxist–Leninist framework by claiming that they were progressive and national as they ‘led up to’ the People’s State. Nevertheless, after the Second World-War, the legal-institutional framework for communist rule in Poland took some time and considerable effort to build up. The starting-off point was the PPR’s establishment of the National Council for the Homeland (KRN) in January 1944. This was followed by the formation of the Polish Committee of National Liberation (PKWN) and the proclamation of its Manifesto in Chel⁄ m on 22 July 1944.79 The latter annulled the 1935 constitution and gave the PKWN decreepowers legalizing its de facto rule in Poland against the authority of the Government-in-Exile in London. Such ad hoc measures were formalized at the end of 1944 when a Provisional Government was established in Lublin. Its widening, and transformation into a Government of National Unity, through the inclusion of Stanisl⁄ aw Mikol⁄ ajczyk and some ‘London’ Poles in June 1946, covered up the reality of the PPR’s gradual monopolization of power. The arrangement failed to ensure that the January 1947 elections would be ‘free and unfettered’, as promised at Yalta.80 The old regime was voted out and Bolesl⁄ aw Bierut was elected president by the Constituent Sejm which also conﬁrmed the very symbolic removal of the crown from the head of the white eagle in Poland’s national coat of arms. But the new system was still highly transitional and had to be

The Communist Experience and Legacy 33

camouﬂaged by ﬁne-sounding philosophical and legal principles. As a result, the Little Constitution of 19 February 1947 was based very heavily on the democratic features of the 1921 constitution although the PKWN Manifesto was given equal weight.81 The short PSL (Polish Peasant Party) draft, proposing that the former should remain in force, with some amendments until a full constitution could be drafted and approved in a referendum, was rejected. On paper, at least, the ﬁnal PPR-PPS draft conﬁrmed two things: the separation of powers and a parliamentary system.82 The ﬁnal draft incorporated 26 articles from the 1921 constitution, mainly referring to the Sejm, alongside 32 new ones dealing mainly with the executive powers of the presidency and the previously established Council of State which assumed the powers of the now dissolved KRN presidium. The fact that the Sejm was controlled by the PPR and its allies, however, allowed many formalities and appearances to be maintained, even during the height of Stalinism. The conditional class-deﬁned character of individual rights also rendered meaningless such documents, following the promulgation of the Little Constitution, as the ‘Declaration of Rights and Liberties’.83 Work on a new constitution was undertaken by two PZPR secretariat committees, established in June 1949, who reported in March 1951. One worked on the draft and the other dealt with ideological questions. They were closely supervised by Bierut, supported by Berman, who presented the politburo with crucial decisions on how the draft deﬁned the building of socialism. It would appear that they personally decided not to include a statement on the leading role of the communist party, to replace the presidency with a collective body – the Council of State – and to exclude organs of state control such as the Supreme Control Chamber (NIK). The 103strong Constitutional Commission, set up by the Sejm through the Law of 26 May 1951, was, therefore, largely a formal body.84 It met only four times and its chairman, Bierut, did the real work as part of an editorial subcommittee.85 The constitution was modelled very closely on the Soviet Constitution of 5 December 1936. Berman has admitted that Stalin personally approved the draft which they took to Moscow.86 The Stalinist state mounted a massive campaign to mobilize approval for its constitution in Spring 1952. It claimed that 11 million Poles discussed the draft at meetings and that a quite absurdly high number of suggestions and amendments had been considered. The campaign of Stalinist terror and controlled participation culminated with the passing of the constitution by the Sejm in 22 July 1952, henceforth a day that was to be celebrated as National Day. Bierut’s keynote speech lauded the document’s historic signiﬁcance: conﬁrming Poland’s irrevocable embarkation on the victorious road of building socialism, in alliance with the Soviet Union and following its model and its experience.87 The 1952 constitution was to be amended 18 times by 1988 but it provided the legal-constitutional framework and the ideological-political

34 Democratic Government in Poland

justiﬁcation for the communist elites during the whole life of the PRL. The original document was made up of a preamble and 91 articles grouped under 10 chapter headings.88 The preamble commended the Polish working class for leading the national struggle against the partitioning powers and Hitlerism, for achieving just borders in alliance with the USSR after the Second World War, and for implementing social change promised in the PKWN Manifesto. The worker-peasant alliance in Poland was modelled on the ‘historic experience of the victory of building socialism in the USSR, the ﬁrst workers and peasants state’.89 The state was renamed the Polish People’s Republic, a state of People’s Democracy;90 ‘power belonged to the working people of town and countryside’ (art. 1) whose will was expressed by elected representatives to the Sejm and local People’s Councils (art. 2). The programmatic aims of industrialization and economic progress on the basis of the nationalization of the means of production were set out in article 3 and in Chapter II on the socioeconomic system (arts 7–14). The eye-catching exceptions, articles 10–13, sanctioned privately owned peasant agriculture, co-operatives, private and co-operative handicrafts as well as private personal property. Under Stalinist conditions of police control, a hysterical political atmosphere and centralized party-rule, Chapter 3 on the leading organs of state power (arts 15–28), was bound to be most strikingly at variance with reality. But many of the formal provisions were to provide the basis for later intrasystemic reform. The Sejm was declared to be the leading organ of state power, expressing the people’s will and national sovereignty (art. 15). It controlled the government and state administration, passed the national economic plan and the state budget, and appointed the Council of State which shared legislative initiative with the government and Sejm deputies. In practice, articles 25–26, giving it the right to issue decree laws, was abused during the 1952–56 period to largely replace the Sejm, whose subsequent ratiﬁcation was hurried and formal. The Sejm also appointed and dismissed the Council of Ministers, deﬁned as ‘the government’ (art. 29.i) as well as individual ministers (art. 29) although, again, the Council of State de facto assumed this function up until 1956. The Council of Ministers was deﬁned by article 30.i as ‘the supreme executing and administrative organ of state-power’ answerable to the Sejm and the Council of State. The subsequent chapters on territorial organs, the judiciary and procuracy (the state’s prosecuting arm) and basic rights and obligations of the citizen, again, outlined the formal framework. Their high-sounding principles camouﬂaged the realities of Stalinist rule, especially where personal, religious and political freedoms were concerned. The obligations of obeying the constitution and socialist law, of military service and of protecting social property and state secrets, as well as being ‘on guard’ against enemies of the state (art. 79.i), were very widely construed to impose labour and social discipline and suppress anti-communist activity.

The Communist Experience and Legacy 35

All rights were limited by the requirement that they accord with the aims and principles of the socialist system. Stefan Rozmaryn, the foremost constitutional commentator during the ﬁrst half of the PRL, formulated the subordination of so-called universal rights to Marxist–Leninist principles and working-class interests.91 In 1947, the Roman Catholic church sent the authorities a memorandum postulating that since the Polish nation was largely Catholic the constitution should be cast in a Christian form.92 Under conditions of growing Stalinism, this somewhat naïve demand was rejected. The 1952 constitution separated church and state completely and left the detailed regulation of the issue to further legislation. Article 70 conceded the formal rights of religious belief and practice but balanced this with a declaration that any misuse of such rights was punishable. The Polish bishops had signed an agreement with the government on 14 April 1950 which conceded the church’s right to an autonomous religious life.93 But growing repression culminated in a decree of 9 February 1953 by which the communist authorities attempted to control church appointments. Resolute opposition led to conﬂict and to Cardinal Wyszy´nski’s internment.94 A new churchstate agreement with Gomul⁄ ka’s regime in December 1956, conceded religious freedom and a greater degree of organizational autonomy. The provisional character of diocesan organization in the Western (Recovered) Territories was, however, not settled until 1972. The issue, always a thorny one, of making Polish state and diocesan boundaries coincide was not regulated fully by Pope John Paul II until as late as 1992.95 Although the Roman Catholic church and the communist state were involved in numerous ‘growling sessions’ subsequently, church-state relations did not become a constitutional issue again until the question of negotiating a new Concordat arose after 1990.96 Polish Roman Catholicism had a very strong social, and even worker-priest, character. It developed interesting and innovative intellectual reactions to the challenges of secularization and Marxism.97 The state-society conﬂicts of the PRL period, however, allowed it to achieve a powerful mediating position.98 The election of Cardinal Karol Wojty⁄la of Kraków as Pope John Paul II in 1978 and his subsequent pilgrimages to his homeland contributed enormously to the rise of Solidarity and the weakening of communist power.99 Constitutional amendment was very simple in the PRL. It took the form of the Sejm passing an amendment as a law by a two-thirds majority with over half the deputies present (art. 91/1952 constitution). Procedural rules were unimportant as the PZPR controlled candidate nomination and produced the desired election results. In 1952, it claimed 99.8 per cent of the vote for its National Front lists on a 95.03 per cent turnout. The PZPR always allocated a majority of Sejm seats to itself although from 1957 onwards it conceded some more seats to its ZSL and SD allies. The changed electoral system, allowing a degree of crossing-off and choice between

36 Democratic Government in Poland

ofﬁcially nominated candidates, was only really signiﬁcant in January 1957 and then tailed-off.100 Of the 18 amendments between 1952–88, many concerned fairly trivial questions or unimportant organizational changes in state institutions. But most had political consequences. The ﬁrst amendment in 1954, for example, by replacing 3000 communes (gmina) with 8000 boroughs/neighbourhoods (gromada/osiedle) facilitated greater party and administrative control over these bodies.101 Although Gomul⁄ ka disappointed the hopes of October for major democratization, he reduced the pathological character of the system and loosened the party-state’s control over society. Bierut always stressed that Poland ‘had a class ally in the Soviet Army, an ally who by his very presence rendered powerless the camp of reaction’.102 Gomul⁄ ka, however, conceded the ‘unique sensitivity to its independence’, as ‘speciﬁc features of the Polish nation determined by its history’.103 He justiﬁed the distinctive aspects of Poland’s road to socialism which included 86 per cent private ownership of land by peasants and, hence, major ZSL inﬂuence in the countryside, co-existence with the Roman Catholic church; a revised relationship with the USSR; a looser deﬁnition of the PZPR’s leading role; a relatively autonomous intellectual-cultural sphere; Socialist Legality and a greater role for the Sejm and other representative and social bodies. Socialist Internationalism entailed a common commitment to building socialism and similar solutions in tackling like problems. In Poland’s case, PZPR autonomy was conditioned additionally by national interest. The Soviet alliance was crucial in defending her borders against German revanchism.104 Thus, the purely constitutional changes were so small as to be barely visible. The main changes in political and social life had already been wrested by 1956 and were threatened subsequently by Gomul⁄ ka’s campaign against revisionism. The amendment of 13 December 1957 merely restored parliamentary control over the state administration by reconstituting NIK.105 Subsequent amendments under Gomul⁄ ka conﬁrmed the number of Sejm deputies as 460 in December 1960 but replaced the original constitutional requirement of one deputy per 60 000 voters. The amendment of May 1961 merely increased Council of State membership; ﬁnally, in December 1963, the term of ofﬁce of the People’s Councils was increased from three to four years to parallel that of the Sejm. A ‘rebirth of Polish parliamentarianism’ undoubtedly occurred in socialist terms;106 but most outside observers stress its limited nature and emphasize the conﬂicts between Gomul⁄ ka’s regime and society over a whole variety of issues. The most serious were with the Roman Catholic bishops over their 1965 letter of reconciliation to the German bishops asking for mutual forgiveness. The 1966 millennium (when Poland celebrated 1000 years of Christianity) was disputational over whether it should celebrate Polish statehood or the adoption of Christianity. Gomul⁄ ka’s rule ended

The Communist Experience and Legacy 37

with the unfortunate March Events of 1968, the one case when the Polish state, as against society or individual, could justiﬁably be accused of antisemitism. The motivation was largely functional, though, and designed to produce a mechanism to scapegoat reformist and democratizing pressures. The whole system was shaken further by the Baltic seacoast riots and repressions of December 1970 but rejuvenated by leadership change.107 The main administrative change of the Gierek period, the local government reform, was implemented in four constitutional amendments. The Law of 29 November 1972 replaced 4312 boroughs with about 2400 communes.108 The process concluded with the amendment of 28 May 1975 abolishing the intermediate level of 314 counties (powiaty); at the top, 49 new provinces (województwa) replaced the old 17 provinces and ﬁve cities with provincial status.109 In the early 1970s, there was much discussion of the need for a new constitution to incorporate the Gierek regime’s revised formulation that Poland had completed the tasks of People’s Democracy and was now building an ‘advanced socialist society’. Soviet objections to the private ownership of agriculture, the party’s co-existence with the Roman Catholic church – as well as with what they regarded as a non-socialist intellectual, cultural and mass media life – however, meant that a major amendment of the constitution had to sufﬁce. The Sixth PZPR Congress in December 1975 deﬁned Poland as an ‘all people’s state’ but balanced decreasing class struggle with the need for greater political collaboration with the USSR and economic integration with COMECON.110 A committee headed by Henryk Jabl⁄ o´nski, the chairman of the Council of State, prepared a draft in less than two months: by the end of January 1976. The proposed ‘registering of realities’ was part of Gierek’s ongoing process of institutionalising and codifying many aspects of party control. The aim was to regularize communist rule and to make it more predictable, thus producing a socialist version of the rule of law. Unfortunately for the regime, the move backﬁred, provoking strong social opposition, including denunciation by Primate Wyszy´nski. The amendment was passed almost unchanged by the Sejm on 10 February 1976. But the controversy marked a deﬁning moment in Poland’s two-decade-long crisis. Although postponed in June 1976 after a price rise was rescinded immediately, following an informal general strike and the Radom riot, the major social outburst erupted with irresistible force in August 1980. The 1976 events had enormous consequences, engendering organized opposition – namely the Workers’ Defence Committee (KOR) and the national independence camp.111 The major 1976 amendment affected about one-third of the constitution and, in a sense, constituted its mid-life declaration.112 Article 1 now declared the PRL to be a ‘socialist state’. The bitterly disputed redrafted article 3 stated that ‘the leading political force of society in the building of socialism is the Polish United Workers’ Party’. This was balanced by the

38 Democratic Government in Poland

introduction of a loosely deﬁned Front of National Unity (FJN).113 The FJN was to provide the framework for collaboration by the minor parties as well as non-party individuals in achieving national and economic goals as well as other goals such as the rebuilding of the Royal Castle in Warsaw, destroyed by German bombing in September 1939. A whole series of other redeﬁnitions of agricultural and religious policy and of the role of social consultation and the trade unions followed. Under more favourable circumstances, these could have been used to strengthen the regime, as in Kadar’s Hungary. The price paid for these potentially constructive concessions, however, proved to be a heavy one. Article 6 went further than previous formulations in declaring outright that the PRL ‘aligns itself with the lofty traditions of solidarity with the forces of freedom and progress, and strengthens friendship and cooperation with the USSR and other socialist states’.114 This struck a raw nerve in the national psyche as it acknowledged Poland’s limited sovereignty despite balancing rhetoric that the PRL protected national ‘sovereignty, interests and security’. The immense popular and social outburst in 1980 produced the independent trade union confederation, Solidarity (Solidarno´sc´ ), but was met by a hesitant and delayed PZPR reaction. The legalization of free trade unions was never given constitutional form. The only amendment passed during the Solidarity period – on 8 October 1980 – moved NIK away from the Council of Ministers, where it has been ensconced in 1976, and brought it under parliamentary control again. On the other hand, according to many legal experts, the State of War was declared illegally on 13 December 1981.115 Military rule was suspended at the end of December 1982 and lifted on 22 July 1983, although the Sejm granted the authorities extraordinary powers until the end of 1985. The political motivation and justiﬁcation for martial law continued to divide Poles but the majority were inclined to give Jaruzelski, as military and political leader, the beneﬁt of the doubt. A 1997 poll by the Pentor polling agency showed that 21 per cent thought that martial law was justiﬁed; 29 per cent rather justiﬁed; 16 per cent rather justiﬁed; and only 12 per cent completely unjustiﬁed. Signiﬁcantly, 43 per cent accepted that Jaruzelski’s main aim was to save Poland from Soviet invasion, as against 12 per cent who thought that he was primarily concerned to save communist power, 11 per cent to liquidate Solidarity and 10 per cent to prevent the state’s break-up.116 Under the prevailing conditions of internment, mass repression, and an ongoing civil war between the Military Council of National Salvation (WRON) and the Solidarity underground, the twelfth constitutional amendment of 26 March 1982, establishing a Constitutional Tribunal and a State Tribunal, was not implemented at that time. These bodies introduced important principles of the review of the constitutionality of legislation and of the constitutional responsibility of failed political leaderships such as the Gierek–Jaroszewicz tandem; but their implementation was post-

The Communist Experience and Legacy 39

poned until more normal conditions. Likewise, the next amendment, passed on 20 July 1983, and introducing the Patriotic Front of National Rebirth (PRON) as a successor to the FJN, only interested the communist camp. Article 15 guaranteed the peasant private ownership of land but the Council of State was given additional emergency powers. Its chairman could now, unhindered, declare a State of Emergency. Jaruzelski assumed this post in November 1985. As normalization was taking longer than envisaged, the amendment of 13 February 1984 extended the Sejm’s term. Elections were eventually held in October 1985 when it was ofﬁcially conceded that turnout had fallen to an unprecedented 78.86 per cent.117 Polish politics are normally described as being in a state of blockage during the mid- to late-1980s. After the shock killing of Father Jerzy Popiel⁄ uszko by Security Service policemen, the Jaruzelski regime attempted to widen its base by setting up new consultative councils and by mobilizing the population in novel ways.118 The latter led to the 6 May 1987 amendment, instituting the referendum. Its use on 29 November 1987 merely conﬁrmed the political stalemate. Although there was a 67 per cent turnout, the actual vote for economic reform was 44 per cent and for political reform, 46 per cent. These votes were therefore not binding, as there were below the required 50 per cent of the actual electorate.119 The referendum strengthened the feeling of political and economic stagnation. It contributed to the communist elite’s decision to attempt to break this the following year through a deeper dialogue and negotiation with the opposition.120

Judgement on the PRL (Polish People’s Republic) Two leading political scientists conﬁrm the argument outlined in this chapter that the PRL was an authoritarian, not a totalitarian, system. They likewise conclude that social pluralism in the form of a strong Roman Catholic church, private landowning peasants, lively intellectuals and a powerful tradition of national independence, was, paradoxically, aided by the ethnically and linguistically homogeneous character of postwar society. These factors limited PZPR capacity to produce reliable security and military apparats which could ‘impose intense mobilization, especially in the ideological area’.121 The major study of the latter stressed its dynamic and changing (although somewhat makeshift) character. Ray Taras has demonstrated how the PZPR produced an ‘operative ideology’ to protect the fundamental Marxist–Leninist values which it embodied but whose conﬂict with society produced the political crises which wracked the PRL.122 The Polish communist leadership was also uniquely conditioned ‘by the extent as well as the longevity of the continuing interplay between normal Soviettype “closed” internal Party mechanisms and the more “open” ones produced by forces external to the PZPR’.123

40 Democratic Government in Poland

Political scientists have readapted Kircheimer’s long-established concept of ‘conﬁning conditions’ to explain how communist legacies have structured post-communist democratization.124 Given the evolutionary and negotiated-constitutional character of Poland’s revolutionary breakthrough, the rupture, when it came, was more easily discerned in retrospect than at the time it happened, in 1989. The debate over how to ‘overcome the past’ was, therefore, much more complex, although in some ways less intense, than elsewhere in Eastern Europe.125 The reasons for this are numerous and reﬂect the ambiguity and gradualness of Poland’s transition where the gestation, breakthrough and consolidation stages blended imperceptibly into one another. Firstly, throughout the 1990s, there has been an overwhelming view (about 70–80 per cent) that the PRL contained a mixture of good and bad elements. As late as 1994, about 15 per cent of Poles wanted to restore the PRL, but the ﬁgure tailed off to 9 per cent the following year, falling subsequently to insigniﬁcant levels.126 By 1995, 91 per cent rejected such a statement outright.127 A nuanced appreciation of the PRL developed, with the extreme ‘mostly bad/mostly good’ appreciations going from 16–8 per cent in 1992 to 14–4 per cent in 1997; the view that the PRL had both good and bad sides remained fairly steady at 72 and 79 per cent respectively for those years.128 There had been no large-scale informer system and after 1956 security police repression mellowed. Spectacular examples of violent deaths – in Pozna´n in 1956; in the Baltic seacoast in 1970 – as well as Martial Law were the exception, as were even the student round-ups in March 1968 and the 1976 Radom beatings. Individual cases of lawlessness such as the killing of the students Stanisl⁄aw Pyjas in Kraków (1977) and Grzegorz Przemyk in Warsaw (1984), as well as Father Popiel⁄ uszko’s murder (1984), became cas célèbres.129 They were resented all the more for being untypical breakdowns of the informal understandings concerning self-restraint on both sides which were believed to have defused October 1956. Even a national clampdown such as the State of War produce remarkably few deaths and few serious casualties while mass internment was short lived.130 Secondly, the peaceful abdication of communism produced informal elite understandings, and even a certain feeling of collaborative camaraderie as to the desirability of drawing ‘a thick line’ under the PRL. Historical memories of bitter domestic divisions, and occasional fratricide, over resistance to the partitions, the nineteenth-century uprisings and during the Second World War, as well as the near civil war at its end, contributed to a tradition of restraint by victors in settling accounts. The temporality of events and the need for compromise was the general lesson re-learnt by Poles during the Second World War, especially by the heroic tragedy of the 1944 Warsaw uprising.131 The same sermon was also preached eloquently, as well as practiced, by Wyszy´nski during his long term as Primate.132

The Communist Experience and Legacy 41

Thirdly, much of the responsibility for the problems faced by the Third Republic could be shifted onto the external forces of conquest, oppression and destruction which had plagued Poland’s history. The post-1976 generation, admittedly, no longer accepted the alibi of what most Poles regarded as their ‘Gehenna’ during the Second World War as an excuse for inaction.133 But they recast Poland’s return to Europe and democratization in somewhat mythical and idealized terms. The difference was that post-1989 opportunities were incomparably more solid than earlier false dawns. Lastly, the survival of barely, or completely, uncompromised, younger and professional individuals of the PRL tradition in the SdRP and PSL, and to some extent in the UW and UP, produced physical guarantees that there would be no wholesale decommunization on East German lines. The term lustration, as has been said, can be deﬁned in a broad sense as the disqualiﬁcation of all communist party ofﬁcials from holding elected or public ofﬁce in a new democracy. More narrowly, it involves the vetting and exclusion of all individuals who had worked with or collaborated with the security services. In the Polish case, the broad deﬁnition was excluded by the negotiated nature of the transformation while the latter was postponed until the late 1990s.134 Even then, the process, when eventually introduced by Buzek, assumed a moderate self-reporting and monitoring form.

Notes 1 See the hostile view by Jerzy Pietkiewicz, Czy PRL byla pa´nstwem polski? Studia Polityczne, no. 4 (1995), 87–98. 2 See John Coutouvidis and Jamie Reynolds, Poland, 1939–1947 (Leicester: Leicester University Press, 1986), Krystyna Kersten, The Establishment of Communist Rule in Poland, 1943–1948 (Berkeley CA: University of California Press, 1991); Antony Polonsky and Boleslaw Drukier (eds), The Beginnings of Communist Rule in Poland, December 1943–June 1945 (London: Routledge & Kegan Paul, 1980). 3 Andrzej Paczkowski, Referendum z 30 czerwca 1946r (Warsaw: ISP PAN, 1993), p. 14. 4 Padraig Kenney, Rebuilding Poland. Workers and Communist, 1945–1950 (Ithaca NY: Cornell University Press, 1997), pp. 53–6. 5 See Marian K. Dziewanowski, The Communist Party of Poland: an Outline of History (New York: Columbia University Press, 1977); Jan B. Weydenthal, The Communists of Poland (Stanford CA: Hoover Institution Press, 1978). 6 See Andrzej Werblan, Wl⁄ adysl⁄ aw Gomul⁄ ka. Sekretarz Generalny PPR (Warsaw: KiW, 1988). 7 Conﬁrmed by the hostile presentation of interviews, used very effectively for propaganda purposes against the PRL in the 1980s; see Teresa Tora´nska, ONI. Stalin’s Polish Puppets (London: Collins-Harvill, 1987). 8 See John Michael Montias, Central Planning in Poland (New Haven CT: Yale University Press, 1962).

42 Democratic Government in Poland 9 Richard F. Staar, Poland, 1944–1962: the Sovietization of a Captive People (Baton Rouge: Louisiana State University Press, 1962). There were few ‘show-trials’ except for those of some army ofﬁcers during the Korean War, no signiﬁcant Gulag dimension and limited expansion of the Security Police (UB). Cf. Andrzej Paczkowski, Aparat bezpiecze´nstwa w latach 1944–1956, vol. 2 (Warsaw: ISP PAN, 1996), pp. 11–12. 10 See Andrzej Korbonski, Politics of Socialist Agriculture in Poland, 1945–1960 (New York: Columbia University Press, 1965). 11 Cf. Samuel L. Sharp, Poland. White Eagle on a Red Field (Cambridge MA: Harvard University Press, 1953). 12 The controversy over whether postwar conﬂicts were best described as a civil war surfaced in the controversy over the historical rehabilitation of the WiN (Wolno´sc´ i Niezawisl⁄ o´sc´ ) successor to the AK, Rzeczpospolita, 21–22 April 2001, p. A6. 13 For historical overviews from varied viewpoints, see: Wl⁄ adysl⁄ aw Góra, Polska Ludowa, 1944–1988 (Lublin: Wydawnictwo Lubelski, 1986); Andrzej Paczkowski, Pól⁄ wieku dziejów Polski, 1939–1989 (Warsaw: PWN, 1996); Henri Rollet, La Pologne au Xxme siécle (Paris: Pedone, 1984); Wojciech Roszkowski, Historia Polski, 1914–1990 (Warsaw: PWN, 1991); Ray Taras, Poland. Socialist State, Rebellious Nation (Boulder CO: Westview Press, 1986). 14 See Richard Hiscocks, Poland. Bridge for the Abyss (London: Oxford University Press, 1963); Pawel⁄ Machcewicz, Polski Rok 1956 (Warsaw, Mowi˛a Wieki, 1993); Jarosl⁄ aw Maciejewski and Zoﬁa Trojanowska (eds), Pozna´nski Czerwiec 1956 (Pozna´n: Wydawnictwo Pozna´nskie, 1990); Hansjakob Stehle, The Independent Satellite. Society and Politics in Poland since 1945 (New York: Praeger, 1965); Konrad Syrop, Spring in October. The Story of the Polish Revolution, 1956 (London: Weidenfeld & Nicholson, 1957). 15 The term ‘regime’, as used here, applies to the emergence of a speciﬁc type of communist rule associated with a long period of personalized domination by a First Party Secretary like Khruschev or Brezhnev who stamps his personality on the system. It is not used in the same sense in democratization debates. 16 Nicholas Bethell, Gomul⁄ ka. His Poland and his Communism (London: Longman, 1969) 17 See Josef Banas, The Scapegoats. The Exodus of the Remnants of Polish Jewry (London: Weidenfeld & Nicholson, 1979); Jerzy Eisler, Marzec 1968 (Warsaw: PWN, 1991); Grzegorz Sol⁄ tysiak and Józef St˛epien (ed.), Marzec ‘68. Mi˛edzy tragedia˛ a podl⁄ o´scia˛ (Warsaw: PROFI, 1998). 18 Adam Bromke, Poland’s Protracted Crisis (Oakville, Ontario: Mosaic Press, 1983). Adam Bromke and John Strong (eds), Gierek’s Poland (New York: Praeger, 1973). John Lepak, Prelude to Solidarity. Poland and the Politics of the Gierek Regime (New York: Columbia University Press, 1988). Maurice Simon and Roger Kanet, Background to Crisis: Policy and Politics in Gierek’s Poland (Boulder CO: Westview Press, 1981). 19 See Timothy Garton Ash, The Polish Revolution (London: Jonathan Cape, 1983); Colin Barker, Festival of the Oppressed. Solidarity, Reform and Revolution in Poland, 1980–1982 (London: Bookmarks, 1986); David Ost, Solidarity and the Politics of Anti-Politics: Opposition and Reform in Poland since 1968 (Philadelphia: Temple University Press, 1990); George Sanford, Polish Communism in Crisis (London: Croom Helm, 1983); Jadwiga Staniszkis, Poland’s Self-Limiting Revolution (Princeton NJ: Princeton University Press, 1984); Alain Touraine et al., Solidarity.

The Communist Experience and Legacy 43

20

21

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23 24 25 26 27 28 29

30 31 32 33 34

35 36

The Analysis of a Social Movement. Poland, 1980–1981 (Cambridge: Cambridge University Press, 1983). See Jack Bielasiak and Maurice Simon (eds), Polish Politics, Edge of the Abyss (New York: Praeger, 1994); Werner Hahn, Democracy in a Communist Party. The Polish Experience since 1980 (New York: Columbia University Press, 1987); George Sanford, Military Rule in Poland: the Rebuilding of Communist Power, 1981–1983 (London: Croom Helm, 1986); Andrzej Walicki, The Paradoxes of Jaruzelski’s Poland, Archives Européens de Sociologie, XXXVI (1985), 167–92. See Andrew Gerrits, The Failure of Authoritarian Change: Reform, Opposition and Geopolitics in Poland in the 1980s (Aldershot UK: Dartmouth, 1990); Paul Lewis, The Long Goodbye: Party Rule and Political Change in Poland since Martial Law, Journal of Communist Studies, VI (1990), 24–48. Jaruzelski attempted to incorporate intellectuals and the more moderate opposition in his consultative council; see Rada Konsultacyjna przy Przewodiczacym ˛ Rady Pa´nstwa, 1986–1987 (Warsaw: Rada Narodowa, 1988). Cf. Denis Pirages, Modernization and Political Tension Management Poland (New York: Praeger, 1972). See also Joseph Fiszman, Revolution and Tradition in People’s Poland. Education and Socialization (Princeton: Princeton University Press, 1972); David Lane and George Kolankiewicz (eds), Social Groups in Polish Society (London: Macmillan – now Palgrave Macmillan 1973). Cf. Jakub Karpinski, Countdown. The Polish Upheavals of 1956, 1968, 1970, 1980 … (New York: Karz-Cohl, 1982). One should not underestimate the effect of ﬁlms such as Andrzej Wajda’s Popiol⁄ y in maintaining the national debate on such issues during the PRL. Jerzy Drygalski and Jacek Kwa´sniewski, (Nie)realny Socjlizm (Warsaw: PWN, 1992). Jerzy Hausner and Tadeusz Klementowicz (eds), L⁄ agodnia Agonia Realnego Socjalizmu (Warsaw: SYNTEZA, 1991). Bartlomiej Kaminski, The Collapse of State Socialism. The Case of Poland (Princeton: Princeton University Press, 1991). Jadwiga Staniszkis, The Dynamics of the Breakthrough in Eastern Europe. The Polish Experience (Berkeley CA: University of California Press, 1991). See Walter Connor and Piotr Pl⁄ oszajski (eds), Escape from Socialism. The Polish Route (Armonk NY: M. E. Sharpe, 1992); George Sanford (ed.), Democratization in Poland, 1988–1990. Polish Voices (Basingstoke: Macmillan – now Palgrave Macmillan, 1992). See Alexander Bregman, The strange case of Kuro´n and Modzelewski, East Europe, XV, no. 12 (1966) 7–11. ˙ Jacek Kuro´n and Jacek Zakowski, PRL dla poczatkuj ˛ acych ˛ (Wrocl⁄ aw: Wydawnictwo Dolno´slaskie, ˛ 1996), p. 282. Polityka, 21 June 1990. Spór o PRL (Kraków: Znak, 1996), pp. 49, 99. The less ‘noble’ interpretation of the Polish propensity to revolt against economic reality in the form of price rises, especially of food, during the PRL is encapsulated in what may be considered the facetious view, that there would have been no Solidarity if Gierek and the Soviets had somehow come up with an additional 5000 tons of pork in the summer of 1980. Cf. Bogdan Mieczkowski, The relationship between changes in consumption and politics in Poland, Soviet Studies, XXX (1978), 262–9. Spór o PRL, p. 31. Hannah Arendt, The Origins of Totalitarianism (London: Allen & Unwin, 1958).

44 Democratic Government in Poland 37 Carl Friedrich and Zbigniew Brzezinski, Totalitarian Dictatorship and Autocracy (New York: Praeger, 1966). 38 Leonard Schapiro, Totalitarianism (London: Macmillan – now Palgrave Macmillan, 1972). 39 Cf. Ghita lonescu, The break-up of the Soviet Empire in Eastern Europe (Harmondsworth: Penguin, 1965). 40 See J. F. Brown, The New Eastern Europe (New York: Praeger, 1966); Olga Narkiewicz, Eastern Europe, 1968–1984 (London: Croom Helm, 1986). 41 Adam Michnik, Letters from Freedom, edited by Irena Grudzi´nska-Gross (Berkeley CA: University of California Press, 1998), p. 104. 42 Cf. Ghita Ionescu, Comparative Communist Politics (London: Macmillan – now Palgrave Macmillan, 1972). 43 See H. Gordon Skilling in Background to the Study of Opposition in Eastern Europe, Government and Opposition, III (1968–69); see also Robert Dahl (ed.), Regimes and Oppositions (New Haven: Yale University Press, 1973). 44 Ghita Ionescu, The Politics of the European Communist States (London: Weidenfeld and Nicholson, 1967). 45 Cf. Archie Brown, Soviet Politics and Political Science (London: Macmillan – now Palgrave Macmillan, 1974). 46 Karen Dawisha, The Limits of the Bureaucratic Politics Model, Studies in Comparative Communism, XIII (Winter 1980), 300–326. 47 For pointers see: George Lichtheim, Marxism (London: Routledge and Kegan Paul, 1964); David McLellan, The Thought of Karl Marx – an Introduction (London: Macmillan – Palgrave Macmillan, 1995); Karl Popper, The Open Society and its Enemies vol. 2 (London: Routledge and Kegan Paul, 1966); John B. Sanderson, An Interpretation of the Political Ideas of Marx and Engels (London: Longman, 1969). 48 Cf. Alex Callinicos, The Revenge of History. Marxism and the East European Revolutions (Oxford: Polity Press, 1991). See also Zbigniew Brzezinski, The Grand Failure. The Birth and Death of Communism in the Twentieth Century (London: Macdonald, 1990). 49 See the tract by his secretary, Walery Namiotkiewicz, My´sl polityczna Marksizmu a Rewizjonizm (Warsaw: KiW, 1969). See also Sylwester Zawadzki, Spór o istote˛ dyktatury proletariatu, Pa´nstwo i Prawo, XVIII, no. 2 (1963). 50 Leszek Grzybowski and Przemysl⁄ aw Wójcik, Dialektyka Jedno´sci Narodu (Warsaw: KiW, 1980). 51 See Edward Erazmus, Spór o ksztal⁄ t partii (Warsaw: KiW 1983); Karol B. Janowski, Demokracja socjalistyczna w koncepcjach polityczno-programowych PZPR (Warsaw: PWN, 1989); Jerzy Kowalski, Barbara Radzikowska and Piotr Winczorek, Problemy rozwoju demokracji socjalistycznei w PRL (Warsaw: KiW, 1981); Marian Orzechowski, Spór o marksistowska˛ teori˛e rewolucji (Warsaw: KiW, 1984); Andrzej Werblan, Klasowe i narodowe aspekty my´sli politycznej PPR i PZPR (Warsaw: PWN, 1987); Jerzy J. Wiatr, Marksistowska˛ teoria rozwoju spol⁄ ecznego (Warsaw: PWN, 1983). 52 Ofﬁcially approved versions, such as the following, can be criticized for being conservative but they gave good pictures of the state of play at any time. See Leszek Gilejko, Leninowska koncepcja demokracji socjalistycznei (Warsaw: Wydawnictwo CRZZ, 1970); Adam L⁄ opatka, Kierownicza rola Partii Komunistycznej w Stosunku do Pa´nstwa Socjalistycznego (Pozna´n: Wydawnictwo Pozna´nskie, 1963); Sylwester Zawadzki, Marksistowska teoria pa´nstwa (Warsaw:

The Communist Experience and Legacy 45

53 54 55

56

57

58 59 60

61

62

63

64

PWN, 1964) and Z teorii i praktyki demokracji socjalistycznei (Warsaw: KiW, 1980). More interesting discussions occurred during the more lively political periods: see Juliusz Bardach and Konstanty Grzybowski (eds), Monteskiuszi i jego dziel⁄ o (Warsaw: PAN, 1957). Georges Burdeau, Droit constitutionel et institutions politiques (Paris: LGDiJ, 1965), p. 198. Richard Sakwa, Postcommunism (Buckingham: Open University Press, 1999). For one of the strongest statements on the functions of the communist party and the nature of the communist political system, see Richard C. Gripp, The Political System of Communism (London: Nelson, 1973). For studies of the PZPR see: Adolf Dobieszewski and Janusz Gol⁄ ebiowski ˛ (eds), PZPR, 1948–1978 (Warsaw: PWN, 1978); Mirosl⁄ aw Karwat and Wl⁄ odzimierz Milanowski, Ciagl ˛ ⁄ o´sc i zmiana w partii (Warsaw: MON, 1985); Norbert Ko l⁄ omejczyk, Polska Zjednoczona Partia Robotnica, 1948–1986 (Warsaw: KiW, 1988); Jerzy Kuci´nski, Ustrojowe-polityczne koncepcje PZPR w latach 1948–1959 (Warsaw: KiW, 1984). The postcommunist problem is normally deﬁned as a moral-legal one of dealing with the crimes, corruption and collaboration with the security police of the period and, to some extent, of building new democratic values, as well as the purely technical issues of overcoming economic backwardness, environmental damage and the like. Cf. Zolton Barany and Ivan Volgyes, The Legacies of Communism in Eastern Europe (Baltimore: Johns Hopkins University Press, 1995). In my view, the best political science textbook in this ﬁeld is George Kolankiewicz and Paul Lewis, Poland. Politics, Economics and Society (London: Pinter, 1988). An earlier text is Alexander Groth, People’s Poland. Government and Politics (San Francisco: Chandler, 1972). H. Gordon Skilling, The Governments of Communist East Europe (New York: Thomas Crowell, 1966), Ch. 10. Cf. Sakwa, The Role of Parliament in a Communist Political System op. cit. David Olson and Maurice Simon, The Institutional Development of a Minimal Parliament: the Case of the Polish Sejm, in Daniel Nelson and Stephen White (eds), Communist Legislatures in Comparative Perspective (London: Macmillan, 1982). See Andrzej Burda, Sejm PRL (Wrocl⁄ aw: Ossolineum/PAN, 1975); Tadeusz Dmoch and Eugeniusz Szadurski, Sejm PRL (Warsaw: KiW, 1969); Tadeusz Mol⁄ dawa, Sejm PRL (Warsaw: KAW, 1987). The nearest to an acceptable institutional study in the PRL was Marian Rybicki, Studia nad rzadem ˛ PRL w latach 1952–1980 (Wrocl⁄ aw: Ossolineum, 1985). Other relevant studies were: Marian Grzybowski, Rzad ˛ w pa´nstwie socjalistycznym (Warsaw: KiW, 1980); Kazimierz Nowak, Sejm a Rzad ˛ w PRL (Warsaw: PWN, 1973); Wojciech Sokolewicz, Rzad ˛ a prezydia rad narodowych (Warsaw: PWN, 1964); Jerzy Stembrowicz, Rzad ˛ w systemie parlamentarnym (Warsaw: PWN, 1982). Stephen White, John Gardner and George Schopﬂin, Communist Political Systems. An Introduction (Basingstoke: Macmillan – now Palgrave Macmillan, 2nd edn 1987), Chs 3–5. Most of the PRL literature were constitutional and state-law tracts which claimed the opposite. For rare descriptions of the political system with elements of institutional ‘reality’ see: Stanisl⁄ aw Gebethner, Zdzisl⁄ aw Jarosz and Wojciech Popkowski, System organów pa´nstwowych w PRL (Warsaw: KiW, 1968); Tomasz Langer, Typ i forma pa´nstwa socjalistycznego (Pozna´n: Wydawnictwo Pozna´nskie, 1977). Jakub Karpi´nski produced an emigre˛ critique, Ustrój komunistyczny w Polsce (London: Aneks, 1985).

46 Democratic Government in Poland 65 See Lloyd Churchward, Contemporary Soviet Government (London: Routledge and Kegan Paul, 1975), Chs 9, 15. 66 George Sanford, Poland, in William B. Simons and Stephen White (eds), The Party Statutes of the Communist World (The Hague: Martinus Nijhoff, 1984), p. 329. 67 Michael Shaﬁr, Romania. Politics, Economics and Society (London: Pinter, 1985). 68 Joni Lovenduski and Jean Woodall, Politics and Society in Eastern Europe (Basingstoke: Macmillan – now Palgrave Macmillan, 1987), Ch. 9. 69 Paul Lewis (ed.), Eastern Europe: Legitimation and Political Crisis (London: Croom Helm, 1984). 70 Wojciech Sokolewicz, Democracy, Rule of Law and Constitutionality in PostCommunist Society of Eastern Europe, Polish Contemporary Law, no. 2/86 (1990), p. 13. 71 Leslie Wolf-Phillips, Comparative Constitutions (London: Macmillan – now Palgrave Macmillan, 1972), p. 38. 72 Stefan Rozmaryn, Konstytucja jako ustawa zasadnicza PRL rev. 2nd edn (Warsaw: PWN, 1967), p. 9. 73 For Further Development of People’s Poland, 6th Congress of the Polish United Workers’ Party (Warsaw: no pub. 1972), p. 292. 74 Imre Kovacs, New elements in the evolution of socialist constitution (Budapest: Akademia Kiado, 1968), pp. 120–26. 75 Rudolf Schlesinger, The CPSU Programme, Soviet Studies, XIII (1962) 303–17. 76 Lovenduski and Woodall. op. cit., p. 427. 77 Ajnenkiel, Parlamentaryzm II Rzeczypospolitej, op. cit. 78 Tadeusz Szymczak, Ustrój europejskich pa´nstw socjalistycznych (Warsaw: PWN, 1983), p. 52. 79 Manifest PKWN (Warsaw: KiW, 1974), pp. 11–25. 80 Mikol⁄ ajczyk’s claims, on ﬂeeing the country in October, that the PSL would have received 60–70 per cent in a really free vote without harassment and fraud, err on the high side; but his party would, most likely, have gained a majority. Ajnenkiel, Polskie konstytucje, pp. 378–9. 81 Kazimierz Dzial⁄ ocha and Janusz Trzci´nski, Zagadnienia obowiazywania ˛ Konstytucji Marcowej w Polsce Ludowej, 1944–1952 (Wrocl⁄ aw: Ossolineum, 1977). 82 For text, see Janusz Mordwil⁄ ko (ed.) Konstytucja i podstawowe akty ustrojowe PRL (Warsaw: KiW, 1988) pp. 18–29. 83 Text in Mordwil⁄ ko, op. cit., pp. 30–31. 84 Ibid., pp. 32–3. 85 Ajnenkiel, Polskie konstytucje, p. 415. 86 Tora´nska, op. cit., pp. 224–5. 87 Bolesl⁄ aw Bierut, O konstytucji PRL (Warsaw: KiW, 1952). 88 Original text in Dz. U. 1952, no. 33, position 232. See Andrzej Gwi˙zdz˙ and Janina Zakrzewska (eds), Konstytucja i podstawowe akty ustawodawcze PRL (Warsaw: Wydawnictwo Prawnicze, 1966), pp. 46–70. The English text (as of 1968) as in Jan F. Triska (ed.), Constitutions of the Communist Party-States (Stanford: Hoover Institution, 1968), pp. 332–48. 89 Gwizd ˙ z˙ and Zakrzewska, op. cit., p. 47. 90 Francis Kase, People’s Democracy (Leyden: Sijthof, 1968). 91 Rozymaryn, op. cit., p. 183–4. 92 Michal⁄ Staszewski (ed.), Ko´sciól Katolicki o Konstytucji (wybrane dokumenty z lat 1947–1991) (Warsaw: ISP PAN, 1991), p. 9 ff.

The Communist Experience and Legacy 47 93 For translated English text, see Stehle, The Independent Satellite, op. cit., pp. 306–10. 94 An indicative sign of how quickly times had changed was the appearance of a popular ﬁlm in 2000, with the well-known actor Andrzej Seweryn playing the Prymas, glorifying Wyszy´nski’s ‘heroic’ opposition to the communist system in this period. Cf. Stefan Wyszy´nski, A Freedom Within: the Prison Notes of Stefan, Cardinal Wyszynski ´ (London: Hodder & Stoughton, 1985). 95 Kallas, Historia ustroju Polski, pp. 433–45. 96 See Vincent Chrypinski, The Roman Catholic Church in 1944–1989 Poland, in Pedro Ramet (ed.), Catholicism and Politics in Communist Societies (Durham NC: Duke University Press, 1990); Andrzej Micewski, Cardinal Wyszy´nski. A Biography (New York: Harcourt Brace Jovanovitch, 1996); Patrick Michel, Politics and Religion in Eastern Europe (Oxford: Polity Press, 1991). 97 See Maciej Pomian-Szrednicki, Religious Change in Contemporary Poland: Secularisation and Politics (London: Routledge, 1982); Norbert Zmijewski, The Catholic-Marxist Ideological Dialogue in Poland, 1945–1980 (Aldershot: Dartmouth, 1991). 98 Cf. George Sanford, Military Rule in Poland, pp. 216–52. 99 Bogdan Szajkowski, Next to God … Poland (London: Pinter, 1993). See also the documentation assembled by Peter Raina in numerous publications, notably: Ko´sciól⁄ w Polsce, 1981–84 (London: Veritas, 1985), Ko´sciól⁄ w Polsce. Ko´sciól⁄ Katolicki a pa´nstwo w ´swietle documentów, 1945–1989 (Pozna´n: W Drodze, 1994) and Rozmowy z wl⁄ adzami PRL. Arcybiskup Dabrowski ˛ w ´sl⁄ uzbie ˙ Ko´sciol⁄ a i Narodu, 1982–1985 (Warsaw: Ksiazka ˛ Polski, 1995). See also Tajne dokumenty Pa´nstwoKo´sciól⁄ , 1960–1980 (London: Aneks, 1996) and Tajne dokumenty Pa´nstwo- Ko´sciól⁄ , 1980–1989 (London: Aneks, 1993). 100 See George Sakwa and Martin Crouch, Sejm Elections in Communist Poland: an Overview and a Reappraisal, British Journal of Political Science, VIII (1978), 403–424. 101 Dz. U., 1954, no. 43, position 190. 102 Bolesl⁄ aw Bierut and Józef Cyrankiewicz, Podstawy ideologiczne PZPR (Warsaw: KiW, 1952), p. 32. 103 Wl⁄ adysl⁄ aw Gomul⁄ ka, Przemówienia, 1956–1957 (Warsaw: KiW, 1958), p. 268. 104 Ibid., p. 200. 105 Gwizd ˙ z˙ and Zakrzewska, op. cit., pp. 110–20. 106 Wl⁄ adysl⁄ aw Machejek, Z mojego obserwatorium 1967–1968–1969 (Warsaw: KiW, 1969), p. 145. 107 See A. Ross Johnson, Polish perspectives, Problems of Communism, XX, no. 4 (1971), 59–71; William Woods, Poland. Phoenix in the East (Harmondsworth: Penguin, 1969), Ch. 14. 108 Dz. U., 1972, no. 49, position 311. 109 Dz. U., 1975, no. 16, position 89. 110 VII Zjazd PZPR. 8–12 grudnia 1975. Stenogram z obrad (Warsaw: KiW, 1976), pp. 719–87. 111 See Michael Bernhard, The Origins of Democratization in Poland. Workers, Intellectuals and Opposition Politics, 1976–1980 (New York: Columbia University Press, 1993); Andrzej Jastrze˛bski (ed.), Dokumenty Komitetu Obrony Robotników i Komitetu Samoobrony Spol⁄ eczny ‘KOR’ (London: Aneks, 1994); Peter Raina, Independent Social Movements in Poland (London: LSE/Orbis Books, 1981).

48 Democratic Government in Poland 112 See the authoritative study by Wojciech Sokolewicz, Konstytucja PRL po zmianach z 1976r (Warsaw: PWN, 1978). 113 The English language text is in William Simons (ed.), The Constitutions of the Communist World (Alphen aan den Rijn: Sijthof and Noordhof, 1980), pp. 288–310. 114 Ibid., p. 291. 115 Brzezinski, The Struggle for Constitutionalism in Poland, op. cit., pp. 75–6. 116 Wprost, 14 December 1996, p. 38. 117 Trybuna Ludu, 16 October 1985. 118 On the former, see Roger Boyes and John Moody, The Priest who Had to Die (London: Gollancz, 1986) and Paul Lewis, Turbulent Priest, Politics, V, no. 2 (1985), 33–9. 119 Jerzy Jaskierna in Danuta Waniek and Michal⁄ Staszewski (eds), Referendum w Polsce Wspól⁄ czesnej (Warsaw: ISP PAN, 1995), pp. 77–88. 120 For the PZPR’s central apparatus preparations for the Round Table from mid1988 onwards, see Stanisl⁄ aw Perzkowski (ed.), Tajne dokumenty Biura Politycznego i Sekretariatu KC. Ostatni rok wl⁄ adzy, 1988–1989 (London: Aneks, 1994). 121 Juan Linz and Alfred Stepan, Problems of Democratic Transition and Consolidation (Baltimore: Johns Hopkins University Press, 1996), p. 256 and pp. 255–64. 122 Ray Taras, Ideology in a Socialist State. Poland, 1956–1983 (Cambridge: Cambridge University Press, 1984). 123 George Sanford in Martin McCauley and Stephen Carter (eds), Leadership and Succession in the Soviet Union, Eastern Europe and China (Baskingstoke: Macmillan now Palgrave Macmillan, 1986), p. 40. 124 Otto Kircheimer, Conﬁning conditions and revolutionary breakthroughs, American Political Science Review, LIII (1965), 964–74. 125 Even today the bitterness and lust for general systemic retribution of the National-Catholic (AWS/ZChN) deputy, Stefan Niesol⁄ owski, remains exceptional. In his case it is understandable as he was sentenced to seven years imprisonment (and sat three) in 1971, for allegedly conspiring with Andrzej Czuma and other members of the student Ruch movement at Warsaw University, to blow up the Lenin Memorial Museum in Poronin. See Stefan Niesol⁄ owski, Proste droga o Polskie z Bogiem (Warsaw: PAX, 1993), pp. 36–42; ⁄ Marian Miszalski, Z wie˛zenia do Sejmu. Niesol⁄ owski (Lód z: ˙ LIBER, 1992). Niesol⁄ owski took advantage of his parliamentary immunity to insult the Head of State, President Kwa´sniewski, in the Sejm in May 2000. 126 Fritz Plasser, Peter Ulram and Harald Waldrauch, Democratic Consolidation in East-Central Europe (Basingstoke: Macmillan – now Palgrave Macmillan, 1998), p. 103. 127 Ibid., p. 104. 128 Ibid., p. 125. 129 See Jastrz ebski, ˛ Dokumenty Komitetu Obrony Robotników … , op. cit. 130 Andrzej S´ widlicki, Political Trials in Poland, 1981–1986 (London: Croom Helm, 1988). 131 Joanna Hanson, The Civilian Population and the Warsaw Uprising (Cambridge: Cambridge University Press, 1982). 132 See Micewski, Cardinal Wyszy´nski. A Biography, op. cit.; Ronald Monticone, The Catholic Church in Communist Poland, 1945–1985 (New York: Columbia University Press, 1986).

The Communist Experience and Legacy 49 133 Cf. Allen Paul, Katy´n. Stalin’s Massacre and the Seeds of Polish Resurrection (Annapolis MD: Naval Institute Press, 1996). 134 This naturally caused great dismay amongst the domestic and external supporters of the Solidarity tradition. Cf. Bronisl⁄ aw Misztal, How Not to Deal with the Past: Lustration in Poland, Archives Europe˛ens de Sociologie, XL (1999), 31–55.

3 Democratic Transition and Consolidation

The constitutional abdication of communism There is an enormous literature on democratization and democratic transition – and on how East European patterns compare with earlier Latin American and Mediterranean ones – a literature that now evokes a certain amount of scepticism from country and regional specialists.1 These writings found it difﬁcult to acknowledge the unique features of Poland’s ‘Negotiated Revolution’ and to ﬁt it into their general theories. Each concept – the ‘Negotiated’ (Poland, Hungary), ‘People’s Power’ (East Germany, Czechoslovakia) and, initially successful, intra-leadership/party transformation types of revolution (Bulgaria, Albania and Romania) – has been much debated.2 The Polish situation – evolutionary constitutional character and continuity of state institutions and relative social quiescence as well as the absence of revolutionary violence – places Poland at the extreme ‘negotiated’ or national consensus end of the spectrum of 1989 revolution.3 Attila Agh describes it as ‘a constitutional revolution’ – even a conservative one – ‘since the negotiating partners changed the existing legal order within the existing constitutional framework’.4 Samuel Huntington, albeit rather embarrassedly, actually places Poland within a separate category of transplacement, differentiated from his mainline concepts of transformation and replacement.5 The Polish experience also puzzles communist system specialists who are familiar with the hardline, residually neo-Stalinist, states which underwent ‘People’s Power’ revolutions and whose subject matter harmonized better with ‘heroic’ interpretations of 1989 in the West.6 The deep roots of Poland’s transition, embedded in the state-society conﬂicts and transformations that stretch back to 1956, have led to comparisons with the ‘pacted transitions’ of Brazil and Chile and, in a different way, Spain.7 Linz and Stepan concede ‘Poland’s historic contribution to the fall of communism in Eastern Europe’; but they fail to understand why its path-breaking character entailed the compromises which they bemoan, but which were neces50

Democratic Transition and Consolidation 51

sary. They view the latter as having ‘harmful effects on Poland’s effort to create the political institutions necessary for political consolidation’.8 Ray Taras also considers that transitologists underestimate the inheritance of communist institutions, political forces and mechanisms which made the initial rupture possible, but at the same time incomplete and ambiguous, in such negotiated revolutions.9 One cannot stress too strongly Poland’s path-breaking role in forcing the abdication of communism in its own country, thus sparking-off Soviet bloc collapse. One also needs constantly to remember the ‘external factor’: the USSR did not break up until late 1991. The Round Table ‘set in motion a domino process that within a year led to the fall of all the communist regimes in Eastern Europe’.10 This makes Poland, simultaneously, and paradoxically, both the best exemplar of the return to Europe as well as an actor whose independent dynamics would have propelled it forward irrespective of the additional boost provided by Gorbachev.11 Without the compromises, the crucial breakthrough to full democratization would certainly have been delayed, or, possibly, have not happened at all. Although the subject remains highly controversial, the elapse of time now allows many ideological features of the East-West conﬂict and the domestic western neoliberal versus social democratic struggles of the 1980s and early 1990s to be viewed more dispassionately. For example, the application of civil society criteria to Poland was a natural element of the political conﬂict of the period and of western gloriﬁcation of Solidarity.12 One must distinguish at the outset between the explanations of, ﬁrstly, communist collapse and the 1989 ‘revolution’ and, secondly, the subsequent consolidation of the new democratic and market system.13 On the former, Brzezinski’s three explanations: systemic failure; organic rejection (cultural values); and Gorbachev’s mishandling and loss of control of reform, are widely regarded as compelling; so is Holmes’ explanation of a legitimation crisis.14 The elaboration of Dankwart Rustow’s initial, and much revered, gestation-breakthrough-consolidation model by the transitology literature (see Comparative Politics II, 1970) can also be taken as read.15 What needs consideration here is the integration of the Polish experience with the broad themes of communist collapse and democratic transition. Within the literature one can identify David Ost’s compelling 1989 explanation of Solidarity’s social corporatism blending with that of Jaruzelski’s reformists to produce the 1989 compromise.16 Bova and Ekiert provide eclectic explanations, as do the insightful Bryant and Mokrzycki and the Crawford symposia, the latter being less focused directly on Poland than the Connor/Pl⁄ oszajski and Staar volumes.17 Geoffrey Pridham has deﬁned the main transitologist approaches as the (1) functionalist and (2) the structuralist (or genetic) schools.18 The former emphasizes the long-term social and economic changes which develop the differentiated and contestatory interests required to undermine authoritar-

52 Democratic Government in Poland

ianism. Working and professional middle classes generate their own values and identity and press for a more articulated state-society relationship involving civil and economic liberties.19 In Poland’s case, after 1956, national cultural traditions of an activist intelligentsia (for example, the 1961 Holland case; the 1964 Letter of 34; the 1968 March Events; the 1976 constitutional dispute; subsequent KOR activity) melded with those of industrial struggles (1956 Pozna´n; the 1970 Baltic seacoast, the 1976 Radom, Pl⁄ ock and Ursus riots; the 1980 Baltic seacoast and nationally) to produce the growing confrontations which culminated in Solidarity’s alliance of intellectuals and workers. The second (genetic) school argues that such social change is the essential prerequisite for democratization but that it does not make it inevitable. The timing and form of the breakthrough is entirely a matter of contingency. This approach is easily applicable to Poland as it stresses the nationally unique features of any rupture. It identiﬁes the importance of elite deals and indicates how these structure post-breakthrough development by deciding which institutions and interests will survive and which will be replaced in the new order. This is a form of what has been called ‘path dependency’ in the shift from intrasystemic liberalization to systemic transformation.20 The context of all this theorizing has been summarized brilliantly by Keith Crawford as comprising no less than a ‘sextuple transition’: politically (from communist monocracy to pluralist democracy); economically (from central-command to free market); nationally (from quasi Soviet colony to independent sovereignty); psychologically/socially (from posttotalitarian to free society); global (from COMECON to the world economy); and ﬁnancially (from state-ownership to capitalism).21 The main lines of Poland’s transition in 1989 have been much discussed but their main features need to be related to our argument here.22 The Jaruzelski regime failed to break the 1980s stalemate by promoting economic reform and broadening its support base through selective incorporation of moderate Solidarity and opposition ﬁgures. The two issues were linked – as demonstrated by the regime’s qualiﬁed defeat in the 1987 referendum. We still lack reliable information about external Soviet control, but Gorbachev’s d˛etente with the West and his abandonment of the Brezhnev Doctrine loosened its limits dramatically.23 Laurence Whitehead conﬁrms that the shift from systemic liberalization to democratization occurred in Poland during 1988. He argues that the main reason was Moscow’s lifting of its veto on the latter which had, hitherto ‘distorted democratisation patterns and timings’ in the region.24 Jaruzelski attempted to strengthen support for the Soviet connection (1) by cashing in on Gorbachev’s popularity during his Warsaw visit in July 1988; (2) by getting historians to revise ‘blank spots’; and (3) by generally stressing the alliance’s alleged economic and security beneﬁts.25 The Legislative Council, attached to the Council of Ministers, had, as early as 1985, called for a new constitution to

Democratic Transition and Consolidation 53

replace the 1952 Stalinist document. The PZPR Central Committee established a working party in 1987 to prepare a constitutional draft liberalizing the party’s leading role, incorporating a degree of political, and a larger dose of social, pluralism, and limiting the command-distributive aspects of the economic system.26 It was in all probability Gorbachev and Jaruzelski who decided that the wave of strikes in May 1988 indicated that Solidarity’s appeal was weakening; the moment, therefore, was opportune to negotiate the incorporation of the opposition into a revised form of communist system. Some have misunderstood the communist camp’s assessment of their own situation and, therefore, the inevitability of the outcome in 1989. Millard, for example, reﬂects the prevalent western pro-dissident view that the PZPR was ‘helpless in an economic and political maelstrom’ and had ‘exhausted all alternatives’.27 In mid-August of 1989, Jaruzelski and the Polish Primate Glemp discussed an Anti-Crisis Pact, in order to gain social support and forbearance for the discipline of economic reform in exchange for more consultative and open methods of party rule. The eight PZPR plenum in late August delegated General Czesl⁄ aw Kiszczak, the Minister of the Interior, to talk with the opposition.28 The subsequent Autumn conversations were to become stuck over the limits of political and trade union pluralism, the procedures for re-legalizing Solidarity, and personality difﬁculties. The reformist Mieczysl⁄ aw F. Rakowski also emerged as prime minister with, it has to be said, some ˛ formed his Civic unusual ministerial choices.29 In December, Lech Wal⁄ esa Committee. The PZPR ‘cleared its decks’ at its two-part tenth plenum in December and January, forming the intention of promoting reformists and adopting ﬁrm decisions to democratize itself, to create a new model of political and trade union pluralism and to form a government of national understanding by revising the Sejm electoral law.30 The stage was thus set for the Round Table of 6 February to 5 April. One should remember, however, that both sides entered it with fundamentally different aims and that the ﬁnal outcome was thus totally unexpected.31 There are now few secrets left about the course of the Round Table, although what concerns us most are the consequences and signiﬁcance of the ﬁnal agreement.32 Only two plenary sessions of its 57 full members were held, one at the beginning and one at the end. The bulk of the detailed negotiation and drafting was done in three main groups – on Trade Union Pluralism, Economic and Social Questions and Questions of Political Reform – as well as in 10 specialist sub-groups. The leading ﬁgures of what crystallized into the Government-Coalition and Solidarity-Opposition sides met informally on numerous occasions at a Ministry of the Interior villa at Magdalenka outside Warsaw to hammer out deals that would smooth the course of the negotiations.33 The necessarily elite character of the Round Table talks and the Magdalenka ‘horse trading’ inevitably aroused public fears of secret conspira-

54 Democratic Government in Poland

cies and sell outs. An academic participant, Stanisl⁄ aw Gebethner, argues categorically that it was here, in 1989, that: ‘the understanding between elites’ and the Revolution from Above came together with Polish society’s decadeslong Revolution from Below.34 In particular, there has always been speculation about the unspoken agreements concerning both the communist elite’s security from prosecution and its job prospects in the new order. The agreement was hailed as an unprecedented ‘Historic Compromise’.35 But nobody foresaw that it would lead to the abdication of communist power within four months. The parameters of the promised democratization were both highly ambiguous and uncertain. Polish commentators viewed it as an historical experiment in achieving eventual full democracy through interim steps of controlled and limited democratization36 The Round Table Agreement was made up of a mass of reports, standpoints and decisions by the various committees and subgroups.37 The main decisions concerned the much-haggled-over political changes, not the bulk of the documentation on various aspects of social policy and public life matters which have now become of largely academic and historical interest. Put simply, the two sides agreed to a contractual package of measures without being particularly clear as to the resulting outcome. The communists mistook their desires for reality rather more than the SolidarityOpposition side, whose wildest dreams were granted, rapidly and in full. The main decisions were as follows: 1. to restore a 100-strong Senate, to be ﬁlled by wholly free elections; 2. to hold contractual Sejm elections in which the PZPR would contest and win just under half the seats, while the hitherto regime supporting ZSL, SD and Catholic minor parties would hold the remainder up to the 65 per cent granted to the Government-Coalition side; 3. the Solidarity-Opposition would be allowed to contest 35 per cent of the Sejm seats. The mathematics outlined above was designed to ensure that Jaruzelski would be elected by the Parliament as a new ‘executive type’ of president in charge of the military and the police. Solidarity and Rural Solidarity would be relegalized on the basis of the political pluralism, independent judiciary and freedoms of expression and organization promised in the Agreement. All this was deﬁned (rather vaguely) as ‘the beginning of the journey to parliamentary democracy’; the economic passages were in fact stronger on wage indexation to protect living standards than on how an efﬁcient market economy would be produced to deliver prosperity.38 Although the Round Table agreed to the compromises concerning 65 per cent control of the Sejm by the residual communist camp as well as a communist president, the realities invalidate Linz and Stepan’s strictures on the subject.39 One should, however, stress the essentially plebiscitary character of the election in indicating social support for the Civic Committee against

Democratic Transition and Consolidation 55

the reformist communist alternative.40 The latter were trounced in the free, ﬁrst-past-the-post election to the Senate: 99 Civic Committee candidates and one independent were successful. What was crucial in the Sejm election was that the Civic Committee, against other opposition candidates and on a high turnout, won all 161 seats available to it in its compartment (160 on the ﬁrst ballot). A mere ﬁve Government-Coalition candidates were elected outright on the ﬁrst ballot. Low turnouts and support prevailed for the Government-Coalition side on both ballots. It has been estimated that, overall, the Civic Committee was supported by about 40 per cent of the registered electorate as compared with under 20 per cent for the opposing camp.41 The ruling team was humiliated even more dramatically by the failure of 33 out of 35 of its candidates on the National List to gain the 50 per cent of the electoral vote necessary for election. Prominent regime ﬁgures, such as Rakowski, Kiszczak and OPZZ chairman Miodowicz, thus fell by the wayside. Expediency and the Round Table contract led to their ad hoc replacement by ofﬁcial candidates on the second ballot. But the actress Joanna Szczepkowska announcing the event, rightly declared that communist rule ended with the 4 June ﬁrst ballot. The electorate had delivered a resounding blow from which the ruling team never recovered. The electoral contract was, however, formally maintained. The new Sejm was made up of 173 PZPR, 161 Solidarity, 76 ZSL, 27 SD, 10 PAX and 5 CSU deputies as agreed. But anything between two to three dozen ZSL and SD candidates owed their second ballot election to unofﬁcial Civic Committee endorsement.42 The ruling camp had lost the political initiative. It was subsequently on the defensive during that summer which saw not only its peaceful handover of power by constitutional means to its opponents but the very abdication of the communist system itself. This was demonstrated at the outset by the difﬁculties involved in electing Jaruzelski as president on 19 June. The required two-thirds majority of the Sejm and Senate, sitting jointly as a National Assembly, was only achieved by a single vote due to the number of abstentions by the Solidarity leadership to counteract ZSL-SD (and even one PZPR) defections.43 This qualiﬁed PZPR success was not, however, to be repeated over the formation of a new government – the central mechanism in the actual transfer of systemic power. Kiszczak was nominated by Jaruzelski as premier-designate and endorsed formally by the Sejm. From the communist camp’s viewpoint, everything fell apart subsequently as Kiszczak was unable to form a government. The impasse was broken by Michnik’s suggestion that the slogan ‘Your president, Our premier’, would produce continuity, soothe Kremlin fears, gain social support and outmanoeuvre the ˛ seemed to vacillate but he eventually conservative nomenklatura.44 Wal⁄ esa seized the historic moment on 7 August. Solidarity agreed to lead a broadbased national coalition government to ensure adherence to the systemic changes promised in the Round Table agreement.45

56 Democratic Government in Poland

The controlled transition in practice Transitologists, disregarding Lech Wal⁄ esa’s ˛ acknowledged failings and believing their own propaganda about his alleged charismatic leadership of ‘ethical civil society’, have regarded his failure to accept ofﬁce in autumn 1989 as a great political mistake with ‘deleterious’ systemic consequences.46 A consideration of Wal⁄ esa’s ˛ presidency, however, provides conclusive evidence to the contrary.47 The OKP’s three nominees for prime minister, all of whom were presented to Jaruzelski – Tadeusz Mazowiecki, Jacek Kuro´n and Bronisl⁄ aw Geremek – were in their varying ways, unlikely to endanger ˛ might have done. the systemic transformation as Wal⁄ esa Mazowiecki proved an ideal choice. A social-Catholic editor of the highly inﬂuential Kraków-based monthly Wi˛ez, ˙ and a Znak Sejm deputy in the 1960s, he was corporatist inclined; he knew how to swim in the treacherous waters between the communist and Catholic camps.48 His Grand Coalition government, endorsed almost unanimously by the Sejm on 24 August, was set initially within clear Round Table parameters. The PZPR got four ministries, with Kiszczak at the Interior and Siwicki at Defence until summer 1990, as well as Foreign Trade and Transport. Foreign Affairs were placed, and remained until 1993, in the politically neutral hands of Krzysztof Skubiszewski, a Pozna´n professor of international law with Catholic connections through his membership of Glemp’s Social Council. Solidarity and Civic Committee ﬁgures dominated the remaining domestic portfolios, notably Leszek Balcerowicz at Finance and Tadeusz Syryczyk at Industry. The evolution of Poland’s new parliamentary life and party system will be examined in Chapters 5 and 7 respectively. The mixed systemic character of the 1989–91 period was reﬂected in highly transitional institutions, rooted deeply in the Round Table’s ambiguous deals with the elite. Constitutional transformation would not have occurred so easily, and certainly not so quickly, without this. It is worth noting that the commitment of new elites to a general consensus on democratic values is an essential prerequisite for consolidation.49 It also bears repeating that, as late as Mazowiecki’s assumption of power, Poland was still the trailblazer for political reform despite the growing crisis in East Germany. Its freedom of manoeuvre was further increased by the successive collapse of communism in East Germany, Czechoslovakia and Bulgaria, and in Romania by Christmas as well as by the consolidation of a similar ‘Negotiated Revolution’ in Hungary. The political changes of 1989 were given constitutional form as a result of two amendments. The April amendment established the state presidency, Senate and national Council of the Judiciary and removed the constraints on the electoral law and candidate selection.50 It legalized a variety of civil and political rights of expression and association but retained some

Democratic Transition and Consolidation 57

PRL control mechanisms.51 By the end of the year, any residual formal checks on the democratisation process had fallen away. The December amendment had, therefore, to be quite major in order to register the systemic changes. Wojciech Sokolewicz terms it ‘the constitutional conﬁrmation of the fall of the Ancien R˛egime’.52 The leading role of the PZPR (article 3) was abolished, the PRL was renamed as the Polish Republic (PR), and the crown was restored to the white eagle’s head in the national coat of arms. Sovereignty was located in the nation not ‘the workingpeople of town and countryside’. The state’s socialist character in article 1 was expunged. It was replaced by the formulation that the PR was ‘a democratic law based state implementing the principles of social justice’.53 The independence of the judiciary was implemented and the procuracy, the state’s prosecuting arm, was redeﬁned as being autonomous of party and state controls although formally answerable to the Minister of Justice.54 Likewise, local government and the economy were freed of previous e˛ tatist constraints; all forms of property were declared to be of equal status.55 Local government’s democratization was developed in the constitutional amendment of 8 March 1990 which prepared the ground for the People’s Council elections of 27 May 1990. The ﬁnal amendment of this period, on 27 September 1990, regulated Jaruzelski’s withdrawal and the election of the state president through universal suffrage.56 Once the legal-constitutional framework had been changed, the PRL was dismantled sector by sector by Mazowiecki’s government during 1990. The most important initial reform established the rule of law by democratizing and reshaping the judiciary and the procuracy while its personnel underwent a checking or veriﬁcation process.57 The Army was depoliticized with the abolition of PZPR cells and control mechanisms.58 The Citizen’s Militia underwent the same process and emerged as a civil police. The hated ZOMO was reduced in size and subordinated to provincial control. The communist volunteer militia, the ORMO, was simply abolished. The security police (SB) was also constrained, reduced in size and reorganized as the Bureau for State Protection (UOP). The second aspect – personnel changeover – was gradual and cumulative but affected all walks of administrative and public life. Many had their loyalty to the new democratic order tested: the top layer of civil servant jobs, both at the central and provincial levels; the Foreign Ofﬁce (MSZ) and the diplomatic corps; the judiciary and procuracy and the rectors and inspectors running higher education and schools; they were replaced, retired or sidelined, as appropriate. Thirdly, a whole swathe of communistcontrolled bureaucracies and co-operative organizations were abolished, split up or threatened with future privatization. The disposal of PZPR property, buildings and holdings proved highly contentious, especially the sale of its RSW press conglomerate. Balcerowicz also moved rapidly beyond establishing the legal and ﬁnancial framework for a market system. The so-

58 Democratic Government in Poland

called ‘Small Privatization’ of shops, restaurants, services and the like was carried out easily and rapidly. The legal redeﬁnition of about 8000 large enterprises, inherited from the PRL, as self-ﬁnancing units responsible to the State Treasury was not difﬁcult. Their ultimate fate – closure, subsidization, sale to foreign or domestic capital or management or labour buy out – dominated economic policy throughout the 1990s. The social base of power also changed dramatically in late 1989 and 1990. The PZPR wound itself up in January 1990. Thus came to an end all its committees which had provided the aktyws (hard cores of activist party members) to supervise every level and dimension of PRL life. It successor, the SdRP, not only lost most of its membership, but also suffered from a massive loss of self-conﬁdence and direction. Its party committees became fundamentally different in character and power. PUS, the social democratic union, proved only a short-term response to interim conditions of contractualism and, eventually, split in all directions. Some of the previous PZPR inﬂuence during this transitional period was assumed by the Solidarity Civic Committees which mobilized and recruited new elites. They took advantage of the power vacuum to achieve a strong result in the April 1990 local government elections. At the top level, new leadership bodies such as the National Civic Committee and the Gda´nsk-based National Executive ˛ power base. The latter’s self perception as the Committee provided Wal⁄ esa’s real power behind the scenes was boosted by his overwhelming re-election as chairman by Solidarity’s Second Congress. Paradoxically, the Sejm’s successor-communist and peasant parliamentary clubs were too demoralized, divided and overwhelmed by the personal stampede of their members to resist Solidarity’s Parliamentary Club (OKP) or to check Mazowiecki’s and Balcerowicz’s reforms in this period. The triumph of Solidarity and the democratic-opposition camp was, therefore, complete in essentials. By the end of 1990, democracy and the market had been irrevocably established. But they were not felt as such, especially psychologically. No real purge of PRL beneﬁciaries took place. Many ‘hardliners’ from all walks of life were allowed to survive. Some notorious examples, such as press spokesman Jerzy Urban or ex-deputy premier Ireneusz Sekul⁄ a, secured proﬁtable economic niches, thus giving apparent support to the nomenklatura capitalism thesis.59 In addition, democracy was far from bringing prosperity to the mass of the population. Poles faced growing unemployment, lack of job security and falling living standards, despite some protection by the economic indexation negotiated at the Round Table. Poland’s extrication from the Soviet camp, including her withdrawal from COMECON and the Warsaw Pact and the removal of the Soviet garrison, was also proving a more long drawn out affair than initially imagined. The high hopes and enthusiasm of summer 1989 had, therefore, ˛ supporters considered, by by summer 1990, largely evaporated. Wal⁄ esa’s then, that they had made a mistake in compromising with the communist

Democratic Transition and Consolidation 59

system. They wanted both to accelerate decommunization and to end the period of corporatist transition. The resulting War at the Top split Solidarity and ended its short-lived political domination. The communists went quietly, but again, as at the Round Table, one does not know if Mazowiecki conﬁrmed the no victimization side of the original understanding. Certainly, he never toned down his commitment to drawing a thick line (gruba kreska) under the PRL. Jaruzelski has been regarded as the indispensable ‘swing-man’, comparable to Suarez in Spain or Karamanlis in Greece, playing a key role in 1989 in assuring the transformation and preventing counter-revolution.60 During 1990, he took a back seat as president and barely coordinated any action with the successor-communist clubs in the Sejm. He now agreed to the shortening of his term as president so that his successor could be elected by universal suffrage. The real political ﬁreworks were provided by Solidarity’s split into two ˛ ’s and one Mazowiecki’s candidature for the camps, one supporting Wal⁄ esa ˛ was backed by the Civic Committees, by Tygodnik presidency. Wal⁄ esa Solidarno´sc´ and by the newly formed Centre Alliance (PC) led by the Kaczy´nski twins, Lech and Jarosl⁄ aw. The badly divided OKP replaced its ˛ . His opponents, led by chairman, Geremek, and swung round to Wal⁄ esa Zbigniew Bujak and Wl⁄ adysl⁄ aw Frasyniuk, had already formed the Democratic Action ‘Civic Alliance’ (ROAD) backed by the daily Gazeta Wyborcza, edited by Adam Michnik. Both the campaign and the results will be examined in more detail in Chapter 7, but the signiﬁcance of the 1990 presidential election is twofold. Mazowiecki was eliminated on the ﬁrst ballot but recovered from his ˛ humiliation to lead ROAD’s successor, the Democratic Union (UD). Wal⁄ esa was elected on the second ballot, apparently overwhelmingly against Tymi´nski, but lost his party political and trade union base. His successor as ˛ nomiSolidarity chairman, elected at its Third Congress against Wal⁄ esa’s nees, was Marian Krzaklewski, who asserted his leadership over the move˛ standpoint, the Civic Committees fell to pieces ment. Worse from Wal⁄ esa’s during the second half of 1990. He failed to lead the new right-centre ˛ quarrelled with their leaders, notably the parties which emerged. Wal⁄ esa Kaczy´nski twins, and competed with KPN leader Leszek Moczulski for the ˛ presidency mantle of Pil⁄ sudski’s strong man image. As a result, Wal⁄ esa’s was undermined, not supported, by the development of the new party system. Thus he was unable to implement his programme as he could not count on support in the Sejm. ˛ presidency, led by Jan Krzysztof The ﬁrst government of Wal⁄ esa’s Bielecki, proved a stopgap until the holding of fully free elections, although Balcerowicz, Skubiszewski and Kol⁄ odziejczyk were renominated. Bielecki’s party, the Gda´nsk-based Liberal-Democratic Congress (KL-D), in collaboration with the PC, aimed to revitalize the privatization and decommuniza-

60 Democratic Government in Poland

tion drives but made little progress. It was refused emergency powers for accelerated marketization, despite the determined efforts of the Minister for Ownership Transformation, Janusz Lewandowski. The incidence of strikes rocketed as unemployment and opposition to Balcerowicz’s cap on wage increases in the state sector (the popiwek) grew. Solidarity then became ˛ won the institutional more militant under Krzaklewski. In sum, Wal⁄ esa power base of the presidency but he lost the political manoeuvring attending the end of the contractual period. The Sejm overruled his vetoes and pushed through an electoral law based on a pure form of proportional representation. Scandals over cigarettes and alcohol as well over corrupt business practices, increasing unemployment and austerity, cynicism with political division and gamesmanship, all contributed to an atmosphere of deep disillusionment in the run up to the parliamentary election of October 1991.

The consolidation of democracy Did Poland become democratic in 1989 or 1991? The formal answer may be the latter as only after those elections was Poland received into the Council of Europe. In practice, the political rupture deﬁnitively occurred in summer 1989 when the Round Table momentum and June elections produced the Mazowiecki government. It is also unclear when the Third Republic actually came into being. The most favoured dates are 4 June 1989 (the contractual election) and 12 September 1989 (the formation of Mazowiecki’s government) but others have suggested various moments during the Round Table process.61 There was a parallel debate over whether the interwar national day of 11 November (the regaining of independence) should replace the PRL’s 22 July before 3 May (the 1791 constitution anniversary) was agreed. The constitutional abdication of communist power in 1989 looks deceptively easy in retrospect but was far from being so in reality. The dismantling of the communist system only became irrevocable a year later when the dissolution of the PRL part of the party system was balanced by the splitting up of the Solidarity conglomerate. With ˛ ’s election as president, political life found institutional form in Wal⁄ esa constitutional debates over the nature of the executive and its relations with the Sejm. Similar controversies developed over the speed of socio-economic transformation and whether democratic legitimacy would be able to cope with social inequality and unrest. The right and centre trends, excluded by Solidarity’s complete victory in 1989, also crystallized in the year preceding the October 1991 elections. National-Catholic (ZChN), national independence (KPN) and liberal-democratic (KL-D) parties evolved to compete with the UD and PC as well as the peasant party (PSLSolidarity) which emerged directly out of the Solidarity movement. The parties of the PRL tradition, the SdRP and the fragmented peasant party

Democratic Transition and Consolidation 61

strands developing out of the ZSL mainly the PSL, also built up their membership, organization and public image in order to ﬁght elections.62 Both transitologists and Polish specialists agree, however, that Polish affairs were dominated, after 1991, by the issue of democratic consolidation, despite the mixed and evolutionary character of the 1989 rupture and the early transition period. John Mueller considers that a transition period ends when further change takes place within an existing institutional framework and ‘not through further transformation of institutions’.63 Poland achieved something like this condition with the Little Constitution of 1992. This was conﬁrmed formally by the 1997 constitution. Many erstwhile academic critics of Polish communism felt, however, that democratization was incomplete since the Solidarity elites hand bungled economic restructuring and political decommunization.64 The number of studies on Poland’s politics tends to diminish for the post-1991 period and the number of overview examinations of the Third Republic’s political life, in both Polish and English, is somewhat sparse.65 The detail will be provided through examining the institutions and various sectors of the country’s political life. There is little debate that the main caesurae were produced by elections, which provided different political frameworks for consecutive periods. The ﬁrst phase, as we have seen, was ushered in by the contractual election of June 1989 which saw the two gov˛ election as ernments of Mazowiecki and Bielecki divided by Wal⁄ esa’s president. The democratic period has, in each case, been transformed by the fully free parliamentary elections of 1991, 1993, 1997 and 2001, which thus produce three additional stages. The 1991–93 period of extreme proportional representation saw the two governments of Olszewski and Suchocka as well as Pawlak’s failed endeavour. The introduction of electoral thresholds in 1993 turned the left’s victory into a rout by excluding the rightcentre. The successive governments of Pawlak, Oleksy and Cimoszewicz were, consequently, only variations of the peasant-left alliance during 1993–97. The character of the electoral system was, therefore, conclusive in 1989, 1991 and 1993. The ‘normal’ character of the 1997 election resided in an almost unchanged electoral system, producing both democratic alternation and a decisive AWS-UW majority supporting the Buzek government. Minority voices still argued that post-1989 Poland might pioneer a ‘Third Way’ as various anti-mainstream Solidarity strands propagated the original 1980–81 values of self-managing socialism.66 Anti-politics, pitting a good society against a bad state, had a wholly anti-communist connotation during the PRL;67 although such themes were redrafted by Vaclav Havel after 1989, they did not chime in well with capitalist democracy. Legitimation theory, however, claimed that democratization was not only fostered by civil society but that it also developed it further.68 Writers in

62 Democratic Government in Poland

this tradition such as Arato, therefore, argued that constitutions had dual functions. As well as regulating everyday politics, they should provide the framework for civil participation, institutionalizing the enthusiasm of 1989 and channelling it as a safeguard against populism and authoritarianism.69 Such ideas were largely buried by the global ideological-system victory of democratic capitalism. This dominant 1980 issue, nevertheless, carried a further neo liberal-social democratic division which had to be resolved with different balances in each individual domestic case during the 1990s.70 The major western scholar of Poland’s democratic consolidation, Taras, conﬂates gestation, breakthrough, transition and consolidation in his study. Taras has modiﬁed Almond, Flanagan and Mundt’s established system functionalism analysis, largely derived from France’s earlier transformation, to explain Poland’s development.71 Taras likewise takes a very long historical view and applies a four-stage Rustowian (antecedent system–crisis–change–resultant system) model very effectively to Poland. Although not particularly innovative, the model works well. It provides a comprehensive and ﬂexible framework for analyzing historical development as well as the crucial Polish balance between internal and external factors. Democratic breakthrough is, however, an intellectually separate concept to democratic consolidation – although the two overlap as the former logically precedes and produces the conditions for the latter. The essence of consolidation is when the major principles and rules of the democratic game – such as alternation of power, respect for constitutional procedures and individual or group rights and so on – become internalized and selfenforcing. Threats such as right-wing extremism or imperfections such as clientelism or corrupt links between the political and economic spheres are more dangerous in newly established than in venerably old democracies. Mere length of survival is, therefore, an important consideration. There would, however, appear to be two dominant criteria for judging consolidation. The ﬁrst is whether the system contains all the necessary institutions and actually functions as a democracy. The second is whether the political system is underpinned by societal legitimacy: in other words, by a democratic political culture. The East European replacement of communist with democratic capitalist systems also raises the issue, as argued by Ryszard Herburt, of the proportions of winners to losers from the socioeconomic transformation in creating the interests to support the latter.72 The foregoing themes encapsulate our old friends institutions/procedures versus culture/values in the democratization debate. The former tradition, going back to Schumpeter, identiﬁes democracy as a core of electoral, parliamentary and judicial institutions, whose procedural functioning, however imperfect, is the benchmark. Americans are more ideological in regarding their way of life and values as breathing reality into their constitutional principles of separation of powers and federalism. The British

Democratic Transition and Consolidation 63

bequeathed democratic institutions to their ex-African colonies and, inevitably, fell back on political culture to explain why they failed to take root and were replaced, rather quickly, by native tribal authoritarian patterns. Both the continental European and Anglo-Saxon approaches contribute essential insights but the former is initially more relevant to the study of institutionalization and the development of constitutionally entrenched rights and procedures in Poland. With the advent of normal politics, Lipset’s and Kitschelt’s observations on the strengthening of democratic values through successful economic performance also become increasingly relevant.73 In a new democracy, the factor of systemic choice or preference remains very important in creating support for, or opposition to, the actual system which may be independent of its political and economic efﬁcacy. Sympathy, support or, even, nostalgia for the PRL has remained high throughout the 1990s, something discussed at the end of Chapter 2. Such sentiments have underpinned the major cleavage in Poland’s political life but have not endangered democracy: the data that follow indicate the decline of ideological-systemic opposition. A major Austrian compendium (Plasser et al., 1998) contains indispensable public opinion ﬁndings on attitudes towards both theoretical and practical questions, as well as appreciation of particular institutions. The authors distinguish categorically between transition and consolidation. They present important distinctions between behavioural and attitudinal dimensions and maximalist-minimum deﬁnitions of the latter. They conclude with a fourfold typology of consolidation.74 The negative includes: (1) the elimination of formal and procedural constraints upon democracy; and (2) potentially hostile actors. The positive includes: (3) ‘habituation to democratic procedures’ to stabilize normal democratic behaviour; and (4) comprehensive institutionalization to anchor ‘partial regimes of democracy’.75 In detail, what the above means for Poland is as follows: in 1995, democracy was regarded as freedom by 38 per cent, but rule of law and social justice tied at 16 per cent, while a residual 7 per cent still hankered after participation.76 The emotions aroused by politics (1995) were 37 per cent negative, 40 per cent neutral and only 23 per cent positive.77 The ‘very and fairly satisﬁed’ as against ‘not very/not at all satisﬁed’ with democracy percentage responses ranged from an initial 38–37 in 1990 to lows of 27–50 in 1991 and 32–65 in 1992, a temporary improvement to 35–45 mirrored economic upturn in 1993 – but its shallow nature was reﬂected in a fall to 23–63 the following year. Consolidation and economic growth then produced 50–38, 43–45 and 57–33 ﬁgures during 1995–97 – which by the latter date approached average levels in the EU.78 Despite ﬂuctuations over time, and variations on speciﬁc issues, the empirical evidence is that the indicators supporting democracy and personal satisfaction increased substantially over the period of the 1990s up to

64 Democratic Government in Poland

levels equivalent to other European democracies by 2000. As early as 1994, 60 per cent of Poles supported the 1989 systemic changes as against 29 per cent who opposed and 11 per cent who were undecided.79 The percentage ﬁgures approving and opposing democracy in the abstract, as the best system as monitored by CBOS (slightly different from Plasser’s, showing the variable, and far from deﬁnitive, character of all such statistics), moved to 61–17 in 1995, 71–12 in 1996 and 67–12 in 1997. More to the point, the percentage satisfaction/dissatisfaction balances ranged from 36–52 in 1993, to 24–67 in 1994, 30–58 in 1995 and 44–47 in 1996.80 The debate over the best type of political regime, and the constitutional and institution-building process accompanying democratic consolidation during the 1990s, will be discussed in Chapter 4. Having already stressed the importance of electoral laws, political parties and political culture, one now needs to highlight the signiﬁcance of political elites in both processes. Agh deﬁnes the latter as ‘an eminently party and government elite’ of about 10 000 people, heading a largely party-created political class of about 100 000: this includes all those elected, both at the national and local levels, as well as what he terms ‘state-dependent’ functionaries in the administration.81 The negotiated and contractual beginnings of Poland’s democracy maintained the homogeneity of the successor to the communist power-elite. The process involved the passivity and demobilization of the population.82 This factor was strengthened by the very small membership anchorage of political parties in society. The professionalization and decision-making weight of elite actors varies according to their institutional framework, a conclusion borne out by studies of the parliamentary and local government sub-elites.83 The evidence, however, suggests that a growing pluralist framework since 1990 has encouraged turnover. It has also developed a party-parliamentary type of political leadership which for historical reasons continues to be heavily recruited from the universities and the administration. Critics such as Irena Panków consider that these elites still suffer from an identity problem.84 Jacek Wasilewski, despite worrying about what he terms ‘the shallow consolidation of Polish democracy’, concedes, grudgingly, that the Polish elite have internalized democratic values; they have maintained ‘a consensus on the principal questions and procedures of democratic politics’.85 The erstwhile radical anti-communist intelligentsia had many illusions, and were consequently highly disenchanted when they discovered the limited, elite-led and non-participatory aspects of western democratic systems. They were also concerned that the 1993 electoral shift, to peasantsuccessor communist left government, might challenge systemic transformation. These doubts were largely stilled by 1997 as a result of the promulgation of the constitution and the centre-right’s electoral victory. Insufﬁcient institutionalization of pressure groups and secondary associations resulted, however, in incomplete interest aggregation and articula-

Democratic Transition and Consolidation 65

tion. Bohdan Szklarski identiﬁed over 300 political parties, 14 000 NGOs and 10 national trade union confederations. He considered that numerical proliferation had only produced fragmentation, destructive competition for the same public space or interest, and an inadequately articulated civic or public life. He consequently deﬁned the system as ‘a direct pluralist democracy or a semi-public democracy’ where the citizen still had a potentially dangerous and volatile relationship with the state.86 Hieronim Kubiak, however, argues that the distinction between parties, without much public sympathy, and NGOs, identiﬁed with the anti-communist struggle for a civil society, remains blurred in Poland. Bodies such as Father Rydzik’s Family of Radio Maryja and Kazimierz Kapera’s Federation of Catholic Families Associations, ‘occupy the political space that was traditionally occupied by political parties’.87 Kubiak considers that the dense network of varied NGOs in Poland are practical schools for democracy, strengthening the local and sectional bases of parliamentary democracy and precursors of post-modern forms of political participation. Does non-, and imperfectly expressed, participation suggest only conditional support for democracy, as in Weimar Germany or the early period of the Bonn Republic? I do not think so. The public opinion polls by the end of the 1990s deﬁnitively conﬁrmed diffuse support for democratic values – which were still perceived as western ones. Earlier studies had also shown popular support for the largely institutional and procedural deﬁnition of democracy.88 The concerns were that an apathetic ‘Silent Majority’, with diffuse commitment to democratic values, might be overwhelmed by a dynamic minority interest or value group. The mobilization of Ursus tractor workers by Wrzodak and of discontented peasants by the Poujadist Lepper or even the violent demonstrations of Tejkowski’s right-wing skinheads, were worrying phenomena throughout the 1990s. On the other hand, they got nowhere in elections. The evidence suggesting that the Tymi´nski experience would not be replicated by the strong-man appeal of, for example, General Wilecki, was conﬁrmed by the 2000 presidential election. Whether such phenomena endangered the democratic system or whether they should be viewed as unpleasant safety valves, managing the discontent of losers from the transformation, is debatable. What should be noted is that the threat to democracy in Poland has come from the right. This explains why decommunization and lustration have been much weaker here than elsewhere. As a consequence, a lot of attention was paid by supporters of the democratic conditionally argument, to public opinion poll ﬁndings on economic optimism. Despite the post-1993 economic upturn, Polish attitudes on this issue were fairly negative until the mid 1990s. Positive appraisals of the marketizing economy increased from 37 per cent in 1991 to 60 per cent in 1995, but hopes for prosperity in ﬁve years’ time diminished from 72 to 49 per cent.89 Ideological support for the market economy increased from a favourable majority of 28 to 43 per cent in those respective years.90 The

66 Democratic Government in Poland

most important empirical conclusion on this subject is that, according to the Plasser team’s typology, 43 per cent of Poles in 1997 were conﬁdent democrats, 25 per cent were worried democrats, 14 per cent were alienated, while 18 per cent remained irrevocably wedded to authoritarianism.91 Post-communism in Eastern Europe was, initially, deﬁned by Claus Offe as a Triple Transition, involving the three processes of democratization, marketization and nation building, away from communism.92 This left the time scale for the completion of these three interlocking transformations, as well as the methods by which they would be achieved, open. The balance between the rate of change in each sector, as well as between national features and general characteristics have, consequently, varied in each individual country. The process appears, to outsiders, to become more uniform the closer that the East-Central European countries have got to what looks recognizably like the democratic capitalist end point. We are primarily concerned with democratization in this discussion and, as we have seen, since the mid-1990s, the issue in the Polish case has largely been considered in terms of democratic consolidation. Intrasystemic restructuring of lagging sectors was illustrated most clearly by the Buzek government’s education, social security, health and local government reforms. Impelled by Poland’s preparations for EU membership, it also tackled the railways and coalmines but failed to tackle the agricultural problem. One now needs to pull the foregoing themes together by examining some additional interpretations of Poland’s transformation. In the 1990s, the evolutionary and incomplete process – of replacing a state socialist political monocracy and command-allocation economy with democratic capitalism – naturally produced the confusing co-existence of a mixture of conﬂicting principles and features. The general transition from the former to the latter also caused what the sociologist, Piotr Sztompka, describes as a cultural trauma caused by the social costs of transformation.93 This was worsened by the earlier collapse in the belief in progress and in the necessarily beneﬁcial character of social change.94 Adaptation to new competitive social conditions and market conditions, along with the turnaround from collective to individualistic values, proved too difﬁcult for large numbers of the elderly as well as the economically marginal and displaced.95 High levels of unemployment, estimated by unofﬁcial sources as ranging from 17 per cent in 1992 to over 18 per cent in 2000, were psychologically and socially difﬁcult to accommodate.96 Widespread feelings of apathy, hopelessness and personal and social withdrawal caused a variety of pathologies, ranging from drunkenness, family breakdown and petty criminality, right up to the quintessential Durkheimian anomie of suicide.97 Trust in public institutions declined most dramatically between January and June 1991 – in the government from 50 to 42 per cent, in the Sejm from 46 to 30 per cent and in the Senate from 46 to 36 per cent.98 These negative social trends produced the pessimistic and hostile public opinion

Democratic Transition and Consolidation 67

reactions discussed above. There was initially overwhelming emotional and cultural approval in 1989 for the repudiation of communism and for democracy, a sort of psychological ‘honeymoon months of the transformation’.99 This ensured that the above factors never really threatened Poland’s new democracy and were not discussed in terms of lack of legitimacy, as during the PRL.100 The rapid growth of middle, and revitalized professional, classes also provided an additional balance.101 The newly established rule of law framework and general elite consensus on the evolutionary nature of the transformation also withstood attempts at destabilization such as excessive and sudden decommunization.102 What was important for the system was that opposition took the form of protest rather than social or national conﬂict.103 Working-class strikes and demonstrations thus acted as safety valves and sectional protests rather than systemic threats as under the PRL, despite only partial conversion of workers to market values.104 Interest group articulation was imperfect and incomplete but even partial functioning, as argued by Bohdan Szklarski, was preferable to the controls and blockages of the previous system.105 At the elite level, the crucial factor, as demonstrated by Solidarity’s ﬂuctuating fortunes, was that systemic transformation was no longer tied to the success of the democratic camp. Its speed and thoroughness was, however, as demonstrated by the 1993–97 slowdown.106 This chapter can, however, conclude on an optimistic note concerning the external framework for democratization. Poland’s geopolitical situation was transformed out of all recognition after 1989. The German and Russian problems which had stiﬂed the country’s independence and development since 1700 were, arguably, eliminated. A united Germany, given a central integrating role within the EU, developed positive attitudes towards Poland’s incorporation. Russia was separated, physically, from Poland by a belt of newly independent republics. Ukraine, and after some delay Lithuania, because of the Polish national minority problem, despite historical animosities, have become friends and potential allies rather than enemies, while an isolated Belarus barely counts in this reckoning of the emerging states. A weakened Russia is hardly a threat to Poland, especially after Warsaw achieved NATO membership in 1999. Finally, prospective EU membership, despite the problems of Polish agriculture, labour movement and foreign ownership, provides an immeasurably more supportive external framework for the new democracy than might have been imagined before 1989.

Notes 1

Cf. Petr Kopecky and Cas Mudde, What has Eastern Europe taught us about Democratisation (Literature and Vice Versa), Comparative Politics, XXXII (1999),

68 Democratic Government in Poland

2

3 4 5 6

7

8 9 10

11 12

13 14 15 16 17

43–62. See Valerie Bunce, Should Transitologists be Grounded?, Slavic Review, LIV (1995), 111–35. Their very validity is largely ignored in the major political history by James F. Brown, Surge to Freedom (Twickenham: Adamantine, 1991). Judy Batt also fails to integrate the third theoretical category of successful Gorbachev-type transition as in National Salvation Front Romania, The end of Communist Rule in Eastern Europe, Government and Opposition, XXVI (1990), 368–90. Terry Karl and Philip Schmitter, Modes of Transition in Latin America, Southern and Eastern Europe, International Social Science Journal, no. 128 (1991), 269–84. See Attila Agh, The Politics of Central Europe (London: Sage, 1998), p. 142. See Samuel Huntington, The Third Wave. Democratization in the late Twentieth Century (Norman: University of Oklahoma Press, 1991), pp. 121–63. Cf. P. Cipkowski, Revolution in Eastern Europe (New York: Wiley, 1991). See also Gwyn Prins (ed.), Spring in Winter. The 1989 Revolutions (Manchester: Manchester University Press, 1990); Gail Stokes, The Walls Came Tumbling Down (Oxford: Oxford University Press, 1990). See Richard Gunther, P. Nikiforos Diamandouros and Hans-Jurgen Puhle (eds), The Politics of Democratic Consolidation. Southern Europe in Comparative Perspective (Baltimore: Johns Hopkins University Press, 1995). Huntington, op. cit. See also Guillermo O’Donnell, Phillip Schmitter and Laurence Whitehead (eds), Transitions from Authoritarian Rule: Prospects for Democracy, 4 vols (Baltimore: John Hopkins University Press, 1986); Geoffrey Pridham (ed.), Encouraging Democracy: the International Context of Regime Transition in Southern Europe (Leicester: Leicester University Press, 1991); Adam Przeworski, Democracy and the Market: Political and Economic Reforms in Eastern Europe and Latin America (Cambridge: Cambridge University Press, 1991). See Linz and Stepan, Problems of Political Transition and Consolidation, p. 267. Taras, Consolidating Democracy in Poland, p. 113 ff. Jon Elster, Claus Offe and Ulrich Preuss, Institutional Design in Post-Communist Societies, Rebuilding the Ship at Sea (Cambridge: Cambridge University Press, 1998), p. 65. Cf. Khrishan Kumar, The 1989 Revolutions and the Idea of Europe, Political Studies, XL (1992), 439–61. Cf. Jean Cohen and Andrew Arato, Civil Society and Political Theory (Cambridge MA: MIT Press, 1992). See also Janina Frentzel-Zagorska, Civil Society in Poland and Hungary, Soviet Studies, XLII (1992), 439–61; John Keane (ed.), Civil Society and the State: New European Perspectives (London: University of Westminster Press, 1988 and 1998); Zbigniew Rau, The State of Enslavement: the East European Substitute for the State of Nature, Political Studies, XXXIX (June 1991), 253–69. See Von Beyme, Transition to Democracy in Eastern Europe, p. 19. See Brzezinski, The Grand Failure, and Leslie Holmes, The End of Communist Power (Cambridge: Polity Press, 1993). See Dankwart Rustow, Transitions to Democracy, Comparative Politics, II (April 1970), 337–64. See David Ost, Towards a Corporatist Solution in Poland, East European Politics and Societies, III (1989), 152–74. See R. Bova, Political Dynamics of Post-Communist Transition, World Politics, XLIV (October 1991), 113–38. See also Connor and Pl⁄ oszajski, op. cit., Christopher Bryant and Edmund Mokrzycki (eds), The New Great Transformation

Democratic Transition and Consolidation 69

18 19 20 21 22

23

24

25

26

27 28 29 30 31 32

33

34

(London: Routledge, 1994); Beverly Crawford (ed.), Markets, States and Democracy (Boulder CO: Westview Press, 1995); Transition to Democracy in Poland (New York: St Martin’s Press – now Palgrave Macmillan, 1993); Grzegorz Ekiert, Democratization Processes in East-Central Europe, British Journal of Political Science, XXI (1991), 285–315; Richard F. Staar (ed.), Transition to Democracy in Poland (New York: St Martin’s Press – now Palgrave Macmillan, 1993). See Geoffrey Pridham and Tatu Vanhanen (eds), Democratization in Eastern Europe – Domestic and International Perspectives (London: Routledge, 1994). Rueschemeyer, E. Stephens and J. Stephens, Capitalist Development and Democracy (Oxford: Polity Press, 1991). See Karen Henderson and Neil Robinson, Post-Communist Politics: an Introduction (London: Prentice-Hall, 1997), pp. 29–32. See Keith Crawford, East Central European Politics Today (Manchester: Manchester University Press, 1996), p. 97. See Connor and Pl⁄ oszajski, op. cit. See also Karol B. Janowski, Polski Rok 1989 (Kielce, WSP Kielce, 1998); Staar, op. cit.; Staniszkis, The Dynamics of the Breakthrough in Eastern Europe, op. cit. For participants’ accounts, see Bronisl⁄ aw Geremek, La Rupture. La Pologne du communisme a˛ la democratie (Paris: Seuil, 1991); Mieczysl⁄ aw F. Rakowski, Jak to si˛e stal⁄ o (Warsaw: BGW, 1991). For the wider context, see Valerie Bunce, The Decline of a Regional Hegemon: Gorbachev and Reform, European Politics and Societies, III (Spring 1989), 235–67; Karen Dawisha, Eastern Europe, Gorbachev and Reform 2nd edn (Cambridge: Cambridge University Press 1990). See East-Central Europe in Comparative Perspective, in Geoffrey Pridham, Eric Herring and George Sanford (eds), Building Democracy. The International Dimension of Democratisation in Eastern Europe rev. 2nd edn (Leicester: Leicester University Press 1997), p. 52. See George Sanford, Polish-Soviet Relations, in Alex Pravda (ed.), The End of the Outer Empire. Soviet–East European Relations in Transition (London: RIIA/Sage, 1992). See Wawrzyniak, Zarys Polskiego systemu konstytucjonalizmu, op cit., pp. 57–8. New institutions such as the presidency and the Senate were also considered so their establishment in summer 1989 by no means took the constitutional reformers by surprise. See Francis Millard, The Anatomy of the New Poland. Post-Communist Politics in its First Phase (Aldershot: Edward Elgar, 1994), p. 45. See his account of events in Witold Beres and Jerzy Skoczylas (eds), General Kiszczak mowi prawie wszystko (Warsaw: BGW, 1991), pp. 259–68. See Rakowski, op. cit. X Plenum KC PZPR. Podstawowe dokumenty i material⁄ y (Warsaw: KiW, 1989). Cf. Polityka, 4 February 1989, p. 3. See Brown, op. cit. See also Wiktor Osiaty´nski, Poland, in Jon Elster (ed.), The Roundtable Talks and the Breakdown of Communism (Chicago: University of Chicago Press, 1996); Konstanty Gebert, Mebel (London: Aneks, 1990); Stanisl⁄ aw Gebethner, Political Reform in the Process of Round Table Negotiations, in Sanford, Democratization in Poland, op. cit. Krzysztof Dubi´nski, Magdalenka. Transakcja Epoki (Warsaw: Sylwa, 1990). Piotr Raina, Droga do ‘Okr agl ˛ ⁄ ego Stol⁄ u’: Zakulisowe rozmowy przygotawawcze (Warsaw: Von Borowiecky, 1999). In Sanford, Democratization in Poland, op. cit., p. 67.

70 Democratic Government in Poland 35 36 37 38 39 40

41 42 43 44

45 46 47

48 49 50 51 52 53 54 55 56 57 58

59

The Times, 6 April 1989, editorial. Polityka, 29 April 1989. Porozumienia Okragl ˛ ⁄ ego Stol⁄ u (Warsaw: no pub. 5 kwietna 1989). Ibid., p. 4 of the Political Reforms Committee. See also the standpoint of the Economic and Social Committee. See Linz and Stepan, op. cit., pp. 267–9. Cf. Paul Lewis, Non-Competitive Elections and Regime-Change: Poland 1989, Parliamentary Affairs XLIII (1990), 90–107. See also Andrzej Malkiewicz, Wybory czerwcowe 1989 (Warsaw: ISP PAN, 1994); David Olson, Compartmentalized Competition: the Managed Transitional Electoral System of Poland, Journal of Politics LV (February 1993), 415–44. Zbigniew Pelczynski and Sergiusz Kowalski, Poland, Electoral Studies, IX (1990), 346–54. Kamienski in Polityka, 24 June 1989. Cf. Krzysztof Jasiewicz, The Elections of 1984–9, in Sanford, Democratization in Poland, op cit., pp. 110–25. Gazeta Wyborcza, 20 and 21 June 1989. Tygodnik Solidarno´sc´ , 28 July 1989. Gazeta Wyborcza, 4 July 1989. Michnik was uniquely associated with the idea that the communist and Solidarity camps were eventually fated to compromise. This was the main thesis of his Takie czasy: rzecz o kompromisie (London: Aneks, 1985). Tygodnik Solidarno´sc´ , 18 August 1989, p. 2. See Linz and Stepan, op. cit., p. 273. Doubts about Wal⁄ esa’s ˛ character and temperament surfaced with the publication of his ex-press-spokesman’s revelations; see Jarosl⁄ aw Kurski, Wódz (Warsaw: PoMost, 1991). He sets out his broad political philosophy in Un autre visage de l’Europe (Paris: Les Editions Noir sur Blanc, 1989). John Higley and Jan Pakulski, Elite Transformation in Central and Eastern Europe, Australian Journal of Political Science, XXX (1995), 415–35. Dz. U., 1989, no. 19, position 101. Wojciech Sokolewicz, The April 1989 Change of the Constitution, Polish Contemporary Law, no. 3/4–79/80 (1990), 3–23. See Sokolewicz in Sanford, Democratization in Poland, pp. 76–80. Ibid., p. 81 Dz. U., 1989, no. 75, position 444. Hanna Suchocka and Lesl⁄ aw Ka´nski, Zmiany konstytucyjnej regulacji s adown˛ ictwo i prokuratury dókonanej w roku 1989, Pa´nstwo i Prawo, XLVI, no. 1 (1991). Cf. Wojciech Sokolewicz, Rzeczpospolita Polska – demokratyczne pa´nstwo prawne, Pa´nstwo i Prawo, XLV, no. 4 (1990). Dz. U., 1990, no. 67, position 397. Cf. Stanisl⁄ aw Podemski in Polityka, 13 September 1997. Evan McGilvray, however, disputes the domestic dynamics of the reform of civilmilitary relations, arguing that the main pressure was externally directed by the need for NATO membership. The Military in Poland’s Transition from Communism, 1989–1997, University of Bradford, MPhil, 2001. Sekul⁄ a was later to be investigated by the Sejm Committee on Constitutional Responsibility and was only saved from criminal prosecution by his parliamentary immunity. He eventually committed suicide in 2000. Urban was to prosper mightily as the owner and editor of the populist weekly Nie (No). This appealed to the losers in the socioeconomic transformation by railing against corruption and the Roman Catholic Church.

Democratic Transition and Consolidation 71 60 Andrzej Antoszewski, Konstytucja w s´ wietle reﬂeksje politologicznej, in Karol Janowski (ed.), Nowa Konstycja RP. Warto´sci, Jednostka, Instytucje (Toru´n: Marszal⁄ ek, 1991), pp. 38–9. 61 Wprost, 19 April 1998, pp. 28–30. Other suggestions by elite notables in this symposium were 28 October 1992 (the date the last Soviet soldier left Poland (Wal⁄ esa)) ˛ and 2 April 1997 (the promulgation of the full constitution (Rakowski, Jaruzelski)) with the 1992 Little Constitution gaining little support. Public opinion (Pentor poll) favoured 2 April (promulgation of 1997 constitution) most (29 per cent) followed by the 29 December 1989 constitutional amendment (16 per cent) and the opening of the Round Table on 5 February 1989 (10 per cent), Wprost, 17 May 1998, p. 29. 62 See Bogdan Szajkowski (ed.), New Political Parties of Eastern Europe and the Soviet Union (Harlow: Longman, 1991), pp. 175–217. 63 See Michael Mandelbaum (ed.), Post-Communism: Four Perspectives (New York: Council for Foreign Relations, 1996), p. 103. 64 In B. Grancelli (ed.), Social Change and Modernization: Lessons from Eastern Europe (Berlin: de Gruyter, 1995). 65 See Antoni Dudek, Pierwsze lata III Rzeczypospolitej, 1989–1995 (Kraków: Wydawnictwo GEO, 1997). See also Frances Millard, The Anatomy of the New Poland, op. cit. and Polish Politics and Society (London: Routledge, 1999); Sanford, Poland. The Conquest of History, op. cit. 66 Cf. Raina, Poland 1981, op. cit., Ch. 13; Sanford, The Solidarity Congress, op. cit. 67 See George Konrad, Anti-Politics (San Diego: Harcourt Brace Jovanovitch, 1984). See also Vaclav Havel, The Power of the Powerless (London: Hutchinson, 1985). 68 See Ost, Solidarity and the Politics of Anti-Politics, op cit. 69 Andrew Arato, Civil Society, Constitution and Legitimacy (Lanham MD: Rowman and Littleﬁeld, 2000). 70 Francis Fukuyama’s ‘End of History?’ statement in National Interest, XVI (1989) was inevitably more declaratory, despite the question mark, than his intellectually more subtle The End of History and the Last Man (London: Penguin, 1992). 71 See Taras, Consolidating Democracy in Poland, esp. pp. 12–19. See also Gabriel Almond, Scott Flanagan and Robert Mundt (eds), Crisis, Choice and Change (Boston: Little Brown, 1973). 72 Andrzej Antoszewski and Ryszard Herburt (eds), Polityka w Polsce w latach ’90 Wybrane problemy (Wrocl⁄ aw: WUWr, 1999), p. 8. 73 See Herbert Kitschelt, The formation of Party-Systems in East Central Europe, Politics & Society, XX (1992). See also Seymour Martin Lipset, Political Man. The Social Bases of Politics (London: Heinemann, 1983). 74 Plasser et. al., op. cit., Ch. 2. 75 Ibid., pp. 47–8. 76 Ibid., p. 75. 77 Ibid., p. 78. 78 Ibid., p. 87 and 93. 79 Antoszewski and Herburt, Polityka w Polsce w latach ‘90, op. cit., p. 56. 80 Ibid., p. 67. 81 See Agh, Politics of Central Europe, p. 112. 82 See David Mason, Daniel Nelson, and Bohdan Szlarski, Apathy and the Birth of Democracy, East European Politics & Societies, V (1991), 205–33.

72 Democratic Government in Poland 83 See Janusz Sztumski (ed.), Elity w procesie transformacji spol⁄ eczno-gospodarcze i politycznej Polski (Katowice: Wydawnictwo Uniwersytetu Slaskiego, ˛ 1995). See also Wl⁄ odzimierz Wesol⁄ owski and Barbara Post (eds), Polityka i Sejm; formowanie si˛e elity politycznej (Warsaw: Wydawnictwo Sejmowe, 1998). 84 See Jacek Wasilewski (ed.), Zbiorowi aktorzy polskiej polityki (Warsaw: ISP PAN, 1997), pp. 247–71. 85 Ibid., p. 298. 86 See Bohdan Szklarski, Semi-Public Democracy. Articulation of Interests and Systemic Transformation (Warsaw: IFIS PAN, 1997), pp. 201–14. 87 See Hieronim Kubiak, Political Parties and NGOs: Competitors for Power or two Faces of an Emerging Democracy, in Kubiak and Waitr, Between Animosity and Utility, op. cit., pp. 47–8. 88 See Wl⁄ adysl⁄ aw Adamski (ed.), Societal Conﬂict and Systemic Change (Warsaw: IFiS PAN, 1993). See also Marek Ziól⁄ kowski (ed.), Polacy wobec l⁄ adu postmonocentrycznego (Warsaw: ISP PAN, 1993). 89 Plasser, op. cit., p. 177. 90 Ibid., p. 179. 91 Ibid., pp. 190–1. 92 Claus Offe, Capitalism by Democratic Design? Democratic Theory facing the Triple Transition in Eastern Europe, Social Research, LVIII (1991), 876–92. 93 See Piotr Sztompka, Trauma Wielkiej Zmiany. Spol⁄ eczne transformacji (Warsaw: ISP PAN, 2000). 94 Cf. Jeffrey Alexander and Piotr Sztompka (eds), Rethinking Progress (London: Unwin and Hyman, 1990). 95 See Maria Jarosz (ed.), Dziesi˛ec lat prywatizacji bezpo´sredniej (Warsaw: ISP PAN, 2000). See also Mirosl⁄ awa Marody and E. Gucwa-Le´sny (eds), Podstawy zycia spol⁄ ecznego w Polsce (Warsaw: Instytut Studiów Spol⁄ ecznych PAN, 1996); A. Miszalska, Reakcje spol⁄ eczne na przemiany ustrojowe (L⁄ ód z: ˙ Wydawnictwo Uniwersytetu L⁄ ódzkiego, 1996). Essential data on the most severe levels of political, social and economic dissatisfaction in 1991 is provided by Ewa Karpowicz and Krystyna Leli´nska, Przemiany ustrojowe w´swiadomo´sci spol⁄ ecznej (Warsaw: Sejm Chancellery, BSiE, December 1991). 96 Cf. R. Borowicz and K. L⁄ api´nska-Tyszka, Syndrom bezrobocia (Warsaw: IRWiR PAN, 1994). More restrictively deﬁned ofﬁcial ﬁgures admitted a peak of 16.4 per cent in 1993 and lows of, at best, 12 per cent during the 1990s, Mal⁄ y Rocznik Statystyczny 1998, p. 120. 97 See Maria Jarosz, Samobójstwo (Warsaw: PWN, 1997). Specialists will note that this was exactly the litany of pathologies levelled against the PRL, and not only by pro-Solidarity IFiS sociologists: cf. Jerzy Wiatr (ed.), Polska 1980–1990. Warto´sci a przemiany l⁄ adu gospodarczego i politycznego (Warsaw: Instytut Socjologii-UW, 1990). 98 Informacj o spadku zaufania spol⁄ ecnego w stosunku do instytucji sprawujacych ˛ wl⁄ adze w Polsce (Warsaw: Sejm Chancellery, BsiE, 16 July 1991). 99 See M. Ziól⁄ kowski, Pragmatyzacja swiadomo´sci spol⁄ ecze´nstwa polskiego, Kultura i Spol⁄ ecze´nstwo, no. 4 (1995), 11–28. Cf. Piotr Sztompka, Looking Back: the Year 1989 as a Culture and Civilizational Break, Communist & Post-Communist Studies, XXIX (1996), 115–26. 100 The theoretical forms of legitimisation strategies are discussed by Stanisl⁄ aw Mocek in Mirosl⁄ aw Grabowska and Stanisl⁄ aw Mocek, Pierwsza Sze´sciolatka. Próba bilansu polityki (Warsaw: ISP PAN, 1997), pp. 177–88.

Democratic Transition and Consolidation 73 101 Cf. Bryant and Mokrzycki (eds), The New Great Transformation?, op. cit. 102 Andrzej Walicki, in James McAdams (ed.), Transitional Justice and the Rule of Law in New Democracies (Notre Dame: University of Notre Dame Press, 1997), pp. 185–237. 103 Adamski, Societal Conﬂict and Systemic Change, op. cit. 104 J. Gardawski, Przyzwolenie ograniczone. Robotnicy wobec rynku i demokracje (Warsaw: PWN, 1996). 105 Grabowska and Mocek, op. cit., pp. 151–64. 106 Jan Kofman and Wojciech Roszkowski, Transformacja i Postkomunizm (Warsaw: ISP PAN, 1999), pp. 130–5.

4 Constitution Making and Consensus Building

National sovereignty and citizenship The demolition of external Soviet controls, the return of full national sovereignty and Poland’s free negotiation of links with the EU, NATO and other European and international organizations, was connected integrally with, and reinforced, the systemic replacement of monocratic communism with democratic capitalism. National and popular sovereignty could thus be established to facilitate the completion of the third arm of Offe’s Triple Transition – nation building.1 I would deﬁne the latter quite simply as the coming together of nation and independent state in a legitimate democratic form; this overcame the historical split between the, often foreign-controlled, state and the independent nation or society. It may also be viewed as the ﬁnal conﬁrmation of civic-territorial, not ethnic, citizenship although the question was confused by diaspora issues in the late 1990s. In Poland’s case, ethnic discrimination has never taken legal form and has generally been restricted to informal social and individual behaviour and attitudes. The latter were conditioned after 1989 by Poland’s commitment to European standards through the acceptance of the necessary international agreements.2 The elite was fairly united on this issue. National minorities were small (barely numbering a million) and until the 1990s of the traditional ‘settled’ rather than new immigrant, let alone Third World, type. Most had strongly Polonized linguistic elements in their dual identity and their concerns were generally treated sympathetically. Their social and cultural associations became extremely active. Politically, national minorities, especially Germans, beneﬁted from signiﬁcant electoral law concessions which facilitated their parliamentary representation.3 Losers in the socioeconomic transformation equated democratization and EU entry with impoverishment. Extremists like Jan L⁄ opusza´nski opposed any loss of sovereignty or the decentralization of the Polish state as marking a return to eighteenth-century ‘anarchy’. They, along with

74

Constitution Making and Consensus Building 75

Lepper’s peasants and Tejkowski’s right-wing extremists, were no more than marginal, if noisy, political nuisances, given elite solidarity and increasingly tolerant attitudes amongst the public. As a result, Polish nationalism has become a form of democratic civic republicanism, although one that is strongly marked by native linguistic-cultural characteristics.4 The country has not, until recently, been troubled by citizenship controversies, let alone had to face ethnic conﬂicts or signiﬁcant frontier disputes as in the Balkans.5 It has, therefore, been spared an important potential difﬁculty which has slowed down democratic transition elsewhere.6 There was, consequently, no problem after 1989 in relocating the source of constitutional sovereignty in the nation in straightforward civic territorial terms. The 1921 constitution had done so following a similar liberal sentiment in the 1791 document – inspired by the Declaration of the Rights of Man and the Citizen at the outset of the 1789 French Revolution.7 Article 2 of the 1992 Little Constitution declared that ‘supreme power in the Republic of Poland shall be vested in the nation’ it was to be exercised through elected Sejm and Senate representatives as well as through referenda. The ‘nation’ as we have already seen had irrevocably replaced the ‘working people of town and countryside’ in the December 1989 amendment. Its article 1 conﬁrmed that Poland was a ‘democratic state ruled by law and implementing the principles of social justice’.8 The wording of both articles remained unchanged in the 1997 constitution (article 1 became article 2 while article 2 became article 4). The new article 3 conﬁrmed that Poland was a unitary state; the new article 1 continued the formulation that the republic was ‘the common good of all its citizens’ irrespective of religion, gender or race.9 Such values are strengthened in Chapter III which guarantees a wide variety of human and civic rights. Article 35 explicitly protects ethnic minorities and their languages, culture and identity. The PRL claim (preamble/1952 constitution) to represent the progressive traditions of the Polish nation was disputed in the controversy over article 6 of the 1976 amendment;10 the debate over the true ownership of the national tradition continued during the 1990s. The preamble to the 1997 constitution reads ‘We the Polish Nation – all the citizens of the Polish Republic’. The relationship between the state and nation (which thus equals people) is elaborated in the political arrangements constituting the bulk of the constitution. It is a signiﬁcant reﬂection of the country’s history, however, that article 6.i comes close to accepting that there is such a thing as polsko´sci (Polishness) by binding the republic to promote culture, and equal access to it, as the basis of ‘the identity of the Polish nation’. Article 6.ii also reﬂects national values by promising constitutional support for Polonias (Polish communities abroad). These formulations raise interesting issues regarding multiculturalism, both at home and abroad.11 Historically, conditioned sensitivities on the issues of indepen-

76 Democratic Government in Poland

dence and sovereignty are reﬂected throughout the constitution. These are most notable in the preamble but also in parallel debates as to how the newly gained sovereignty can be pooled or bargained away, by the democratic will, in EU membership.12 The consolidation of democracy also provoked controversy during the passing of the Law on Citizenship in 2000 over the holding of dual citizenship by Poles. This applied mainly to those who had emigrated for economic reasons since 1980, although they had often presented themselves as political martyrs to their hosts before 1989. The law proposed that the use of foreign passports on the PR’s territory by Polish passport holders should be punishable.13 The realization also spread slowly that higher degrees of assimilation, and the dying out of the initial post Second World War exile generation, a quintessentially political Emigracja, notably in the UK and the USA, was dissolving older established Polonias.14 The Polish establishment compensated by playing up the role of individuals such as Paris Kultura editor Jerzy Giedroyc who had suffered emigracja for the Polish cause.

Constitutional engineering and institution building There was almost no debate after 1989 over the type of political system that had been adopted, namely the democratic republic. Monarchist groups such as the Conservative-Monarchist Club (KZ-M) have always been minor fringe affairs blending in, as in the Fifth Republic, with conservative demands for a strong executive presidency.15 Given Poland’s history, there is overwhelming emotional and political support for the idea of the republic and little for, even a public role for, potential dynasts like the Zamoyskis. Likewise, support for a return to the PRL, as against strong and continuing nostalgia for some its favoured social features, diminished after 1993 when the costs of transformation were abated by the peasant-left governments of 1993–97. Civic republicanism predominated even though new democratic practice had to deal with a variety of historical pathologies. It has been argued that institutions in the transition period, from authoritarianism to democracy, are ‘products of both individuals’, preceding historical and institutional setting (that is, structural-historical context) and the dynamic uncertainty that surrounds them (that is, the transitional context’.16 Chapters 2 and 3 of this book have indicated the structural continuity of Polish institutions which goes beyond a mere attachment to historical names and symbols. Apart from the disappearance of communist party structures, the main post-1989 change in Poland entailed not the adoption or invention of new institutions but the breathing of real – in other words competitive and independent – political life into existing ones such as the Sejm and the judicial and control bodies. It is symptomatic that the handover of power was achieved using classical electoral and parlia-

Constitution Making and Consensus Building 77

mentary methods, now subject to the free play of political forces. Poland was thus spared the additional difﬁculties posed by the creation of totally novel, and rootless, democratic institutions such as had to be faced by new Third World post-colonial states. Apart from some anti-communist dissidents, whose experience predisposed them towards concepts of the weak, liberal or decentralized state, most of the post-1989 Polish elite wanted the state to fulﬁl a wide variety of interventionist security, social and economic functions – very much in the mainstream continental tradition.17 There was, however, little dispute over the principle that the main function of a democratic constitution would be to limit and separate power – as discussed by classical political theorists, notably Montesquieu, Locke, Rousseau, Madison and de Tocqueville – within the conﬁnes of a strong and viable state.18 The paramount initial priority for East European constitutions – to concentrate on the negative aspects of limiting government through classic methods of establishing the rule of law, the separation of powers and the growth of balancing and checking institutions like parliaments and courts – has been emphasized most strongly by a Hungarian constitutionalist, Andras Sajo.19 In contradistinction, radical critics pressed for the constitutional embodiment of the values of anti-communist civil society.20 Despite being part of the, wider debate, Poland, nevertheless, moved on rapidly to discussing the optimal institutional framework for democracy and the market (mainly deﬁned in social not liberal terms) in parliamentary debates from the beginning of 1990 when work started on preparing a new constitution. Building, or rebuilding, a new democracy, however, entails fundamental discussion of the balance of powers as well as the character of individual institutions within the system. There is nothing unusual in this. Sammy Finer characterizes constitutions as ‘codes of rules which aspire to regulate the allocation of functions, powers and duties among the various agencies and ofﬁces of government, and deﬁne the relationship between these and the public’.21 The major disputes in Poland cover the life of the Little Constitution from 1992–97, although one really needs to go back to the ˛ democratic elecfully free 1991 parliamentary election – or even Wal⁄ esa’s tion as president in December 1990. One can summarize the problems under six headings, outlined below. 1.

The nature of the executive power

This in turn raised the issue of whether a presidential system should be favoured over a parliamentary one or whether the mixed practices of 1991–97 should continue. The latter entailed a form of separation of the powers, including the division of executive power between president and prime minister, which formally excluded parliamentary domination, as in 1919–26.

78 Democratic Government in Poland

2.

The type of electoral system to be adopted

In practice, single or two member, ﬁrst-past-the-post systems were only used for the Senate. The issue was, therefore, over the type of party list proportional representation (PR) system to be adopted. This involved decisions with important consequences over the size of multimember constituencies and whether the d’Hondt or the Sainte-Lagüe procedures should be used for calculating results. After the experience of fragmentation produced by the 1991 election, there was little dispute over the utility of the electoral thresholds introduced in 1993 – only over how they should apply. 3.

The central role of the written constitution

In Poland, this entailed not only a vast development of the principle of judicial review but also of the powers of the Constitutional Tribunal and, to an extent, courts in general. The balance between democratically elected representative assemblies and the executive bodies answerable to them, and the independent guardians of the constitution and of the rights enshrined in it, needed considerable working out in practice. 4. Resolving disputes Major disputes occurred over church-state relations, the extent to which social and economic rights should be entrenched constitutionally, how a politically neutral administrative-functionary class could be developed as well as over speciﬁc, if less important, issues. 5. The ﬁnal constitution In a general sense, the writing of the preamble to the ﬁnal constitution involved fundamental disputes over the nation’s identity and history. In particular, the discussion highlighted the issue of the continuity between the Second and Third Republics and whether it was possible just to erase the PRL in legal-constitutional terms. This was implied in the claim that real legitimacy had been embodied in the Government-in-Exile in London, and not the PRL, throughout the 1945–89 period. The symbolic handing over of his insignia and rights by Ryszard Kaczorowski, the last ‘London’ ˛ immediately after the latter’s election by free and unipresident, to Wal⁄ esa, versal suffrage, was intended to implement this claim.22 6.

A ‘Polish’ constitution within Europe

The Polish constitution-making process proved remarkably self-contained but there was increasing discussion of the need to incorporate European standards.23 During the drafting of the 1992 Little Constitution, this meant incorporating Council of Europe and EU Associate membership requirements. Fears that foreign models might be adopted wholesale, irrespective of Polish speciﬁcities, subsequently proved groundless. The constitutional debate drew liberally on German, Austrian, French, British and American

Constitution Making and Consensus Building 79

models. Knowledge, of both their strengths and weaknesses and of the need for plural sources of inspiration and comparison spread. The controversies outlined above may help to explain an interesting paradox about Poland. While democratic institutions such as free elections, a free press and judiciary, political parties, independent trade unions and interest groups as well as a democratic form of civil-military relations were established rapidly during 1989–91, the job of constitution writing and framing proved incredibly prolonged and tortuous. The process of marketization was somewhat different. The momentum provided by the initial shock therapy ﬁnancial measures of Balcerowicz was accompanied by slow and irregular, but very steady overall, progress in privatization, the removal of state controls and subsidies and the establishment of western-style banks, ﬁnancial institutions and practices and property ownership.24 The evolutionary and ad hoc character of the simultaneous political and economic transformations has produced a gradual, but steady pattern. Its slow pace infuriated supporters of the ‘McWorld’ form of democratic capitalism but the strategy maintained national political consensus and social balance. There has been some theorizing by political scientists about the relevance of debates on institutional and constitution building in the ﬁrst wave of nineteenth-century democratization in Western Europe and Scandinavia to post-communism. The work of Arend Lijphart was notable in the early literature but subsequent development has demonstrated the peripheral nature of this particular tack.25 Lijphart wondered, following Stein Rokkan’s older theses on electoral systems,26 whether the old pre-democratic forces could be equated with communist and successor-elites and whether the power sharing deals of the beginning of the system would ﬁnd institutional reﬂection. Lijphart’s expectations that presidentialism, proportional representation and bicameralism would be the prevalent constitutional choices, have not proved entirely true. There is no evidence that second chambers have provided political refuges and constitutional brakes on systemic transformation in East-Central Europe. In Poland, free elections to the restored Senate were envisaged in 1989 as a concession to the anti-communist opposition and proved to be a great victory for the democratic forces. Since 1989, the Senate has undergone democratic alternation, invalidating such early hypotheses. ˛ presidency from 1990–95 and peasant-left control of In Poland, Wal⁄ esa’s the Sejm from 1993–97, confused the parliamentarian versus semipresidential debate.27 No clear, or even foggy, correlation between either of the former and radical or conservative views on systemic transformation emerged. Presidentialism in Russia, Serbia and pre-1996 Romania produces different conclusions but this merely conﬁrms the systemic differentiation of the post-communist area. While the complexity of dual executive systems has been noted, so has the decline of presidentialism in Portugal and Finland (as well as to some extent in France) and the lack of power of

80 Democratic Government in Poland

democratically elected Heads of State in Ireland and Austria.28 Stanisl⁄ aw Gebethner, after examining the presidential versus cabinet-parliamentary debate, therefore, favoured rationalized parliamentarianism over the apparent early transition period attractions of presidentialism.29 On the issue of type of electoral system, one can also conclude that there is no obvious correlation between the adoption of various types of party list PR in Poland, with subsequent thresholds and systemic transformation, and either conservationist or radical attitudes towards democratization and decommunization. Reasons are to be sought in Poland’s contractual transition which effectively closed controversy over the systemic transition to democratic capitalism and by 1991 transformed the successor-communist elite. This process, contrary to Lijphart’s prediction, did not freeze constitutional choices. Signiﬁcant rebalancing occurred during the 1990s, with the shift from semi-presidentialism to Chancellor-parliamentary democracy being enshrined in the 1997 constitution. Post-1993 electoral thresholds and the weakening of the Senate also constituted important shifts. On the other hand, many of Poland’s historically conditioned electoral and political cleavages affected the political parties and party system which emerged after 1990. In that respect, much of the classical theorizing by Lipset and Rokkan, as well as Inglehardt’s post-materialist slant, are only relevant to a discussion of continuity and rupture in the identity of political parties.30 The above discussion supports my argument that post 1991 Polish politics can be discussed according to normal western political science canons and can be largely abstracted from the democratization and transition debate. In one of the best guides to post-communist institutionalization, Elster and his colleagues deﬁne post-communist constitutions as ‘emblems of political liberation’; they identify the signiﬁcance of the rebirth of real pluralist constitutionalism compared with formal recording and declaration as in communist times.31 The rebirth of constitutional politics in Poland in 1989 and the ad hoc piecemeal constitutional engineering of 1989–90, despite being the essential precondition, was quite separate from the formal process of producing and writing the 1992 and 1997 constitutions.

The politics of the temporary: writing the Little Constitution Because the rule of law, with its rights and freedoms and democratic government, emerged well ahead of the writing of a new constitution, the urgent need for the latter diminished somewhat. This was accentuated by an increase in economic, and hence political, dissatisfaction in the early period. A June 1991 poll conﬁrmed that 25 per cent deﬁned democracy in terms of personal freedom and rights – 22.3 per cent as freedom of speech and mass media, 8.3 per cent as freedom of religion and conscience and only 13 per cent as social inﬂuence on political decisions. The transforma-

Constitution Making and Consensus Building 81

tion was viewed ‘very/rather positively’ by 48.3 per cent ‘very and very/rather negatively’ by 34.4 per cent.32 As early as autumn 1989, the Sejm discussed the procedures for promulgating the new constitution by the National Assembly (Zgromadzenie Narodowe) composed of the Sejm and Senate sitting jointly. A two-thirds majority would be required, followed by endorsement in a popular referendum. The Sejm and Senate established separate constitutional committees to prepare the constitutional draft. The 46-strong Sejm body, dominated by the OKP and chaired by Geremek, also had signiﬁcant SdRP, PUS and independent representatives. The Senate committee, chaired by the vociferous conservative Catholic, Alicja Grze´skowiak, therefore claimed greater legitimacy. Both bodies were affected by political fragmentation and the breakdown of the Round Table consensus. The imperfect democratic legitimacy of the contractual Sejm meant that the view eventually prevailed that it could not participate in a constituent assembly before fully free elections. Both the Sejm and the Senate produced full constitutional drafts in 1990 while another nine drafts came from political parties and sundry academics. The parliamentarians were, however, unable to agree a draft in time to celebrate the bicentenary of the Constitution of 3 May 1991, let alone to have it approved in a referendum.33 The constitution was regarded as both ‘future and uncertain’ by the noted legal commentator Stanisl⁄ aw Podemski.34 Geremek wanted to enshrine Solidarity’s values constitutionally while the successor-communists remained weak but his aim was stymied somewhat by divisions in his camp. During Bielecki’s government, the Sejm committee was also caught up in the ˛ It was distracted by the additional task of drafting the conﬂicts with Wal⁄ esa. electoral law for the October 1991 elections, to which it devoted about half its sittings during the relevant period.35 The developed constitutional debate of the Contract Sejm period, however, facilitated the rapid passing of the Little Constitution.36 Both Sejm and Senate constitutional drafts were laid aside by the newly elected parliament. The Sejm draft envisaged a prime ministerialparliamentary model with a weak president only who only would be called into play in order to resolve blockages and emergencies. The Senate favoured a strong president who had appointing and other powers and looked to the semi-presidential model of the French Fifth Republic. It opposed the Sejm’s wide range of socioeconomic rights together with bourgeois liberal political rights. Both agreed on the supremacy of the constitution and the Constitutional Tribunal and on the principles, however differently interpreted, of the separation and balance of the powers.37 Conﬂicts between Wal⁄ esa ˛ and the Olszewski government not only postponed the constitution’s formation but also highlighted practical disputes over presidential and parliamentary power on a wide range of issues during the ﬁrst half of 1992. The conﬂict over control of the army escalated, with ˛ of plotting with the military. Defence Minister Jan Parys accusing Wal⁄ esa

82 Democratic Government in Poland

Interior Minister Antoni Macierewicz pressed ahead with lustration. He ˛ in a bad, collaborrevealed secret police ﬁles to the may have shown Wal⁄ esa ˛ ationist, light as, it was alleged, the agent Bolek.38 The Wal⁄ esa–Olszewski conﬂict, reminiscent of the early 1920s, discredited both the extreme presidential and the parliamentary options. The feeling thus prevailed that as no constitutional consensus existed, or was likely to be created in the short term, the best solution would be to postpone the writing of the full and ﬁnal democratic constitution. On the other hand, the Sejm alone was charged, in January 1992, with the preparation of an interim Little Constitution to prepare the ground for the ﬁnal document – as in 1919 and 1947. A Special Committee, chaired by expremier Mazowiecki, was elected and started work, very vigorously, in February, initially on a UD draft. It succeeded in producing an outline constitution by late July as it limited itself to deﬁning the mutual relations between legislative, executive and local government institutions. The Suchocka government, immediately after its formation, was able to ram the document through the Sejm on 1 August 1992. Its shock tactics assured the required two-thirds majority before the assembly reverted to its normal quarrelsome fractiousness. The ﬁnal stage was equally rapid. The Sejm overruled both Senate and presidential objections, adopted it ﬁnally ˛ signed the constitution a month later. on 17 October 1992, and Wal⁄ esa The new preamble declared that the constitution merely wanted to improve ‘the activity of the supreme authorities of the state, pending the passing of a new constitution’.39 The new articles regulated the executive, legislative and local government ﬁelds enumerated in its title. As a result, the articles on individual and civic rights and freedoms largely left unchanged the formal framework of the 1952 constitution as amended in 1976 and 1989 although article 77 clariﬁed which parts ceased to be binding.40 The content and meaning of such articles changed fundamentally within the post-1989 democratic framework; but the co-existence of old and new articles reinforced the elements of continuity and evolutionary change characterizing the Polish transformation. The absence of a new and detailed section on rights provoked the presi˛ sent to the Sejm in dential Charter of Rights and Freedoms which Wal⁄ esa November 1992. Based on the European Convention of Human Rights and similar international Conventions, the Charter identiﬁed and guaranteed, mainly through the courts, no less than 22 civic and democratic rights. It aimed to ﬁll the constitutional gap left vacant in the Little Constitution but ˛ main constitutional spokesman, the deputies were unconvinced. Wal⁄ esa’s Lech Falandysz, also argued, at one point, that such supplementation made the writing of a new constitution unnecessary, especially as the SLD had responded with its own Social and Economic Charter. The Sejm Special Committee failed to examine the charter which was subsumed in the work of the new Constitutional Commission after the 1993 election.

Constitution Making and Consensus Building 83

The Little Constitution remained in force until 1997 and was written against the political backdrop of two major fears which played themselves ˛ out most dramatically during Olszewski’s government. Firstly, Wal⁄ esa’s desire to increase presidential powers was widely opposed. The successorPRL elite’s main fear, that effective lustration might eliminate them politically from public life, was removed by their electoral victory in 1993 but it certainly affected the drafting of the Little Constitution. Secondly, the 1991 election had produced a politically fragmented Sejm which behaved at its worst during 1992. It replicated the immaturity, fractiousness and refusal to compromise which justiﬁed Pi⁄lsudski’s complaints against the pre-1926 Sejm. The heavily UD inﬂuenced Little Constitution, therefore, offered correctives to produce a more balanced relationship between the central political institutions and a working compromise between presidential and parliamentary models. Perhaps Mark Brzezinski goes too far in arguing that the Little Constitution was modelled on the West German Basic Law of 1949 as the former strengthened presidential powers in its attempt to ‘rationalize’ parliamentarianism.41 This is reﬂected in its characterization as ‘a form of compromise between a presidential-parliamentary system on the model of the Fifth Republic and the Chancellor model functioning in Germany’.42 In the constitutional debates of the 1990s, the former strand was generally supported by the president and the Senate while the latter was favoured by the Sejm. The Sejm’s dominant constitutional position was replaced by the separation and balance of powers.43 The Sejm would dominate if it could produce and maintain an effective majority to fend off presidential and other challenges. Fractious and irresponsible behaviour by the deputies and the absence of a stable majority would result in the Sejm’s loss of power. The Sejm could grant the government special powers to legislate by decree, subject to presidential countersignature, within speciﬁed areas, but excluding ﬁnancial and labour policy as well as civic and individual rights. Governments could also use an accelerated procedure to overcome legislative blockages. Another rationalization abolished the previous legislative to and fro between the two houses. The Sejm could now overrule Senate objections by an absolute majority, something which replaced the previous two-thirds requirement. Again, if it failed to do so, Senate amendments would stand. The president retained the prestige of direct election by universal suffrage and a strengthened position as Commander of the Armed Forces (art. 35). ˛ Chief of Staff, the forthright General Józef The latter protected Wal⁄ esa’s Wilecki, until 1997. The president also had the right of declaring martial law and mobilization (art. 36) or a state of emergency (art. 37) as well as supervising international affairs and ratifying treaties (arts 28, 32 and 33). The exact boundaries of article 34, which gave the president ‘general supervision with respect to the external and internal security of the state’, were

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controversial under Wal⁄ esa ˛ but clearer under Kwa´sniewski.44 Presidential ˛ also developed article powers of appointment remained signiﬁcant. Wal⁄ esa 61 to mean that he had the right of nomination, and not just of consultation, regarding the Ministers of Foreign Affairs, Defence and Internal Affairs, in what was described as the ‘presidential sphere’ of government. The need for Senate approval for the presidential calling of a referendum, ˛ never attempted this form of direct popular appeal – meant that Wal⁄ esa like de Gaulle did in the early years of the French Fifth Republic. On the other hand, the president was fairly close to being constitutionally irresponsible here. One-third of the deputies could block the Sejm’s blockbuster residual check upon constitutional and political bad behaviour by the president – its right to impeach an incumbent before the State Tribunal on a two-thirds majority. While the powers of the president and the prime minister overlapped, the former had more formal rights and was in a much stronger position to manoeuvre in the early to mid-1990s, despite the latter’s right of countersignature.45 There were powerful presidential checks upon the Sejm in three main areas. First, the veto over legislation was maintained but this could be overruled by a two-thirds majority. Secondly, the power of dissolution was limited to speciﬁc conditions such as the Sejm’s failure to pass the budget within three months, to form a new government or to nominate an alternative prime minister when passing a successful vote of no conﬁdence (as in Suchocka’s case). On the other hand, the Little Constitution removed one of the Round Table leftovers, enshrined in the April 1989 amendment, that the president could dissolve the Sejm if it infringed his constitutional responsibilities. In theory, such a dissolution might have resolved the question of institutional power. This occurred in France in 1877 when the people voted against the representatives of President Maurice de MacMahon thus producing assembly domination of the Third Republic and a ﬁgurehead president.46 Lastly, the process of nominating and producing a new prime minister, as well as of dismissing an incumbent, was in practice made entirely dependent upon the presence or absence of a parliamentary majority. The nominating process at ﬁrst sight looked hideously complicated, with four possible alternative rounds of nomination by the president and the ˛ nomination of Sejm.47 In practice, the Sejm refused to accept Wal⁄ esa’s Geremek and eventually forced Olszewski through in late 1991. The politi˛ cal majority of 1993–97 reduced the president’s role to a formality. Wal⁄ esa, unlike Kwa´sniewski, had a decisive say over the appointments to the three ministries in his sphere and actually vetoed nominations which he disapproved off.48 Ultimately, however, the government was supreme (if supported by a Sejm majority) since most presidential acts required prime ministerial countersignature. On the other hand, prime ministers and their governments could be dismissed by the Sejm – either by a simple or con-

Constitution Making and Consensus Building 85

structive vote of no conﬁdence. The latter, specifying an automatic successor as in West Germany, restricted the process solely to the Sejm – as when it was used to replace Oleksy with Cimoszewicz in 1995. The domination of the prime minister, along German Chancellor lines, emerged during the life of the Little Constitution but was only fully conﬁrmed by the time of its successor constitution. ˛ The Little Constitution provided an acceptable framework for Wal⁄ esa’s semi-presidential deﬁnition of executive power and relations with Parliament. The system provided the checks and balances, as well as the dispersion of institutional power, necessary during a key transitional period in the 1990s. Its failure to provide deﬁnitive constitutional deﬁnition of human and civic rights, the judiciary and local government, was a blessing in disguise. It allowed such bodies as the Constitutional Tribunal and the Ombudsman to develop in both an evolutionary and piecemeal way, rooted in empirical realities which produced the best practice. Although it could not prevent political conﬂict, which often focused on the issues of respective spheres of institutional power, it allowed lessons to be learnt and conventions to emerge. While its regulation of the central (presidentialgovernment-parliament) level was its main concern, it constitutionally sanctioned the state’s decentralization and the further democratization of local self-government (arts 70–75). The constitution was about as good as could be achieved under the circumstances of the early 1990s. It was not amended much, and was not amended on central issues. Two changes in 1995 revised the procedure of Sejm dissolution. One laid down that its term should continue until a newly elected Sejm took over in order to prevent a break. The other tightened up the presidential power of dissolving parliament within 21 days of its failure to pass the budget within a more clearly speciﬁed three-month period.49 The amendment of 21 June 1996 regulated the reform of the ministerial centre. It increased the prime minister’s power, especially over supporting governmental bodies such as the Ofﬁce of the Council of Ministers, discussed in Chapter 6.

Towards the 1997 constitution A dual track policy separating the writing of the Little, from that of the ﬁnal, constitution only really emerged after the October 1990 elections. The newly elected First Sejm laid down the procedures for preparing and promulgating the new constitution. The proposal that the constitution should receive ﬁnal conﬁrmation in the form of a national referendum was supported widely. But ˛ draft law on the constitutional committee was criticized in the Sejm Wal⁄ esa’s by Jarosl⁄ aw Kaczy´nski (PC) as a plebiscitary attempt to bypass parliament.50 The UD and KL-D submitted party proposals that were very similar, although more detailed to those of an earlier ZChN draft. They contained the essential

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ideas behind the Law on Procedures of Constitutional Amendment, whose draft, prepared by a Special Committee, was passed overwhelmingly by the Sejm on 23 April 1992.51 The constitution would be worked on by a joint Sejm-Senate Committee of 46 deputies and 10 senators collaborating with the president, government and Constitutional Tribunal. Its draft would be passed by the National Assembly by a two-thirds majority (with a minimum of half the representatives present). The president then had the right to submit objections. These could be accepted or rejected on Third Reading by the Sejm. The agreed ﬁnal draft would be conﬁrmed in a national referendum where a simple majority of those voting would sufﬁce. The Sejm also overruled varied Senate objections, arguing that the Senate had not met a required 30-day time limit. After the Sejm and Senate had elected their members, the Constitutional Committee met for the ﬁrst time on 30 October 1992. It elected Senator Walerian Piotrowski (ZChN), who had been prominent in voicing the Senate’s objections to the Sejm’s constitutional proposals, by a single vote against Mazowiecki (UD).52 Jerzy Ciemniewski (UD), a Warsaw University law professor and URM head 1989–90, was elected as his deputy but had his attempt at establishing de facto co-chairmanship with Piotrowski repulsed.53 The committee’s initial party composition was seven UD, six ZChN, ﬁve SLD, ﬁve PSL, four KPN and three apiece for Solidarity and PC with ﬁve other parties also being represented. The left was represented by major ﬁgures such as Cimoszewicz, Kwa´sniewski and Oleksy, the centre by Bentkowski, Kozakiewicz and Mazowiecki and the right by Jarosl⁄ aw Kaczy´nski, Moczulski and Olszewski. At a subsequent meeting on 13 January 1993, it passed its standing orders and constituted six sub committees and a coordinating group.54 The latter’s work was delayed by some bitter wrangling over the election of chairmen. Political fragmentation and division prevented the Constitutional Committee from going much beyond organizational matters and general issues, despite meeting nine times before the September 1993 elections.55 On 10 February 1993, it actually failed to raise a quorum and was therefore unable to sit.56 Six constitutional drafts by political parties (supported by at least 56 members of the National Assembly), as well as a presidential one, were submitted by the due date of 30 April 1993.57 Drafts were presented by the SLD, UD, KPN and PC while joint drafts came from the PSL/UP and Senate/ZChN.58 In general, the Senate, KPN and presidential drafts favoured a strong presidency which would appoint and dismiss the government and dominate policy-making. The SLD and PSL wanted a dominant cabinetparliamentary system, with the presidency restricted to Head of State functions. The UD, which had set the tone of the Little Constitution hardly surprisingly, argued for the continuation of the mixed system.59 During May, the committee considered four drafts before its work was interrupted by the dissolution of parliament.

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Given the exclusion of most of its right and centre Sejm members by the September 1993 election, the Constitutional Committee had to be heavily reconstituted in October. Its membership was now 20 SLD, 16 PSL, eight UD, four UP, two apiece from Solidarity, KPN and BBWR and one Independent senator. There was, therefore, no difﬁculty in electing Aleksander Kwa´sniewski (SLD) as chairman. He clearly intended to use the post as a means of building up his national image as a potential presidential candidate. His deputy obviously had to come from the PSL and they provided Senator Stefan Pastuszek. The new standing orders, adopted on 18 January 1994, conﬁrmed the previous pattern of six subcommittees. The SLD-PSL majority were more equitable than their right-wing predecessors in spreading their chairmanships around the different parties. Access to the main committee was extended to parties who had submitted ‘All Poland’ electoral lists but who were now excluded from the Sejm, to 11 religious denominations and to consultative groups.60 The teams of the president (initially Lech Falandysz, Andrzej Ajnenkiel, Michal⁄ Pietrzak, Andrzej Rzepli´nski and Wl⁄ adysl⁄ aw Kulesza), the government (Stanisl⁄ aw Gebethner and Andrzej Gwi zd ˙ z) ˙ and the Constitutional Tribunal (Andrzej Zoll, Janusz Trzci´nski and Janina Zakrzewska) retained the special rights granted to them by the April 1992 Law. Almost all of them were well known academic and legal ﬁgures. Another list of 50 specialists, who formed a Group of Experts, headed initially by Kazimierz Dzial⁄ ocha, and then by Piotr Winczorek, was also added. One can thus appreciate the size of the consultative body as well as the fairly homogeneous character of the academiclegal-political elite group writing the constitution. This pattern can fairly be described as a continuation of the Round Table method of resolving political issues. The SLD-PSL Sejm majority and government were in an extremely strong position to lay down the direction of constitutional debate. The Sejm, in February 1994, also rejected the UP’s suggestion of a ‘pre-referendum’ to ˛ proposal that civic clarify basic constitutional choices as well as Wal⁄ esa’s constitutional drafts should be submitted for referendum by 100 000 ˛ in one of his rather typical huffs, withdrew his representavoters. Wal⁄ esa tives from the Constitutional Committee as well as his constitutional draft for a short while. The majority then rubbed salt in his wounds when the Sejm Special Committee, updating the April 1992 law, introduced its own civic constitutional initiative – necessitating the signatures of 500 000 voters. The constitutional law revising the 1992 procedures for constitutional amendment was ﬁnally passed by the Sejm on 22 April 1994. The issue of popular or civic constitutional initiative blew the Constitutional Committee’s work somewhat of course as it now had to wait for 4 September, the latest date speciﬁed for such submissions. The 6 May deadline for the submission of new constitutional drafts by political groups, with 56 strong National Assembly support, was met, however, by

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the UD/UW and SLD, along with a revised presidential draft incorporating the Charter of Rights and Freedoms. All three withdrew their earlier constitutional documents. Their revised drafts thus qualiﬁed for substantive consideration by the Constitutional Committee on 22–23 June 1994 along with Senate and KPN documents and a PC proposal that was judged to be procedurally irregular.61 Solidarity’s civic constitutional draft, supported by well over 500 000 valid signatures, was submitted and approved in September.62 The above cleared the way for the First Reading of the seven constitutional drafts by the National Assembly on 21–23 September 1994.63 Their presentation and debate was less signiﬁcant than the adoption of standing orders, prepared by a committee headed by Józef Zych (PSL), regulating how the National Assembly would proceed with work on the constitution.64 All seven drafts were read for a ﬁrst time and referred back to the Constitutional Committee. No timescale was set for the production of a single amalgamated text. The next speciﬁed step was the Sejm debate on basic constitutional principles. The Constitutional Committee met ﬁrst on 11 October to hear its six subcommittee reports. It also edited an extensive resolution identifying key questions concerning the political system, social rights and sources of law requiring Sejm consideration.65 The latter’s debate, on 21 October 1994, was opened by Kwa´sniewski. He indicated the weaknesses of the Little Constitution and the need to correct them through statesmanlike compromises. Party spokesmen mainly reiterated key features of their constitutional drafts. As the Sejm came to no conclusion, its proceedings largely publicized remaining differences rather than common ground.56 The Senate held a similar debate some weeks later, but one that was solely restricted to its constitutional role.67 The subcommittees then moved, during autumn–winter 1994, towards producing a single constitutional text from the various proposed variants on the basis of the 12 chapter headings suggested by the Group of Experts.68 By late January 1995 the full committee had produced a ‘uniﬁed draft of the constitution of the RP (in variant form)’.69 It also decided various disputed issues accepting a bicameral parliament (by 23 votes to 20) – rather surprisingly, given the left’s unicameral inclinations.70 A year-anda-half of leisurely examination followed, chapter by chapter, of the detail of about 200 individual articles in the uniﬁed draft.71 This reﬂected the political hiatus caused by the 1995 presidential election campaign which distracted Kwa´sniewski’s attention somewhat. The consequent shift from political cohabitation to complete SLD control of the executive resulting from Kwa´sniewski’s presidential victory had rather different consequences. The relationship between the two parts of the executive became even more harmonious; so did presidential-Sejm relations when the old beton (hardline) type of ex-communist, Józef Oleksy, discredited by spying allegations, was replaced by Wl⁄ odzimierz Cimoszewicz. The latter shared the new presi-

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dent’s social liberalism and modern image. The permanent replacement (as late as 20 February 1996) for Kwa´sniewski as chairman of the Constitutional Committee was the politically less powerful and personally less forceful constitutional law professor, Marek Mazurkiewicz (SLD). Cimoszewicz maintained the interim from early December 1995 onwards, but stood down on becoming prime minister. The Committee’s SLD-PSL majority made numerous concessions to the UD but resolved the decisive choices between the larger political alternatives which had earlier clogged up its work during 1992–94. All this effort culminated at a decisive meeting on 19 June 1996. This cleared up basic issues concerning structure and editing as well as a mass of speciﬁc and technical amendments. It came close to producing the committee’s near ﬁnal draft of the constitution. 72 Edited by the Group of Experts, speciﬁc points were further amended by the Committee during the remainder of the year. A preliminary uniﬁed draft was agreed by 27 September. A majority view on the remaining disagreements was hammered out between the SLD, PSL, UP and, crucially, the UW by mid-January 1997.73 Their agreement on the ﬁnal text produced the required political majority for the constitution’s promulgation. This met with charged protests from the defeated right-centre in the form of public demonstrations and emotional speeches. The content of the constitution will be examined later in this book and will highlight the main disputes over both the balance of the system and individual institutions. What needs noting here, is that the six-year process of constitution making was largely, but not entirely, restricted to the political-academic-legal elite level. At various stages there was mass debate of the controversial substantive issues and continuous discussion of the procedures and methods by which the constitution was being produced. Attempts were made to stir up public opinion and to overwhelm the elites with the civic initiative. The work of the Constitutional Committee and parliamentary debates were publicized intensively by both the popular press and more academic publications. One cannot expect the general electorate to have followed the technical detail as closely as the elite but numerous possibilities existed for citizens to learn what was going on. The Solidarity and anti-PRL camp, when in opposition after 1993, attempted to inﬂuence the constitution making process directly though raising the required half-million signatures for its civic draft. They also attempted to have the key disputes over the respective powers of the presidency and parliament, church-state relations, local government and the like decided directly by the people in a pre-referendum. In autumn 1995 they were abetted by the, somewhat marginalized, UP in this endeavour. On 19 January 1996, the National Assembly changed its standing orders to accommodate this possibility, but the majority adjourned its proceedings and, ﬁnally, rejected the pre-referendum on 21 June 1996.74

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The ﬁnal stages in the passing of the constitution started with its Second Reading by the National Assembly. The ﬁrst ﬁve-day session, from 24 to 28 February 1997, heard 200 speakers who submitted almost 500 amendments.75 The decisions agreed by the four political parties met with varied opposition criticisms. Krzaklewski, Grze´skowiak and S⁄lomka viewed the draft as a continuation of the Round Table agreement. It did not separate the Third Republic away from the PRL sufﬁciently, did not respect the Catholic majority and its values by invoking God in its preamble, and was insufﬁciently committed to privatization and ownership empowerment. The debate continued in the Constitutional Committee, which considered amendments during March. As a result of over 300 votes, it accepted 118 amendments involving changes in the much disputed preamble and in over 70 articles as well as the introduction of ﬁve new ones.76 The changes (98 amendments) were incorporated into a uniﬁed text which was read a second time by the National Assembly on 22 March by 461 (very comfortably over the required two-thirds majority) to 31 with ﬁve abstentions. The Constitutional Committee agreed to most of President Kwa´sniewski’s proposals affecting 41 articles although the PSL raised objections.77 These mainly concerned control of the Army, church-state relations, parliamentary immunity and the limits of constitutionally guaranteed rights. The Third Reading on 2 April was dominated by differing views over the incorporation of presidential amendments, which split across normal government-opposition divisions. Despite this, the constitution passed, very decisively by 451 to 40, with six abstentions.78 As the right-centre were largely excluded from the Sejm and central decision-making institutions, they resorted to extra-parliamentary activity and street demonstrations. As late as this stage Olszewski’s ROP drummed up half-a-million signatures and demanded a parallel referendum on their version of the civic constitution. This was rejected as the procedure lay outside the agreed rules for the process. The elite deals, which ensured agreement on the constitution, did not, however, reﬂect the full spectrum of political feelings. Catholic and right-wing extremists, such as father Tadeusz Rydzik and his Radio Maryja, confused the referendum campaign by whipping up populist themes; the constitution’s lack of an unqualiﬁed Invocatio Deo, failure to protect the foetus from inception and alleged continuities with the PRL. The vote on 25 May, therefore, only produced a 52.7 per cent majority on a low, 42.86 per cent, turnout. The constitution was defeated in a large number of economically stagnant and disaffected southern and eastern provinces; it was endorsed by the more dynamic and secular cities and by the prospering areas in the north and west.79 Whether the verdict was on the quality of the constitution, or whether it reﬂected elite-mass or other political animosities, is unclear. What is decisive is that this was the ﬁrst time in Poland’s history that a constitution received direct popular

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endorsement. The constitution of 2 April 1997 was signed by Kwa´sniewski on 16 June and thus ofﬁcially came into force on publication, three months later, in the Dziennik Ustaw. It replaced the Little Constitution and any 1952 constitutional leftovers, as of 17 October 1997.80

The April 1997 constitution The large number of detailed Polish commentaries on the 1997 constitution all assume that, despite less than overwhelming popular endorsement, it will provide the legal framework for Polish politics for a long time to come.81 This is partly because the long drawn out and compromise process of its drafting rooted it ﬁrmly in the country’s political realities and drew on as wide a political consensus as possible. In addition, defeat for a political party in one sphere, such as the institutional one, was often compensated for by concessions on values or rights. This explains why the document is so long, being made up of 243 articles – which are far from consistent with one another – and which often involve much wordiness and ambiguity.82 The lack of internal homogeneity, precision and sharpness was the inevitable, but by no means damaging, result of a painful and tortuous process – the only way by which a democratic constitution could have been written under Polish conditions. Bitter and fundamental divisions over church-state relations, positive versus negative deﬁnitions of rights and the presidential-parliamentary balance could not have been brought to closure in any other way. There was much outcry about a return to authoritarianism when a minority was overruled, or to gentry democracy anarchy when it was not. But, during the 1990s, the Poles achieved an acceptable balance which excluded both culturally and historically engendered extremes. As we saw at the beginning of this chapter, sovereignty was located in the nation, to be exercised by their elected representatives within the framework of a democratic republic and unitary state. The workings of individual institutions will be covered in later chapters but what needs discussion here, is the sort of political system which it caters for and the institutional balance which it envisages. Only about half of the written Polish constitutions actually have a preamble. There was much discussion during the writing of the 1997 constitution before the Constitutional Committee agreed to formulate one. The difﬁculty was how to reconcile what Jan Wawrzyniak identiﬁes as the three competing Catholic, liberal democratic and social democratic schools of thought which dominated 1990s Poland.83 The preamble’s ceremonial and stylized language, therefore, attempts (in a single page!) to characterize the main values developed during a thousand years of Polish statehood in a way which would unite rather than divide contemporary Poles. The preamble states that Polish ‘culture is rooted in the Christian heritage of the Nation and in universal human values’.84 It stresses the positive aspects of

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the First and Second Republics, the Catholic and democratic heritages, the historical tragedies connected with a lost independence and, therefore, the priority for protecting a recovered sovereignty as well as the feeling of community with Poles scattered throughout the world. The search for compromise is exempliﬁed in the use of balanced words which places sovereignty in the nation, composed of both believers in God (‘the source of truth, justice, good and beauty’) and ‘in other universal values as arising from other sources’ (meaning secular humanism).85 The two extremes of full presidentialism and unicameral assembly dominance were rejected. The debates and compromises of 1992–97, however, weakened the semi-presidentialism implicit in the Little Constitution. The main aim of the 1997 document was to strengthen the executive within a fully parliamentary system by turning the prime minister into a ‘German Chancellor’ ﬁgure. Parliament’s rationalization was continued by producing mechanisms and procedures designed to encourage and maintain majorities as well as responsible conduct by deputies. Article 10 declares that the political system, ‘is based on the division and balance between the legislative, executive and judicial powers’; it speciﬁes that the Sejm and Senate constitute the ﬁrst of these, the president and the Council of Ministers the second, and courts and tribunals the last. Earlier democratic Polish constitutions had established the dominance of the legislature but the 1997 constitution did not frame this principle openly. Rather, it resolved the question indirectly by weakening the presidency and establishing the Sejm’s overall dominance over the Council of Ministers and the Senate. This is also implied in the very full Chapter III, articles 87–94, on the sources of law. This speciﬁes them as the constitution, laws, ratiﬁed international agreements and orders (rozporz adzenia), ˛ the latter two being based on an original parliamentary sanction or delegation of powers (art. 87). Other forms of prime ministerial, ministerial and Council of Ministers’ regulations (zarz adzenia) ˛ or resolutions (uchwal⁄ y) are declared to be only internally binding within these bodies (art. 93). Parliament, as laid down in Chapter XII, also has a near monopoly of promulgating or amending the constitution. Kwa´sniewski applied a more cooperative deﬁnition of presidential power ˛ His relaxed and genial political persona was assisted by a supthan Wal⁄ esa. portive SLD-PSL government and Sejm majority during 1995–97. Formally, presidential power was maintained by article 126, which conﬁrmed him as ‘the supreme representative of the Polish Republic’ and as the guardian of its constitution, sovereignty, security and of ‘the continuity of state power’. There was no change in presidential election by universal suffrage for a ﬁve-year, once-renewable, term. On paper, the presidential roles of Commander-in-Chief and as the ratiﬁer of international treaties appeared to maintain a dominant role over foreign (art. 133) and military (art. 134) affairs.

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The situation was complicated, however, by the election of a hostile AWS-UW Sejm majority in September 1997. Jerzy Buzek’s government made full use of article 146 which states that ‘the Council of Ministers directs the internal and foreign policy of the Polish Republic’. The president now needs to have ministerial signature except for 30, mostly minor and technical, cases (except for legislative initiative, calling a referendum and references to the Constitutional Tribunal) speciﬁed in article 144. He has lost his presidential power of nomination to the three key ministries of Foreign and Internal Affairs and Defence. In fact, the presence of a clear Sejm majority also meant that it was the AWS and UW party leaderships who actually decided Buzek’s nomination as prime minister. This was then only formally conﬁrmed by Kwa´sniewski as Head of State – who knew that any other presidential nomination under article 154 would be defeated by the Sejm. Under article 155, the Sejm could then nominate and vote in its own candidate. Such political realities meant that presidential-parliamentary cohabitation after September 1997 turned more in the latter’s favour – something envisaged by the constitution’s framers. The same can be said for Buzek’s initially Chancellor-like role in relation to the Council of Ministers, his own chancellery and the Bureau of the Council of Ministers. The realities of Polish coalitional politics, however, soon ground him down to a primus inter pares. Kwa´sniewski, on the other hand, made good use of his power of legislative veto and of reference to the Constitutional Tribunal. In some cases, the Sejm could not even raise the reduced three-ﬁfths, instead of the previous two-thirds, majority to overturn the former. The president’s power of dismissal of government was, again, limited to cases of deadlock arising from the absence of a Sejm majority. In the event of an outgoing prime minister being defeated on a constructive vote of no conﬁdence (art. 158), his nominated successor would automatically take over. If a prime minister resigns or is defeated on a non-constructive vote of conﬁdence the stipulated rounds of prime ministerial nomination, alternately by the president and the Sejm, take place; only then, in the absence of a successful majority, can the president dissolve parliament. The right, or threat, of dissolution, therefore, lies within the Sejm’s own hands and behaviour. As in the French Third and Fourth Republics, though, cases not foreseen by the constitution can occur. When the UW left Buzek’s government in May 2000 he merely replaced their outgoing ministers and continued as a minority government. Apart from hammering out a balanced framework for the working of the central powers, the second main concern of the constitution’s drafters was to guarantee constitutionally as wide a range of civic and personal rights as possible. The normal democratic rights to organize political parties (art. 11), trade unions and interest groups (art. 12) are guaranteed at the outset in Chapter I. Article 13 resembles Bonn’s Basic Law in banning totalitarian

94 Democratic Government in Poland

parties, speciﬁed as both Nazi (fascist) and communist, as well as racist organizations or those who use violent or clandestine methods. Chapter I goes on to guarantee the rights to freedom of the press and mass media, marriage and family life, special care for war veterans and invalids, property and inheritance, economic activity within the law and acceptable working conditions. Article 77 enshrines the constitutional right of all citizens to seek redress against public authorities through the courts.86 These non-controversial rights, however, also involve a questionable hostage to fortune. Article 23 guarantees the ‘family peasant holding’ as the basis of Polish agriculture, something which may not prove feasible in future. The contentious issue of church–state relations is resolved in lapidary form in article 25. This states the equality of all religious denominations and the state’s neutrality in guaranteeing the free expression of all religious and secular philosophical worldviews in public life. The Polish state’s relations with the Roman Catholic church were to be regulated by international agreement with the Vatican in the form of the Concordat; this had hung ﬁre since 1993 and was only ratiﬁed at the beginning of Buzek’s government. Other denominations were to negotiate their legal agreements directly with the Polish government. Another interesting detail in this chapter is that the Polish language is declared the Republic’s ofﬁcial working language insofar as it does not infringe the rights of minority languages guaranteed by international conventions (art. 27). The inclusion of the normal democratic rights out lined above was uncontroversial as for the most part their infringement could be rectiﬁed by law courts. What was debated ad inﬁnitum in the constitution making of the 1990s was whether such negative political rights should be supplemented by the constitutional guaranteeing of a wide range of positive social and economic rights. Implied in all this was the extent to which a neo-liberal reading of the market should demolish the social democratic infrastructure inherited from the PRL. The latter was considered by much of the Polish population to be one of the few achievements of the PRL worth maintaining. Social rights were also strongly embedded in Catholic and Solidarity thinking. SLD-PSL domination of the constitution writing process, during its crucial middle and ﬁnal stages, produced the very long Chapter IV (arts 30–94) on the Liberties, Rights and Obligations of the Citizen and the Individual. As one might expect, the ﬁne sentiment that ‘the liberties of the individual are subject to legal protection’ (art. 31.i) is not always enforcable for practical reasons. It also provides an open invitation to the levels of litigiousness found in the USA. Equality before the law is ﬁne but can one really abolish social and economic forms of discrimination and implied inequality (art. 32.ii) without courts affecting governmental priorities? The declaratory and programmatic aspect of such aspirations as gender and ethnic equality reﬂect the demands of modern open societies, but rights to

Constitution Making and Consensus Building 95

health care, family life, education, property, social security, let alone employment, are limited by both personal circumstances and economic realities. How realistic can a constitutional commitment to provide housing for all citizens (art. 75), child-care (art. 71), to consumer (art. 76) and ecological (art. 74) protection or the free choice of employment (art. 65) be under Polish, or any, conditions? The inclusion of symbolic (unenforceable) rights may weaken respect for traditional rights but every society has to decide the balance between political and social rights and to implement them through the political system.87 The constitution makers resolved the problem by allowing governments to limit the delivery of socioeconomic rights by passing appropriate legislation (art. 81). The large number of constitutional guarantees thus repeatedly set the Constitutional Tribunal practical problems in striking a balance between good sense and formal rights. The constitution’s implementation was also estimated as necessitating up to 100 new laws.88 On the other hand, the reaction against PRL authoritarianism justiﬁed the constitutional banning of torture and corporal punishment and of the extradition of Polish citizens or political refugees. The same applies to the guaranteeing of due legal process, freedom of movement and private communication and the rather laboured reiteration of the rights of political and trade union association and to political protest. It is also perfectly understandable why Poles would not want war crimes and crimes against humanity to be subject to time limits (art. 43). Likewise, crimes committed by PRL functionaries still remain open to legal proceedings (art. 44) something that was visited upon the real militia killers of the student Przemyk and (initially) to General Ciasto´n, the next-in-line superior of Father Popiel⁄ uszko’s murderers. Politically live issues of lustration and decommunization caused intense controversy in the constitutional debate but no issue matched the bitterness of the abortion debate and whether the foetus should be constitutionally protected from inception. Again, in reaction against the PRL, the enumeration of citizen obligations are limited to ﬁdelity to the Republic, to obeying its laws, paying its taxes, to defending it (implying a residual commitment to military service) and to protecting its environment (arts 82–86). The enforcement and protection of rights is reinforced by articles 77–81 which leave claims, including compensation, against public authorities to be tested in the courts and for lower level decisions to be appealed through higher ones. Individuals also have the right to test the constitutionality of public acts by appealing to the Constitutional Tribunal and the Spokesperson for Citizens’ Rights. The latter, appointed by the Sejm, with the Senate’s agreement, for a ﬁve-year term, turned spokespersons Ewa ˛ and Tadeusz Zieli´nski into nationally known and respected ﬁgures L⁄ etowska during the 1990s. The constitution also conﬁrmed the Supreme Control Commission (NIK) in its traditional and well developed role of autonomous checker of the state and economic administration (arts. 202–207).

96 Democratic Government in Poland

The danger of corrupt links between the political and economic spheres led to constitutional regulation of public ﬁnances (arts. 216–27). This speciﬁed the process of passing and amending the budget, including the possibility of presidential dissolution if it was not passed within a fourmonth period. The National Bank of Poland (NBP) was given independent central bank status while its chairman was now to be appointed by the Sejm on presidential nomination. Hanna Gronkiewicz-Waltz achieved outstanding prominence by holding this post from 1992–2000. She also chaired the Monetary Policy Committee (RPP) – a new watchdog – whose members were appointed equally by the president, the Sejm and the Senate. An interesting neo-liberal oddity was that public debt was limited to a maximum 60 per cent of annual GDP (art. 216, v). We now turn to the judiciary, a body which is regulated in Chapter VIII (arts 173–86). The key constitutional statement here is that ‘courts and tribunals constitute a separate power and are independent of the other branches of power’ (art. 173).89 The courts’ key constitutional functions are to protect and implement the fundamental rights embodied in the constitution as well as to defend the separation and balance of governmental powers.90 The independence and irremovability of judges is guaranteed. Their appointment is placed in the hands of the president on the nomination of the National Council of the Judiciary (KRS). The president also appoints the chairmen of the Supreme Court and the Main Administrative Court (both for six-year terms) on the nomination of their respective assembly of judges. One aspect of the balance of powers is that the KRS can appeal any laws or regulations which affect the judiciary to the Constitutional Tribunal (TK).91 The 1997 constitution laid down that future amendments would be limited to initiation by a ﬁfth of the Sejm deputies, the Senate and the president, but neither the Council of Ministers nor any form of citizens’ initiative. The Senate would have to agree (by absolute majority) to an identical text passed by the Sejm (by two-thirds majority with half the deputies present) within a 60-day time period. Surprisingly, no additional majority requirements were laid down so constitutional change would be fairly easy in the event of the same political majority controlling both houses and only subject to popular assent on essentials. The ﬁrst three ‘core’ chapters, concerning the republic, rights and duties and sources of law, were entrenched by special time limits for considering proposed changes.92 The Sejm, the Senate and the president could also request a referendum to conﬁrm the amendment of the privileged ‘core’ articles. The more institutional and detailed changes in the remainder of the constitution were, therefore, ﬂexible. Kwa´sniewski’s view – that substantial constitutional amendment was unnecessary, and that EU entry should be ratiﬁed by popular referendum rather than by constitutional rewriting – was widely supported. Major con-

Constitution Making and Consensus Building 97

stitutionalists, such as Jerzy Ciemniewski and Piotr Winczorek, and even ˙ nski, disagreed with Geremek’s argument, AWS Sejm Marshal Maciej Pl⁄ azy´ which was for a ﬁve-yearly review of the constitution; they felt that this would hinder the continuity required for the organic entrenchment of constitutional patriotism in Polish society.93 Overall, the Polish academic and political elite view is that the 1997 constitution is a great improvement on the Little Constitution and that it has full democratic legitimacy compared with its 1952 predecessor. This augurs well for its survival although two generations will have to pass before it attains the longevity of the constitutions of the French Fifth Republic or those of Germany, and much longer before it can attain the venerable qualities of the American one. A common western view, initially, was that creating a new democratic political culture was more important in constitutional transformation than merely writing a new constitution.94 In this regard, Mirosl⁄ aw Wyrzykowski is correct in viewing the constitution as an excellent ‘mechanism for negotiation and compromise’.95 It was also formed by a long historical process stretching back to the 1989 Round Table which strengthened these values and attitudes in Poland. The Polish experience thus demonstrates the crucial signiﬁcance of successful political mobilization and consolidation, especially at the elite level, around the role of constitution making in developing and strengthening democracy.

Notes 1 See Offe, Capitalism by democratic design?, op. cit. 2 See George Sanford, Democratization and European Standards of National Minority Protection: Polish Issues, Democratization, IV (Autumn 1997), 45–68. 3 See Hanna Bojar, Mniejszo´sci narodowe – nowe formy uczesnictwa w zyciu III Rzeczpospolitej, in Henryk Doma´nski (ed.), Elementy nowego l⁄ adu (Warsaw: IFiS PAN, 1997), pp. 403–418. 4 See Frances Millard in Brian Jenkins and Spyros Sofos (eds), Nations and Identity in Contemporary Europe (London: Routledge, 1996). 5 There was a marked tendency initially, after 1989, to exaggerate Poland’s domestic, national and external minority problems notably, regarding the latter, in Lithuania and Ukraine. A good, or bad, example of this genre which lumps all of postcommunist Eastern Europe’s minority questions indiscriminately together is Dennis Hupchick, Conﬂict and Chaos in Eastern Europe (New York: St Martin’s Press – now Palgrave Macmillan, 1995). 6 Which is not to say that various groups, notably representatives of the American Jewish intellectual and academic community have not continued to inﬂuence Western liberal opinion by attacking Poland for tardiness in acknowledging alleged anti-semitic sins. A good example was provided by the debate occasioned by the publication of Jan Tomasz Gross, Neighbours: the Destruction of the Jewish Community in Jedwabne, Poland (Princeton NJ: Princeton University Press, 2001). The subject aroused much debate and culminated in an ofﬁcial and unreserved

98 Democratic Government in Poland

7

8 9 10 11

12 13 14 15 16 17 18

apology by the President of the Republic in July 2001 during commemorations held in Jedwabne. Issues such as whether the Auschwitz (O´swi˛ecim) camp perimeter should be dedicated to commemorating the memory of all who perished there or just the numerically predominant Jewish section surfaced during the 1990s in controversies over the siting of a Roman Catholic convent and of crosses. What was signiﬁcant was that these problems, reﬂecting extremist Catholic-national tendencies in Polish public life, were resolved in a civilized manner by the Sejm and Polish government. So was the problem of how to regulate life in the town of O´swi ecim ˛ (the proposed building of a supermarket within the camp’s proximity). More serious was the unacknowledged conﬂict over agenda-setting in the study of Second World War massacres. Without denying the horror of Jedwabne 1941 or the 1946 Kielce pogrom, let alone the overwhelming character of the Holocaust, one is entitled to point out how the weaselly clerks of the British Foreign Ofﬁce never formally recognized Soviet responsibility for Katy´n. Cf. Richard Morrison, The Times, 8 February 2001, supplement p. 7. For every Jedwabne there were many equivalent Nazi or Ukrainian massacres of Polish villages. At the very least Poles are entitled to wonder, in the light of the vast publicity accorded to a Lidice, Oradour or Jedwabne, why the timid raising of their own speciﬁc causes such as the total western unawareness of the general massacre of Poles in Volhynia, meets with resentment, or at best lack of interest. Whether the latter was in turn inspired by Rousseau and how the concept of the ‘General Will’ ﬁts in with pluralist and representative conceptions is still debated in Polish legal textbooks. Such commentators tend, very sensibly, to view the nation as a ‘personalized ﬁction’. Wiesl⁄ aw Skrzydl⁄ o et. al. (ed.), Polskie Prawo Konstytucyjne (Lublin: MORPOL, 1998), pp. 131–3. See The Constitutional Act of 17th October 1992 with Constitutional Provisions Continued in Force (Warsaw: Sejm Publishing Ofﬁce, 1993). Konstytucja Rzeczypospolitej Polskiej introduced by Wiesl⁄ aw Skrzydl⁄ o (Kraków: Zakamycze, 2nd edn 1998), p. 41. Gwi˙zd˙z and Zakrzewska, Konstytucja i podstawowe akty ustawodawcze PRL, p. 46; Mordwil⁄ ko, Konstytucja i podstawowe akty ustawodawcze PRL, pp. 36 and 41. Poland’s global opening up was symbolized by such symptomatic developments as a black Nigerian–born football player, Emmanuel Olisadabe, representing the national team very successfully from 2000 onwards. See Zbigniew Witkowski et al. (ed.), Prawo Konstytucyjne (Toru´n: TNOiK, 1998), pp. 58–63. Cf. Wprost, 29 October 2000, p. 40. See Hieronim Kubiak, Znikaj ace ˛ pokrewie´nstwo: szkice socjologiczne o Polonii (Kraków: Wydawnictwo Literackie, 1990). See Mal⁄ gorzata Dehnel-Szyc and Jadwiga Stachura, Gry Polityczne. Orientacje na dzi´s (Warsaw: Volumen, 1991), pp. 162–3. See Pauline Luong, After the Break-up. Institutional Design in Transitional States, Comparative Political Studies, XXXIII (June 2000), p. 589. Cf. Kenneth Dyson, The State Tradition in Western Europe (Oxford: Martin Robertson, 1980). For good guides to the huge western academic literature on the subject see Castiglione’s distinction between republican and liberal constitutions and Bellamy’s discussion of separation of the powers in Richard Bellamy and Dario Castiglione (eds), Constitutionalism in Transformation: European and Theoretical

Constitution Making and Consensus Building 99

19 20 21 22 23

24

25

26 27

28

29 30 31 32 33

34 35

Perspectives (Oxford: Blackwell, 1996). For the renewed interest in constitutional restructuring in established democracies and the problems of reconciling rule of law and representative government with new pressures for civic participation see Vernon Bogdanor (ed.), Constitutions in Democratic Government (Aldershot: Gower, 1988). See Andras Sajo, Limiting Government. An Introduction to Constitutionalism (Budapest: Central European University Press, 1999). Cf. Arato, Civil Society, Constitution and Legitimacy, op. cit. See S. E. Finer, Five Constitutions (Harmondsworth: Penguin, 1979), p. 15. There was also some talk during 1992 of Kaczorowski being given the defence portfolio. See Wojciech Sokolewicz, The Relevance of Western Models for ConstitutionBuilding in Poland, in Joachim Hesse and Nevil Johnson (eds), Constitutional Policy and Change in Europe (Oxford: Oxford University Press, 1995). See George Blazyca and Ryszard Rapacki (eds), Poland into the 1990s. Economy and Society in Transition (London: Pinter, 1991). See also Ben Slay, The Polish Economy, Crisis, Reform and Transformation (Princeton NJ: Princeton University Press, 1994). See Arend Lijphart, Democratization and Constitutional Choices in CzechoSlovakia, Hungary and Poland, 1989–1991, Sisyphus Social Studies, I, no. 8 (1992), 86–102. See Stein Rokkan, Citizens. Elections. Parties: Approaches to the Comparative Study of the Processes of Development (Oslo: Universitefforslaget, 1970). Maurice Duverger’s distinction between the semi presidentialism of the Fifth Republic and the full presidentialism of the USA began to seep into the Polish consciousness at this time. See Arend Lijphart (ed.), Parliamentary versus Presidential Democracy (Oxford: Oxford University Press, 1992) For the very full 1990s debate see: Thomas Bayliss, Presidents versus Prime Ministers: Shaping Executive Power in Eastern Europe, World Politics, XXXVIII (1996), 297–323; Juan Linz and Arturo Valenzuela (eds), Failure of Presidential Democracy (Baltimore: Johns Hopkins University Press, 1994); Matthew Shugart and John Carey, Presidents and Assemblies. Constitutional Design and Electoral Dynamics (Cambridge: Cambridge University Press, 1992); Alfred Stepan and Connie Skach, Constitutional Frameworks and Democratic Consolidation: Parliamentarianism versus Presidentialism, World Politics, XLVI (1993), 1–22; Ray Taras (ed.), PostCommunist Presidents (Cambridge: Cambridge University Press, 1997). Stanisl⁄ aw Gebethner, Parlamentarne i prezydenckie systemy rz adów, ˛ Pa´nstwo i Prawo, IL no. 7–8 (1994), 26–37. See chapters by Waller and Wesol⁄ owski in Geoffrey Pridham and Paul Lewis (eds), Stabilising Fragile Democracies (London: Routledge, 1996). See Elster et al., Institutional Design in Post-Communist Societies, op. cit., p. 63 ff. See Karpowicz and Leli´nska, Przemiany ustrojowe w s´ wiadomo´ci spol⁄ ecznej, pp. 12 and 18. See Andrzej Rapaczynski, Constitutional Politics in Poland: a Report on the Constitutional Committee of the Polish Parliament, in A.E. Dick Howard (ed.), Constitution Making in Eastern Europe (Baltimore: Johns Hopkins University Press, 1993). See Polityka, 25 May 1991. See Ryszard Chru´sciak, Przygotowanie Konstytucji RP z dnia 2 kwietna 1997r (Warsaw: ELIPSA, 1997), p. 10.

100 Democratic Government in Poland 36 Cf. Zdzisl⁄ aw Czeszejko-Sochacki, Projekty nowej Konstytucji, Pa´nstwo i Prawo, XLVI, no. 7 (July 1991), 3–15. 37 Texts are in Marian Kallas (ed.), Projekty Konstytucyjne, 1989–1991 (Warsaw: Wydawnictwo Sejmowe, 1992). 38 See Dudek, op. cit. Ch. 9. 39 See The Constitutional Act of 17th October 1992, op. cit. 40 SLD deputy and constitutional law professor, Jerzy Jaskiernia, interview in Sl⁄ owo Ludu, 5 February 1993. 41 See Brzezinski, op. cit., p. 98 ff. 42 See Lech Mazewski, Prowizorium konstytucyjne, Rzeczpospolita, 10 February 1993. 43 For discussions see Garlicki, Polskie prawo konstytucyjne, pp. 20–25; Maria Kruk, Komentarz do konstytucja RP z 2 kwietnia 1997r (Warsaw: Wydawnictwo Sejmowe, 1997); Skrzydl⁄ o et. al., Polskie prawo konstytucyjne, pp. 88–94. 44 George Sanford, Parliamentary Control and the Constitutional Deﬁnition of Foreign Policy Making in Democratic Poland, Europe-Asia Studies, LI (1999), 769–97. 45 Wojciech Sokolewicz, The Polish Constitution in a Time of Change, International Journal of the Sociology of Law, no. 20 (1992), 29–42. 46 Cf. Gino Raymond, Historical Dictionary of France (Lanham MD: Scarecrow Press, 1998), p. 167. 47 Criticized by Piotr Winczorek, in Warto´sci naczelne ‘Mal⁄ a Konstytucj’ z 1992r, Pa´nstwo i Prawo, XLVIII, no. 1 (1993), p. 10. 48 As in the cases of the veto of Rosati following Finance Minister Borowski’s resignation in 1994 and the forcing through of Bartoszewski to follow Olechowski as Foreign Minister in 1995. 49 See Kronika Sejmowa, Second Sejm, no. 97, 8–14 November 1995, pp. 8–9. 50 See Kronika Sejmowa, First Sejm, no. 16, 19–25 March 1992, p. 3. 51 Dz.U. 1992, no. 67, position 336. See Ryszard Chru´sciak et al., Polski System Polityczny w Okresie Transformacji, (Warsaw: Elipsa, 1995), pp. 93–110 and Chru´sciak’s authoritative examination, Przygotowanie Konstytucji RP z dnia 2 kwietna 1997r, op. cit. 52 See Komisia Konstytucyjna Zgromadzenia Narodowego, (hereafter KKZN) Biuletyn, no. I, p. 9. 46 bulletins of the 101 sittings were published during 1992–97. For their contents consult Skorowidz do Biuletynu I–IL (Warsaw: Wydawnictwo Sejmowe, 1999). 53 See Zycie Warszawy, 14 January 1993. 54 The former are reproduced in KKZN, Biuletyn, no. III, p. 42–4. 55 See KKZN, Biuletyny, nos I–IX. 56 See Rzeczpospolita, 11 February 1993. 57 For discussion of their contents see Maria Kruk (ed.), Jaka konstytucja? Analiza projektów konstytucji zgl⁄ oszonych KKZN w 1993r (Warsaw: Wydawnictwo Sejmowe, 1994). 58 Texts in KKZN. Projekty Konstytucji RP 1993r (Warsaw: Wydawnictwo Sejmowe, 1993). 59 Mark Brzezinski tabulates the main points of these drafts very usefully under the headings of rights, presidential dissolution power, Church-State relations, prime ministerial nomination and judicial review in, Struggle for Constitutionalism in Poland, op. cit., pp. 114–15. 60 See Biuletyn, no. V, pp. 12–13. 61 See KKZN, Biuletyn, no. VIII.

Constitution Making and Consensus Building 101 62 Mirosl⁄ aw Wyrzykowski (ed.), Constitution-Making Process (Warsaw: Institute of Public Affairs, 1998), pp. 144–90. 63 SS Zgromadzenie Narodowe, 1st sitting of 21–23 September 1994. 64 For the debate see Ryszard Chru´sciak, Podstawowe problemy przyszl⁄ ej konstytucji w debacie Zgromadzenie Narodowego, Pa´nstwo i Prawo, L, no. 1 (1995), p. 58 ff. 65 See KKZN, Biuletyn, no. IX. 66 SS, Second Sejm, 33rd sitting of 21 October 1994. 67 SS, Third Senate, 35th sitting of 7–9 December 1994. 68 KKZN, Biuletyny, nos. VI–XI. Chru´sciak, Przotowani Konstytucji . . , pp. 48–58. 69 KKZN, Projekt konstytucji 1993–1997 vol. 2, p. 80. 70 KKZN, Biuletyn, no. XII. 71 See Chru´sciak, op. cit., pp. 58–91; KKZN, Biuletyny, nos XII–XXXVII. 72 See KKZN, Projekt konstytucji 1993–1997 vol. 2, p. 147 ff. English language text in Wyrzykowski, op. cit., pp. 19–254; KKZN, Biuletyn, no. XXXVII. 73 See KKZN, Biuletyn, nos XLIII, sittings of 14–16 January 1997; Chru´sciak, op. cit., pp. 91–107. 74 SS, Zgromadzenie Narodowe, 2nd session, 2nd sitting of 21 June 1996, p. 36. 75 SS, Zgromadzenie Narodowe, 3rd session, 1st sitting of 24–28 February 1997. 76 See Przegl ad ˛ Sejmowy, no. 3 (20), 1997, pp. 170 ff. 77 See KKZN, Biuletyn, no. XLVI, sitting of 26 March 1997. 78 Text in Wyrzykowski, op. cit., pp. 254–326. 79 Gazeta Wyborcza, 27 May 1997. 80 Ofﬁcial text in Dz.U. 1997, no. 78 of 16 June 1997. All my references are from the Skrzydl⁄ o edition, Konstytucja Rzeczpospolitej Polskiej, op. cit. 81 Piotr Winczorek also points out that the difﬁculties involved in its writing would be magniﬁed many fold in any attempt to revise, let alone replace, it. See Uwarunkowania prac nad nowe konstytucja RP, Pa´nstwo i Prawo, LII, no.11–12 (1997), 3–18. 82 The following discussion draws heavily on the main constitutional commentaries by Garlicki (1998), Skrzydl⁄ o (1998), Skrzydl⁄ o et al. (1998) and Witkowski et al. (1998). 83 See Wawrzyniak, Zarys Polskiego ustroiu konstytucyjnego, pp. 88–90. 84 Polish Constitutional Law. The Constitution and Selected Statutory Materials (Warsaw: Wydawnictwo Sejmowe, 2000), p. 27. 85 Ibid. 86 See Marek Safjan, Odpowiedzial⁄ no´sc pa´nstwa na podstawie art. 77 Konstytucji RP, Pa´nstwo i Prawo, LIV, no. 4 (1999), 3–18. 87 For a long list of unrealizable social guarantees and of the continual breaking of the constitution through technical infringements see Wprost, 4 March 2001, pp. 21–4. 88 See Wprost, 14 November 1999, p. 32. 89 See Andrzej Wasilewski, Wl⁄ adza s˛adownicza w Konstytucji RP, Pa´nstwo i Prawo, LIII, no. 7 (July 1998), 3–20. 90 See Piotr Sarnecki, Idee przewodnie Konstytucji RP z 2 kwietnia 1997r, Przegl ad ˛ Sejmowy, V, no. 5 (1997), 23. 91 The organization and functioning of the Constitutional and State Tribunals are dealt with in Chapter 8. 92 For a comparative overview of the question of differentiated constitutional revision, see Wojciech Sokolewicz, O gradacji zmian konstytycji, in Leszek Garlicki (ed.), Konstytucja–Wybory–Parlament (Warsaw: Liber, 2000).

102 Democratic Government in Poland 93 See Gazeta Wyborcza, 18 May 1999, p. 4. 94 For a particularly negative human rights’ driven argument of this type, see Istvan Pogony, Constitution Making or Constitutional Transformation in PostCommunist Societies, in Bellamy and Castiglione (eds), op. cit. 95 Mirosl⁄ aw Wyrzykowski, Konstytucja negocjaci i kompromisu, in Garlicki, Konstytucja–Wybory–Parlament, op. cit., p. 223.

5 Parliament and Democratic Politics

Poland has the second longest parliamentary tradition in Europe (next to that of England amongst major states).1 It also belongs to ‘the small number of European countries where parliament is identified completely with the history of the nation and state’.2 A chamber of deputies, or Sejm, emerged, as early as 1493, developing out of a Senate which had developed from the Royal Council.3 The Nihil Novi statute of 1505 established the principle of parliamentary sovereignty by stipulating that the King could not pass legislation without the assent of the Sejm and the Senate. Although gentry democracy was by no means unusual in sixteenth-century Europe, its persistence in Poland until the eighteenth century, at the expense of Absolute Monarchy, was. After 1572, the Sejmiki, or locally controlled gentry parliaments, decentralized power and institutionalized the elective monarchy. The magnates and their subordinate gentry whittled down royal power by extorting concessions and misusing the Liberum veto. The latter was abolished by the constitution of 3 May 1791 which introduced the principle of majority voting. It also attempted to balance the system by incorporating the monarch within the parliamentary framework as presiding ofﬁcer of the Senate. The responsibility – of excessive parliamentarianism and democracy, manipulated by selfish social groups – for Poland’s lack of international competitiveness and the country’s eventual partition and loss of independence remains an important strand in political debate. Such sentiments justify the centralized ‘Strong State’ to this day. The interwar Republic resurrected bicameral parliamentarianism but see-sawed between the dominant assembly democracy of 1921–26 and Pil⁄ sudski’s authoritarianism. The Senate was abolished by the referendum of 1946 so the communist period was one of monocameralism. It was reborn as part of the Round Table contractual arrangements which reintroduced democracy into Poland in 1989. Whatever the realities of communist monopoly rule, the 1952 constitution defined the Sejm as the highest organ of state power and as the execu103

104 Democratic Government in Poland

tor of the national will in a theoretical form of assembly government. The 1989 constitutional amendments made this formulation a reality. The 1992 Little Constitution, however, weakened its purely legal position by declaring that the Sejm and the Senate together were the highest national representative bodies. As its main purpose was to promote a division of institutional powers during the transitional stage, the Sejm lost its formal, although not actual, priority within the confused and fragmented arrangements of 1992–97.4 The April 1997 constitution, however, saw a clear return to a less diluted principle of parliamentary sovereignty. It weakened the president’s formal powers, strengthened those of the prime minister to those more like that of a German Chancellor and clarified the role of the Council of Ministers. The ultimate design was to strengthen the system’s cabinet-parliamentary character by clarifying Senate subordination to the Sejm as well as the presidency’s residual guardianship role. The changed academic focus in established western democracies – from the study of traditional institutions to that of interest groups, NGOs and policy communities and networks – was predicated on the thesis of the decline of parliament.5 By contrast, the Sejm has been the central institution in Poland’s democratization, shaping post-communist political actors such as parties, and moulding new political elites. By the end of the 1990s, it asserted itself fully in relation to the executive. It has been said, Parliament’s domestic policy making, although not its specific powers or processes, were also affected by the need to prepare for EU entry.6 The Sejm’s functions can be deﬁned under the classical headings of legislation, the control of the executive, appointments and communications.7 On the whole, the Polish literature stresses the first three and neglects the latter. Polish constitutional texts also identify system creation, decision making (both domestic, such as budgetary matters or the calling of a referendum, and external – e.g. the ratification of international agreements or the declaration of war) and internal-organizational.8 There is some debate as to the definition of the extent of Sejm participation in governmental policy making as against its obvious functions in establishing the state’s legal framework.9 In practice, the Sejm appoints governments, although they are nominated formally by the president and de facto by party majorities.10 The Sejm ultimately decides how long governments will last as they have to be confirmed by votes of confidence and can also be defeated in this way. In addition, the Sejm has the sole say in appointing the Constitutional and State Tribunals. It appoints the NIK chair, the Spokesperson for Citizens’ Rights (subject to Senate approval) and chair of the NPB (on the president’s nomination). Deputies and senators jointly confirm the popular election of a president in a National Assembly. Both nominate members of the National Council of the Judiciary from amongst their members (the Sejm four). The Sejm also appoints one-third of the Council on Monetary Policy and four out of nine KRRiTV members. The

Parliament and Democratic Politics 105

Sejm, since 1997, also appoints the General Commissioner on Personal Data and a growing number of similar Ombudsman-like posts for Children, Data Protection and so on.

Organization, functioning and composition of the Sejm In the interwar period and since 1989, the Polish parliament has had two chambers. Polish constitutionalists debate whether these constitute a bicameral parliament or whether they are separate and distinct state organs.11 The Senate or second chamber is 100-strong while the more important body, the Sejm, is composed of a fixed number of 460 deputies. Both chambers are elected for four-year terms (kadencja) which are numbered consecutively, a similar system to the American Congress.12 The Contractual Sejm, as the last assembly of the communist period, was numbered Tenth, while the fully free election of 1991 ushered in the First Sejm of the democratic period. On the other hand, the democratically elected Senate in 1989 numbered its First Term from 1989–91 so Senate numeration is one ahead of the Sejm’s. A Sejm is now held to sit continuously from the first day of its prorogation until the day preceding the summoning of its successor so currently there can be no break, as occurred in 1993. The 1997 constitution maintained the Sejm’s power to dissolve itself before the end of its term through a two-thirds majority, although such a figure (307 members) is in fact, difficult to achieve. The president can also dissolve it (or ‘shorten its term’ to use Polish constitutional language) if it proves impossible to produce a prime minister or if a government loses its majority. The Sejm itself can also be dissolved if the budget law is not passed within four months of presentation. On constitutional paper, at least, since 1997 the Sejm can only defeat an incumbent prime minister by agreeing on a replacement through a constructive vote of no confidence. Only time will tell whether this procedure will hold against older habits of what is often termed Sejmocracy and whether prime ministers will be forced out as a result of loss of party support and procedural subterfuges as in the past. On the other hand, prolongation of a Sejm’s (and the Senate’s) term is ruled out except for a maximum 90-day period during States of Emergency. The Sejm’s running and organization is laid down in very detailed standing orders; these are passed in the form of a resolution and frequently revised.13 Sejm services are provided by the Sejm Chancellery, headed by a non-political Head and two deputies. They direct 17 administrative units and these run the Sejm, organize its work and provide a variety of press, information, analytical, legal preparatory and deputy supporting services, including the library. The Sejm and its associated offices are located in an architectural complex (which has become a national symbol) in the centre of Warsaw on the Vistula Escarpment.14 The oval construction, containing

106 Democratic Government in Poland

the semi-circular meeting chamber for the Sejm, was rebuilt in 1946–47, after wartime destruction, on the site of the interwar parliament, Wiejska Street.15 National Assembly (Zgromadzenie Narodowe) A joint-session of the Sejm and the Senate meeting as a single and distinct body is called by the Sejm Marshal for the following constitutionally defined purposes:16 (a) to confirm the election and to swear in a new president as well as (b) to recognize an incumbent’s incapacity for holding ofﬁce on health grounds or for charges to be laid against an incumbent before the State Tribunal in the Polish equivalent of an impeachment procedure. The National Assembly also elected the president in June 1989 (but lost this power by the September 1990 constitutional amendment introducing the direct election of the president). It was also charged with preparing the new constitution by the constitutional law of 23 April 1992 although it had no say in passing the Little Constitution. Joint sessions of deputies and senators, but not formally National Assemblies, were also convened in connection with such state visits as those of Presidents George Bush (1989), Havel (1991), Herzog (1992) and Clinton (1994) as well as Pope John Paul II (1999) each of whom addressed them. Similar meetings were assembled to celebrate the bicentenary of the constitution of 3 May 1791 and the Sejm’s 500th anniversary in May 1993. Rights and privileges of deputies and senators Article 104.i of the 1997 constitution deﬁnes deputies as representatives of the nation who are not subject to binding instructions by their electors. As Burkean representatives, they are also now not subject to recall by political parties; in practice this had occurred during the communist period as a form of PZPR control. Expulsion or resignation from a parliamentary political club does not, therefore, involve the legal requirement to resign from the Sejm. Whether there is a moral obligation to do so remains controversial. The independence of deputies is also served by a number of officeholding restrictions. Deputies cannot become justices of the Constitutional Tribunal, State Tribunal and Supreme Court, chair the Supreme Control Chamber or National Bank of Poland or become ambassadors, provincial governors or the spokesperson for Citizens’ Rights. The president of the republic is also barred from simultaneously becoming a deputy or senator, ˛ seemed rather foolishly to want to do in let alone prime minister as Wal⁄ esa 1992. A number of restrictions on their economic business activity, ruled on by the Constitutional Tribunal, were also introduced during the 1990s. Such measures were designed to prevent the corruption of state or local government resources.17 Throughout the 1990s, the issue of parliamentary immunity was discussed intensively in constitutional debates. The 1992 Little Constitution

Parliament and Democratic Politics 107

guaranteed deputies and senators political immunity in the execution of their functions both during their elected term of office and subsequently (art. 7).18 On the other hand, parliamentary immunity could be waived by a two-thirds majority with a minimum of half the Sejm present. This did not apply if the representative was caught red-handed. Deputies and senators also remained liable to civil action and damages.19 The First Sejm rejected six motions for raising deputies’ immunity but passed five.20 The 1997 constitution also stipulated that deputies (and senators) had to submit an annual wealth-holding declaration within 30 days of assuming their electoral mandate, before 31 March subsequently, and two months before an election. The submissions are normally kept private for six years by the Sejm Marshal who then draws up a public Register of Benefits and Wealth-Holding Declarations.21 The declarations are examined by the (All Party) Committee on Deputies’ Ethics, established in September 1997. It deals with queries, draws attention to insufficiencies and reprimands deputies if necessary.22 It is an inﬂuential body, as shown by Andrzej Anusz (AWS), following its advice to give up his parliamentary immunity voluntarily so that the appeal court could adjudicate his allegedly plagiarized Warsaw University master’s degree.23 Disciplinary matters are referred to the Committee on Rules and Deputies’ Affairs. In general, a deputy can only be deprived of his mandate by the State Tribunal under the anti-corruption rules of article 107 of the 1997 constitution or if the Sejm agrees to raise his parliamentary immunity (or if he does so voluntarily) to allow criminal proceedings to take place. The Law of 15 March 1996, ‘On the Exercise of a Deputy’s and Senator’s Mandate’, replaced the Law of 31 July 1985, and regulated their functions in a manner appropriate to democratic conditions. It specifies their office holding incompatibilities, wealth-holding declarations and such activities as the establishment of their support bureaux.24 Being a representative has increasingly become a full-time occupation, rewarded by a full salary with free travel and other expenses.25 The Polish case is marked by numerous oddities which provide considerable employment security. Deputies can take leave of absence from their jobs in most public, professional and industrial walks of life with return guaranteed. Those who thus become full-time representatives are remunerated at the level of under secretaries of state.26 In the Third Sejm, the vast bulk of deputies (414) were full-time professionals as were 76 out of 100 senators in the equivalent Fourth Senate.27 The Sejm does not have by-elections. The death or resignation of a deputy merely leads to replacement by the Sejm Marshal with the individual on the constituency party list who had obtained the next largest number of votes (or the next one available and willing to serve). The same principle applied to deputies elected from the National List. In the case of

108 Democratic Government in Poland

senators, death or resignation leads to their replacement in by-elections called by the president. The Sejm’s internal organization Both chambers elect a Marshal, deputy Marshals and committees from among their members at the beginning of their term. The Marshal is elected on political grounds by the governing majority. Supported by the deputy Marshals, he presides over the Sejm or Senate and assures its functioning for the whole of its term. The Marshal of the Sejm is the second most important person in the republic who replaces the president during periods of incapacity. The Senate Marshal is next in line of seniority. Both are elected at first sessions of the Sejm and the Senate with the oldest members of these assemblies presiding initially as Marszal⁄ ek-Senior, a purely honoriﬁc ofﬁce. The powers of the Sejm Marshal can be defined under both internal and external headings, both of which powers were strengthened by the 1997 constitution (in comparison with the Little Constitution).28 The formal collegial habits of the PRL were abandoned. The Marshal was made entirely responsible constitutionally for the running of the Sejm. The presidium was given advisory status and relegated to the Sejm’s standing orders. The Marshal represents the Sejm, presides over National Assemblies and supervises presidential elections. His position within the Sejm was strengthened. He received the rights to refuse to submit amendments which had not been agreed by a committee to a plenary vote and to decide on the transmission of legislation to the Senate and to the president for signature. One of the first acts of the AWS-UW coalition in 1997 was to revise standing orders so as to strengthen the Marshal’s powers over the opposition and backbench deputies generally. The Marshal also confirms that deputies have been caught in flagrante delicti in wrongdoing and charges them with corruption before the State Tribunal. The convention emerged in the communist period after 1957 that the office of Sejm Marshal should be filled by a ZSL representative in order to alleviate the impression of PZPR hegemony and to give some reality to the existence of the minor parties. The post was, therefore, occupied consecutively by peasant party politicians – Czesl⁄ aw Wycech (1957–71), Dyzma Galaj (1971–72), Stanisl⁄ aw Gucwa (1972–85) and Roman Malinowski (1985–89). As a carry-over of this power-sharing mentality, another ZSL ‘chieftain’, Professor Mikol⁄ aj Kozakiewicz, was elected Marshal of the Tenth Sejm in 1989.29 The subsequent incumbency of the office was determined by the political balance of forces as in most democratic continental assemblies. ZChN chairman Wiesl⁄ aw Chrzanowski was elected Marshal of the First Sejm. His successor in the Second Sejm was determined by the fact that the first prime minister of the SLD-PSL coalition was the peasant party’s leader, Waldemar Pawlak. Józef Oleksy of the SdRP thus initially

Parliament and Democratic Politics 109

became Sejm Marshal as a counter-balance. The same principle was applied the other way around when the latter resigned to become prime minister in March 1995. Józef Zych of the PSL, who in addition had long and publicly coveted the post, moved up from being deputy Marshal. On the other hand, AWS predominance in the Third Sejm was so great that as well as nominating prime minister Buzek the Sejm also designated Maciej ˙ nski as Sejm Marshal and Alicja Grze´skowiak as Senate Marshal. The Pl⁄ azy´ UW counter-balance in this instance was provided by Balcerowicz’ impregnable standing as deputy prime minister and Minister of Finance until the UW left the government in May 2000. Marek Borowski (SLD) became Marshal of the Fourth Sejm, with Donald Tusk (PO), Janusz Wojciechowski ˛ (UP) and, initially, Andrzej Lepper (Samoobrona) as his (PSL), Tomasz Nal⁄ ecz deputies. The Senate’s standing orders limit the number of its deputy Marshals to three but the Sejm leaves the matter open to practice. The First Sejm reflected its political fragmentation by having no less than five, the Second Sejm only needed three while the Third and Fourth Sejms increased the number to four. The Marshals and deputy Marshals, advised by the Head (Szef) of Chancellery, constitute the respective presidia which organize the work of both chambers. They fix plenary sessions and agenda, supervise the necessary documentation including the stenographic record, coordinate the work of committees, and are responsible for representatives’ salaries, expenses and support services. The presidia proceed on the basis of resolutions passed by a simple majority with the Marshal having the casting vote.30 The Sejm presidium lost its constitutional standing in 1997 while the October 1997 standing orders confirmed its powers as formal and advisory.31 Polish constitutional opinion considers that the Marshal, not the presidium, now has a monopoly in representing the Sejm externally. The presidium, together with representatives (normally the chair or deputy chair) of the parliamentary political clubs, form an advisory, nonconstitutionally specified, body called the Convent of Seniors. It existed in the democratic period interwar until about 1930 and in the Constituent Sejm. After disappearing under Stalinism, it re-emerged in 1957. Every effort is made to iron out disputes concerning the timing and agenda of sessions and specific procedural problems consensually in the Convent of Seniors. The political majority, which naturally has the final say, nevertheless wants to expedite business through avoiding public procedural disputes on the floor of the Sejm. Conventions concerning fair treatment of the opposition and their right to express discontent on such issues during debate on the floor of the house have emerged. Older established conventions, such as that the order of speakers is determined by the strength of the political clubs, facilitate the running of Sejm debates. The Sejm also elects 20 of its members to act as secretaries to assist the presiding officer in running plenary sessions. The Convent’s decisions are not

110 Democratic Government in Poland

binding on the Sejm; the politically fragmented First Sejm overturned its proposed agenda on numerous occasions. This type of parliamentary indiscipline declined with clearer and more organized majorities after 1993. As in all democratic assemblies, an important role is played by parliamentary clubs and circles. They exist to agree common policy platforms and to maintain their members’ voting discipline. They also have the rights to be represented on the Convent of Seniors, to have their views considered by committee chairmen, and their spokesmen have longer time limits than ordinary deputies. Clubs also maintain bureaux subsidized by deputies’ earnings in order to provide support and secretarial services in the Sejm. Their current situation, regularized by the Sejm standing orders of July 1992, laid down that clubs needed at least 15 members while circles needed a minimum of three. Until then there had been no membership requirement. The 1991 elections produced a situation in which 17 political parties established parliamentary clubs grouping all but 18 deputies in clubs ranging in size from the UD’s 62 and the SLD’s 59 to three apiece for Party X and the UPR. The effect of the 1992 change was to reduce the number of clubs to ten. This simplification was maintained by subsequent election results. The Second Sejm started with six and ended with eight clubs (this was due to the KPN split and the emergence of the AWS). The Third Sejm began with only four but the AWS (154) and UW (47) suffered defections to the SK-L (17) by the end of the Sejm while the SLD maintained its organizational discipline (162).32 Deputies’ circles do not have the same rights of access and representation as clubs but still benefit from a lesser degree of official recognition. Eight circles emerged during the First Sejm, aided by the 1992 changes and various secessions by deputies from the clubs. The Second Sejm started off with only the German Minority but ended with nine because of splits within the KPN and the BBWR and ideological and policy divisions by deputies. The Third Sejm, again, started off with a single (ROP) circle but ended with three (Alternative six, PP five and ROP-PC four) together with an unusually large number (39) of unaffiliated deputies following the formation of the Civic Platform (PO).33

Deputies The Sejm is a heavily male-dominated body, reflecting the traditional masculine orientations of Polish society which are only now being challenged by democratization.34 In the interwar period, there were only eight female deputies in the Constituent Sejm and nine in the First Sejm.35 On the other hand, ‘formal’ representation during the PRL allowed 106 women (23 per cent) to be elected to the Eighth Sejm of 1980–1985. The 13 per cent female share of the Second and Third Sejms of the Third Republic is slightly above an estimated world average of 11.7 per cent but somewhat below the

Parliament and Democratic Politics 111 Table 5.1

Polish deputies by gender

Gender

Tenth Sejm

First Sejm

Second Sejm

Third Sejm

Male (No.) Female (No.)

395 65

416 44

400 60

400 60

Male (%) Female (%)

86.4 13.6

90.4 9.6

87.0 13.0

87.0 13.0

Sources: Sejm RP. Informacja o dzialalno´sci Sejmu and Sejm RP. Przewodnik/Informator for the respective terms.

West European average of 17.2 per cent.36 The percentage of female deputies was always lowest amongst right-wing, peasant and Catholic parties and highest within the SLD and UD/UW. In 1998, only 9.3 per cent of AWS deputies were female compared to 14.5 per cent for the UW and 18.7 per cent for the SLD.37 It remains to be seen whether Miki Caul’s prediction that more institutionalized party systems and more developed polities with greater concern for gender and post-materialist issues produce higher levels of female representatives will be fulfilled in Poland.38 The Fourth Sejm, elected in 2001, however, saw a significant increase in the number of female deputies to 93 (20.22 per cent), aided by the election of 55 out of 216 female SLD-UP representatives. The Sejm is decidedly middle aged in terms of its membership. About two-thirds of deputies in the Second and Third Sejms were in the 40–59 age group while the share of the 40s age group was normally slightly over two-ﬁfths.

Table 5.2

Polish deputies by age

Age

Tenth Sejm No. %

First Sejm No. %

Second Sejm No. %

Third Sejm No. %

20–29 30–39 40–49 50–59 60–69 70 and over

9 93 211 118 26 3

35 135 183 73 33 1

11 117 213 92 26 2

13 85 201 136 22 3

2.0 20.3 46.2 25.8 5.7 0.7

7.6 29.3 39.8 15.9 7.2 0.2

2.2 25.4 46.3 20.0 5.6 0.4

Sources: Sejm RP. Informacja o dzialalno´sci Sejmu and Sejm RP. Przewodnik/Informator for the respective terms.

2.8 18.5 43.7 29.6 4.8 0.6

112 Democratic Government in Poland Table 5.3

Number of Sejm terms sat by Polish deputies on election

New 1 Sejm 2 Sejms 3 Sejms or more

Tenth Sejm No. %

First Sejm No. %

Second Sejm No. %

Third Sejm No. %

422 32 6 5

335 113 8 5

290 110 56 4

223 130 69 36

91.4 6.4 1.2 1.0

72.7 24.6 1.7 1.0

63.1 24.9 11.2 0.8

48.3 31.1 15.0 7.2

Sources: Sejm RP. Informacja o dzialalno´sci Sejmu and Sejm RP. Przewodnik/Informator for the respective terms.

Periods of systemic change are accompanied by high levels of elite turnover so it is hardly surprising that over nine-tenths of deputies elected in 1989 were new. There was also a very high turnover in 1991 associated with the emergence of new parties and in 1993 (despite some tailing-off) caused by the exclusion of the right and centre. Only in 1997 was the number of re-elected incumbents slightly larger than that for new entrants, demonstrating the bedding down of a new professional parliamentary elite. Mazowiecki (UW) was re-elected for a sixth (non-continuous) term in 1997 but the only other major survivors since 1989 were Rokita (AWS) and Kuro´n (UW). One of the Sejm’s most striking features in the democratic period has been the overwhelming dominance of graduates; over four-fifths of deputies normally have higher education. The most successful party machines still give them heavy preference in candidate selection; this explains the miniscule numbers of deputies with vocational or basic education. This factor, reinforced by national status preferences, has caused a very heavy over-representation of professionals – notably university academics, teachers, journalist, lawyers and doctors. The exceptions to this are agriculturalists who gain favoured access through the PSL. Conversely, there is a

Table 5.4

Polish deputies by education

Education

Tenth Sejm No. %

First Sejm No. %

Second Sejm No. %

Third Sejm No. %

Higher Secondary Vocational Basic/various

376 69 9 2

357 87 14 2

361 88 7 4

383 70 6 1

82.3 13.2 2.0 0.4

77.6 19.0 3.0 0.4

78.5 19.1 1.4 0.8

Sources: Sejm RP. Informacja o dzialalno´sci Sejmu and Sejm RP. Przewodnik/Informator for the respective terms.

83.3 15.2 1.3 0.2

Parliament and Democratic Politics 113

diminution of workers’ representation in the SLD, even in its OPZZ component. Deputies defined by professional status in the Second Sejm include: 201 employees in state, private and co-operative institutions; 27 state officials; 81 business owners; 25 shareholders; 30 free professionals; 21 pensioners; 15 trade union activists and 31 local government workers.39 The democratic system has not yet settled sufﬁciently for those who may be less well educated – businessmen, traders, shopkeepers and sales representatives – to break through significantly at the national level. Consequently, this group also tended to support more extremist parties, with smaller chances of electoral success. A survey of deputies at the end of the Tenth Sejm produced complaints of insufficient time, information and technical support to deal with their legislative, controlling and representative tasks.40 On the other hand, the public was not well informed about the Sejm’s work, was critical of its capacity to initiate and push through democratic change (although this did not affect the legitimacy of its legislation), and did not rate the Sejm and the Senate highly in relation to other institutions such as the army, church, judiciary, press and president. The most highly rated qualities sought in a deputy were honesty (63.7 per cent) and knowledge of constituency and national problems, followed by competence, hard work, close constituent relations and concern for grievances.41

Table 5.5

Polish deputies by occupation

Occupation

Tenth Sejm No. %

First Sejm No. %

Second Sejm No. %

Third Sejm* No. %

Engineer Agriculturalist Academic Journalist Economist Teacher Lawyer Doctor Functionary** Military Politician

28 59 42 – – 19 – 20 31 – 41

18 57 38 15 16 19 22 20 47 1 41

7 63 42 17 9 30 17 13 27 1 26

122 32 – 3 45 11 75 23 7 – 21

6.1 12.9 9.2 – – 4.1 – 4.3 6.8 – 8.9

3.9 12.4 8.3 3.3 3.5 4.1 4.8 4.3 10.2 0.2 8.9

1.5 13.7 9.1 3.7 1.9 6.5 3.7 2.8 5.4 0.2 5.7

26.5 7.0 – 0.6 9.8 2.4 16.3 5.0 – – 4.6

Sources: Sejm RP. Informacja o dzialalno´sci Sejmu and Sejm R.P. Przewodnik/Informator for the respective terms. * The only data available covers educational specialization. ** This word is a hangover from the communist period but is still widely used by the Poles themselves. The Polish system has not gelled sufﬁciently for us yet to talk about civil servants or local government ofﬁcials.

114 Democratic Government in Poland

CBOS public opinion polls during 1989–97 showed public approval of the Sejm fluctuating considerably over the period. The honeymoon 1989–90 period (with a wholly untypically high of 89 per cent approval, 4 per cent disapproval in November 1989) was followed by dramatic disenchantment in 1991–92 (a low of 20 per cent approval to 72 per cent disapproval in May 1992) and general improvement after that (reaching 55 per cent approval, 31 per cent disapproval in June 1997). 42 The most dramatic and rapid decrease in the Sejm’s standing, during Olszewski’s premiership in 1992 threatened systemic stability for a while.43 Its intensity was untypical although it fuelled stereotypes of alleged Polish instability abroad for much longer than was justified. The Sejm was most approved of by the under 25s, the over 65s, the better educated and the prosperous. Initially, high levels of critical views on its influence within the political system and quality of work declined throughout the 1990s while remaining significant.44 Just before the September 1997 elections, only 18 per cent felt that the Sejm had high social authority as compared to 63 per cent who thought that it had low social authority. The ‘favourable–unfavourable’ percentages on whether the Sejm had reached correct decisions was 28–40; ‘controlled the government effectively’ 27–46; ‘worked efficiently’ 27–49 and ‘tackled fundamental national issues’ 29–50. Views on the Sejm’s work were, however, strongly influenced by political partisanship so the right was very critical of the Second Sejm. Overall, though, between a half to three-fifths conceded that, despite omissions, the Second Sejm had achieved much and was an improvement on its predecessor.45 This did not save deputies from being criticized for promoting local and sectional rather than national interests, for quarrelsome, partisan and vulgar speeches and behaviour, for excessive absenteeism and for not working effectively. By 1997, however, contradictory responses were elicited by a Pentor poll which showed that 84 per cent thought that parliament had ‘great’ influence on the country’s politics (14 per cent thought ‘little’) with the premier, mass media, president. Catholic priests and foreign capital following in that order.46 Irena Jackiewicz identifies eight deputy types in her study of the Tenth and First Sejms.47 These are politician, specialist, representative, social activist, combatant, negotiator, businessman and parliamentarian. Democratic consolidation was accompanied by the professionalization of parliamentary careers. Qualities esteemed by the deputies themselves are increasingly skills of advocacy and negotiation, legal and specialist knowledge and general analytical and synthesizing competence. Barbara Post summarizes these under her deputy-specialist and the deputy-negotiator categories but concludes that the preferred order of deputies’ virtues are responsibility, honesty and courage.48

Parliament and Democratic Politics 115

Legislation The importance of parliament’s legislative function has increased since 1989 along with democratization of the state. Article 95.i of the 1997 constitution declares that ‘the legislative power in the Polish Republic is exercised by the Sejm and Senate’. Article 87.i also defines the sources of law as being the constitution, laws, international agreements and orders (rozporzadzenie). All laws now have to be passed by parliament, whereas regulations or decrees with the force of law could previously be enacted by the president of the republic (1926–45), the Council of Ministers (1945–52) and the Council of State (1952–89), with only formal confirmation by the Sejm subsequently. The legislative balance shifted decisively in parliament’s favour after 1956. But the realities of PZPR control meant that Stefan Rozmaryn’s dominant interpretation of the primacy of statute was limited by communist party control mechanisms.49 In the democratic period there has been widespread debate about what, constitutionally, has to be dealt with in the form of statute and what may be handled by parliamentary resolutions.50 There was also enormous debate during the drafting of the 1997 constitution about which social and economic rights should be guaranteed and which dealt with by statute.51 After much debate, a form of delegated legislation was conceded to the Council of Ministers by the Little Constitution, but was not used much. The Sejm, through an absolute majority vote, could grant government special powers within a designated area (excluding the constitution, electoral system, budget, civic, personal and social rights as well as the ratification of international agreements concerning frontiers or alliances) and for a specified time period. Even so, such decree legislation could be vetoed or referred to the TK by the president. The constitutional lawyer, Andrzej Bal⁄ aban, also considers that the Little Constitution (arts 45.ii and 54.ii) allowed the presidency and the Council of Ministers to indulge in much surrogate executive law making by passing orders and resolutions which implemented legislation or filled in significant gaps in laws, especially in the budgetary and financial fields.52 The 1997 constitution has attempted to limit the executive’s capacities to shape or widen statutes through presidential and governmental orders and resolutions. It has confined delegated legislation to specific areas designated in each instance by a particular statute (arts 92–93) and restricted the granting of special powers. The one exception (art. 234) is a State of War when regulations with the force of law can be promulgated by the president with the agreement of the prime minister. Even these are subject to confirmation by the Sejm at the earliest subsequent session. According to some experts however, the borderline between laws and administrative regulations remains blurred.

116 Democratic Government in Poland

Legislative initiative can come from a number of sources, but the passing of a law has to be completed in the Sejm. The actual process is restricted entirely to the Sejm and the Senate. Only at its very end is a law subject to presidential veto or reference to the TK. The 1997 constitution (art. 118) confirmed the initiation of legislation by deputies, senators, the president of the republic and the council of ministers. It also extended the right formally to the citizenry (1000 000 citizens possessing full voting rights to the Sejm). Ordinary bills are passed in three readings of which the first may be taken in committee, except for bills dealing with the constitution, budget, civil rights and the organization of the state and elections.54 The committee’s proposed amendments, along with minority views, are presented by its rapporteur on Second Reading when a full plenary debate and vote takes place. If the bill is non-controversial it can be passed immediately after that on Third Reading. Disputed bills can be referred back to committee and the amendments are then decided by vote on Third Reading.55 The legislative procedures and time limits for the relevant documents to be referred to deputies and committees by the Sejm Marshal and returned, are regulated in minute detail in the Sejm’s standing orders.56 Between 1989 and 1992, Senate amendments needed a two-thirds Sejm majority in order to be rejected, something which produced what the French call the navette or shuttle between the two chambers. The Poles call it the legislative pat or stalemate. Since 1992, the Sejm has been able to overrule Senate objections through an absolute majority so instances of blockage have dwindled. The government can also, with some budgetary and electoral exceptions, resort to an ‘urgent’ (pilny) legislative procedure (art. 123 of the 1997 constitution but in force since the 1992 Little Constitution). Thus the Senate has to consider a law within 14 (usually 30) days and the president to sign it within seven (usually 30) days. Governments can also use article 56 of the Sejm’s standing orders to accelerate plenary and committee consideration. A law comes into effect, like all normative acts in Poland, on publication, after presidential signature, in the ofﬁcial Bulletin of Laws (Dziennik Ustaw). The majority required to overthrow a presidential veto over legislation was lowered from two-thirds to three-fifths by the 1997 constitution. On the other hand, TK judgements on the unconstitutionality of bills have become final and binding since 1999.57 Article 42 of the 1997 law on the TK also strengthened its right to rule on the constitutionality of the implementation of statutes and ratiﬁed international agreements.58 Where the TK rules that only sections of a law are unconstitutional, the president has a free choice between either signing it with the omission of the ‘unconstitutional’ parts or of returning the whole bill to the Sejm and requiring it to do so before signing the revised document into law.59 The Sejm’s legislative process in the immediate post-communist period was originally extremely simplified. In the Tenth Sejm, only 120 bills got a

Table 5.6

Source of legislative initiative

Source

Tenth Sejm* Introduced

Passed

First Sejm Introduced

Passed

Second Sejm Introduced

Passed

Third Sejm*** Introduced Passed

Deputies** Senate President Council of Ministers Civic initiative Total

105 27 4 156 – 441

73 17 3 131 – 248

225 9 10 91 – 335

47 4 4 47 – 94

250 9 19 220 – 826

103 4 4 137 – 473

373 19 10 365 1 782

147 7 4 232 – 390

Sources: Sejm RP. Informacja o dzialalno´sci Sejmu for the respective terms. * Kronika Sejmowa, no. 43/10th Sejm, pp. 43–4. ** Includes both deputies and committees. *** Until 30 June 2000.

117

118 Democratic Government in Poland

First Reading, 106 were examined in committee and 22 got a First and Second Reading without being sent to committee.60 Since then the process has become much more thorough and complex. A study of the Third Sejm’s legislative work during the first two years of its life from October 1997 until October 1999 can be used to ﬂesh out the above generalizations. The 1997 constitution rationalized the legislative process in a number of ways.61 Out of 588 draft laws submitted to the Sejm Marshal (L⁄ aska Marszal⁄ kowska), 46 per cent (273 came from deputies, 6 per cent (34) from committees (who have the right of legislative initiative), 43 per cent (253) from the Council of Ministers (only 47 of which were marked urgent despite the pressing need to pass EU harmonization legislation), 3 per cent (18) from the Senate and 2 per cent (nine) from the president, while there was one attempted civic initiative.62 The government share had increased from the mere 27 per cent of the First Sejm but the deputies’ proportion, although down from 60 per cent, was still unusually high compared to most western parliaments. Half the draft laws under consideration in October 1999 (273) were signed by between 21 to 50 deputies while only 25 had between 51–100 signatures and seven over 100 but at the other end no less than 104 (38 per cent) were in the minimum 15–20 signature range.63 The fact that opposition parties were not excluded from the legislative process is demonstrated by the 26 per cent figure (70) submitted solely by the SLD (plus 21 solely by the PSL) compared with 97 solely by the AWS and 27 by the UW. Although UW bills were the most successful, the success rates for the other three parties were very similar. The Sejm Marshal directed 349 (of the 588 drafts) to First Reading by the Sejm and 239 directly to committee. Of the former, 283 (81 per cent) were actually read, 13 were withdrawn while 53 were left unread, in limbo as they ran out of time, compared with equivalent committee figures of 159 (67 per cent). The Sejm refers the bulk of draft bills passed on First Reading to Committee and very rarely (seven cases over the study period) moves directly on to a plenary Second Reading. Just over half (164) of 304 Second Readings were, however, followed by an immediate Third Reading. The remaining 140 were sent back to committee, usually because proposed committee amendments were rejected either wholly or partially or the Sejm proposed its own changes. Committees accepted Second Reading changes, either wholly or partially, in 83 per cent of cases, which confirms the overwhelming significance of this stage in the legislative process with only a small number of bills actually being rejected on the ﬁnal Third Reading. By October 1999, 272 (46 per cent) had passed into law, 242 were still being considered, a mere 46 (8 per cent) had been rejected (24 on First Reading and 22 on Third Reading) while 28 had been withdrawn. Although the Council of Ministers has little control over the flow of legislative initiative by deputies and committees, the efﬁciency of government is assisted by its somewhat higher success rate. Between 1997–99, 57 per cent

Parliament and Democratic Politics 119

of its draft bills passed successfully into law compared with 30 per cent for deputies’ drafts, 47 per cent for committee drafts and 17 per cent for Senate proposals.64 Government bills were also passed significantly more quickly than all the others except those proposed by Sejm committees who, understandably, expedited their specific concerns. The lack of strict party discipline, especially in the AWS and centre-right parties, was crucial in producing what might be termed a more traditional continental, than Westminster, system. On the other hand, the urgent procedure allowed the government to push its drafts into law in an average 18-day period rather than the average 116 days required for ordinary legislation. The legislative relationship between the Sejm and Senate, after the passing of the 1997 constitution, swung decisively in the former’s favour as the Sejm can now overrule the latter with a simple majority. The Senate examined 227 bills in the period under consideration, approving 127 unchanged, proposing amendments to 96 (42 per cent) while rejecting a mere four. The Sejm accepted all the Senate amendments to 36 bills, some to 49 and rejected all the changes in eight cases. It accepted Senate rejection of two bills (‘On Alcholism’ and ‘On the Privatisation of State Enterprises’) but overruled it in a single (relatively minor) instance.65 The final stage of the legislative process involves the president, who, between 1997–99, belonged to a different political camp to the AWS-UW Sejm majority supporting the Buzek government. Kwa´sniewski signed 223 out of the 233 bills (96 per cent) sent to him for signature within the statutory 21-day period after which they became law on publication in the Dziennik Ustaw. Article 122 of the 1997 constitution gave him the right of

Table 5.7

The work of the Sejm

No. of sessions No. of days sat Draft-laws Laws passed Laws/urgent procedure Speeches/deputies Resolutions Interpellations Questions (Zapytanie) Declarations (O´swiadczenie)

Tenth Sejm*

First Sejm

Second Sejm

Third Sejm**

79 177 441 248 2 10 612 164 619 149 521

45 136 335 94 9 9 585 135 773 508 506

115 297 826 473 71 21 890 296 2 613 672 496

101 264 948 450 46 30 805 198 5 747 3 222 1 151

Sources: Sejm RP. Informacja o dzialalno´sci Sejmu for the respective terms. * Kronika Sejmowa, no. 43/10th Sejm, pp. 43–4. ** Until 20 February 2001. http://www.sejm.gov.pl:8009/proc3/wykazy/ust20st.htm.

120 Democratic Government in Poland

either vetoing bills (whole bills not parts) or of referring them to the TK. Unlike the 1989–97 practice, these are now alternative and exclusive choices. Kwa´sniewski used the former power in six cases but the Sejm overruled him on the law, establishing the Institute of National Memory (IPN). The TK ruled that two out of the four laws referred by him were unconstitutional but that the other two were in accord with the constitution. Kwa´sniewski, therefore, signed an additional three of the ten bills which he originally questioned but prevented the remaining seven from passing into law.66

Debates and plenary sessions Debates are called by the Sejm Marshal, are presided by him or his deputy Marshals, and work to an agenda agreed by the Marshal with the Convent of Seniors.67 Sittings are normally in public and are televised unless otherwise requested by the Marshal or 30 deputies. Individual speeches have a 10-minute limit while those on behalf of political clubs can last 20 minutes. A single 5-minute additional intervention is also normally permitted. The prime minister, ministers and ministers of state may intervene at will while the chairs of NIK, TK, BNP and the Supreme Court as well as the Spokesperson for Citizens’ Rights are allowed to speak outside the agreed order. The President of the Republic is also allowed to address the Sejm formally, without debate, at any time. Voting normally takes place electronically, although failing that a show of hands can be resorted to. Deputies (30 are required) can also request a so-called ‘voting by name’ procedure, using signed cards. Simple majorities are required for passing resolutions and ordinary laws. Absolute majorities are necessary for votes of conﬁdence and no conﬁdence, appointments and rejecting Senate amendments. The over-ruling of presidential vetoes, the shortening of the Sejm’s term and constitutional laws can only be passed by various levels of qualiﬁed majority.

Committees The strong committee tradition in Poland became crystallized in the interwar period. Both chambers now have a developed committee structure, which, like much else, declined under Stalinism, but which was resurrected after 1956. Committees can be either permanent or special while committees of enquiry (of the latter type) can also be established for specific purposes. They are mentioned in general terms in articles 110–111 of the 1997 constitution but their specific functioning is left to detailed definition by statute and standing orders. Permanent parliamentary committees in Poland are closer to their allpurpose, multi-functional equivalents in America or in the French Third

Parliament and Democratic Politics 121

and Fourth Republics than the more limited standing legislative and select scrutiny committees of the British House of Commons.68 In practice, they mostly shadow a ministry (such as Defence or Foreign Affairs) and its field of departmental responsibilities in a highly specialized way that goes well beyond an auxiliary, advisory and preparatory role. Others deal with a problem area covered by various ministries such as Relations with Poles Abroad or European Integration. Their subject ﬁelds of activity are speciﬁed by Sejm resolution.69 Although the plenary session is formally decisive, the committee input to legislation and control of the executive is substantial. Committees can initiate legislation and are more successful than ordinary deputies in pushing their bills through (14 out of 26 in the First Sejm; 31 out of 51 in the Third Sejm up until June 2000). Committee chairmanships and presidium membership also often act as stepping stones to ministerial ofﬁce. Permanent committees are established for the whole of a Sejm term while special ones only function until they have completed their purposes. Committee membership is decided at the beginning of a Sejm by the presidium. Deputies express preferences to their political clubs who then present them to the Convent of Seniors. Although committees are formally equal, some, such as Public Finance or Foreign Affairs, are defined as ‘leading committees’ in constitutional doctrine. Others include the committees on Constitutional Responsibility, Justice and Human Rights and Rules and Deputies’ Affairs. The extremely influential Committee on Legislation was abolished in 1997. The AWS had resented the role of leftwing lawyers such as Jerzy Jaskiernia on the committee and found difﬁculty in producing equally capable right-wing equivalents. Membership of such committees is regarded as highly desirable and are likely to be filled by senior politicians. The Sejm presidium is also responsible for confirming the frequent changes in committee membership during its term. It attempts to reflect the political balance and to implement the convention that opposition deputies should be encouraged to play a constructive role in the committees. On the other hand, the government majority tends to take the lion’s share of committee chairmanships although it accepts a more proportional allocation of deputy chairmen. The right-centre majority in the First Sejm excluded the SLD from any chairmanships and the PC, ZCHN and KPN over-represented themselves strongly. On the other hand, the 1993–97 majority was much more generous to the opposition parties, especially to the UD which was conceded almost the same number of posts as the PSL and the SLD while having only a half and a third of their seats respectively. The AWS-UW coalition agreement stipulated that the AWS would have 14 committee chairmanships, the UW five and the opposition six.70 Both chairmen and deputy chairmen, constituting the presidium, are elected by the committee’s majority at its first session, which is presided over by the

122 Democratic Government in Poland

Sejm Marshal. Permanent committees, with the Sejm presidium’s permission, can also establish subcommittees within specific fields or for specific purposes. The permanent committees to be established are specified in the Sejm’s standing orders. The number of committees tended to increase slightly during the 1990s. The Tenth Sejm established 23 permanent and 14 special committees, the First 23 and 11, the Second 25 and 20 while the Third Sejm started off with 27 permanent committees. Of the special committees in the First Sejm, seven were set up to examine draft laws, three were committees of investigation while one was given the task of dealing with the consequences of the State of War. In the Second Sejm, the governing coalition majority restricted the bulk (17 committees) to draft legislation while only three were investigative in character. Permanent committees meet regularly and often, and work intensively.71 They examine bills, or sections of bills, as well as parts of the budget relevant to their area in detail. Their rapporteur is usually effective in guiding their proposed amendments through the plenary session. Committees control the executive by examining ministerial reports, questioning ministers and officials, and through expressing their standpoint in resolutions. They can elicit information by directing requests (dezyderaty), which have to be answered within specified time limits, to the relevant minister or agency. They can also commission NIK investigations in their subject area and carry on their own by setting up subcommittees to cover problems indepth, something which might include field trips. They can also initiate policy by holding mini debates involving invited academics and specialists as well as ministers and ofﬁcials in their respective ﬁelds. Special Committees of investigation are one of the Sejm’s most powerful instruments in exercising its control function. Such a body, for example, dealt with six major charges against Prime Minister Hanna Suchocka during

Table 5.8

Sejm committees

Permanent Special Permanent Meetings Special Meetings Sub-committees Requests Resolutions

Tenth Sejm

First Sejm

Second Sejm

Third Sejm*

23 14 2 392 244 1 217 163 212

23 11 2 132 151 855 83 282

25 20 3 406 91 516 280 523

28 10 4 687 455 3 028 301 893

Sources: Sejm RP. Informacja o dzialalno´sci Sejmu for the respective terms. * Until 20 February 2001, htpp://ks.sejm.gov.pl: 8009/proc3/wykazy/ust20st.htm.

Parliament and Democratic Politics 123

the period when the Sejm was unable to exercise oversight in May–October 1993 following its dissolution.72 Special Committees have been used widely, as illustrated by the fact that in the Third Sejm (up until June 2000) nine had completed their assigned tasks while another seven were still active.73 As in all parliaments, Permanent Committees are also established for special purposes. A 5–7 strong Committee on the Security Services was, for example, established in 1995 to oversee the work of the premier and the coordinating minister in charge of the UOP and other Intelligence and security organs in MON, MSW and WSI (Military Intelligence).74 It meets in secret and its members undertake to maintain the confidentiality of special information. General reports of its activities, however, are known to leak out semi-ofﬁcially.75

Parliamentary control of government Executive-parliamentary relations have been redefined in most western democracies in terms of general answerability and ultimate political responsibility. The principle of parliamentary accountability in Poland stretches back to the Constitution of 3 May 1791 but it was applied in different ways at different times during the twentieth century. The manner, character and extent of Sejm control of governmental activity is, however, still defined in Poland as one of its main functions, alongside that of legislation. PRL constitutional theory held that the Sejm was the supreme organ of state power but it was, largely, controlled and directed by the PZPR leadership. The theory was implemented to some extent, in practice, by the 1989 constitutional amendments, even though the Sejm’s central role was weakened in relation to the president and the Senate. The Little Constitution further diluted the principle of parliamentary supremacy by introducing a stronger division and balance between the central political institutions. It did not write in the Sejm’s controlling function as clearly as the 1952 constitution had done even though democratic practice created fundamentally different conditions. The 1997 constitution reasserted the principle of Sejm control over the government (art. 95.ii) within the framework defined by the constitution and law. The Council of Ministers is collectively responsible and accountable to the Sejm (but not the Senate or the president) as are individual ministers (art. 157) although this does not apply to secretaries and under secretaries of state. The concept of control was defined in very wide terms by Czeszejko-Sochacki, as involving the Sejm during the Little Constitution in the actual decision-making process.76 Garlicki, on the other hand, basing his views on the 1997 constitution, limits the function to information gathering and the expression of deputies’ views.77 Polish practice in fact straddles both views. The six ways in which the Sejm controls the government have been identified by Polish specialists as follows:78

124 Democratic Government in Poland

1. The granting of a vote of confidence to a newly nominated government or on the premier’s request to an incumbent government under article 160/1997 constitution; a vote of no conﬁdence in the government or an individual minister.79 2. Debate on a premier’s annual expos´e of governmental activity which although not a formal constitutional requirement has become a strongly established convention. Debate on the government report on the budget and other financial laws and the passing of a vote on an absolutorium resolution conﬁrming that the budget-law had been fulﬁlled.80 3. Examination and debate of other government reports followed, if necessary, by the voting of the appropriate resolution.81 4. Discussion of deputies’ interpellations. These are written questions directed to specific members of the government as well as the NIK and BNP chairs which have to be answered within a set 3-week time limit. These, along with the more informal type of oral questions (zapytanie and pytanie) normally given, follow on the agenda after the Sejm’s general and legislative debates.82 5. The Sejm can also call ministers and other state officials to constitutional account before the State Tribunal (see Chapter 8). 6. Intensive committee control is exercised over legislation and the work of the executive as described above.

Organization, functioning and composition of the Senate As we have seen, the anti-communist camp had an overwhelming majority in the Senate elected in 1989, and also dominated the 1991–93 Senate.83 On the other hand, the peasant-left parties held almost two-thirds of the seats during 1993–97 while the AWS just gained an overall majority in 1997. The right and centre favoured bicameralism extremely strongly while in the constitutional debates of the 1990s, the left demonstrated strong single assembly preferences.84 Of the 1993 constitutional drafts the SLD and PSL-UP proposed unicameralism while the other ﬁve accepted bicameralism.85 There has been sufﬁcient electoral alternation, though, to make the Senate acceptable to the left, although in a much weaker form than envisaged by the right. The 1997 compromise of asymmetric bicameralism recalled the constitutional debates of 1919–21 and produced a similar outcome. As a result, bicameralism, harking back to earlier historical and interwar traditions, is now described as a permanent feature of the Polish political scene.86 Conversely, the Senate has suffered ‘far-reaching decline . . . both in respect of competences and organization’ relative to the Sejm.87 From 1989–97, each province elected two senators, with the exception of Warsaw and Katowice, which had three apiece, thus making up a round 100. In 1989, an absolute majority was required for election and this necessitated a

Parliament and Democratic Politics 125

second ballot in eight cases. From 1991 onwards, the second ballot has been dispensed with as the requirement was lowered to that of a simple majority. The obvious constituency arrangement for Senate elections was eliminated by the reduction of provinces from 49 to 16 in 1998 but the 2001 electoral law envisaged 40 constituencies. The absence of any electoral threshold also allowed some of the parties excluded from the Sejm since 1993, as well as numerous independents, to gain representation on the national scene. The other post-1993 feature is that successful Sejm parties such as the SLD (37 per cent Sejm/37 per cent Senate seats) and PSL (29 per cent Sejm/36 per cent Senate seats) from 1993–97 and the AWS (44 per cent Sejm/51 per cent Senate seats), UW (15 per cent Sejm/8 per cent Senate seats) and SLD (36 per cent Sejm/28 per cent Senate seats) in 1997 gained almost equal Senate representation – unlike the 1989–93 period of systemic change. The 2001 ﬂood tide, however, produced overwhelming SLD-UP (75) predominance. Senators now have to be over 30 years old, while deputies can be elected at 21, a carry-over of the traditional view that the Senate should be a chamber of mature reﬂection. Both legislative bodies, however, are elected by voters who are over 21. The Senate has generally been slightly more male-dominated than the Sejm: only seven female Senators were elected in 1989, eight in 1991, 13 in 1993 and 12 in 1997, but the number increased to 23 in 2001.88 It is also very similar in composition to the Sejm in being largely made up of university educated professionals.89 From 1989–91, the Senate met in the rectangular Chamber of Columns within the Sejm building on Wiejska Street. Since May 1991, it has had its own chamber, as well as the chancellery which services it, in the architectural complex connected to the Sejm. The Senate has the formal right of proposing laws as well as constitutional amendments (art. 235.i/1997 constitution). As we have seen, it produced its own draft in 1993 and had ten (out of 56) members of the Constitutional Committee. One-fifth of its members, 20 senators, can still initiate constitutional change but there is now a separate procedure, with the Sejm passing its draft by a two-thirds majority which needs to be endorsed by an absolute majority in the Senate. Since identical constitutional drafts have to be passed by both assemblies, the Senate would seem to have a veto power; in practice this strengthens its negotiating position in relation to the Sejm. The Senate also approves the ratification of international agreements, ceding sovereignty by two-thirds majority (art. 90.2, 1997 constitution). This fact could have been an important factor in the process of EU entry ratification before the SLD’s 2001 Senate landslide. In addition, the Senate still participates in the formal work of the National Assembly, such as swearing in a newly elected president, and retains the right to taking part in producing the impeachment accusation for the State Tribunal. A presidential request for the holding of a referendum also has to be supported by the Senate, so it has a potential veto power in this respect.

126 Democratic Government in Poland Table 5.9 Political composition of the Senate (seats won in Senate elections of 1989, 1991,1993 and 1997. See Chapter 7 for 2001 results)

OKP/Solidarity SLD PSL Independent UD/UW KPN UP KL-D ZChN PL Christian Democrats BBWR German Minority PC ROP

First Senate

Second Senate

Third Senate

Fourth Senate

99 – – 1 – – – – – – – – – – –

11 4 9 14 21 4 – 6 9 9 3 – 1 9 –

9 37 36 5 4 – 2 1 1 1 – 2 1 1 –

51 28 4 4 8 – – – – – – – – – 5

The Senate also retains some appointment powers. Senate approval is required for the appointment and dismissal of the NIK chair and the Spokesman for Citizens’ Rights. The Senate also appoints two of its members to the KRRiTV and three to the RPP. The Sejm-Senate relationship, which was left unclear in the Little Constitution, was clariﬁed in 1997.90 Finally, the Senate cannot either dissolve itself or be dissolved by the president on its own. Any dissolution of the Sejm automatically dissolves the Senate as well; elections to both assemblies have to be held on the same day. Since 1989–91, the Senate’s legislative role has decreased; during that period it introduced 27 bills, 17 of which were passed. As shown in Table 5.6, the respective figures were nine and four for the Second Senate, nine and four for the Third Senate, while the Fourth Senate showed greater activity up until mid-2000, introducing 19 bills, of which seven had been passed by then. The Senate has, therefore, become somewhat more passive in relation to the Sejm than at the outset of the Third Republic. Both the Little and 1997 Constitutions stipulated that the Senate has 30 days in which to consider laws passed by the Sejm.91 The law is examined by the appropriate committee while the Senate then debates its recommendation in plenary session. If it accepts the bill or fails to come to a decision within 30 days, the law is considered to have passed. Amendments, or more rarely a total rejection, have to be considered by the Sejm which, until 1997, could overrule the Senate by a two-thirds majority and an absolute majority since then. Failure to do so means that the Senate view prevails.

Parliament and Democratic Politics 127

Between 20 October 1997 and 30 June 2000, the Senate examined 331 laws passed by the Sejm, of which it approved 171 unchanged. It proposed amendments to the remaining 160 which the Sejm reacted to as follows: it disagreed the Senate’s rejection of a whole bill, overruled amendments to 12 in their entirety, accepted some amendments to 82 and accepted all the Senate amendments in a further 53 cases.92 When the political colouring of the Sejm and Senate majorities are fairly close, as in the Third Sejm/Fourth Senate, cooperation occurs across and between the chambers. The Sejm majority, for example, on 9 April 1999 accepted nine out of 15 Senate amendments to the Law on the Institute of National Memory, which reinforced their views.93 Since 1993 however, the Senate cannot reject the budget as a whole; it can only propose amendments within a 20-day time limit. The Sejm is also solely responsible for considering laws vetoed by the president and is wholly responsible for removing sections of laws deemed by the TK to be unconstitutional. When the ratification of EU entry arises, the Sejm majority will also have the sole decision of whether to resort to popular approval by referendum or the parliamentary procedure dependent upon a two-thirds vote in both chambers. These constitutional provisions have produced what has been described as ‘asymetric bicameralism’.94 The dominant and final role of the Sejm, and the subsidiary contribution of Senate amendments in the legislative process, was confirmed by an important TK judgement on 23 February 1999.95 The TK also narrowed the Senate’s powers by tightening up the distinction between initiation and amendment of statute and limited the Senate more strictly to consideration, solely, of the Sejm’s drafts.96

Table 5.10

The work of the Senate

No. of sessions No. of days sat Resolutions No. of committees Committee meetings Laws initiated Laws examined Laws wholly rejected Laws wholly unamended Laws partially amended

First Senate

Second Senate

Third Senate

Fourth Senate*

61 90 – 13 871 27 248 1 178 77

40 69 165 13 736 9 93 4 47 42

107 183 600 13 2519 19 488 11 194 283

67 83 274 13 871 23 241 9 183 49

Sources: Wybrane dane o pracy Senatu RP and Sejm RP. Informacja o dzialalno´sci Sejmu for the respective terms. * Until end 1999.

128 Democratic Government in Poland

The Senate’s internal organization and functioning is very similar to that of the Sejm’s and its work is organized by an equivalent Senate Chancellery.97 The presiding officer is the Senate Marshal (the third most important person in the Republic), elected for the whole term, assisted by three deputy Marshals.98 Together they form the presidium which becomes part of the Convent of Seniors, constituted of representatives of the Senate Clubs (which need a minimum of seven senators). The Senate’s proceedings and debates are very similar to the Sejm’s except that the Senate Marshal has greater disciplinary powers over senators. The Senate has had fewer permanent committees, covering a narrower range, than the Sejm – normally establishing 13, which increased to 14 in 1997.99 This is because the constitution does not grant it controlling powers over the government which excludes the use of interpellations.

Rationalized parliamentarianism? As in France, there is a strong sentiment in the democratic camp in Poland that Parliament should be the main expression of popular sovereignty and that the executive should be fully controlled by it. The institutional transition from communism, however, produced a semi-presidential counterbalance after 1989 which was weakened, but far from eliminated, by the 1997 constitution. The reaction against communism also produced strong and continuing support for the concept of the division and balance of institutional powers. The political compromise which produced the 1997 constitution, therefore, confirmed the consensus that the Sejm should be dominant but subject to signiﬁcant checks by the president, the Senate and TK. The attempted constitutional shift in executive power from the president to the prime minister also carried significant curbs on the sort of parliamentary indiscipline which Poles historically identified with the Sejmocracy of the Commonwealth and the early Second Republic. How then, can one situate the Sejm within current political science debates on the decline of parliament generally, and rationalized parliamentarianism, speciﬁcally? As we have seen, it still has many features which differentiate it from the mainstream of older and more securely established democracies. The most striking concern its plenary-committee balance, the power and autonomy of its committees and backbenchers’ developed capacity, not only to initiate, but also to push through their own legislation successfully, as well as to control the detail of government bills intensively. Sejm debates and deputies interpellations and questions, allied to the intensive committee procedures, provide both major inputs into the governmental machine and state administration as well as control over them. The Sejm is, therefore, very much a working parliament. This is accentuated by the ‘fuzzy’ character of the opposition, reﬂected in varying voting balances on different government and policy measures and by the shifting composition of parliamentary

Parliament and Democratic Politics 129

clubs.100 The Sejm’s plenary proceedings are televised, often in full, but debates are, at best, generally worthy and fairly dull; oratorical and rhetorical skills have been slow to develop amongst deputies. Debates have an important communications inﬂuence on both the elite and the specialist, and to some extent on national opinion, although a full sense of political theatre, as at Westminster, still has to develop. On the other hand, the lobbying of parliamentarians by interest groups, although not very systematic, seems to be on the increase. The matter has not been regulated so far, although a draft law on lobbying, submitted by the UW in autumn 2000, was given a ﬁrst reading. The provenance of the bulk of specialist support for committees by the Sejm’s own Bureau of Studies and Analyses (BSiE), political clubs and academics is clear and open. But the problem is that some allegedly independent invited experts occasionally turn out to be hired spokesmen for speciﬁc interests who do not always declare their connections. This turned out to be the case, widely reported by the press, in the dispute between the Agros and Polmos ﬁrms over the allocation of an alcohol concession in September 2000.101 Over-blatant attempts at inﬂuence by the mass media, Roman Catholic church and trade unions are, however, generally counter-productive. Informal contacts within the political elite and bureaucracy and the TK are much more effective in what has been described as the Polish system of fragmented elitism.102 Although about 90 per cent of Sejm deputies are now full-time parliamentarians, many still retain outside business, legal and consultancy interests, thus creating potential conﬂicts of interests and ethics.103 This ‘grey sphere’ raises comparable problems to those facing other European Parliaments but the opportunities for corruption are being restricted in Poland, albeit gradually. The above view of the Sejm’s positive features reads like an idyllic catalogue of nineteenth-century qualities which most modern parliaments have lost but which the popular consciousness, often, still yearns for. But such an apparent exception to the ‘decline of parliament’ interpretation neglects the key political realities of control by political parties. The secondary aspect is that the Sejm does not monopolize access to governmental office, something which is shared not only with the Senate but also with many non-political sources of elite recruitment, notably the universities. The major question needing consideration concerns the Sejm’s relationship with political parties. This goes beyond the simple fact that the party system and electoral behaviour decides whether governments will be drawn from a single majority party or from whatever number are required to produce and maintain a coalition cabinet. The type of party organization and the consequent degree of party discipline is also crucial in determining the degree to which a party, or parties, can control parliament. Standing orders and internal procedures are conditioned by this crucial aspect, while the experience of the French Fourth Republic demonstrates the ineffectiveness of attempted constitutional constraints when confronted by ideologi-

130 Democratic Government in Poland Table 5.11

Political composition of the Sejm

Party

Tenth

First

Second

Third

Fourth

Solidarity/AWS UD/UW SdRP/SLD

161 0 173 (+ PUS) 76 0 – – – – – – – – – –

27 62 59

0 74 171

201 60 164

0 0 216

50 51 49 42 5 – 7 37 – – – –

132 22 – – 41 16 4 – – – – –

27 – – – – – 2 – 5 – – –

42 – – – – – 2 – 44 65 38 53

ZSL/PSL KPN/KPN-O ZChN PC SP/UP BBWR Minority parties KL-D ROP/PiS PO LPR Samoobrona

Source: Sejm RP. Informacja o dzialalno´sci Sejmu for the respective terms: http://wybory.pap.pl.

cally divided, extremely partisan, sectarian and largely undisciplined parties. The French National Assembly, for example, bypassed the threat of dissolution, made and unmade governments every 6–9 months or so, and actually decided which bills would be passed and in what shape. The Polish Sejm, however, would seem to have settled in comfortably between the Westminster extreme of a single party government ‘controlled’ parliament and the opposite – an assembly dominated system. Coalition government formation will be discussed in Chapter 6. Here, one just needs to note the party composition of successive Sejms as set out in Table 5.11. The contractual Tenth Sejm was sui generis since the Solidarity Civic Committee’s political and moral standing was assisted by the fragmentation of the ex-PRL parties who felt unable to challenge Mazowiecki’s government. The First Sejm reverted to bad Sejmocracy habits – the five largest parties were required to achieve a majority. The next five largest parties were also needed if the politically marginalized SdRP were excluded. The Olszewski government therefore, had the weakest political base of any Third Republic government while Suchocka’s was eventually defeated by the Sejm. As Table 5.12 demonstrates, the electoral thresholds introduced in 1993 simpliﬁed the party system as well as the required party basis for a majority coalition. Both the Second and Third Sejms were dominated by two-party coalitions: the SLD/PSL, the two largest, having 65.9 per cent of the seats during 1993–97; and the AWS-UW, the largest and third-largest, scraped by

Table 5.12

Party control of the Sejm

Percentage

1989

1991

1993

1997

2001

Electoral vote (largest party) Electoral vote (two largest parties) Seats (largest party) Seats (two largest parties)

Contractual Election 37.8 72.8

12.32 (UD) 24.31 (UD/SLD) 13.84 26.88

20.41 (SLD) 35.81 (SLD/PSL) 37.17 65.86

33.83 (AWS) 60.96 (AWS/UW) 43.74 79.39

41.04 (SLD) 53.72 (SLD/PO) 46.5 60.1

131

132 Democratic Government in Poland

on 56.8 per cent from 1997 until May 2000 when the AWS became a single-party minority government with only 43.7 per cent of the seats. The SLD, with 46.5 percent of the seats in 2001, became the strongest parliamentary force of the Third Republic and, with its PSL coalition partner, achieved a comfortable majority. One should note though that party share of the seats is only one criterion. Disloyal PSL behaviour in the Second Sejm coalition and the indiscipline of the ZChN, KPN and Catholic-nationalist AWS deputies in the Third, suggests that this is an important factor in whether coalition control of the Sejm will be maintained. PSL unreliability caused the SLD to make concessions and overtures to the UW and UP in the former period. UW departure from the coalition was precipitated by internal opposition from the AWS components against the Balcerowicz’s budget. Even in the Fourth Sejm the SLD was bound to face internal pressures from its UP electoral ally and from its constituents like the OPZZ. Finally, in the work of law making, the Sejm can be characterized as tending towards the consensual and inclusionary rather than the confrontational part of the spectrum. But this is linked with much party point scoring in general debates directed at the general electorate. Overall, however, the ﬂuidity of the Polish party system and the varying strength of the country’s post-communist cleavages have failed to undermine parliament’s underlying stability and its general capacity to support government in Poland since 1993.

Notes 1 Purists might wish to mention Iceland. For interesting anglo-Polish comparative remarks see Sybilla Holdys, A General Comparison of Procedure in the English Parliament and Polish Sejm, in Czapli´nski, op. cit. pp. 189–211. 2 See Kallas, Historia ustroju Polski, op. cit. p. 103. 3 The ﬁve-hundredth anniversary of parliamentarianism in Poland was commemorated in Piotrków, its original meeting place, in 1993. See the speeches by the Marshals of the Sejm and Senate and the bibliographic overview by Stanisl⁄ aw Grodziski, Pi ecset ˛ lat Sejmu polskiego. Rzut oka na stan bada´n, Przeglad ˛ Sejmowy, I, no. 1 (1993), 4–21. 4 Cf. Wojciech Sokolewicz, Rozdzielone, lecz czy rowne? Legislatywa i egzekutywa w Mal⁄ ej Konstytucji 1992 roku, Przegl ad ˛ Sejmowy, I, no. 1 (1993), 22–42. 5 Cf. David Judge, The Parliamentary State (London: Sage, 1993), p. 123. 6 On this dimension see Andrew Moravcsik, The Choice for Europe (London: UCL Press, 1998). 7 Cf. Pawel⁄ Sarnecki, Funkcje i struktura parlamentu wedl⁄ ug nowa konstytucji, Pa´nstwo i Prawo, LII, no. 11–12 (November–December 1997) 33–53. Control is usually identiﬁed with the function of extracting and publicizing information. 8 Witkowski et al., Prawo konstytucyjne, op. cit., p. 195. 9 Cf. Piotr Czarny, Sejm i Senat, in Pawel⁄ Sarnecki (ed.), Prawo konstytucyjne RP (Warsaw: C.H. Beck, 1999), pp. 205–15.

Parliament and Democratic Politics 133 10 This is a good example of the different dimensions of constitutional theory and political practice and the difficulty in distinguishing between legal rules, conventions and reality in Polish politics. The process by which the president designates a prime minister who forms a government and solicits a vote of confidence for it from the Sejm is described in the following chapter. So is the reserve procedure of the Sejm nominating a premier through a majority vote who will then be formally appointed by the president. 11 Skrzydl⁄ o expresses the majority view of Polish constitutionalists by questioning the use of the terms upper and lower chambers; he considers that the Senate is a clearly subordinate second chamber to the Sejm. He also points out that 1990s Polish constitutional usage does not refer to parliament but uses the Sejm as interchangeable synonym. See Wiesl⁄ aw Skrzydl⁄ o, Ustrój polityczny RP w s´wietle konstytucji z 1997r. (Kraków: Zakamycze, 1998), p. 140. Pawel⁄ Sarnecki, by contrast, defines the 1992 constitution as introducing a form of limited bicameralism with the Senate being definitely the inferior chamber; see Czy w Polsce istnieje konstytucyjna zasada dwuizbo´sci parlamentu?, Przegl ad ˛ Sejmowy, I, no. 2 (1993), 41–8. 12 The four-year term has prevailed since 1952 when it replaced the interwar practice of ﬁve-year terms. 13 Cf. Uchwal⁄ a Sejm RP z dnia 30 lipca 1992r. Regulamin Sejmu RP, Kronika Sejmowa, First Sejm, no. 34, August 1992. 14 See Adriana Gozdecka-Sanford, Historical Dictionary of Warsaw (Lanham MD: Scarecrow Press, 1997), pp. 83–4 and 240–41. 15 Architektura Zespol⁄ u Sejmowego (Warsaw: Wydawnictwo Sejmowe, 1995). 16 See Ryszard Mojak and Janusz Sobczak, Zgromadzenie narodowe, Przeglad ˛ Sejmowy, II, no. 2 (1994). 17 See Garlicki, Polskie prawo konstytucyjne, op. cit., p. 187. 18 The position was not so clear regarding legal proceedings begun against individuals who were subsequently elected. The question seems to have been left to the good sense of the Sejm depending upon individual circumstances. See Marek Zubik, Immunitet parlamentarny a zawieszenie post epowanie ˛ karnego, Pa´nstwo i Prawo, LIII, no. 7 (July 1998), 56–64. 19 See Janusz Mordwil⁄ ko, Zakres immunitetu parlamentarnego w s´ wietle ‘mal⁄ ej konstytucji’, Pa´nstwo i Prawo, XLVIII, no. 6 (June 1993), 39–47. 20 See Sejm RP. I kadencja. Informacja o dzial⁄ alno´sci Sejmu (25 listopada 1991r. do 31 maja 1993r.), p. 16. The procuracy presented 25 applications for raising a deputy’s immunity in this period compared with 13 during the Second Sejm. 21 See Witkowski et al. Prawo konstytucyjne, pp. 189–90. The register notes the additional gains in wealth or property during the deputies’ term of ofﬁce. 22 See Wprost, 21 June 1998, pp. 26–7. Topics included lkonowicz’ description of AK soldiers as ‘mad dogs’, an SLD deputy who invited a porn actress to appear as an ‘expert’ before a Sejm committee, a group of AWS deputies who signed a motion of accusation against Cimoszewicz’ government twice and various alleged indiscretions by Macierewicz. 23 See Gazeta Wyborcza, 23 April 1999, p. 2. 24 For commentaries see Zeszyty BSiE, Senate Chancellery, no. 299, April 1996. 25 It was estimated that their 1997 salaries and allowances were about five times the average earnings by state ofﬁcials. See Wprost, 17 September 1997, pp. 26–7. 26 The remainder receive daily allowances (diety) of 30 per cent that of the fulltime deputies. See Garlicki, Polskie prawo konstytucyjne, op. cit., pp. 189–90.

134 Democratic Government in Poland 27 See Wprost, 19 November 2000, p. 28. The problem of pensions for defeated deputies, who might find it difficult to resume interrupted careers, had still not been regulated at this time. 28 See Marek Chmaj, Wewnetrzna ˛ Organizacja Sejmu, Przeglad ˛ Sejmowy, VII, no. 1 (1999), 21–3. 29 See Mikol⁄ aj Kozakiewicz, Byl⁄ em Marszal⁄ kiem kontraktowego . . . (Warsaw: BGW, n.d.). 30 A measure of its activity is that the Sejm presidium passed 106 resolutions at its 230 meetings during the First Sejm. See Sejm RP. I kadencja. Informacja o dzial⁄ alno´sci Sejmu, pp. 18–19. 31 Cf. Zdzisl⁄ aw Jarosz, W sprawie ustawowych kompetencji Prezydium Sejmu I mozliwo´sci ich wykonywania w s´ wietle Konstytucji RP z 2 IV 1997r., Przegl ad ˛ Sejmowy, VI, no. 4 (1998). 32 Figures as of May 2001, http://www.sejm.gov.pl/poslowie/posel.html. 33 Ibid. 34 See Anna Titkow and Henryk Doma´nski, Co to Znaczy By´c Kobieta w Polsce (Warsaw: PAN, 1995). 35 See Kronika Sejmowa, Second Sejm, no. 110, 14–20 February 1996, pp. 23–32. 36 See Kazimierz Polarczyk (ed.), Parlamenty Pa´nstw ´Swiata w Statystyce (Warsaw: Sejm Chancellery, BSiE no. 130, 1998), pp. 34–9. 37 See Katarzyna Gilarek, Women’s representation in the parliamentary elections of 1991, 1993 and 1997 in Hieronim Kubiak and Jerzy Wiatr (eds), Between Animosity and Utility. Political Parties and their Matrix (Warsaw: Scholar, 2000), pp. 141–3. 38 See Miki Caul, Women’s Representation in Parliament, Party Politics, III, 1 (1999) 79–98. 39 See Sejm RP. II Kadencja. Przewodnik, p. 244. 40 See Ewa Karpowicz and Krystyna Leli´nska, Warunki sprawowowania mandatu posel⁄ skiego w opinii posl⁄ ów X kadencji (Warsaw: Sejm Chancellery, BSiE, 9 January 1992). Complaints about working conditions as such were fewer, except for the state of the Deputies’ Hotel at that time. Half the deputies were satisfied with their remuneration (dieta posel⁄ ska), as against a quarter who were not, and another quarter who expressed no view; there was greater dissatisfaction with the level of additional expenses. Ibid., pp. 37–42. 41 See Ewa Karpowicz and Krystyna Leli´nska, Percepcja Sejmu X kadencji (Warsaw: Sejm Chancellery, BSiE, 9 November 1991). 42 See Sejm w opinii spol⁄ eczne, 1989–1997 (Warsaw: Sejm Chancellery, BSiE nos 123–25, February 1998), pp. 5–8. 43 See Ewa Karpowicz, Sejm X kadencji i Sejm I kadencji w opinii spol⁄ ecze´nstwa, (Warsaw: Sejm Chancellery, BSiE no. 48, June 1992), pp. 2–6. 44 Ibid., pp. 17–22. 45 Ibid., pp. 22–4. 46 Wprost, 7 December 1997, p. 27. 47 See Irena Jackiewicz, Nowe Role w Nowym Sejmie. Posl⁄ owie Sejmu Okresu Transformacji, 1989–1993 (Warsaw: Wydawnictwo Sejmowe, 1996), pp. 113–18. She also ruminates on whether one might add the Catholic-deputy type. 48 See Barbara Post, Posl⁄ owie – obraz postulowany i rzeczywisty in Wl⁄ odzimierz Wesol⁄ owski and Barbara Post, Polityka i Sejm: formowanie sie elity polityczne (Warsaw: Wydawnictwo Sejmowe, 1998), pp. 112–22 and 125–8. 49 See Stefan Rozmaryn, Ustawa w PRL (Warsaw: PWN, 1964).

Parliament and Democratic Politics 135 50 For a full discussion of recent debates, see Jerzy Jaskiernia, Odesl⁄ ania do ustawy w Konstytucji RP, in Garlicki, Konstytucja, Wybory, Parlamentu, op. cit., pp. 83–98. 51 Cf. Barbara Zawadzka, Prawa ekonomiczne, socjalne i kulturalne (Warsaw: Wydawnictwo Sejmowe, 1996). 52 See Andrzej Bal⁄ aban, Zmiany zakresu poj ecia ˛ ‘materii ustawowej’, in Leszek Garlicki (ed.), Konstytucja, wybory, parlament (Warsaw: Liber, 2000), p. 21. 53 See Michal⁄ Kulesza, ‘Zrodl⁄ ami prawa’ i przepisy adminstracyjne w s´wietl⁄ e nowe konstytucji, Pa´nstwo i Prawo, LIII, no. 3 (1998). 54 On the legislative process, consult: Garlicki, Polskie prawo konstytucyjne, op. cit., pp. 194–210. 55 See Artur Preisner, Sl⁄ ownik wiedzy o Sejmie (Warsaw: Wydawnictwo Sejmowe, 1995), pp. 103–7. 56 A unified text was approved by the Sejm on 30 July 1992 but was subsequently amended notably to incorporate the 1997 constitutional changes strengthening the Sejm Marshal in relation to the presidium. See Regulamin Sejmu RP (Warsaw: Kancelaria Sejmu, 1998) also published in Monitor Polski, 1998, no. 44, position 618. The legislative process is dealt with in articles 29–56. 57 Before then, the Sejm had acquiesced with most TK judgments. The Tenth Sejm considered ten TK judgments, accepting nine and only rejecting one (Law on Renting). 58 See Dz. U., 1997, no. 102, position 643. Cf. Zdzisl⁄ aw Czeszeko-Sochacki, O niektórych problemach konstytucyjne procedury legislacyjne, in Garlicki, Konstytucja, Wybory, Parlamentu, op. cit., p. 41. 59 Janusz Mordwil⁄ ko, Prawne aspekty usuwania niezgodno´sci przepisów ustawowych w s´ wietle art. 124. ust. 4 konstytucji RP, in Garlicki, Konstytucji, Wybory, Parlament, op. cit., pp. 113–31. The Sejm amended its standing orders on 30 September 1998 (art. 52b–g), generally accepting Zdzisl⁄ aw Jarosz’ advice; see w sprawie trybu postepowania ˛ w sytuacjach przewydzianych w art. 122. ust. 4 zd. Drugie konstytucji, Przegl ad ˛ Sejmowy, V, 6 (1998). 60 See Kronika Sejmowa, no. 43, Tenth Sejm, 31 October–6 November 1991, p. 44. 61 See Andrzej Szmit, Nowe elementy konstytucyjne i regulaminowe postepowania ˛ ustawodawczego, Przegl ad ˛ Sejmowy, V, no. 3 (1998), 27–52. 62 See Dariusz Chrzanowski, Piotr Radziewicz and Wojciech Odraw a˛z-Sypniewski, ˙ Analiza projektów ustaw wniesionych do Sejmu III kadencji (Warsaw: Sejm Chancellery, BSiE Report No. 169, January 2000), p. 3 ff. This is an updated version of the BSiE report no. 153 published in 1998. 63 Ibid., p. 7. 64 Ibid., pp. 38–40. 65 Ibid., pp. 31–3. 66 Ibid., pp. 33–5. Wal⁄ esa ˛ exercised four presidential vetoes during the First Sejm and another 14 from October 1993 to December 1995, see Rocznik Statystyczny 1996, p. 81. The SLD-PSL majority in the Second Sejm was capable of breaking his veto on important bills. For example, the Sejm was successful in passing the Law on Personal Income Tax again, by 262 votes to 119 with 9 abstentions, as the required two thirds majority of those present was 259. See Kronika Sejmowa, Second Sejm, no. 99, 29 November–5 December 1995, pp. 10–12. The Sejm also considered nine and 28 TK judgments for the same periods rejecting three of the latter. 67 See Skrzydl⁄ o et al., Polskie prawo konstytucyjne, op. cit., pp. 273–7.

136 Democratic Government in Poland 68 For a good overview see David Olson et al., Committees in the Post-Communist Sejm: Structure, Activity and Members, in Lawrence Longley and Roger Davidson (eds), The New Roles of Parliamentary Committees (London: Cass, 1999). 69 Cf. Kronika Sejmowa, First Sejm, no. 34, August 1992, pp. 23–4. 70 See Grzegorz Rydlewski, Rzadzenie ˛ koalicyjne w Polsce: bilans do´swiadcze´n lat dzwiewi˛ecdziesi atych ˛ (Warsaw: Elipsa, 2000), p. 149. 71 Committee meeting reports (Biuletyny) are available in mimeographed form in the Sejm library. 72 Biuletyn Komisji Nadzwyczajnej do zbadania dzial⁄ alno´sci rz adu ˛ w okresie od 30.05.1993r do 14.10.1993. II kadencja (Warsaw: Sejm Chancellery, 1994). 73 Sejm RP. III kadencja. Informacja o dzial⁄ alno´sci Sejmu (20 pazdziernika ˙ 1997r.–30 czerwca 2000r.), p. 43. 74 Cf. Sprawozdanie Komisji do ´Sl⁄ uzb Specjalnych z dzial⁄ alno´sci w okresie II kadencji Sejmu RP (Warsaw: Sejm Chancellery, 1997). 75 Konstanty Miodowicz (AWS), for example, revealed that the committee discussed the recent expulsion of some Russian businessmen as alleged spies on 10 March 1999. Kronika Sejmowa, Third Sejm, no. 65, 10–16 March 1999, p. 1. 76 See Czeszejko-Sochacki, Prawo parlamentarne w Polsce, pp. 167–79. 77 See Garlicki, Polskie prawo konstytucyjne, p. 210 ff. 78 See Monika Kowalska and Zbigniew Szeliga, Sejmowa kontrola dzial⁄ alno´sci rz adu ˛ oraz odpowiedzal⁄ no´sc´ rz adu ˛ przed Sejmem, in Marek Zmigrodzki (ed.), Polityczno-prawne aspekty transformacji w Polsce (Lublin: Wydawnictwo UMC-S, 2000), pp. 48–9. 79 See Wojciech Sokolewicz, Odpowiedzal⁄ no´sc´ parlamentarna Rzadu ˛ RP (Warsaw: Sejm Chancellery/BSiE, 1993). 80 Ibid., Ch. 4. 81 The Tenth Sejm heard 42 governmental (Premier and Ministers) reports and declarations, the First Sejm 54 and the Second Sejm 170. The largest number of resolutions concerned financial matters followed by social, cultural and educational and police and administrative issues. 82 See Sarnecki, Sl⁄ ownik wiedzy o Sejmie, op. cit., pp. 32–3 and 155. 83 See David Olson in Samuel Patterson and Anthony Mughan (eds), Senates: bicameralism in the contemporary world (Columbus OH: Ohio State up, 1999), pp. 311–12. 84 See Zdzisl⁄ aw Jarosz, Problem dwuizbowo´sci parlamentu w pry´szl⁄ e konstytucji RP, Przegl ad ˛ Sejmowy, III, no. 2 (1994). 85 See Bogusl⁄ aw Banaszek, Czy Polsce potrzebna jest druga izba?, Przegl ad ˛ Sejmowy, II, no. 2 (1994). 86 See Pawel⁄ Bozyk, Senat RP, in Eugeniusz Zwierzchowski (ed.), Izby Drugie Parlamentu (Bial⁄ ystok: Temida2, 1996), pp. 33–41. 87 See Andrzej Gwi˙zdz˙ and Janusz Mordwil⁄ ko, The Status of the Sejm . . ., in Pawel⁄ Sarnecki, Andrzej Szmyt and Zbigniew Witkowski, The Principles of Basic Institutions of the System of Government in Poland (Warsaw: Sejm Chancellery, 1999), p. 196. 88 See Http://www.senat.gov.pl. 89 The Second Senate was composed of 87 graduates, 14 doctors, ten professors, ten lawyers and seven teachers but this was balanced by 18 agriculturalists and 11 businessmen. See Irena Jackiewicz in Jacek Wasilewski and Wl⁄ odzimierz Wesol⁄ owski (eds), Pocz atki ˛ parliamentarnej elity. Posl⁄ owie Kontraktowego Sejmu (Warsaw: IFiS, 1992), p. 193 ff. The left’s victory in 2001 brought in 22 acade-

Parliament and Democratic Politics 137

90

91 92

93 94 95 96 97 98

99

100

101 102 103

mics, 13 lawyers, 11 economists, 10 doctors and four journalists compared to three agriculturalists, one nurse and one soldier. Cf. Zbigniew Witkowski, W sprawie pozycji Senatu RP na tle Mal⁄ ej Konstytucji, Przegl ad ˛ Sejmowy, II, no. 2 (1994). See also Skrzydl⁄ o, Polskie prawo konstytucyjne, op. cit., Ch. 11: Witkowski, Prawo Konstytucyjne, op. cit., Ch. 10. Zdzisl⁄ aw Czeszejko-Sochacki, Prawo partlamentarne w Polsce (Warsaw: Wydawnictwo Sejmowe, 1997), pp. 245–7. See Informacja o dzial⁄ alno´sci Sejmu (20 pazdziernika ˙ 1997r. do 30 czerwca 2000r.), p. 22. The Tenth Sejm, by contrast, accepted all Senate amendments in 18 cases, some in 49 cases, and rejected all in 11 cases. See Kronika Sejmowa, Third Sejm, no. 68, 7–13 April 1999, pp. 16–17. See Antoszewski and Herburt, Polityka w Polsce w latach 90, op. cit., p. 106. Czeszejko-Sochacki in Garlicki, Konstytucja, Wybory, Parlament, op. cit., pp. 42–9. See Piotr Winczorek, Gl⁄ os do wyroku TK z 23 II 1998, K25/98, Pa´nstwo i Prawo, vol. 54, no. 6 (1999), 105 ff. For the work and organisation of the Senate, see Pawel⁄ Sarnecki, Senat RP a Sejm i Zgromadzenie Narodowe (Warsaw: Wydawnictwo Sejmowe, 1965). The Senate Marshals of the Third Republic have been Andrzej Stelmachowski (Civic Committee, 1989–1991), August Chel⁄ kowski (Solidarity, 1991–1993), Adam Struzik (PSL, 1993–1997) and Alicja Gre´skowiak (AWS, 1997–). The AWS majority expressed discontent when a SLD deputy-Marshal was conceded in 1997. They were: National Economy, Legislative Initiatives and Work, Culture, Mass Media, Physical Education and Sport, National Education and Science, National Defence, Protection of the Environment, Human Rights and Legality, Regulations and Senators’ Affairs, Agriculture, Local Self-Government, Emigration and Poles’ Abroad, Foreign Affairs. That East European Parliaments have a ‘rationally inclusive’ character has been noted by Susanne Kraatz, Government, Majority and Opposition in PostCommunist Parliaments, ECPR General Conference paper, Canterbury, September 2001. See Dominika Wielowieyska, Wysl⁄ ac experta do Sejmu, Gazeta Wyborcza, 6 September 2000. See Marek Mlicki, Lobbing (sic) w Polskie Sejmu in Wesol⁄ owski and Post, Polityka i Sejm, p. 192. See Wprost, 31 October 1999, pp. 26–8.

6 The Executive: Dual or Fragmented?

The presidency Constitutional deﬁnition of the presidency As a result of the 1921 constitution, the presidency was limited to Head of State ceremonial functions. Its powers were increased dramatically by the 1926 constitutional amendment and one can describe the 1935 constitution as formally introducing a presidential system. At the end of the Second World War, it was the chairman of the KRN who became the Head of State, until the Little Constitution restored the presidential ofﬁce in 1947. The 1952 constitution, however, replaced the presidency with a collegial Head of State body, the Council of State. Despite losing much of its executive powers after Stalinism, especially of passing most laws in the form of decrees, it survived throughout the PRL and declared the State of War in December 1981.1 The deﬁnition of presidential power was a major issue of political and constitutional debate in Poland up until 1997 since the presidential role deﬁned the balance of power within the executive. This in turn determined the extent to which Poland would function as a prime ministerial-cabinetparliamentary system. The outcome, as we have seen, was the emergence of a moderate form of semi-presidentialism which weakened gradually towards the prime ministerial-parliamentarism generally favoured by the 1997 constitution. The executive developed through the following ﬁve phases (as identiﬁed by Polish specialists)2: 1. Jaruzelski’s normative, although not actual, presidentialism. ˛ normative and actual presidentialism up until the promulga2. Wal⁄ esa’s tion of the Little Constitution. ˛ subsequent limited presidentialism during the cohabitation of 3. Wal⁄ esa’s 1993–95.

138

The Executive: Dual or Fragmented? 139

4. Semi-presidentialism mixed with actually dominant cabinet-parliamentarian practice between Kwa´sniewski’s election and the AWS-UW electoral victory in 1997. 5. The Left’s 2001 electoral victory which ushered in what was likely to be a smoother type of cohabitation. The 1997–2001 constitutional period can be characterized as normatively one of prime ministerial-parliamentarianism, because of the fragmented party basis of the cabinet, linked with normatively residual, although actually very effective, presidential elements. A major academic debate on presidentialism took place in democratization studies during the 1990s. Poland’s constitution-making process was, however, inﬂuenced primarily by the pragmatic interplay been political forces and personalities and native political traditions and experience.3 Polish studies assimilated Duverger’s deﬁnition of semi-presidential government.4 Stanisl⁄ aw Gebethner adapted this to Polish conditions, as the intermediate presidential-parliamentary form between full presidentialism and the cabinet-parliamentary model.5 Presidential systems in Europe have been exceptional. They have developed in response to the breakdown or challenges to the preceding system, as in France in 1958 or Portugal in 1974. In the case of Finland the external circumstance of a Soviet veto over the main directions of the country’s foreign and domestic policies necessitated a strong presidency.6 All these examples have demonstrated a recent secular trend away from presidentialism. There has also been an increasingly critical assessment of the links between presidentialism and authoritarian-nationalist crisis in post-communist states.7 Poland’s evolution ﬁts well into the pattern of a gradual appreciation of the strengths of Parliaments as mechanisms for consensus and compromise building as well as legitimation.8 Since 1990, the presidential features of Polish government have been threefold. First, the direct election of the president by universal suffrage gives the incumbent a popular legitimacy which can challenge Parliament under certain circumstances. This factor would not, of itself – as shown by both Austria and Ireland – be crucial, but it becomes so when added to others. Secondly, the presidential ofﬁce still retains important executive powers. The constitutional ones as Head of State gain signiﬁcance because the party system has failed to produce united coalition governments supporting a prime minister capable of monopolizing executive power. Thirdly, the preceding factors have allowed presidents to project their images through effective use of the mass media. They can also build up their political standing through well-judged political initiatives, especially in foreign affairs. The newly re-introduced presidency inherited many of the Council of State’s powers in 1989. Jaruzelski was, however, barely elected by the Sejm

140 Democratic Government in Poland

and Senate sitting together as a National Assembly. His legitimacy was also diminished by close identiﬁcation with the old communist system which was dismantled during his incumbency. The main study of the ofﬁce in that period conﬁrms that the presidency was designed by the Round Table agreement to strengthen the executive power during the difﬁcult transition.9 In practice, many of the internal and external security powers conceded at that time by Solidarity to placate the Soviet Union and to guarantee themselves against a backlash by communist hardliners proved unnecessary because of the rapid and complete collapse of the Eastern European communist states by Christmas 1989.10 Jaruzelski made limited use of his powers. He left the Mazowiecki government a largely free hand to the extent that one of his advisers described his term of ofﬁce as ‘the cautious presidency’.11 He and the communist ministers of the interior and defence went quietly when told to do so in Summer 1990. Many formal presidential powers, notably over defence and foreign policy and government formation and dismissal, were maintained in the Little Constitution. That document also began to tackle the question of the president’s constitutional responsibility and the division of executive power with the prime minister within the new framework of separation of powers. Article 28 conﬁrmed the April 1989 amendment – the president was ‘the supreme representative of the Polish state in internal and international affairs’, charged with safeguarding its constitution, sovereignty, security, territories and frontiers.12 Responsibilities over international affairs, including the ratiﬁcation and denunciation of international agreements, were spelt out in articles 32–34. Articles 35–37 made him supreme commander of the armed forces, with appointment powers over the Chief of the General Staff and the commander-in-chief in wartime and gave him the power to declare war, martial law and states of emergency. Subsequent articles vested him with various appointing powers (NBP chair and KRS/KRRiTV members). They also conﬁrmed the traditional Head of State functions of granting pardons, citizenship and decorations.13 The relationship with the prime minister, in his right to be informed of the government’s work and of calling and presiding over the Cabinet Council, of promulgating legislation and issuing orders, was left unclear. Most presidential acts needed prime ministerial or ministerial countersignature, except for 13 areas listed in article 47; the most notable were those: of dissolving the Sejm, legislative veto and initiation, references to the TK and, most importantly, the power of nominating or accepting the resignation of the prime minister. As far as ministerial appointments were concerned, the convention of the ‘presidential sphere’ emerged, giving the president de facto special nominating rights to the ministries of Foreign Affairs, Defence and the Interior. Ryszard Mojak, rightly stresses that the 1992 constitution framers were most concerned to emphasize the presidential roles of supreme mediator

The Executive: Dual or Fragmented? 141

and arbitrator.14 He was far from powerless. Mojak identiﬁes no less than 40 residual presidential powers, 20 of which could be exercised person˛ temperament and conception of ofﬁce ally.15 Unfortunately, Wal⁄ esa’s meant that he failed to act as a stabilizing force. He often aggravated, rather than smoothed out, conﬂicts on the Polish political scene. Article 50 made him constitutionally answerable to the Tribunal of State which could strip him of ofﬁce in the event of a successful impeachment. The SLD-PSL coalition never really envisaged this course of action, even though they almost had the two-thirds majority necessary to pass a motion of indictment in ˛ historical prestige, PSL support and good the National Assembly. Wal⁄ esa’s fortune that his veto of the penal code amendments decriminalizing abortion was not over-ridden by the Sejm, saved him. His public declarations that he would refuse to fulﬁl his constitutional duty to sign any such bill, even if duly passed, therefore did not actually come into play, although in October 1994 the Sejm warned him publicly against violating the law. The 1997 constitution continued the general principles of the dual executive and of presidential arbitration within the threefold framework of separated powers.16 Article 126 maintains the president as the supreme representative of the Polish Republic, charged with defending its external and internal security; it strengthens the guardian of the constitution role by stressing the obligation to ensure the continuity of state institutions.17 The method of direct election and the term of ofﬁce remain unchanged. So do the general principles of constitutional, not parliamentary, responsibility through the impeachment procedures (discussed further in Chapter 8). The prime minister had his position strengthened by being made solely responsible (before the Sejm) for countersigning the president’s ‘ofﬁcial acts’ – a tighter formulation than the phrase ‘legal acts’ in the Little Constitution. This, together with the practice of the Buzek government, abolished the presidential sphere. It strengthened government control over foreign, defence and internal affairs as well as the prime minister’s hold over ministerial appointments and dismissals. The supervision of foreign affairs, written into the Little Constitution, was weakened in its successor. The president retained his right to represent the state, at home and abroad; to ratify international agreements; to accredit foreign diplomats and to declare war and mobilization. The presidential right to consultation and collaboration with the prime minister and foreign minister, however, now only involves an effective veto on ambassadorial appointments. This was shown by Kwa´sniewski’s refusal to accept Buzek’s nominations to Moscow and Vilnius in 2000, which continued ˛ earlier practice. Although the issue provoked controversy, Wal⁄ esa’s Mazowiecki conﬁrmed that, constitutionally, the president had more than just a formal role over such appointments: he actually had to agree them with the premier.18 The same factors apply to the deﬁnition of the control of defence matters in the 1997 constitution. In times of peace the prime

142 Democratic Government in Poland

and defence ministers control the Chief of the General Staff although he is appointed formally by the president on the premier’s suggestion and countersignature. The president has greater powers, especially if the Sejm cannot meet, in appointing the commander-in-chief in wartime but this has to be approved by the premier, if available. The 30 exceptions to countersignature, listed in article 144 as previously, cover the Head of State and appointing functions and the role of constitutional mediation ensuring the continuity of political life in relation to parliament and other state bodies – notably in nominating and accepting the resignation of the prime minister and ministers.The president was thus left with formal powers of legislative initiative. His calling of a referendum, however, became dependent upon Senate support. The powers of vetoing legislation and referring laws to the TK also became alternative to one another. The presidential declaration of a state of emergency now also requires prime ministerial approval. Finally, the president has effectively lost one of his strongest weapons against parliament, that of dissolution – unless the Sejm fails to produce an alternative prime minister or to pass the budget within speciﬁc time limits. If faced by a hostile Sejm majority, the president cannot maintain the nomination of a minority presidential cabinet of Bielecki’s type. The president is, at best, able to manoeuvre in various ways during a cohabitation period, when effectiveness depends largely on political skill and personality and the balance of political forces rather than constitutional writ. Kwa s´ niewski called only three Cabinet Councils during 1997–2000, two of which, concerning government preparations for EU and NATO entry, were uncontroversial. The January 1998 session on the government’s programme for the coming year merely demonstrated how little he could inﬂuence the cabinet in this way and was, therefore, not repeated subsequently. The president can address the Sejm, the Senate or the National Assembly, and through these the nation, at any time of his choosing. Whether this power can enable him to mobilize popular and parliamentary support in conﬂict situations remains to be demonstrated. The Sejm, on the other hand, can keep the president at bay by refusing to overthrow a de facto minority government – such as Buzek’s in the period after May 2000. Incumbents and their changing roles The three Polish presidents of the democratic era have differed fundamentally in their conceptions of ofﬁce, personal styles, backgrounds, temperaments and political support. Most importantly, they were the central ﬁgures in different stages of the evolution of the political system. Jaruzelski (born 1923) presided over the contractual systemic transition away ˛ (born 1943) was a political from communism towards democracy. Wal⁄ esa maverick who further confused the institutional and political fragmentation of the ﬁrst half of the 1990s as the new pluralist and democratic forces

The Executive: Dual or Fragmented? 143

groped towards ﬁrmer constitutional and governmental deﬁnition. Kwa´sniewski (born 1954) provided the latter by facilitating the compromises which produced the 1997 constitution. He accepted formal limitations on presidential power but built his political success, and re-election on the ﬁrst ballot in 2000, by maintaining a popular image and manoeuvring successfully in the cohabitation with the Buzek government and a hostile Sejm majority. There is still enormous controversy over Jaruzelski’s historical role and bitterness over martial law. But the pragmatic consensus of the ‘thick line’ – that negative aspects have been outweighed by his services in negotiating and carrying through Poland’s peaceful democratization in 1989–90 – has dominated. This protected him from being called to account before the State Tribunal and from actual, as against repeated threat of, criminal prosecution during the 1990s. Only in summer 2001 were formal legal proceedings started against him for his part in the 1970 Baltic seacoast shootings. His digniﬁed, aloof and reserved public style allowed the Mazowiecki government, which he never criticized or opposed in public, a free hand.19 Jaruzelski did not much use his constitutional powers and did not attempt to rally the post-communist camp. Gebethner describes the April 1989 amendment as giving the presidency powers that were potentially as wide as those of the French Fifth Republic or of Finland. Jaruzelski’s decision not to attempt to play the role of a General de Gaulle, but rather to be ‘a neutral president of low proﬁle’ was crucial in assuring a smooth and uncontested transition.20 Jaruzelski exercised some, although diminishing, inﬂuence in his ﬁrst year through two communist ‘chieftains’, Kiszczak at the interior and Siwicki at defence.21 He also struck up a good working relationship with the non-party foreign minister, Krzysztof Skubiszewski; whatever their personal relationship, the latter, a realist-minded Catholic and conservative law professor from Pozna´n University, followed his advice in moving cautiously in disentangling Poland from the Soviet alliance during the time Germany reunited in1990.22 Jaruzelski’s refusal to contest the shortening of his presidential term – something imposed by Solidarity’s ‘War at the Top’ in summer 1990 – ended the contractual period of transition gracefully by smoothing the way for the fully free presidential and parliamentary elections of 1990–91. ˛ supporters saw him as a leader According to Krysztof Jasiewicz, ‘Wal⁄ esa’s of a successful quest to regain the nation’s independence’ which made him historically comparable in importance to Pil⁄ sudski.23 This assessment was initially accepted by Polish public opinion who placed him at the head of ˛ took a back seat in those responsible for the PRL’s downfall.24 Wal⁄ esa autumn 1989 but secured election as president on the back of demagogic slogans of accelerated decommunization which split Solidarity. He also had a very active conception of his presidential role and a highly exaggerated estimation of his political skills and capacities. As an involved politician, he

144 Democratic Government in Poland

smashed his initial base in Solidarity but failed to create an alternative political machine or party base – except, that is, for the BBWR formed at the last minute before the 1993 elections. He also lost inﬂuence through discrediting the constitutional prestige of his ofﬁce even when he resumed a more restrained role. The result was a fair degree of constitutional and institutional ‘chaos’.25 Although Wal⁄ esa ˛ initially appointed a government of his own choosing, headed by Jan Krzysztof Bielecki and the KL-D, he lost important struggles with the Contract Sejm over a new electoral law as well as the shape of the future constitution and had his own vetoes over ridden.26 He exhibited unpredictable and poorly judged interference and this dissipated his political standing very quickly. In addition, his rather quarrelsome vanity and pique divided him from initial collaborators such as the Kaczy´nski twins and emerging and potentially natural party allies, such as the PC and the ZChN. In so far as he had any idea of what he was doing, he wanted to act as a de Gaulle-like ﬁgure, standing above, and manoeuvring between, political parties while mediating their disputes, all on the basis of stronger presidential powers granted to him by the new constitu˛ charismatic style of leadertion. Michnik’s percipient critique of Wal⁄ esa’s ship and search for ‘ultimate power without responsibility’ was well ˛ proposal for a 200-strong presidential council was founded.27 Wal⁄ esa’s opposed as an attempt to sideline the Sejm and he eventually had to make do with an advisory council. His alternately vacillating, irresponsible, inconsistent and often badly timed interventions conﬁrm his unsuitability for his chosen role. On the domestic scene, he was very much excused as a genuine worker without much formal education. But he also made surprisingly little effort to curb either his tongue or his temperament when representing Poland abroad as Head of State. This occasioned debate about the extent to which his gaffes and ‘unconventional’ behaviour could be tolerated; they reinforced foreign stereotypes and reﬂected badly on the new Poland.28 The fragmented Sejm which was elected in 1991 refused to appoint ˛ preferred nominee, Geremek. The fractious and sectarian rightWal⁄ esa’s centre Olszewski cabinet, especially Defence Minister Jan Parys and Interior Minister Antoni Macierewicz, quarrelled bitterly and publicly with ˛ over the army and who should control it, the speed and method of Wal⁄ esa lustration and the limits of presidential power.29 Their disputes, of which both sides were equally guilty, did much to discredit Poland’s budding democracy. It revived respectively, charges of Sejmocracy, and hankering after presidential dictatorship. But the Sejm, after bringing Olszewski ˛ nominee, Waldemar down in June 1991, also refused to support Wal⁄ esa’s Pawlak. The political parties themselves produced Hanna Suchocka’s gov˛ who, nevertheless, collaborated fairly ernment and forced it on Wal⁄ esa loyally with it.

The Executive: Dual or Fragmented? 145

Wal⁄ esa’s ˛ political incompetence and wilfulness seems all the more culpable as he failed to use the wide presidential powers available to him under the April 1989 amendment sensibly – and thus produced a backlash against them. As a result, he had little inﬂuence over the drafting of the Little Constitution. UD conceptions of the need to produce balanced safeguards against a repetition of the intra-executive and executive-parliamentary ˛ period dominated. His dissoconﬁcts which characterized the early Wal⁄ esa lution of the Sejm in April 1993, following Solidarity’s defeat of Suchocka, also backﬁred, producing an overwhelming SLD-PSL electoral victory. ˛ to political cohabitation with the The result thus condemned Wal⁄ esa Pawlak and Oleksy governments of 1993–95. Surprisingly, he worked more capably within these constraints, than in the ﬁrst half of his term, to sabotage the work of the SLD-PSL governments. He clashed continually with successive prime ministers over various appointments.30 He used his presidential powers to good political effect as in his veto of the 1995 income tax law, and after the Sejm had overridden it, by referring the bill to the TK. All ˛ this slowed down the SLD-PSL’s budgetary plans most effectively. Wal⁄ esa had considerable inﬂuence, through Pawlak, and protected his own ‘presidential sphere’. He vetoed appointments and pushed through his own personal ones such as Andrzej Olechowski and of Wl⁄ adysl⁄ aw Bartoszewski as Foreign Minister.31 He even extended this sphere by vetoing the appointment of Dariusz Rosati as Minister of Finance in February–April 1994 before agreeing to Grzegorz Kol⁄ odko. Andrzej Milczanowski, his nominee as ˛ in a farewell act undermining Polish Interior Minister, helped Wal⁄ esa democracy – the accusation that Prime Minister Oleksy was a Russian spy – just after the electorate had rejected him in December 1995.32 It seems fair to judge Wal⁄ esa, ˛ therefore, as an embarrassing failure, both as the strong president assuring Poland’s democratic development before 1992, and, later, as the mediator, smoothing out conﬂicts envisaged by the Little Constitution. The system proved strong enough to contain his undisciplined actions – an example being his alleged plotting with discontented ofﬁcers at the Drawsko lunch in 1994.33 One can debate whether it was character, style, educational shortcomings, megalomania, unwillingness to adapt and learn the political skills required in a democracy, or an unbal˛ problem. As the great historical anced inconsistency that caused the Wal⁄ esa ‘chieftain’ of Poland’s anti-communist struggle in the 1980s, it would always have been to difﬁcult to ﬁnd a Father of the People role for him in the democratic institutions of the 1990s.34 But Havel’s example in Czechoslovakia demonstrates that this might have been possible if the presidential ofﬁce had been deﬁned in non-executive terms from the ˛ discredited the argument that the presidency could provide outset. Wal⁄ esa national unity and strong decision making during the period of systemic transition in Poland.35 One concurs with the measured judgement of a leading Polish expert (Marian Grzybowski) that ‘the manner of discharging

146 Democratic Government in Poland

the presidential duties in the testing periods of 1989–90 and 1990–95 did not greatly contribute to consolidation of a pro-presidential attitude amongst electors or political groups’. After the bitterness and controversy of the Jaruzelski period and the ˛ personal characterissomewhat distasteful spectacle and angst of Wal⁄ esa’s tics clashing so painfully with the political environment, the Poles turned with relief to the younger Aleksander Kwa´sniewski who presided genially over the second half of the 1990s, bringing normality. An ex-youth movement apparatchik, journalist and minister of sport of the fall of communism period, he became an effective and successful leader of post-communist social democracy. As president, he had the good fortune of inheriting, and working well with, a favourable Sejm majority in 1995. He also collaborated easily with a prime minister of similar age and social liberal reformist inclinations, Wl⁄ odzimierz Cimoszewicz. Both the curtailing of presidential power and attempts to transform the prime minister into a German Chancellor type of ﬁgure in the 1997 constitution might have caused severe conﬂicts and blockages when followed by the AWS-UW electoral victory in 1997. But Kwa´sniewski established a smooth cohabitation with the Buzek government even though the protagonists pounced on their opponent’s mistakes whenever opportunity offered. Kwa´sniewski presented a relaxed, non-ideological and modern stance. He made good use of the mass media as well as his representative functions as president of all the Poles to maintain the highest level of popularity of any politician after 1997. An OBOP poll in April 1999 showed that 73 per cent of respondents considered him a good president as against only 17 per cent who felt that he was a bad one.36 He was supported very ably by his telegenic and university educated, lawyer wife, Jolanta. His political acts were restrained and consistent and demonstrated excellent political judgement and timing. His reference of provincial reform to the TK in 1998 forced the Buzek government to accept 16 instead of the 12 provinces which it wanted. His vetoing of a badly drafted Universal Ownership law introduced by the AWS in summer 2000 to support Kwa´sniewski’s presidential candidacy, worked in his favour and against his opponent. Presidential Ofﬁce and relations with other governmental bodies The president’s staff are located in his chancellery, whose statute and functions are laid down by him and whose Head and most important ofﬁcials he appoints and dismisses. The Little Constitution had allowed the president to appoint ofﬁcials of minister of state rank but this much criticized ˛ right-hand man power was removed by the Little Constitution. Wal⁄ esa’s and political ﬁxer, his ex chauffeur and bodyguard in 1981, Mieczysl⁄ aw Wachowicz, had risen up the chancellery to that rank. His behaviour and somewhat primitive personality occasioned much resentment and rumours of secret missions and ex-security police connections.37 He was ﬁnally

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dropped just before the 1995 presidential election, although he had by ˛ most loyal supporters. Wal⁄ esa’s ˛ legal adviser then alienated even Wal⁄ esa’s Lech Falandysz, who was credited with the falandization principle that legal justiﬁcation could always be found in the murk of the Little Constitution for all presidential actions, left the chancellery acrimoniously in March 1995. The chancellery is organized under the following divisions – Presidential Cabinet, National Security Bureau (BBN), Press as well as Legal-Social and other bureaux. The president is also advised on the state’s internal and external security by the National Security Council (Rada Bezpiecze´nstwa Narodowego). During the 1990s, this was composed of the prime minister, the ministers of defence, foreign affairs, interior and ﬁnance, the NBP chair and the BBN Head who acted as its secretary. After much dispute with the Buzek government over its role and composition, it became a largely advisory body for the president. Its members are now nominated ad personam rather than through designated ofﬁce-holding as previously. The chancellery, the president’s cabinet and the BBN are headed by the president’s main advisers, all holding secretary of state rank.38

Formation, dismissal and accountability of governments The mechanisms outlined above are generally regarded as key mechanisms of parliamentary democracy. The appointment of a government was clariﬁed by the time of the 1997 constitution which made a concerted effort to rationalize executive-parliamentary relations. The practice of 1990–97 was, however, confused by the semi-presidentialism of the Little Constitution. At worst, this envisaged the tackling of political blockages through up to ﬁve separate stages of forming a government. By November 1997, however, the political reality of a ﬁrm AWS-UW majority meant that these parties decided between themselves on Buzek’s nomination in November 1997. This decision reduced the president to his formal Head of State constitutional role of conﬁrming the appointment ofﬁcially. Matters, however, may not always be so simple if a Sejm majority is absent or if numerous coalition partners produce more complex patterns, as in the early 1990s. There have been three models of government appointment in Poland’s democratic era. Firstly, the April 1989 constitutional amendment appeared to carry over the formal procedures for government appointment of the PRL period. The realities of democratic politics, however, meant that the ultimately decisive factor became the bargaining between political parties and the construction of a Sejm majority to ﬁrst vote in, then support a proposed government. The president was the sole institutional mechanism for formally nominating a prime minister, but he had to be conﬁrmed by receiving a vote of conﬁdence from the Sejm, as in the cases of Tadeusz

148 Democratic Government in Poland

Mazowiecki in August 1989 (378 to 4, with 41 abstentions) and Jan Krzysztof Bielecki in January 1991 (276 to 58, with 52 abstentions.)39 The president, then, had to be consulted over ministerial appointments before the appointing process could be completed with a second vote by the Sejm, registering conﬁdence in the new Council of Ministers (RM). A threemonth blockage could result in the president dissolving the Sejm and calling new elections. In the case of Mazowiecki, the period of government formation was under three weeks (402, with none against and 13 abstentions) and it was even shorter, barely a week, in Bielecki’s case (272 to 4, with 62 abstentions). However, both Czesl⁄ aw Kiszczak (237 to 173, with ten abstentions) in August 1989 and Waldemar Pawlak (262 to 149, with seven abstentions) in June 1992, found it impossible to form governments, despite receiving fairly ˛ preferred decisive Sejm endorsements as premiers in the ﬁrst vote. Wal⁄ esa’s candidate, Bronisl⁄ aw Geremek, never got beyond an information mission in autumn 1991. The favoured right-centre Sejm candidate, Stefan Olszewski, faced by presidential displeasure, had his nomination delayed during a confused two months of political soundings and intrigue. Olszewski was invested by the Sejm as premier on 5 December 1991 (250 to 47, with 107 abstentions) and his government was conﬁrmed on 23 December (235 to 60, with 139 abstentions). Olszewski’s successor, Hanna Suchocka, was produced by ﬁrmer intra party bargaining and did not suffer from presidential opposition. Her nomination as premier was, therefore, endorsed by the Sejm fairly quickly in June 1992 (233 to 61, with 113 abstentions). It took a month, however, to produce barely sufﬁcient agreement on the conﬁrmation of her government (226 to 124, with 28 abstentions). The second model during the period of the Little Constitution, 1992–97, reﬁned, and even made optional, the earlier process of two separate votes, appointing the premier followed by the RM. The second vote on the RM’s composition generally became a formality once the prime ministerial question has been settled. The realities of party political bargaining and coalition formation were very much simpliﬁed by the presence of an overwhelming SLD-PSL majority; the 1993–95 difﬁculties of cohabitation with a hostile president vanished after Kwa´sniewski’s election in 1995. The Little Constitution speciﬁed the four possible rounds in the appointment process, in much greater detail than previously, in articles 57–60. Basically, a presidentially nominated premier formed his RM and sought an absolute vote of conﬁdence from the Sejm. Failing this, the Sejm would produce a candidate to repeat the procedure. If unsuccessful, the process would be repeated by new presidential and Sejm nominees, but this time a simple majority would sufﬁce. Failure, as previously, could produce presidential dissolution or the appointment of a premier and RM for a six-month period followed by automatic dissolution if the government failed to win a conﬁdence vote. In practice, the SLD-PSL majority meant that few of these

The Executive: Dual or Fragmented? 149

provisions ever came into play. Quite the contrary: Waldemar Pawlak’s replacement by Józef Oleksy in March 1995 presaged the post-1997 situation exactly. It was carried out by a constructive vote of no conﬁdence in the former (285 to 5, with 127 abstentions) under 1992 constitution/article 66.iv followed three days later by a vote of conﬁdence in Oleksy’s RM (272 to 99, with 13 abstentions). The governments of Waldemar Pawlak (November 1993 – 310 to 83, with 28 abstentions). Wl⁄ odzimierz Cimoszewicz (February 1996 – 273 to 87, with 28 abstentions) and Leszek Miller (October 2001 – ) were endorsed straightforwardly by a politically negotiated Sejm majority. The rationalized three-, instead of four-stage 1997 constitutional arrangements need to be examined as they will come into play more clearly in future.40 The president nominates the premier as well as the cabinet proposed by the latter within 14 days of the Sejm being convoked after an election or following the resignation of an outgoing predecessor. The premier then has another 14 days in which to form a government and to gain a vote of conﬁdence from the Sejm through an absolute majority for his exposé and his cabinet’s programme.41 If he fails to do so, the Sejm (in practice political party leaders, although formally 46 deputies) have 14 days to produce a candidate who will repeat the same procedure. Failure to do so produces another presidential nomination, but this time the vote of conﬁdence can be passed by simple majority. The discipline forcing parliament to do so is that if this stage fails again the president now dissolves the Sejm and calls new elections. In practice, deputies and parties are unlikely to face electoral wrath for any such irresponsibility. The 1989–97 experience is unlikely to be repeated in a number of key respects. One can argue that Mazowiecki’s all-party coalition was sui generis although national emergencies or political blockages could conceivably produce something similar to the West German Great Coalition of 1966–69. Two presidential nominees (Kiszczak and Pawlak) gained votes of conﬁdence, but subsequently were unable to either form or gain support for a government. Presidential (or non-political specialist) minority governments like Bielecki’s are also most unlikely to be elected in future. Single-party minority governments, such as Buzek’s after June 2000, may survive for as long as they are tolerated by erstwhile coalition partners who do not actually defeat them in a vote of conﬁdence. One may also hazard a guess that minority coalition governments such as Olszewski’s and Suchocka’s are much less likely than majority coalitions of the 1993–97 and 1997–2000 type. The average duration of the nine (established) governments of the Third Republic (September 1989–October 2001) was 16 months; but the later ones were already slightly longer lived than their predecessors, apart from the initial Mazowiecki exception before Buzek set a new standard for political longevity.

150 Democratic Government in Poland Table 6.1

Duration and type of government

Prime Minister Duration (months) Type

No of parties Sejm support (%)

Mazowiecki Bielecki Olszewski Suchocka Pawlak Oleksy Cimoszewicz Buzek I Buzek II Miller

5 6 4 7 2 2 2 2 1 2

15 11 6 9 16 11 18 33 17 October 2001–

All-party coalition Presidential/Minority Minority coalition Minority coalition Majority coalition Majority coalition Majority coalition Majority coalition Minority Coalition

100 (–) 27 30 65 65 65 57 41 54

The dismissal of government shared many features with the assembly government of the French Third and Fourth Republics, especially during the First Sejm. A government now resigns automatically on the convocation of a new Sejm, on losing a vote of conﬁdence or no conﬁdence, and when the premier decides to resign (or dies), although the RM continues in ofﬁce until a new one is appointed. The great change in the 1997 constitution concerns the constructive vote of no conﬁdence – which is now mandatory – whereas the Little Constitution also permitted simple votes of no conﬁdence.42 Opposition deputies and parties now have to agree on, and name, an alternative premier to the incumbent when submitting a vote of no conﬁdence. Such a motion has to be signed by 46 deputies, seven days notice has to be given, an absolute majority is required, and if it fails, another one cannot be submitted for three months, unless supported by a higher number of 115 deputies. Conversely, a vote of conﬁdence requested by the government only needs a simple majority. As already noted, the constructive vote of no conﬁdence was used by the SLD-PSL ˛ from the process of replacing Premier coalition to exclude President Wal⁄ esa Pawlak with Oleksy in 1995. A parliamentary oddity occurred in the summer of 1997 when backbench PSL deputies laid a constructive motion of no conﬁdence against Cimoszewicz in an unavailing attempt to distance themselves from their SLD coalition partner just before an election. This procedure, and the parliamentary arithmetic, protected Buzek in the Third Sejm. The SLD and UW, even if they wanted to, could not raise the required votes to defeat and replace him – even if they could have agreed on an alternative candidate – without additional PSL support. Governmental recourse to votes of conﬁdence in order to strengthen its collective unity and to put pressure on the Sejm (and coalition parties) to accept its programme and policies, has not developed very strongly in Poland. The 1997 constitution deprives the president of the possibility of

The Executive: Dual or Fragmented? 151

dissolving the Sejm when an incumbent premier, an example being Suchocka in May 1993, loses a simple vote of no conﬁdence (223 to 198, with 24 abstentions). Apart from Suchocka, only Olszewski was actually dismissed by the Sejm on a no conﬁdence vote in June 1992 (273 to 199, with 33 abstentions). Mazowiecki, Bielecki and Cimoszewicz were recalled formally in this way at the end of a Sejm’s term while Pawlak and Oleksy were replaced as the result of decisions taken by the SLD-PSL coalition parties. Outgoing governments at the end of a Sejm’s term, such as Cimoszewicz’s in 1997, do not now have to be formally dismissed by a vote.

The Council of Ministers The 1952 constitution deﬁned the Council of Ministers as the Sejm’s executive arm and as the head of the state administration. The formulation was designed to camouﬂage actual PZPR control during the PRL. The Little Constitution continued the confusion between politics and administration in a different way by leaving the balance and division of power within the dual executive largely to political practice. The 1997 constitution may, however, be read as conﬁrming the Council of Ministers – and the prime minister – as the dominant and central part of the executive. Article 146 states that the council directs the republic’s ‘internal and foreign policy’ as well as ‘the whole of the governmental administration’; it takes all those decisions which are not reserved speciﬁcally to other bodies. The council moved closer towards being the government (rz ad) ˛ but its cabinet aspects still remained somewhat fragmented because of the indiscipline of coalition parties. The terms government, cabinet and executive are not as interchangeable, terminologically, in Poland as they are in Britain. One faces considerable difﬁculties in knowing when to use the right term so the most appropriate practice seems to be to follow Polish usage by adopting the RM abbreviation for the Council of Ministers. The constitution deﬁnes the RM’s functions in a threefold way:43 1. Governing – this involves setting the policy framework and directing and coordinating the state’s domestic, economic, defence and foreign policy spheres. The 1997 constitution strengthened RM control of the executive by limiting presidential capacities – in contrast to both the theory and practice of the Little Constitution which had encouraged fragmentation and institutional rivalry in this area. The RM, has in this sense, become more of a government than ever before. It now directs and coordinates the work of other state institutions, and is a accountable to the Sejm, much more ﬁrmly than previously.44 2. Lawmaking – to the extent that it can issue executive regulations (rozporzadzenie) ˛ when empowered to do so by, and within the limits of,

152 Democratic Government in Poland

statute, all of which have to be published in the Dziennik Ustaw. The communist practice of allowing the Council of State to pass such regulations with the force of law has now been abolished except for the president’s right to resort to them in states of war when the Sejm cannot assemble. The prime minister can now use the council to annul ministerial orders (zarzadzenie).The ˛ power might seem odd to those habituated to the Westminster model but Polish coalition politics makes this a necessary power, or threat, if cabinet cohesion and policy coordination is to be achieved. The RM has, as discussed in Chapter 5, a growing role in initiating legislation, and may utilize the urgent procedure to gain preference for the rapid passing of its laws. Such bills are normally more important than ordinary deputies’ legislation while the government monopolizes the budgetary process and controls ﬁnancial legislation. 3. Implementation – this means applying laws and performing checking up procedures: coordinating and correcting their working, in practice. The RM’s most important task is to lay a report on the fulﬁlment of the budget for debate before the Sejm and to receive an absolutorium (acceptance of accounts vote) on it. The RM also controls all the state institutions, which includes the important provincial level, subordinate to it, through resolutions. Governments during the 1990s have, variously, been accused of lacking political vision and clear programmes as well being of insufﬁcient determination in pushing through political and economic reforms, especially those of privatization.45 The reasons, however, are to be sought not so much in poor administrative procedures as in the lack of united parliamentary and coalition party support. The latter cut short the life of Suchocka’s promising government just as it was about to deliver reform. Pawlak’s government was too ˛ presidentialism and too divided by interbadly led, too distracted by Wal⁄ esa’s nal SLD–PSL conﬂicts to achieve much. Oleksy’s preparatory work, however, bore fruit in Cimoszewicz’s reforms. All the 1993–97 governments stand accused of delaying social and economic restructuring, especially of steel, coalmining and the railways. This, linked with insufﬁcient marketization and the failure to modernize the educational, health and social security sectors and the local administration, inherited from communism, faced the Buzek government with huge tasks. Buzek showed commendable courage and haste in tackling these problems, mainly because of the external pressure of the EU entry negotiations which began ofﬁcially in 1998. On the other hand, his government, like all its predecessors, had little idea of how to tackle the problem of the countryside in any coherent manner. The somewhat despairing and wistful hope was that Brussels would come up with a solution to protect the Polish elite from the wrath of the peasants who were far from quiescent under Lepper. Although economic growth and consumerism was delivered from 1992 onwards, under conditions of growing, yet incomplete,

The Executive: Dual or Fragmented? 153

ﬁnancial stabilization, prosperity was distributed very unevenly, both regionally and socially.46 The Council of Ministers is a collegial body, whose size is not speciﬁed in the constitution. By deﬁnition it is composed of its chairman (the prime minister) and ministers, to which may be added deputy chairmen (deputy prime ministers) and chairs of state committees. Premiers and deputy premiers may hold ministerial ofﬁce at the same time. Buzek headed the Committee on European Integration (KIE) after 1998 (as had Cimoszewicz from 1996 to 1997), while Balcerowicz was also Minister of Finance (1997–2000). The appointment or otherwise of (normally one or two) deputy premiers is formally a matter decided solely by the premier who sets their responsibilities and decides who will act on his behalf. In practice, considerations of coalition party balance and personality are dominant. Only Olszewski did not appoint deputy premiers and instead designated a minister to replace him when necessary. Buzek’s government in 1997 started off with 23 members, which included two deputy premiers (Balcerowicz was balanced by the inﬂuential AWS politician, Janusz Tomaszewski, who was also Minister of the Interior and Administration), 13 departmental ministers, two chairs of state committees and ﬁve non-departmental ministers who ran the RM chancellery, the Government’s Centre for Strategic Studies and the security services, and two charged with preparing the social reform and dealing with the summer 1997 ﬂoods. After the mechanism of administrative divisions (further discussed below) was introduced in 1999, the cabinet shrank to 19 members with the prime minister remaining as minister in charge of KIE. Two new deputy premiers now ran Labour and Finance while 14 departmental ministers oversaw the remaining administrative divisions along with another two whose special tasks were the security services and the centre for governmental studies. The June 2000 reshufﬂe brought in a new ministry of regional development and building while the new deputy premier now combined this with the industry portfolio.47 Miller’s cabinet started out as a highly centralized (and slimmed down) 16. A large number of state bureaux, such as the Main Statistical Ofﬁce (GUS), the State Atomic Agency, the Ofﬁce for State Protection (UOP) and so on are supervised by the premier or a relevant minister. The latter are accountable to the Sejm and also appoint the former’s chairs. The premier may also appoint government plenipotentiaries for a limited period to deal with speciﬁc tasks but these do not enter the cabinet unless speciﬁcally invited. Buzek made seven such appointments in 1997–98, in such ﬁelds as family affairs, social insurance reform, the introduction of universal health insurance and EU membership negotiation. Since the Mazowiecki government, the RM has met, normally weekly and in private, on Tuesdays, although proceedings have begun at different times. Both the constitution and the Law on the RM give the premier the

154

Table 6.2 Size and composition of the Council of Ministers (RM) (on initial formation) Government

No. of deputy–Premiers

No. of departmental ministers

Without portfolio/committee chairs

Total size of RM

Mazowiecki Bielecki Olszewski Suchocka Pawlak Oleksy Cimoszewicz Buzek I Buzek II Miller

4 1 0 2 3 3 3 2 2 3

14+2 17+1 18 18 13+3 16+2 16+2 13+2 14+2 12+3

5+1 1 2 3 2 1+1 2+1 7 2 –

24 20 21 25 19 21 22 23 19 16

NB: Plus (+) denotes a ministerial post held simultaneously by a deputy-premier.

The Executive: Dual or Fragmented? 155

power to direct the council’s work, to chair it and to prepare its agenda, covering the whole range of governmental business. The record of decisions and proceedings is, however, extremely detailed. A public version is normally made available and reported extensively by the mass media. The protocol, including detailed policy-making material, is easily available, notably through the Internet.48 All ministers are bound to attend or to send a representative in case of illness or absence. This rule also applies to some ofﬁcials, such as the NIK and NBP chairs, while other invitees and provincial governors may be summoned in case of need. From 1991–97, a presidential representative was also invited but this – practical as well as courtesy gesture – was discontinued by Buzek. The most important internal and auxiliary bodies assisting the RM were its permanent committees composed of the appropriate ministers in a particular area although ad hoc ones may also be set up. Buzek maintained four of the former, on the economy (KERM), social questions (KSRM), defence (KSORM) and regional development (KRRRM). These cabinet committees prepared legislative and policy decisions and smoothed out political and ministerial disagreements in their ﬁeld so subsequent ratiﬁcation by the full council was, normally, fairly formal. Miller replaced them with a single steering committee (composed of secretaries of state representing each ministry). Whether this would produce tighter central control over the executive machine or become an inter ministerial bargaining committee remains to be seen. Votes in full council are rare and regarded as a last resort if agreement cannot be reached in cabinet committee following inter-ministerial consultation.49 This process is directed by the premier who sends the appropriate documents to ministers. He can consider them as accepted if he does not receive written objections or comments within a set time limit. A wide variety of other councils and groups also advise the RM. The most signiﬁcant innovation is the revamped Legislative Council, composed of legal specialists, established, in its current form, on 1 January 2000. This coordinates the government’s legislative programme. Joint committees bring government and social or group representatives together in a corporate way as in the case of the long-established one with the Roman Catholic episcopacy. Finally, the Committee for the Defence of the Country (KOK), set up in 1967, survived, but rather uneasily, paralleling newer bodies such as the RBN. Since 1990, the college (kolegium) on the security services has been able to ﬁt in better with democratic institutional arrangements.

The emergence of the prime minister During the PRL, the chairman of the Council of Ministers was merely the politburo member assigned by the PZPR to run the state administration which implemented the party’s policy directives. This explains the long

156 Democratic Government in Poland

tenures of Józef Cyrankiewicz (1947–52 and 1954–70) and Piotr Jaroszewicz (1970–80). The ﬁve incumbents of the 1980s (Edward Babiuch, Józef Pi´nkowski, Wojciech Jaruzelski, Zbigniew Messner and Mieczysl⁄ aw F. Rakowski) had shorter incumbencies because of the political turbulence of that decade.50 In the post-1989 democratic system, the issue of dual and shared executive power with the president, which characterized the period of the Little Constitution, has now passed. Under the 1997 constitution, the RM chairman is now a prime minister – similar to the Westminster type in institutional and normative deﬁnition but closer to continental cabinetparliamentary systems on the level of political party and coalition factors. The individual designated by the president as candidate for prime ministership has become much more than a primus inter pares as he actually negotiates the composition of his cabinet with coalition partners. He personally sets out its programme in an exposé and gains the Sejm’s approval for it through a vote of conﬁdence which establishes his political majority. Once conﬁrmed, the prime minister not only directs the work of the cabinet, as previously, but article 146 of the 1997 constitution has strengthened his coordinating and controlling powers over cabinet members. This was a very necessary measure as earlier practice, before the 1996 reform, had demonstrated that the RM was a warring federation of party colonized ministries and bureaux, especially in the struggle over budgetary allocations. It therefore failed to coordinate the state’s policy making very effectively or to show much collective responsibility along British lines.51 The 1996 reform of the administrative centre and law on the RM has now been given constitutional deﬁnition in various respects. The prime minister can issue regulations setting out ministerial competences and areas of activity. Constitutional theory has increased the prime minister’s capacity to deﬁne and check up on ministers’ tasks and to control their output through ﬁxing the RM agenda and determining which decisions it resolves. The one exception is that the president can still summon and chair a Cabinet Council to review the government’s work. Post-1997 practice has, however, shown that this has only publicity value for the president. The prime minister is the head of the state administration, and this takes in the whole of the budding civil service (sl⁄ u˙zba cywilna). Since 2000, the latter has been overseen by the newly established Ofﬁce for Public Administration (Urz ad ˛ Administracji Publicznej). The premier also has wide-ranging and wholly independent appointment powers over secretaries and under-secretaries of state. His autonomous regulation-issuing capacity in the implementation of laws now also includes the annulment of ministerial orders. Up until 1999, ministries were established by individual bills which deﬁned their areas of responsibilities and which, in turn, needed to be changed by subsequent legislation. The reform of the government centre in 1996–97 produced a more ﬂexible principle that was, however, only applied fully in autumn 1999. The RM’s ﬁelds of responsibilities were listed

The Executive: Dual or Fragmented? 157

legally under 32 governmental administrative divisions (dzial⁄ y administracji 52 The great innovation was that the prime minister now has the rz adowej). ˛ sole authority to attribute one or more of these divisions in the form of his orders (rozporzadzenia) ˛ to the care of a ministry except that the budget, public ﬁnance and ﬁnancial institutions have to be assigned together to a single ministry. The divisions assumed additional signiﬁcance as budgetary allocations were now based on them rather than on ministries. These changes were described as a ‘revolution in government’ by Jan Maria Rokita on piloting an amendment to the bill through the Sejm in summer 1999.53 The foregoing factors have strengthened the prime minister in relation to the president, the RM and the state administration.54 Apart from Mazowiecki, all Third Republic prime ministers have been drawn from the Sejm. They have all been political party leaders who have emerged as the result of negotiations between the political parties. One can, therefore, not exclude the possibility that relative unknowns, an example being Suchocka, might be produced by this process. The favouring of non-party or technician ﬁgures would, however, only be brought about by exceptional circumstances which blocked or fragmented the normal negotiation of a political majority in the Sejm. With the bedding down of the democratic system, one can argue that an important factor in Krzaklewski’s poor showing in the 2000 presidential election was his aloof leadership of the AWS. He failed to get involved directly in governmental life despite his chairmanship of the AWS Sejm parliamentary club and Foreign Affairs Committee membership. Buzek was relatively unknown when thrust into ofﬁce by the AWS victory in 1997, but like many of his Fifth Republic equivalents, such as Pompidou or Jospin, he used his ofﬁce to establish a national, and potentially presidential, persona. A major public opinion poll in 1999 conﬁrmed Mazowiecki as the prime minister who had done democratic Poland most good (26 per cent of all respondents) followed by Buzek (13 per cent), Cimoszewicz (8 per cent) and Suchocka (5 per cent). Oleksy (15 per cent), Suchocka, Pawlak and Olszewski were, in descending order, considered to have done the most harm. Buzek and Cimoszewicz were regarded as the most likeable and the most popular current choices for ﬁlling the ofﬁce.55 Buzek was unusual: he remained liked personally, even though 50 per cent of respondents in an OBOP poll in April 1999 considered him to be a bad premier (36 per cent ‘good’) while 62 per cent judged his government to be a bad one (only 28 per cent ‘good’).56

Mechanisms of coalition government About two-thirds of all democratic governments in postwar Europe have been coalition based so this is the dominant norm; single party majority governments are the exception.57 The Polish party system will be discussed

158 Democratic Government in Poland

in Chapter 7. One should note here, however, that the main 1990s cleavage was the tendency to polarize political camps around the pro- and anti-PRL traditions. This process has not produced organizationally stable and cohesive parties; certainly not so in the case of the internally diverse AWS and the post-1997 right and centre generally. The resultant spectrum of parties has blurred the distinction between government and opposition. Although parties naturally want to beneﬁt from the spoils of ofﬁce coalition, cohesion was initially affected by the varied combinations of possible coalition partners and alternative majorities. Kiel⁄ mi´nski’s adaptation of Lijphart’s theory, that parties would seek to form coalitions grouping the minimum number required for a majority, seems an important insight at ﬁrst sight.58 It is, however, not borne out by the fractious behaviour regarding Olszewski’s coalition of the right and centre parties in the First Sejm.59 The concept ﬁts better in Suchocka’s case where the ﬁve-party coalition beneﬁted from the general support of another two parties.60 On the other hand, the 1993, 1997 and 2001 election results produced something like natural coalition partners and simple SLD-PSL, AWS-UW and SLD-PSL majorities. All the governments of the Third Republic have been coalitions but the number of partners, their respective shares of cabinet representation and the signiﬁcance of non-parliamentary ﬁgures such as Finance Minister Grzegorz Kol⁄ odko, has varied according to circumstances.61 Coalition government agreements between the political parties involved have tended to become both more formalized and more detailed.62 The post-1993 SLD-PSL coalition, holding 65 per cent of the Sejm seats, awarded itself about two-thirds of the ministerial portfolios, although it widened its support by bringing in signiﬁcant numbers of independents. It was maintained through three different governments, headed by Pawlak, Oleksy and Cimoszewicz, throughout the Second Sejm.63 The initial SLDPSL coalition agreement of 25 October 1993, agreed that Pawlak should be premier; after he attempted an independent line on ministerial appointments, an annexe strengthened the principle that ministers should be agreed by him on the proposal of the leaders of both parties and their respective parliamentary clubs who would be responsible for maintaining disciplined support for the coalition.64 Policies, in the various ﬁelds, were agreed by various joint working parties which also involved the UP. ˛ however, continued his independent line Pawlak, supported by Wal⁄ esa, over appointments. He provoked crises which caused the resignations of SLD Finance Minister Marek Borowski and Defence Minister Piotr Kol⁄ odzieczyk in 1994. ˛ political offensive against the coalition in late 1994 was counWal⁄ esa’s tered by a new and programmatically more detailed PSL–SLD agreement in February 1995 which agreed on Oleksy as the new premier and Józef Zych as Sejm Marshal as well as on various forms of closer coalition harmoniza-

Table 6.3

Party composition of governments*

CABINET

Solidarity/AWS

PZPR/SLD

ZSL/PSL

SD

KL-D

PC

ZChN

Independent

PL

UD/UW

Mazowiecki Bielecki Olszewski Suchocka Pawlak Oleksy Cimoszewicz Buzek I Buzek II

50 – – – – – – 74 100

16.7 – – – 35.2 47.3 33.3 – –

16.7 – – – 29.6 21.1 38.1 – –

12.5 4.7 – – – – – – –

– 19 – 16 – – – – –

– 4.7 20 – – – – – –

– 4.7 15 20 – – – – –

– 62.1 50 16 35.2 31.7 28.6 – –

– – 10 16 – – – – –

– – – 20 – – – 26 –

Source: Antoszewski and Herburt, Leksykon politologii, annexe E. *Composition as at beginning of government.

159

160 Democratic Government in Poland

tion.65 Despite this approach, partisan conﬂicts within the coalition gained repeated public expression but were not so bitter as in Pawlak’s time. Cimoszewicz’s replacement of Oleksy in February 1996 was also accompanied by another PSL–SLD agreement which revised and updated the 15 February 1995 document. This did prevent renewed public disputes and attempts by the junior PSL coalition partner to maximize its political inﬂuence and clientele and to maintain an image distinct from that of the SLD. PSL demands that the reform of the administrative centre be accompanied by the formation of a new government were rejected. The dismissal and replacement of Jacek Buchacz, Minister for Foreign Trade in autumn 1996, for damaging Poland’s ﬁnancial interests, was, however, carried out solely by Cimoszewicz, with Kwa´sniewski’s agreement. The lack of consultation aggravated by internal PSL leadership disputes, and policy disputes with the SLD, also led to Roman Jagieli´nski’s departure from the Ministry of Agriculture. The coalition was, therefore, already half moribund by the time the PSL moved a no conﬁdence vote in the government of which it was technically a part in August 1997. The three SLD–PSL coalitions of 1993–97, held together as the SLD, managed to dominate for most of the later period, especially after ˛ was president, Pawlak Kwa´sniewski was elected president. As long as Wal⁄ esa beneﬁted from presidential support in the sphere of foreign, domestic and internal security – matters from which the SLD was effectively shut out. The exclusion of right and centre parties by the 1993 election, however, meant that the PSL had no alternative coalition partners. Its chosen strategy was to maximize the beneﬁts of ofﬁce holding but this tarnished it with charges of corruption, as in the case of the foreign trade companies set up by Buchacz and the contract for the computerization of the ministries which it controlled. The AWS–UW coalition controlled 56.7 per cent of the Sejm seats, although the former was clearly much stronger and more dominant from the outset than the SLD had been. This was reﬂected in the proportional distribution of ofﬁces in the government, formed, after much internal AWS wrangling, by its nominee Jerzy Buzek. The UW leader, Leszek Balcerowicz, became his unofﬁcial deputy, through appointment as deputy premier and Minister of Finance. The AWS awarded itself ten ministries (plus seven other cabinet, non-portfolio, posts) but the six UW ministries included the inﬂuential ones of ﬁnance, foreign affairs (Bronisl⁄ aw Geremek), defence (Janusz Onyszkiewicz) and justice (Hanna Suchocka). A detailed coalition agreement, signed on 11 November 1997, attempted to avoid the divisions – especially over resignations and new appointments – which had plagued its predecessor, by improving the parliamentary club and political party mechanisms of consultation.66 The division of ministerial ofﬁce in 1997–2000, involving the balance of an AWS minister by UW deputy ministers and vice versa, caused much controversy and a fair amount of

The Executive: Dual or Fragmented? 161

haggling.67 The same principle was applied to provincial governorships, with the AWS heading 12 (after the reform) and with UW deputies gaining the remaining four. The AWS also took the posts of Marshals of both the ˙ nski) and Senate (Alicja Grze´skowiak) and 14 committee Sejm (Maciej Pl⁄ azy´ chairmanships, ﬁve for the UW and six for the opposition. Appointment and policy issues were, initially, smoothed out quite successfully by means of AWS and UW leadership consultations. Good relations were established between Buzek and Balcerowicz, supported, after January 1998, by closer and more regular meetings at other levels.68 The real threat in the coalition’s ﬁrst two years was not so much disputes between the coalition partners – although there was friction over the major local government, health, social security and educational reforms – as internal divisions within the major AWS coalition partner. In the ﬁrst year of the coalition’s life alone, 30 public conﬂicts were noted between the partners, but none blew up into a serious storm threatening its existence.69 Even a major event like the voting in favour of a family allowance in November 1998, strongly opposed by the government, by 147 out of 187 AWS deputies (and widespread AWS ministerial abstention), could initially have been regarded, in democratic terms, as a backbenchers’ revolt. The recurrence of such public divisions gradually wore down the coalition’s capacity for achieving a united front. A warning signal occurred in summer 1999 when the UW allied with the SLD and PSL to appoint Jerzy Braun as KRRiTV chair. Conﬂict was not halted by yet another agreement on renewing internal consultative mechanisms in October 1999.70 In general, Balcerowicz’s desire for ﬁnancial responsibility on budgetary questions was challenged, repeatedly, by sectional interests within the AWS. This built up to his public dispute with a cabinet colleague, Jerzy Kropownicki, the AWS minister in charge of the Centre for Strategic Studies, over the economy’s prospects.71 The coalition fell apart during early 2000 in disputes over appointing the chair of the Institute of National Memory and the Spokesperson for Citizens’ Rights and in numerous examples of voting indiscipline. The ﬁnal straw came with the breakup of the AWS-UW coalition in Warsaw’s Central Commune and Buzek’s instalment, in May 2000, of a Commissioner to direct its affairs. The UW withdrew from the coalition and its ministers from the government immediately after that. The UW tolerated the continuation of the Buzek government as a replacement, in a constructive vote of no conﬁdence would have required them to agree such an individual with the SLD and PSL. Apart from AWS voting indiscipline, caused by the ﬁssiparous character of its Solidarity, ZChN, SK-L and KPN components, the party faced Buzek’s coalition with another major, and in the end fatal problem. The AWS leader, Marian Krzaklewski, remained outside the government. He never succeeded in becoming a dominant parliamentary ﬁgure but basic policy decisions were nevertheless taken by him completely outside these institu-

162 Democratic Government in Poland

tions. This political aloofness confused and extended the decision-making process during 1997–2000 and weakened Buzek’s standing and capacity to get things done enormously. A striking example of divided loyalties occurred in September 2000 when the AWS parliamentary club favoured the shortening of the working week to 40 hours while the Buzek government, supported by the UW which had just left his coalition cabinet, favoured the retention of the 42-hour working week.72 While majority party political support in Parliament is essential to a government’s survival and policy making effectiveness, public opinion is an increasingly important factor which conditions the latter. Given the depth of the socioeconomic transformation during the 1990s, it was difﬁcult for governments to satisfy social expectations. All governments, therefore, suffered major falls in public support between assuming and leaving ofﬁce. The greater the expectations, the more dramatic the decline, most notably in Mazowiecki’s case, where his 81 per cent support on taking over in the full ﬂush of optimism of the regime change in September 1989, dwindled to 28 per cent on leaving ofﬁce after his humiliation by Tymi´nski in the 1990 presidential election. The respective percentages of votes for the other governments were as follows: Bielecki 41–31, Olszewski 57–20, Suchocka 59–33, Pawlak 58–38, Oleksy 64–55 and Cimoszewicz 59–48.73 In October 1997, only 37 per cent thought that Buzek’s government would be an improvement on its predecessor; its initial very reserved approval rating of 33 per cent, however, rose to 49 per cent once reforms were mooted before falling back to close to its initial level by July 1999 as strikes and demonstrations were mounted against them by socioeconomic losers.74 The perception also seems to have spread during the late 1990s that economic growth was affected more by external than by governmental factors, reﬂecting growing cynicism and apathy towards politics.

From Ofﬁce of the Council of Ministers (URM) to cabinet ofﬁce? The Ofﬁce of the Council of Ministers (URM) acted as something like a ministry for state administration as well as cabinet ofﬁce and secretariat from 1985 onwards. There was great debate in the early 1990s about how to separate out URM’s tasks. The problem was that it was something like a super ministry dealing with varied tasks, going well beyond, and often having nothing to do with, servicing the prime minister and the RM and assisting them in their administrative tasks. Suchocka’s proposed reform developed out of work initiated from January 1992 onwards by Olszewski. But it was cut short at the last minute in 1993 although a package of laws – establishing a civil service corps and a ministry of administration – had been prepared. Much work and discussion had taken place, notably in a Group of Experts chaired by URM Head Jan Maria Rokita, on a thoroughgoing

The Executive: Dual or Fragmented? 163

reform of central and local government. Rokita blamed the economic crisis on the weakness of government and territorial administration. He envisaged a clear division between the ‘political’ leadership of a minister, assisted by two deputy ministers, who would leave with every governmental change, and the permanent non-political directors of the civil service administration.75 Michal⁄ Kulesza, Suchocka’s main expert in this ﬁeld, summarized the reform’s general aims: these were the deﬁnition of the post-communist role and place of the central administration, the functions and structures of ministries, the reorganization of local government, the development of a non-political and honest civil service, and the formation of a separate ministry of public administration.76 More speciﬁcally, Jerzy Wiatr noted that the speciﬁc measures involved the establishment of an integrated central government ofﬁce, a professional civil service and an Ofﬁce for Public Contracts. Public administration would be decentralized by reverting to the intermediate pre-1974 county or powiat territorial level while great hopes were laid on computerization.77 One can add that Suchocka’s liberal team were heavily inﬂuenced by the British example and wished to strengthen the premier within the cabinet while producing modern and ﬂexible ministries. The process of establishing civil control over the military, initiated by Suchocka, was completed by a package of laws during 1996–97 and conﬁrmed by the 1997 constitution. The premier gained the right of supervising the ministries of defence which now also controlled the Chief of the General Staff and foreign as well as interior affairs. The URM was abolished, losing some of its former functions to the restructured ministry of the interior and administration (MSWiA). This new body became a super ministry which also controlled public administration, the police, ﬁre service and border guards. The net result of the 1996–97 reform of central administration was to replace seven ministries and agencies with eight new ones.78 The new chancellery organizes the work and services the RM and all its associated organs. It is a powerful instrument for transforming party political and parliamentary decisions into administrative acts.79 Its Head continues to be an important ﬁgure, with ministerial rank. He or she is, however, now fully answerable to the premier and the institutional power base is much weaker than that of his URM predecessor. The premier appoints and dismisses to this ofﬁce as well as appointing its secretaries of state, and controls the chancellery’s work. The young Wiesl⁄ aw Walendziak (born 1962), achieved great political notoriety as this body’s ﬁrst Head under Buzek, thus confusing the ofﬁce’s political and administrative functions.80 Walendziak was delegated by Buzek to sort out differences within the coalition, particularly over appointments to the civil service and territorial selfgovernment. His more politically restrained successor, Jerzy Widzyk, was appointed in March 1999 as part of a mini purge of eight ofﬁcials designed to refresh the chancellery.81

164 Democratic Government in Poland

The chancellery is a complex organization made up of 21 units employing 1679 in early 1999;82 the most important divisions are the premier’s Political Cabinet and Secretariat, the Government’s Information Centre and the secretariats for the Legislative Council and the College on the Security Services. The remaining departments and bureaux assist the premier in his varied functions – these include direct control of the National School of Public Administration (KSAP) as well as the numerous state agencies and bodies such as GUS mentioned above.83 The Centre for Strategic Studies, incorporated in the chancellery in 1999, is both a Think Tank and the premier’s instrument for strategic planning and programming. The chancellery also publishes the Dziennik Ustaw and Monitor Polski which gives it a strong say over when legislation will come into force.

Ministries Ministers are individually accountable to the Sejm for their departmental responsibilities and can face votes of no conﬁdence. These have to be signed by 69 deputies and also have to be referred to the appropriate Sejm committee. A successful vote automatically forces the minister to offer his resignation to the president, who has to accept it. The latter is also bound to accept the premier’s nomination for a replacement. Ministers may, but do not have to be, parliamentarians (as in the British case) but if they are they do not have to resign their seats (as in France). They are assisted in running their ministries by secretaries and under-secretaries of state, appointed by the prime minister on their proposal and whose numbers vary according to the ministry. Since 1996, they have been divided into politically nominated ﬁgures – who compose their political cabinet who resign along with ministers – and administrative ones who remain, and who are encouraged to behave as civil service functionaries. Administrative structures were standardized in the 1999 reform and ministries all now have the minister’s political cabinet along with ten identical organizational units. Ministers can issue orders (zarz adzenie) ˛ but, unlike prime ministerial regulations, they are only binding internally, within their own ministries. The Law of 1 January 1997 centralized governmental control over the economy by replacing three ministries with a single Ministry for Industry. A new Ministry for the Treasury assumed the responsibilities of the Ministry of Ownership Transformation. These two new ministries thus produced a signiﬁcant counterbalance to the previously all-powerful Ministry of Finance. As we have seen, the new MSWiA also emerged as a huge and powerful body. The last of the 1996 institutional changes concerned the establishment of a Government Committee on European Integration (KIE) to integrate and coordinate Poland’s relations with the EU and to prepare for full membership. Most ministries are departmentally based and cover traditional spheres such as foreign affairs, defence, education or agriculture.

The Executive: Dual or Fragmented? 165

A small number of ministers without portfolio direct such bodies as the Centre for Strategic Studies or the Science Committee. The concepts of collective and individual cabinet responsibility have assumed a very distinct character in Poland. They are not discussed much in the academic literature, possibly because they are not yet deeply ingrained in the country’s political practice and mores. Given the looseness of coalition arrangements, and the indiscipline of political parties, it is hardly surprising that collective cabinet responsibility has been breached as often as it has been observed. This is true despite article 157.i of the 1997 constitution which states unequivocally that ‘all members of the RM bear collective responsibility before the Sejm for all the RM’s activities’.84 Buzek’s increased constitutional powers over ministers marked a considerable tightening up, but his government was plagued by dissenting votes both by the UW and by the minor partners within the AWS. He was able to reshufﬂe his government in spring 1999, changing four ministers and the Head of the new chancellory Walendziak. The intensity of inter- and intraparty squabbles, however, demonstrated the difﬁculties of achieving a Chancellor-like role in practice.85 Given the coalition distribution of portfolios, it has also proved difﬁcult to implement the idea of individual ministerial responsibility. From 1993 onwards, prime ministers have normally had to replace outgoing incumbents with new ministers drawn from their predecessor’s party. Mirosl⁄ aw Handke (AWS), the Minister of National Education, resigned in the summer of 2000 because of a mistake in calculating the funds required for the education budget. A rare example of what at ﬁrst sight seemed to be high standards in Polish public life, this was taken, probably mistakenly, by some as establishing a positive precedent regarding ministerial responsibility. In reality, Handke resigned because had earlier caved in to teachers’ demands for a Charter which promised too-high salary increases and he thus found his position untenable. The issue of the responsibility of junior ministers also remains hazy. An example of a Polish move towards the British model of strong prime ministerial control in this area, which cause public reverberations within the governing coalition, was Buzek’s dismissal of deputy minister of Justice, Leszek Piotrowski (AWS-PC senator, 1989–93). He had criticized his ministerial superior, Hanna Suchocka (UW) publicly for insufﬁcient supervision of the procuracy (the state prosecuting arm) in Warsaw. The real complaint ˛ right was that it, along with the UOP, had investigated the anti- Wal⁄ esa and supported the left over the Oleksy affair.86 On the other hand, party irresponsibility was demonstrated, yet again, in January 2000, by 74 AWS deputies signing a no conﬁdence motion in their own Treasury Minister, Emil W asacz, ˛ and forcing his resignation.87 The educational and professional backgrounds of ministers reﬂect the characteristics of the deputies and senators and is set out in Chapter 5.

166 Democratic Government in Poland

They are overwhelmingly university educated, of professional backgrounds and predominantly male while their pathways to power are predominantly through political parties and parliament .There are exceptions, an example being Grzegorz Kol⁄ odko, the extremely inﬂuential Finance Minister from May 1994 until January 1997, and these reﬂect the transitional and fragmented character of ministerial appointments under the Little Constitution. Another highly signiﬁcant feature is that ministers do not form a cohesive group or even career option as they are rarely reappointed to another ofﬁce within the same, or even a successor, cabinet. The major exceptions to the latter rule are Skubiszewski, who had a privileged position as Foreign Minister, serving consecutively in the early (four) governments of the Third Republic, and Balcerowicz, who repeated his stint as Finance Minister from 1989–91 (two cabinets) during 1997–2000. However, Buzek’s government included a number of ‘young wolves’ in their 30s such as Ryszard Czarniecki and Wiesl⁄ aw Walendziak, while others, such as Pawel⁄ Piskorski, Mariusz Kaminski and Kazimierz M. Ujazdowski, held inﬂuential parallel positions.88 This suggested that they had every possibility of establishing long political careers alongside slightly older ﬁgures such as Maciej ˙ nski and Jan Maria Rokita.89 Pl⁄ azy´

What sort of executive in Poland? The old academic view, exempliﬁed by John Mackintosh’s study of the British cabinet in 1968 was that governmental decision and policy making was heavily institutionally based.90 But Mackintosh also distinguished between formal and real power and traced out the cabinet’s changing pattern of relationships with an apparently ever more inﬂuential, if not ‘presidential’, prime minister, as well as with parliament and the civil service. The increasing penetration of society by pressure groups, as well as public opinion, also developed apace. The policy community school noted the dependency, as a consequence, of ministers and politicians upon the technical knowledge and information possessed by administrators and interest groups.91 Specialized groups of decision makers thus developed in different sectors, cutting across older institutional and societal boundaries. Such fragmentation tendencies undermined the entrepreneurial style of even such a dynamic political leader as Margaret Thatcher in 1980s Britain.92 The other arm of these new approaches identiﬁed the core executive where power had allegedly become centralized.93 What Rhodes calls the ‘hollowing-out’ of the state affected both governmental capacities and coherence.94 A leading symposium on the subject identiﬁes a resulting democratic deﬁcit as obsolescent concepts of parliamentary accountability are no longer able to cope with new governmental processes.95 The signiﬁcance for Poland of this wider academic debate on executive segmen-

The Executive: Dual or Fragmented? 167

tation is that its post-1989 fragmentation in governmental decision making was caused, initially, by a conscious democratization effort to separate and balance power out. This was an understandable reaction to the uniﬁed and highly centralized processes of the communist autocracy. The cost was that it made the delivery of reform more difﬁcult. Poland, however, now also faces the problems sketched out above which affects European cabinet and parliamentary governments generally. The reactions have been varied, depending upon a wide range of factors speciﬁc to each political system; but extensive similarities have also been discerned which help to situate Poland’s problems in a comparative context.96 Western academics identify numerous models of government (presidential, ministerial, prime ministerial, bureaucratic, party and legislative).97 These are normally deﬁned in terms of the dominance of the key institution but actual distributions of power are rather more confused. Twentieth-century Poland has been characterized by a strongly legalbureaucratic and institutionally based national style of decision making. Some have attributed this to the authoritarian inheritance of Russian and Prussian rule during the partition period and the consequent weakness of civil society – aggravated by the destruction of two world wars and incomplete modernization under the PRL. Others point to the more legal-rational and judicial types of codiﬁed bureaucracy which produced a strong rule of law tradition in ‘Austrian’ Poland. Finally, others emphasize democratic models drawn most notably from French sources, both Napoleonic and Third Republic, intermixed with growing, although until the 1990s still largely subsidiary, British, American and even Scandinavian inﬂuences. Where power lies in democratic Poland, and how one sets about identifying it, is, therefore, by no means an easy task. The uniﬁed communist party-state leadership and central decision-making apparatus has now been conﬁned to the dustbin of history. As we have seen, the transitional strong presidential executive arrangements agreed at the Round Table and embodied in the 1989 constitutional amendments proved short lived. If anything, Mazowiecki’s period can be characterized as one of strong prime-ministerial-cabinet government. This dominated a largely subservient parliament, president and state machine, with clear reforming policies while no challenges could, as yet, be mounted by emerging political parties and a weak public opinion. The second phase, of dispersed political power and fragmented policy-making during the life of the Little Constitution, looks highly unappealing at ﬁrst sight. But it proved to be an essential period of political institutionalization when the various democratic bodies (parliament, governmental organizations, parties, the civil service, pressure groups and the mass media) crystallized and established their internal structures and procedures. The Polish elite were also able to grope gradually and pragmatically towards achieving compromise balances between their mutual relationships – balances which have been embodied in the 1997

168 Democratic Government in Poland

constitution. This, building on the 1996 reform of the centre and the constitutional deals, were given a more deﬁnitive shape by Buzek’s reforms, especially in terms of the territorial one, and his more challenged attempt to institutionalize a prime-ministerial-cabinet style of government. The relationship between constitutional frameworks and institutional forms and procedures on the one hand and governmental performance and efﬁciency on the other is far from clear. The older view was that singleparty disciplined majority cabinet government of the British type was most likely to produce strong and stable government. The perception has spread, however, that it is not so much coalition government per se which produces weak, incoherent and unstable policy making as certain types and conditions of coalition rule. The four to seven party coalitions under the economic crisis conditions of 1991–93 and before democratic rules and habits had bedded down, were bound to be weaker than their two party successors after 1993. The former’s problems were also aggravated by lack of control over the legislative process since deputies could sabotage policies or force through discordant measures. On the other hand, broader-based coalition governments may be better than single-party ones at maintaining social support during the post-election periods of what Lord Hailsham called elective dictatorship. Government stability and political longevity, often bought at the price of the political stagnation which in the French Fourth Republic became known as the Queuille phenomenon, is no guarantee that necessary policies will be introduced rather than postponed.98

Notes 1 Cf. Jerzy Stembrowicz, Rada Pa´nstwa w Systemie Organów PRL (Warsaw: Wydawnictwo Prawnicze, 1968); Wiesl⁄ aw Skrzydl⁄ o, Rada Pa´nstwa PRL (uwagi de lege ferenda), Pa´nstwo i Prawo, XXXVIII, no. 3 (March 1983). 2 See Antoszewski and Herburt (eds), Polityka w Polsce w latach 90, p. 112. 3 For the massive literature see works inter alia by Linz, Valuenzela, Lijphart, Mainwaring, Baylis, Shugart and Carey as well as discussions of Dual Executives by Jean Blondel and Richard Rose. 4 Maurice Duverger, A New Political System Model – Semi-presidential Government, in Arend Lijphart (ed.), Parliamentary versus Presidential Government (Oxford: Oxford University Press, 1992). 5 See System rzadów ˛ parlamentarno-gabinetowych, system rzadów ˛ prezydenckich oraz rozwiazanie ˛ po´srednich, in Michal⁄ Domagal⁄ a (ed.), Konstytucyjne formy rzadów ˛ (Warsaw: Wydawnictwo Sejmowe, 1997). In the same volume, see also discussions of presidentialism by Andrzej Pullo and the application of cabinetparliamentary systems in Polish constitutionalism by Witold Brodzi´nski. 6 Cf. Wiesl⁄ aw Skrzydl⁄ o, Ustrój polityczny Francji (Warsaw: PWN, 1992). 7 See Jerzy J. Wiatr, Parlamentaryzm czy Prezydencjalizm: stary spór i nowe do´swiadczenia pa´nstw posocjalistycznych in Barbara Starzewska and Michal⁄

The Executive: Dual or Fragmented? 169

8 9 10 11 12 13

14 15 16 17 18 19 20 21

22 23 24

25 26 27 28

29 30

31 32

Jankowski (eds), My´sl polityczna od historii do wspól⁄ czesno´sci (Kraków: Ksi˛egarnia Akademicka, 2000) See Jerzy J. Wiatr, Poland’s three Parliaments in the Era of Transition,1989–1995, International Political Science Review, XVIII (1997), 443–50. See Ryszard Mojak, Instytucja Prezydent RP w okresie przekstal⁄ ce´n ustrojowych, 1989–1992 (Warsaw: Wydawnictwo Sejmowe, 1994), Ch. 3. Cf. Tadeusz Szymczak, Instytucja Prezydenta RP wedl⁄ ug noweli kwietnowej i w praktyce, Pa´nstwo i Prawo, XXXIV, no. 10 (October 1990). See Piotr Nowina-Konopka, Prezydentura powsciagliwa, ˛ Zycie Warszawy, 10–11 June 1990. See The Constitutional Act of 17th October 1992, op. cit., p. 17 ff. Presidential pardons were largely used as a way of clearing the prisons in between periodic amnesties. Wal⁄ esa ˛ issued 3,680 pardons (1990–95) compared to 3,252 by Kwa´sniewski in his ﬁrst term (1995–2000). See Wprost, 4 March 2001, pp. 20–24. As some releases were followed by notorious and embarrassing cases of recidivism it was proposed that an independent Pardons Committee should be established. See Mojak, op. cit., p. 314. Ibid., p. 318. See Garlicki, Polskie prawo konstytucyjne, op. cit., pp. 215–16. See Skrzydl⁄ o, Konstytucja RP, op. cit., p. 126. See Gazeta Wyborcza, 9–10 September 2000, p. 3. See Millard, Anatomy of the New Poland, op. cit., pp. 150–1. See Connor and Pl⁄ oszajski, The Polish Road from Socialism, op. cit., pp. 243–4. But see Kiszczak, General Kiszczak mowi … prawie wszystko, op. cit., pp. 278–9 on the growing role of his eventual civilian successor at the interior ministry, deputy–minister Krzysztof Kozl⁄ owski. Cf. Geremek, La Rupture, op. cit., pp. 265–79. Krzysztof Jasiewicz, Poland: Wal⁄ esa’s ˛ legacy to the presidency, in Ray Taras (ed.), Postcommunist Presidents (Cambridge: Cambridge University Press, 1997). With 78 per cent, Wal⁄ esa ˛ led Pope John Paul II (65 per cent), Kuro´n (40 per cent), Mazowiecki (36 per cent), Wyszy´nski (24 per cent), Michnik (21 per cent) and Jaruzelski (19 per cent) in a Pentor poll. See Wprost, 17 May 1998, p. 28. See Rzeczpospolita, 25 February 1991, p. 3. See Dudek, Pierwsze lata III Rzeczypospolitej, op. cit., pp. 135–45. See New York Review of Books, 20 December 1990. During his state visit to Germany in April 1992 Wal⁄ esa ˛ muttered aloud about chamber pots, for reasons best known to himself, when meeting members of the Bundestag Committee on Foreign Affairs. See Zycie Warszawy, 4–5 April 1992. See Dudek, op. cit., pp. 192–223. See Jasiewicz, op. cit., pp. 152–4. On the Drawsko lunch and Wal⁄ esa’s ˛ questionable links with the ofﬁcer class in 1994 see Mieczysl⁄ aw Ziema´nski, Wodowanie admiral⁄ a; z Admiral⁄ em Piotrem Kol⁄ odzieczykiem romawia … (Warsaw: Spotkania, 1995). See Dudek, op. cit., Ch 11. Wal⁄ esa’s ˛ defeat and declaration that he would have to return to work as an electrician in the Gda´nsk shipyard necessitated the regulation of pensions for expresidents. The 1996 law granted Jaruzelski, Wal⁄ esa ˛ and Ryszard Kaczorowski, the last émigré president, a lifetime pension set at half the level of the salary of an incumbent as well as various medical and other beneﬁts. See Witkowski, et al. Prawo konstytucyjne, pp. 294–5.

170 Democratic Government in Poland 33 Dudek, op. cit., p. 312. 34 For uncritical appreciations see Vojtek Zubek, Wal⁄ esa’s ˛ leadership and Poland’s transition, Problems of Communism, XL, nos 1–2 (January–April 1991), 69–83; The eclipse of Wal⁄ esa’s ˛ political career, Europe-Asia Studies, IL (January 1997), 107–24. 35 See Bayliss, op. cit., pp. 297–323. 36 See Gazeta Wyborcza, 22 April 1999, p. 5. 37 Cf. Jarosl⁄ aw Kurski, Lech Wal⁄ esa: ˛ Democrat or Dictator? (Boulder CO: Westview Press, 1993), pp. 119–20. 38 Cf. Wprost, 8 March 1998, p. 22. One might note that ex OPZZ head Ewa Spychalska found refuge there as adviser on trade union questions after the AWS-UW government had recalled her from the Minsk embassy. 39 See Chru´sciak, Polski System Polityczny w Transformacji, pp. 210–13, especially the tables on Sejm voting ﬁgures on p. 212. 40 See Garlicki, Polskie prawo konstytucyjne, op. cit., pp. 237–43. See also Skrydl⁄ o et al., Polskie prawo konstytucyjne, op. cit., pp. 342–7; Witkowski, Prawo konstytucyjne, op. cit., pp. 304–8. 41 Under the Little Constitution candidates for ministers were interviewed by the appropriate Sejm committees but this practice was discontinued by the 1997 constitution. Cf. Garlicki, Polskie prawo konstytucyjne, op. cit., p. 240. 42 On the earlier practice see Wojciech Sokolewicz, Odpowiedzial⁄ no´sc´ parlamentarna Rzadu ˛ RP (votum zaufania, votum nieufno´sci, absolutorium) (Warsaw: Sejm Chancellery – BsiE, 1993). 43 See Witkowski et al., Prawo Konstytycyjne op. cit., p. 301 ff. 44 Some Polish specialists, like Witkowski, separate this out while others, like Skrzydl⁄ o, identify control of the administration as the fourth function. 45 See Andrzej Jabl⁄ o´nski, Rzad ˛ i administracja publiczna, in Antoszewski and Herburt, Polityka w Polsce w latach 90, op. cit., p. 149. 46 See Grzegorz W˛ecl⁄ awowicz, Contemporary Poland. Space and Society (London: UCL Press, 1996). 47 See Rydlewski, Rz adzenie ˛ koalicyjne w Polsce op. cit., pp. 74–5. 48 See http://www.kprm.gov.pl. 49 I am extremely grateful to Dr Aleksander Proksa, then RM Secretary, for clarifying these aspects in a long interview in spring 1999. 50 Cf. Sanford, Poland, in McCauley and Carter, op. cit. 51 See T.J. Toonen, Analysing Instutional Change and Administrative Transformation, Public Administration, LXXI (1993), 151–60. 52 See Rydlewski, op. cit., pp. 73–4. The original divisions were: public administration; architecture and building; budget; public ﬁnance; economy; maritime economy; ﬁnancial institutions; European Integration; culture and national inheritance; physical culture and sport; communications; regional economy and housing; science; national defence; education and learning; labour; agriculture; development of the countryside; regional development; agricultural markets; state treasury; justice; higher education; religious cults; social security; foreign affairs; health. 53 See Gazeta Wyborcza, 21 May 1999, p. 7. 54 Cf. Superpremier, Wprost, 28 December 1997. 55 See Parada premierów, Gazeta Wyborcza, 8–9 May 1999, pp. 1 and 10–12. 56 See Gazeta Wyborcza, 22 April 1999, p. 5. 57 See Tworzenie i utrzymanie koalicji gabinetowych, in Andrzej Antoszewski and Ryszard Herburt (eds), Demokracje zachodnioeuropejskiej (Wroclaw: WUWr, 1997).

The Executive: Dual or Fragmented? 171

58

59 60 61 62

63 64

65

66 67 68 69 70 71

72 73 74 75 76 77

78 79 80 81 82 83 84 85 86 87 88

Cf. L. Dodd, Coalitions in Parliamentary Government (Princeton: Princeton University Press, 1976). See Zbigniew Kiel⁄ mi´nski, Teorie zwycieskich ˛ koalicji w demokracji parlamentarne, in Zbigniew Kiel⁄ mi´nski and Tadeusz Mol⁄ dawa (eds), Parlament w demokracjach zachodnich (Warsaw: UW INP, 1992). See Sl⁄ awomir Patyra in Marek Chmaj and Marek Zmigrodzki (eds), Kabinety koalicyjne w Polsce, 1989–1998 (Lublin: Wydawnictwo UMC-S, 1998). See Monika Kowalska and Marek Zmigrodzki, ibid. See Rydlewski, op. cit., Ch. 2. The SLD-UP and PSL negotiated a similar agreement in early October 2001 which led to the latter’s leader, Kalinowski becoming deputy premier and minister of agriculture. See chapters by Sokol, Skrzydl⁄ o and Dziemodok and Szmulik, in Chmaj and Zmigrodzki, op. cit. See Porozumienie koalicyjne PSL-SLD z 1993r, in Informacja o pracy Klubu Parlamentego SLD od poczatku ˛ II kadencji Sejmu i III Senatu RP do 31 grudnia 1993r. (Warsaw: SLD Parliamentary Club Bureau, January 1994, nos 3–4). See Porozumienie koalicyjne PSL-SLD z 1995r, in Informacja o pracy Klubu Parlamentego SLD w pierwszym kwartale 1995r (Warsaw: Warsaw: SLD Parliamentary Club Bureau, April 1995, no. 11). Published in Rzeczpospolita, 12 November 1997, p. 3. See Wprost, 7 December 1997, pp. 31–2. See Rydlewski, op. cit., pp. 50–51. See Polityka, 19 September 1998, pp. 20–22. See Gazeta Wyborcza, 11 October 1999. Kropownicki’s demotion from ministerial rank as a result of the 1999 Law on Administrative Divisions provoked further ZChN discontent within both the AWS and the Buzek coalition government. See Gazeta Wyborcza, 8 September 2000, p. 4. OBOP polls cited in Jabl⁄ o´nski, op. cit., p. 155. See Zagórski and Strzeszewski, Nowa Rzeczywisto´sc´ , op. cit., pp. 69–76. See Gazeta Wyborcza, 16 April 1992. See Michal⁄ Kulesza, Options for Administrative Reform in Poland, Public Administration, LXXI (1993), 33–40. See Jerzy Wiatr, The Dilemmas of Reorganising the Bureaucracy in Poland during the Democratic Transformation, Communist and Postcommunist Studies, XXVIII (1995). See Rzeczpospolita, 31 December 1996 – 1 January 1997. See Izdebski and Kulesza, Administracja publiczna op. cit., pp. 133–4. See Gazeta Wyborcza, 13 November 1997. See Wprost, 14 March 1999, pp. 23–4. See Wprost, 31 January 1999, p. 33. Some bodies such as CBOS, the ex-government public opinion polling-bureau, have now been privatized. Skrzydl⁄ o, Konstytucja RP, op. cit., p. 113. Wprost, 4 April 1999, pp. 21–3. Gazeta Wyborcza, 29 April 1999, p. 4 and 30 April – 3 May 1999, p. 3. His successor, Maciej Chronowski, resigned for more personal-political reasons in March 2001. The latter resigned as Minister of Culture in July 2001 in support of his colleague Lech Kaczy´nski (AWS-PC) who had just left the Ministry of the Interior. These

172 Democratic Government in Poland

89 90 91 92 93 94 95

96 97 98

constituted manoeuvres within the AWS and centre-right in the run-up to the 2001 election. Wprost, 23 November 1997, pp. 22–4. John Mackintosh, The British Cabinet (London: Methuen, 1968). Jeremy Richardson (ed.), Policy Styles in Western Europe (London: George Allen & Unwin, 1992), pp. 9–11. See Jeremy Moon, Innovative Leadership and Policy Change. Lessons from Thatcher, Governance, VIII (1995). See R. A. W. Rhodes and Patrick Dunleavy (eds), Prime Minister, Cabinet and Core Executive (London: Macmillan – now Palgrave Macmillan, 1995). See R. A. W. Rhodes, ‘The Hollowing-Out of the State’, Political Quarterly, LXV (1994), 138–51. See Patrick Weller, Herman Bakvis and R. A. W. Rhodes (eds), The Hollow Crown. Countervailing Trends in Core Executives (Basingstoke: Macmillan – now Palgrave Macmillan, 1997). See Jean Blondel and Ferdinand Muller-Rommel (eds), Cabinets in Western Europe (Basingstoke: Macmillan – now Palgrave Macmillan, 1997). See Robert Elgie, Models of Executive Politics, Political Studies, XLV (1997), 217–31. Williams, Crisis and Compromise, op. cit., pp. 36–8.

7 Government and the Mechanisms of Representation

In this chapter we are primarily concerned with the effect of the electoral system and political parties on the government structure. I examine voting behaviour, electoral sociology and internal party features of organization and ideology only to the extent that they contribute to an understanding of the political elite and the actors produced to operate Poland’s executive and representative institutions.

Electoral framework Free and competitive elections are universally held to be the linchpin of democratic systems. The transition to democracy in Poland was, however, mediated by the contractual election of June 1989. That election, as discussed in Chapter 3, was ‘compartmentalized’, only partly free in terms of voter choice and largely systemic-plebiscitary in character and outcome.1 The Polish order of wholly free elections was also untypical of the East European region, as the 1990 presidential election preceded the 1991 parliamentary election. The same type of two-ballot electoral system was used for the subsequent presidential elections of 1995 and 2000 and without controversy. On the other hand, Sejm electoral laws initially veered between extremes. The free play of political forces in Sejm elections was allowed fully proportional representation by the extreme form of Hare–Niemeyer system used in 1991.2 The more moderate type of d’Hondt PR, with a basic 5 per cent threshold used in 1993, was applied again in 1997 but replaced by Sainte-Lagüe in 2001. Although the electoral law has been the subject of political struggle in every outgoing Sejm, a fair degree of consensus, and even stability, was achieved after the initial democratic transition period in all four areas of presidential, Sejm, Senate and local government elections.3 The subject has not been regulated by a comprehensive Electoral Code although the idea has merit regarding the technical organization of elections.4 The introduction of electoral thresholds (5 per cent of the national 173

174 Democratic Government in Poland

vote for parties and 8 per cent for electoral coalitions) in 1993 has also been crucial in simplifying the party system by limiting the number of parties gaining parliamentary representation. It has also forced them into broader conglomerate organizations such as the SLD and AWS, going well beyond the electoral type of coalitions of 1991. Their success caused disparities between votes cast and seats gained by parties but the result has been a net gain for the effectiveness of the political system. There is general agreement about the legitimating, representative and government-forming functions of Polish elections.5 Those to the Sejm are constitutionally deﬁned as having to be universal, equal, direct and secret as well as proportional, and majority (a simple majority since 1991) for the Senate and the presidential ones.6 The Polish literature pays enormous attention to these aspects. This is understandable, as only now can they begin to be taken for granted as in more established democracies. Voting, and electability at all levels, is open to Polish citizens over 18, with the usual exceptions of the mentally insane and convicted criminals who have speciﬁcally been deprived of their public rights.7 Deputies, however, have to be 21, senators over 30 and the president over 35. The obligation of ﬁve years permanent residence in Poland applies to parliamentary candidates but has been widely criticized.8 There is some ambiguity over this domicile requirement. Some experts assert that ‘it was not continued’ in the 1997 constitution.9 On 26 June 1995, the Constitutional Tribunal ruled that this did not apply in presidential elections, despite the Tymi´nski controversy in 1990.10 EU membership will allow foreign nationals to vote in local elections, necessitating a new electoral law and (probably) an amendment of article 62 of the 1997 constitution.11 Poland will also have to decide how to elect the 50 representatives to the European Parliament allocated to it by the December 2000 European Summit in Nice. Finally, one should note that referenda have not been used much in Poland, although EU membership is likely to be ratiﬁed by this method. Both the 1987 reform and the 1997 constitutional referenda were far from being unqualiﬁed successes in their respective ways. This explains why, during the 1990s, the parliamentary elites registered calls for the direct consultation of the electorate on contentious issues such as abortion and constitutional controversies.12 Sejm and Senate elections, which are always held together, are called by the president according to a strictly laid down timetable (the electoral calendar) which speciﬁes the various stages and arrangements. He appoints a nine-strong State Electoral Commission (PKW) composed of three judges apiece from the Supreme Court, the Main Administrative Court and the TK (who are nominated by their respective chairs) to oversee the running of the election and the publication of results. During the 1990s, growing TK inﬂuence was reﬂected in the appointment of its chairman (by its members) to head the PKW. Electoral registers are drawn up and maintained by communes.

Government and the Mechanisms of Representation 175

In 1991, there were 37 electoral districts, each electing between 7–17 deputies. The constituencies were increased to 52, electing between 3–17 deputies, in 1993. This pattern was maintained in1997. It was generally agreed that the reduction of provinces in 1998 necessitated a new electoral law to produce the revised constituency framework. This was not agreed before the 2000 presidential election as the AWS preferred larger 10–17 seat constituencies while the UW fought for smaller ones which would favour itself, as well as the PSL.13 Party lists for 391 Sejm seats and individual candidates for Senate seats (49 two-member and 2 three-member constituencies based on the 1989–97 provinces) needed the support of 3000 signatures by electors in the relevant constituency, although the latter are not restricted to a single nomination. Electoral committees which have registered lists in half the constituencies are released from this obligation in the remainder, as are parties which had 15-strong parliamentary clubs just prior to dissolution. Party lists have to contain at least three names but no more than twice the total number of seats at issue within the constituency. The, somewhat anomalous, top limit from 1991–97 was explained by the existence of the 69-strong National List, which included the nominations of prominent politicians from these lists by parties freed from the obligation of presenting 3000 signatures. National Minority parties also have the easier qualiﬁcation of only having to register lists in ﬁve constituencies. They are excused from meeting the thresholds and this works strongly in their favour. The German Minority won a seat in Gliwice in 1993 with less than 18 000 votes, while WAK, with 28 000, and Solidarity, with 25 000, gained none. With public opinion polls predicting overwhelming electoral defeat, the ruling centre-right parties emulated the worst interwar Polish and French Fourth Republic practices. They produced an electoral law in early 2001, estimated as likely to cost the SLD over 30 Sejm seats, which Kwa´sniewski, to universal surprise, rather high-mindedly did not veto.14 Elections to the Sejm, scheduled for 23 September, were to take place in 41 electoral districts, each having between 7–13 seats, apart from Warsaw which retained its 17. The great change was that the seats would be distributed by the Sainte-Lagüe method, favouring small and medium parties. The 5 per cent threshold for single parties and the 8 per cent one for alliances remained unchanged. The National List was, somewhat surprisingly, abolished as a trade-off. It had been viewed as a safety mechanism, ensuring the election of national ﬁgures who might be defeated at the local district level. But it had often produced anomalous results, with some successful National List candidates only receiving a few hundred popular votes. In 1991, Artur Then (KPN) became a deputy with 114 votes while in 1997, Tomasz Welnicki (AWS) entered the Sejm with barely 600.15 Senate elections were to take place in 40 constituencies, each electing between two to four senators by simple majority.16

176 Democratic Government in Poland

Electoral campaigns are subject to legal and ﬁnancial limits. They are deﬁned as running from the day elections are called by the president until 24 hours before voting. The publication of public opinion polls is banned from 12 days before voting. Electoral meetings, which are otherwise free, may not be held in factories and government buildings. Untrue or libellous posters and leaﬂets may be challenged in the provincial courts, which have to deal with such cases within 24 hours, while appeals are also dealt with rapidly. Polish radio and TV offers generous amounts of free electoral time to all electoral committees in the fortnight before polling day. The latter can also buy carefully speciﬁed amounts of additional broadcasting time. Campaigns are ﬁnanced out of money raised by the political parties themselves, although state and foreign contributors are forbidden and the 2001 electoral law introduced even stricter restrictions. Electoral spending by each constituency has to be published in a national newspaper within three months of voting day. Parties fulﬁlling these requirements correctly are rewarded with subsidies from the state budget, distributed proportionally according to the number of seats gained. These funds have a statutory limit of a ﬁfth of all the expenditure on the running of the election. Sejm and Senate elections are certiﬁed by the Supreme Court which also examines electoral protests; it has the power to annul individual results and to order a re-run if the infringement is deemed to have affected the result.17 After the passing of the 1997 law, the veracity of lustration declarations on whether candidates had been members of the security services, or collaborated with them, during 1944–89 could be veriﬁed by the designated court. The court then had the power to disqualify and to ban from ofﬁce holding. Individual constituency results are counted and produced by local PKWs. The National List was allocated proportionally, using the d’Hondt method, amongst parties gaining more than 7 per cent of the national list. Election to the Senate was straightforward and based on the ﬁrst two (and in two provinces the ﬁrst three) past the post during 1989–97, although the 2001 election became a two to four horse race.18 In addition to the foregoing, the full national results are collated by the main PKW and published in a detailed communiqu˛e (Obwieszczenia) in the Monitor Polski.

Presidential elections The principle of the direct election of the president through universal suffrage, to replace the National Assembly procedure which had elected Jaruzelski, was adopted by the constitutional amendment of 27 September 1990.19 Despite the weakening of presidential powers, in other respects the 1997 constitution conﬁrmed the popular form of election. It maintained the Little Constitution’s restriction of ofﬁce holding to two terms, although not necessarily consecutive ones. The uncontroversial ﬁve-year term of ofﬁce, compared to four years for deputies and senators, is close to the

Government and the Mechanisms of Representation 177

average for European Heads of State.20 Since 1990, a candidate has needed to gain more than 50 per cent of the votes to be elected on the ﬁrst ballot (like Kwa´sniewski in 2000) but failing that a second ballot is held a fortnight later.21 After the election is conﬁrmed by the Supreme Court, the successful candidate assumes ofﬁce by swearing an oath before a ceremonial sitting of the National Assembly.22 Candidates are nominated by citizens or political parties and have to be supported by 100 000 conﬁrmed signatures of electors. As in the French Fifth Republic, this far from stringent requirement has meant that relatively large numbers of candidates have been registered by the PKW. It is true that there were only six in 1990 but the numbers rose to 13 in 1995 and 12 in 2000. Of these, only about three to four, in each of these elections, were really serious candidates capable of being elected. The remainder were marginal publicity seeking ﬁgures. In 1995, three of these even failed to get as many votes as the minimum signature requirement. An initial ‘exotic no-hoper’ like Tymi´nski, however, made it to the second ballot in 1990. Olszewski, Zieli´nski and Gronkiewicz-Waltz all seemed as ˛ at the outset of the 1995 campaign. It would potentially strong as Wal⁄ esa also have been difﬁcult, in 2000, initially to predict safely that Olechowski would do better than Krzaklewski or what Kalinowski’s real chances were. This degree of uncertainty about outcomes has meant that pressure for tightening up candidate nomination requirements has not succeeded. There have also been suggestions that the signatures should be raised in at least half the country’s provinces or include speciﬁed numbers of elected local representatives, as in France.23 The process was misused since signature collection has often been contracted out and done by students, or other paid workers, not political activists. The businessman, Kazimierz Piotrowicz, quite simply paid 50 groszy (half a zl⁄ oty) for every signature collected for him in 1995. There have also been repeated accusations of signature falsiﬁcation and these were upheld by the PKW in disqualifying Morawiecki in 1990 and Tejkowski in 1995. The 1990 presidential election The 1990 contest was dominated at the outset by the ‘War at the Top’ ˛ and the incumbent premier, Mazowiecki. Wal⁄ esa, ˛ supbetween Wal⁄ esa, ported by Solidarity, most civic committees and the PC, campaigned on his historical prestige as the anti-communist workers’ tribune and on populist slogans promising accelerated decommunization. Mazowiecki, backed by the newly formed ROAD and FPD, based his electoral case on his democratization and marketization reforms and capable political management as premier. Three major political chieftains – Leszek Moczulski (KPN), Roman Bartoszcze (PSL) and Wl⁄ odzimierz Cimoszewicz (the post communist PKLD parliamentary club chairman, supported by, but not actually an SdRP member) – also emerged. They publicized sectional policies strengthening

178 Democratic Government in Poland

their parties’ images within their respective electorates. The campaign also threw up completely unknown ﬁgures such as Janusz Bryczkowski, a Green Party leader, Jerzy Bratoszewski, a Radom lawyer, and Bolesl⁄ aw Tejkowski, the extremist nationalist (PWN) leader. The last of what the Poles call ‘folklore’ candidates proved much more signiﬁcant, to universal surprise and apprehension. The émigré ‘man from nowhere’, Stanisl⁄ aw Tymi´nski, billed himself as a self-made millionaire industrialist of dual Polish-Canadian nationality. Of these13 individuals who initially threw their hats into the ring, six were registered and actually ran.24 Mazowiecki proved incapable of either projecting an electorally appealing image or of promising alleviation of the social suffering caused by the ˛ ran a professional campaign focusing on the transformation. Wal⁄ esa incompleteness of reform. He made irresponsible promises of accelerated privatization and social beneﬁts, laced with populist attacks on ex-communists. These attacks, and Mazowiecki’s unconvincing performance, opened up the way for the ‘spark phenomenon’ of Tymi´nski’s second place and the premier’s elimination on the ﬁrst ballot. Tymi´nski’s manifesto was banal. He appealed to the pro-PRL and populist traditions and built up his image as a successful pragmatic businessman, offering snap solutions to growing economic misery. Bartoszcze offered protectionist and traditional Catholicnationalist solutions for the countryside and attacked the urban intelligentsia elite. Moczulski promised to cut through the rotten Round Table compromises and to complete the country’s decommunization through a strong presidency based on the return of the 1935 constitution. Cimoszewicz presented himself as a dynamic social democrat reformer, wholly cut off from the communist past. He promised to support socially threatened groups and to defend the secular progressive tradition from Roman Catholic excesses, as viewed by the left, concerning the criminalization of abortion and the restrictions on divorce.

Table 7.1

Presidential election of 25 November–9 December 1990

Turnout % Candidate

First ballot 60.6 Vote % of vote

Second ballot 53.4 Vote % of vote

Wal˛esa, Lech Tyminski, ´ Stanislaw Mazowiecki, Tadeusz Cimoszewicz, Wlodzimierz Bartoszcze, Roman Moczulski, Leszek

6 569 889 3 797 605 2 973 264 1 514 025 1 176 175 411 516

10 622 696 3 683 098

40.0 23.1 18.1 9.2 7.2 2.5

Source: Gebethner and Jasiewicz, Dlaczego tak glosowano, pp. 8–9.

74.25 25.75

Government and the Mechanisms of Representation 179

Wal⁄ esa ˛ was, apparently, disappointed at not being elected outright on the ﬁrst ballot although the great loser was Mazowiecki. Cimoszewicz built his subsequent political career on his electoral rehabilitation of the post˛ mobilized his full resources against Tymi´nski’s communist camp.25 Wal⁄esa before the second ballot, winning almost three-quarters of the vote and beating his opponent in every single province. His almost 40 per cent of the inscribed electorate, identiﬁed by Krzysztof Jasiewicz as being the last wave of the 1989 social upsurge, or more picturesquely ‘general levy’ in Polish terms, was similar to Solidarity’s 1989 support.26 The outcome was ˛ claimed a mandate for his conception of a unfortunate in that Wal⁄ esa strong and active presidency but proved incapable of implementing it. The result – the political and constitutional confusion of the early 1990s – was reﬂected in the transitional Little Constitution. On the other hand, political parties were still at an early stage of development. It was, therefore, extremely fortunate that a presidential, not parliamentary, election which would have produced even more fragmented results than in 1991, was held at that time. The 1995 presidential election ˛ initially low popuThe 1995 election campaign was dominated by Wal⁄ esa’s larity and poor chances of re-election. The Saint Catherine Convent meetings, however, failed to select a single credible alternative centre-right candidate. The ﬁrst ballot, therefore, became a primary to see if NBP chair Gronkiewicz-Waltz, Olszewski or Moczulski could assert themselves as the main opponent to the left and centre candidates.27 Kwa´sniewski began the campaign as the unquestioned SLD nominee and as the front runner most likely to make it to the second ballot. Kuro´n had a harder job in gaining the UW nomination against Onyszkiewicz and Suchocka. The last serious candidate, Ombudsman Zieli´nski, projected a national appeal from a leftist UP base. Korwin-Mikke was a touch more credible than the remaining ‘fantasy candidates’, Bubel, Kozluk, Piotrowicz and the well known cabaret artist, Jan Pietrzak. Lech Kaczy´nski, Moczulski, Markiewicz and Pawlowski, the right-wing Republican Party standard bearer, withdrew leaving 13 of the 17 candidates registered by the PKW to actually contest the election. ˛ did not have a clear electoral programme but attempted As usual, Wal⁄ esa to rally his traditional patriotic electorate by presenting himself as the strongest Catholic and anti-communist candidate. His problem, as the incumbent, was to efface the memory of his unstable performance and partisan style as president. He also faced charges of tolerating a corrupt entourage (for example, the affair of Pastwa, a somewhat obscure individual around whom corruption charges raged) and of not having paid income tax on a million-dollar honorarium from Warner Brothers, Gronkiewicz-Waltz started off strongly, with a fresh Christian Democrat appeal, and built on her capable NBP chair performance in combating

180 Democratic Government in Poland Table 7.2

Presidential election of 5–19 November 1995

Turnout % Candidate

First ballot 64.7 Vote % of vote

Second ballot 68.2 Vote % of vote

Kwa´sniewski, Aleksander Walesa, ˛ Lech Kuron, ´ Jacek Olszewski, Jan Pawlak, Waldemar Zieli´nski, Tadeusz Gronkiewicz-Waltz, Hanna Korwin-Mikke, Janusz Lepper, Andrzej Pietrzak, Jan Kozluk, Tadeusz Piotrowicz, Kazimierz Bubel, Leszek

6 275 670 5 917 328 1 646 946 1 225 453 770 419 631 432 492 628 428 969 235 797 201 033 27 259 12 591 6 825

9 704 439 9 058 176

35.11 33.11 9.22 6.86 4.31 3.53 2.76 2.40 1.32 1.12 0.15 0.07 0.04

51.72 48.28

Sources: Raciborski, Polskie wybory, p. 89: PKW electoral bulletin, Rzeczpospolita, 22 November 1995.

inﬂation. Like Olszewski, her support ebbed away once the electors, ˛ and a bandwagon built up in his however, grudgingly, opted for Wal⁄ esa favour. Pawlak’s centrist image was weakened by intra-PSL disputes, his partisan behaviour as premier, and sectional rural appeal. Kuro´n and Zieli´nski shone initially on the left-centre but suffered from the electoral polarization favouring the two front runners. Kwa´sniewski ran a smooth and professional campaign, presenting himself as a modern secular and European-minded social democrat who had cut himself off completely from the communist past.28 His progressive views on abortion and against religious teaching in schools naturally gained him the opposition of the Roman Catholic church. He was able to shrug this off but was fortunate to ride out the issues of his wife’s questionable shareholding and his unsubstantiated claim to have completed a university degree.29 The 2000 presidential election The 2000 presidential election was the epitome of ‘normality’ in that the voters did exactly what the public opinion polls said they were going to do all along; that is, they re-elected Kwa´sniewski fairly comfortably on the ﬁrst ballot. As in 1995, the election’s real interest was in whether a credible counter candidate could emerge. The reason why Marian Krzaklewski’s (AWS) long-prepared candidature was so unsuccessful, and why Andrzej Olechowski (non-party) eventually overtook him, therefore, provide themost controversial questions. The campaign turned out to be extremely

Government and the Mechanisms of Representation 181

low key.30 Events such as the death of Paris Kultura editor, Jerzy Giedroyc, generated more interest.31 The Roman Catholic church played little direct part now that church-state relations had come to be settled.32 The Lustration Court played a dramatic and tension-ﬁlled role ˛ declarations on in afﬁrming the veracity of Kwa´sniewski and Wal⁄ esa’s 10–11 August. It occasioned a bitter public exchange of correspondence between the president and premier over UOP handling of the accusation that Kwa´sniewski ﬁgured in the 1980’s security police (SB) ﬁles as Agent ‘Alek’.33 Out of 21 candidates who had originally intimated a desire to run, 13 were registered. Krzaklewski and Olechowski were identiﬁed as Kwa´sniewski’s main rivals from the outset. Jarosl⁄ aw Kalinowski (PSL) who ˛ made his presence felt in the countryside, and ex-president Wal⁄ esa (CDIIIRP), were regarded as secondary opponents. Olszewski (ROP-PC), withdrew in Krzaklewski’s favour just before the vote. Korwin-Mikke (UPR) ran as usual just to publicize his standpoint, as did left-wing deputy, Piotr Ikonowicz (PPS). A number of extremist candidates stood for right-wing conservative (Dariusz Grabowski, KdP), anti-European (deputy Jan L⁄ opusza´nski, Porozumienie Polskie), peasant protectionist (Andrzej Lepper, Samoobrona) and strong-man populist (ex-Chief of Staff, General Tadeusz Wilecki) solutions.34 Krzaklewski had a very strong starting position as AWS and Solidarity chairman, but he was ground down by internal disputes between the former’s component groupings, and lacked legitimacy as the leader of the broader anti-left coalition. A poor campaigner, he never decided whether to emphasize the Christian Democrat trade unionist aspect of his programme ˛ 1995 electorate, or to struggle more deterin order to retain Wal⁄ esa’s minedly for the centre ground. In the end, he became obsessed with the struggle with the ROP for the right-wing electorate and lost the political centre to Olechowski. He suffered from artiﬁcially contrived attempts to drum up support for him through populist measures, notably a badly drafted Universal Wealth-Holding Law.35 Kwa´sniewski vetoed it, to general approval, in mid-September and the SLD-UW (who also opposed it) buried the law in the Sejm in October. The UW sat out the election. It had just left Buzek’s government and was undecided about how to compete for the liberal centrist space between the AWS and SLD.36 This opened the way for Olechowski’s centrist candidacy, although formally he was non-party, with only weak support from such elitist bodies as the Movement of One Hundred and ex-BBWR supporters (which he had led in 1993). An ex-Minister of Finance (1992) and Foreign Affairs (October 1993 – January 1995), Olechowski had resigned on both occasions. His lustration declaration that he had acted as an economic spy as a diplomat in Europe, (mainly in Switzerland), during the PRL, surprisingly, did not harm his self-depiction as an experienced and pragmatic servant of the state.

182 Democratic Government in Poland Table 7.3 Presidential election of 8 October 2000 Electorate: 29 122 304. Valid votes: 17 598 919. Turnout: 60.1 per cent. Candidate

%

Votes

Kwa´sniewski, Aleksander Olechowski, Tadeusz Krzaklewski, Marian Kalinowski, Jaroslaw Lepper, Andrzej Korwin-Mikke, Janusz Walesa, ˛ Lech Lopuszanski, ´ Jan Grabowski, Dariusz Ikonowicz, Piotr Wilecki, Tadeusz Pawlowski, Bogdan

53.90 17.30 15.57 5.95 3.05 1.43 1.10 0.79 0.51 0.22 0.16 0.10

9 485 224 3 044 141 2 739 621 1 047 949 537 570 224 991 178 590 139 682 89 002 38 672 28 805 17 164

Source: PKW electoral bulletin in Rzeczpospolita, 9 October 2000.

Kwa´sniewski built on his smooth and popular image as ‘president of all the Poles’. He had also shown excellent political judgement in sabotaging the rival camp’s policies through his vetoes or referrals to the TK of Buzek’s provincial reform and the 1999 budget and income tax proposals. Specialists considered that Kwa´sniewski and Olechowski had solid party voting bases or ‘iron electorates’ but some doubted in the former’s victory on the ﬁrst ballot.37 Kwa´sniewski played up his emollient statesman-like image. His only populist proposal during the campaign was a promise of pensions for ex-state farm (PGR) workers. Politically, he was now ‘Teﬂonproof’. Desperate attacks by his opponents regarding the presidential pardon for Mirosl⁄ aw Stajszczak, a Bydgoszcz businessman who had corrupted an OUP ofﬁcer, proved fruitless.38 There was little debate about Kwa´sniewski’s ﬁrst ballot victory. The decreasing intensity of religious and lustration issues indicated the diminishing importance of the pro- and anti-PRL cleavage under his auspices. All the contention was about why Olechowski had defeated Krzaklewski. Much speculation followed about whether the SLD would build on Kwa´sniewski’s success through an early Sejm dissolution and subsequent electoral victory.39 Would a new party emerge to ﬁll the gap between the UW and the AWS?40 The latter occurred when Tusk, Pl⁄ a˙zy´nski and Olechowski founded the Civic Platform (Platforma Obywatelska – PO) in February 2001. This was composed of Olechowski’s electoral machine, the SKL, and the ˛ more prescient deserters from the declining AWS and UW.41 Wal⁄ esa’s humiliation, and subsequent political retirement, was expected. So was the insigniﬁcant vote for extremist candidates and the diminishing strength of the peasant electorate.42

Government and the Mechanisms of Representation 183

Sejm elections 27 October 1991 Both the PZPR and Solidarity parliamentary clubs broke up during the life of the contractual Tenth Sejm. As a result, a highly fragmented Sejm, totally dif˛ ferent from the one elected in1989, faced the newly elected president, Wal⁄esa. It proved united enough to survive into the summer of 1991 and, after bitter conﬂicts, to force through the most extreme forms of PR. The communist practice of crossing off names was also now replaced by the more democratic method of placing a cross against the voter’s preferred candidate on the party list. Prominent leaders of the stronger parties were, however, assured election from the National List if they were beaten by popular local candidates. On the other hand, national leaders with powerful proﬁles were more often used as ‘electoral locomotives’ at the top to attract votes to their district party list. In 1991, the most successful were Jan Krzysztof Bielecki, who got 96.5 per cent of the KL-D votes in his Warsaw constituency; Wl⁄ odzimierz Cimoszewicz, with 91.7 per cent of SLD votes in Bial⁄ ystok; and Leszek Moczulski who received a thumping 97.3 per cent of all KPN votes for his list in Kraków.43 Given that political parties were still crystallizing, it is hardly surprising that the Polish elites opted for as representative a system as possible. The result was a participation explosion, with 6980 candidates running, only 220 of whom were incumbents, and out of which only 113 were re-elected. The PKW ﬁnally registered 85 electoral committees (representing 111 parties), of which 19 gained the All Poland status entitling them to free radio and television access. The campaign’s main themes were dominated by economic disputes over Balcerowicz’s austerity policies – defended by the KL-D/UD and attacked from different standpoints by the SLD/PSL and KPN/WAK. The role of the Roman Catholic church and of religious values in public life centred on the SLD-WAK conﬂict over the banning of abortion and the introduction of religious teaching into schools. The religious-secular division cut across the anti- and pro-PRL cleavage. Bitter polemics were generated over the beneﬁts of the ‘Thick Line’, as against lustration, in dealing with its legacy. In general, the argument was no longer over regime choice (democratic capitalism versus communism), as in 1989, but over the costs, speed and methods by which the latter should be developed and consolidated.44 In 1991, 29 different political labels gained Sejm representation. The crucial statistic is, however, that the most successful only got 62 (UD) and 60 (SLD) seats respectively while another ﬁve got between 37 and 49. All told, the top ten parties won 417 seats while another nine only gained one each. The UD did not do as well as expected, and Solidarity did even worse. Political debate had moved on by 1991 and the democratic camp suffered from Balcerowicz’ and Bielecki’s unpopularity. The wide dispersion of votes was caused by numerous electoral cleavages, facilitated by the untrammelled workings of the electoral law.

Table 7.4

Percentage of votes and seats and number of seats gained in Sejm elections of 1991, 1993, 1997 and 2001

SLD Solidarity/AWS UD/UW PSL PL WAK/Ojczyzna PC KPN KL-D PPPP BBWR/BdP* SP/UP ROP/KdR UPR German minority Pensioners (KPEiR) Pensioners of the Rep (KPEiRRP) Party X Samoobrona PChD ChD PO PiS LPR

% vote 11.99 5.05 12.32 9.22 5.47 8.98 8.71 8.88 7.49 2.97 – 2.06 – 2.3 1.49 – – 0.47 – 1.12 2.25 – – –

1991 43.2 5.6 % seats

No. seats

% vote

13.04 5.87 13.84 10.87 6.1 10.87 9.57 11.1 8.04 3.5 – 0.87 – 0.6 1.52 – – 0.6

60 27 62 50 28 50 44 51 37 16 – 4 – 3 7 – – 3

0.87 1.09 – – –

4 5 – – –

20.4 37.17 4.9 0 10.6 16.07 15.4 28.69 – – 6.33 0 4.42 0 5.77 4.78 3.99 0 0.10 0 5.41 3.48 7.28 8.91 2.7 0 3.18 0 0.7 0.87 – – – – 2.7 0 2.8 0 – – – – – – – – – –

1993 52.08 4.3 % seats

No. seats

% vote

1997 47.93 3.88 % seats

171 0 60 132 – 0 0 22 0 0 16 41 0 0 4 – – 0 0 – – – – –

27.13 33.83 13.37 7.31 – – – – – – 1.36* 4.74 5.56 2.03 0.58 2.18 1.63 – 0.08 – – – – –

35.65 43.74 13.04 5.87 – – – – – – 0 0 1.30 0 0.43 0 0 – 0 – – – – –

184

Turnout Invalid votes Party

2001 46.29 No. seats

% vote

% seats

No. seats

164 201 60 27 – – – – – – 0 0 6 0 2 0 0 – 0 – – – – –

41.04* 5.6 3.1 8.98 – – – – – – – – – – 0.36 – – – 10.2 – – 12.68 9.50 7.87

46.5 0 0 9.4 – – – – – – – – – – 0.4

216 0 0 42 – – – – – – – – – – 2 – – – 53 – – 65 44 38

– – 11.5 – – 13.6 9.56 8.26

Sources: Electoral Commission (PKW) communiqués in Rzeczpospolita, 4 November 1991, 27 September 1993 and 2 October 1997. Serwis Wyborczy PAP, 27/9/2001. Antoszewski and Herburt, Leksykon politologii, pp. 498–501. * With UP.

Government and the Mechanisms of Representation 185

19 September 1993 The Sejm just managed to pass a revised electoral law on 28 May 1993 ˛ dissolved it following Suchocka’s defeat on a vote of before Wal⁄ esa conﬁdence initiated by Solidarity.45 The law, supported primarily by the UD, SLD and ZChN big battalions, increased electoral districts and applied the d’Hondt method to both them and the National List.46 The new threshold, eliminating parties which failed to gain 5 per cent of the national vote, and electoral alliances receiving less than 8 per cent, caused striking anomalies within constituencies as well as country wide.47 Nationally, 7 per cent was required to beneﬁt from the National List allocation.48 The party system had settled by 1993 to the extent that only 12 out of the 35 electoral committees participating in the election registered candidates (now totalling 8787) in all constituencies and three others in most. The ZChN formed an alliance, supported by Bishop Gocl⁄ owski, with other minor parties called Ojczyzna (Fatherland) and the SLD presented itself ˛ cobbled up a ‘Bloc for Supporting the Reforms’ again in this form. Wal⁄ esa (BBWR) at the last minute while Olszewski put together a right-wing Coalition for the Republic (KdR). Labour Solidarity (SP) ﬁlled out into the broader based Labour Union (UP). The campaign saw the KL-D and UD on the defensive against SLD and PSL attacks against unemployment, impoverishment and inequality. The right-centre challenged both the incomplete nature of elite change and decommunization and the corruption of ˛ new establishment. Thus, Poland’s burgeoning democracy was Wal⁄ esa’s reﬂected in a lively and intense campaign. Parties made greater use of the mass media and professional publicity techniques. As usual, the secularreligious cleavage generated much bitterness but this time the Catholic camp was on the defensive over the limitation of abortion and Suchocka’s unratiﬁed Concordat. The main cleavage emerged over attitudes to the PRL in disputes over lustration, Jaruzelski’s responsibility for martial law, and whether Colonel Kukli´nski, who technically had behaved as an American spy in 1981, should be rehabilitated as having acted as a real patriot. Surprisingly, more respondents in a CBOS poll considered it unacceptable for candidates to ‘spit’ at the PRL and post-communists than to criticize the Roman Catholic church.49 The important campaigning role of political leaders was demonstrated, as in 1991, by their functions as vote-pulling ‘electoral locomotives’.50 The results were an overwhelming defeat for the post-1989 democratic camp; the Poles now had a responsible post-communist alternative which promised to alleviate the transitional costs and misery of transformation. The new electoral procedures, however, exaggerated this swing, producing a major distortion of the relationship between votes cast and seats won. The SLD, with 20.4 per cent of the vote, gained 37.2 per cent of the seats (171) while the PSL ration was 15.4 per cent for 28.7 per cent (132). The UD, with 60 seats, and the UP with 41, only benefited slightly, while the

186 Democratic Government in Poland

KPN (22), BBWR (16) and the German Minority (4) gained the remainder of the seats. The new thresholds excluded Fatherland, Solidarity, KL-D, PC, radical populists and all other parties. All told, parties representing 34.53 per cent of the valid vote were thus completely excluded from the Sejm. In 1991, seats were distributed amongst parties which had received 87.1 per cent of the actual vote and 92.3 per cent of valid votes. The natural outcome was the SLD-PSL coalition governments of 1993–97 which enjoyed very comfortable majorities. 25 September 1997 Krzaklewski succeeded in forming the AWS in June 1996 and this associated Solidarity initially with about 20 conservative, nationalist and Christian Democrat parties. The ZChN and PC, and sections of the divided KPN and BBWR, joined but were dominated organizationally by Krzaklewski’s leadership.51 Although internally disunited, the AWS polarized the campaign into a clear duel with the SLD; both had long hovered at about 30 per cent in the polls. The remaining right and centre parties joined Olszewski’s Movement for Rebuilding Poland (ROP) but Krzaklewski undercut most of its nationalist, populist and Catholic appeal. The UW found itself isolated and some personalities, such as Jan Maria Rokita, defected to the AWS. But the UW saved itself by running a professional campaign focusing on Balcerowicz’ achievements. The UPR and UP, ground between these big battalions, were conspicuously unsuccessful in asserting a separate identity and programme. ROP was also swamped by the AWS with whom it partially collaborated in Senate elections. The 1997 election demonstrated the further ‘consolidation and stabilization of the democratic system’ in Poland (Stanisl⁄ aw Gebethner).52 He cites as evidence the reduction of electoral committees qualifying for National List consideration by registering seats in all constituencies to ten in 1997 (while only a mere four registered seats in more than one constituency and eight in a single case) compared with 19 of the former in 1993 and 29 in 1991. In all, 6549 Sejm candidates were registered by 23 electoral committees and 571 district lists while 518 candidates ran for the Senate on 137 lists.53 The campaign was marked by the declining receptivity of voters to religious and decommunization issues.54 Populist themes were injected by Radio Maryja, ROP and the pensioners’ parties but the general level of bitter personal attacks decreased.55 The AWS ran a professional campaign, with new Solidarity personalities gaining credibility for its programme and leadership team and squeezing centre-right competitors for their electoral space effectively.56 The election was a personal success for Krzaklewski and ˙ nski and Janusz new national figures such as Jerzy Buzek, Maciej Pl⁄ azy´ Tomaszewski. The SLD, by contrast, suffered from Kwa´sniewski’s Olympian removal from the electoral conflict as president. Oleksy and Cimoszewicz were both unconvincing and discredited, the former by the dramatic alle-

Government and the Mechanisms of Representation 187

gations of spying and the handing over of information to the Russians. This affair dominated Polish politics during the first half of 1997. Cimoszewicz was held to be less than convincing in his public relations handling of the summer 1997 floods. The UP was pushed below the electoral threshold, the UW won the electoral space between the SLD and the AWS whereas the ROP failed completely to nibble back the latter’s right wing. Finally, the PSL paid the cumulative price for internal leadership and policy disputes and irresponsible, greedy, and, even, corrupt behaviour in ofﬁce. Given the polarized conditions of the 1997 election, it is hardly surprising that the AWS and the SLD should have far outdistanced their competitors. What was decisive was that the electoral cycle, again, turned against incumbents. The AWS came out over 6 per cent ahead of the SLD, gaining 201 seats to the latter’s 164, although the latter improved on its 1993 vote. The UW also improved slightly on its 1993 vote but its 60 seats meant that it was the only viable junior coalition partner to the AWS. The PSL, with 27 deputies and three senators, suffered an electoral calamity worsened by leadership struggles between Pawlak, and his eventual replacement, Kalinowski. ROP likewise became a marginal force, with six deputies and five senators. Apart from two German Minority deputies, no other party gained Sejm representation; the UP’s failure was particularly striking. The two pensioners’ parties, the real jokers in the 1997 party pack, gained political clout, despite their political divisions, with their combined 3.81 per cent of the vote. The percentage of ‘wasted’ votes cast for parties failing to gain Sejm representation declined from its dangerously high level of a third in 1993 to only 12 per cent in 1997. The 1997 election strengthened the political system by producing a clear result and four years of governmental stability. The AWS won because the electorate responded to its specific promises of intra systemic reform of health, pensions, social security and local government as the essential next step in consolidating the democratic capitalist transition, particularly just before EU entry. 23 September 2001 This election marked the disintegration and elimination from the Sejm of both the AWS (5.6 per cent) and the UW (3.1 per cent) as result of a powerful swing against incumbents and the social costs of Buzek’s restructuring measures.57 On the other hand, the SLD, which had formed an electoral alliance with the UP, just failed to get the overall Sejm majority, which public opinion polls had long predicted, as a result of the revised electoral law, particularly the abolition of the National List, and the drawing away of its populist support. Nevertheless, with 41.04 per cent of the vote and 216 seats, the SLD-UP achieved the best electoral result of the Third Republic. It dominated the new Sejm and chose to form a coalition with the PSL, led by

188 Democratic Government in Poland

new prime minister Leszek Miller, rather than a minority government. The opposition was broken up into the ex-ROP and residual conservative component (PiS, 44 seats) and national Catholic component (LRP, 38 seats) of the AWS. The PSL made a comeback and was preferred by the SLD as its junior coalition partner, with 42 seats, while the PO, with 65 seats, retained the UWS uncomfortable and ambiguous centrist-liberal character. Populist social unrest was reflected in Samoobrona’s electoral breakthrough as the third largest Sejm party, with 53 seats and 10.2 per cent of the vote. This caused justified concern, although Lepper attempted initially to play the statesman. The SLD-UPs urban, reformist and pro-European policies, despite their social democratic character, were, however, always likely to be supported by the PO on essentials. It was thus unlikely that defensive rural or industrial Poujadist vetoes against continued modernization would prevail, despite much inevitable agitation.

Senate elections Senate elections were run using 47 provinces as two-member and two provinces as three-member constituencies to return the 100 senators during 1989–97. An absolute majority was required in 1989 which necessitated second ballots in eight cases with the two most successful candidates going forward. From 1991–97, a simple majority of the ﬁrst two past the past simplified the system even more. Solidarity won 99 of the seats in the untypical regime choice, but unlike the Sejm’s completely free election of 1989. Nine formations gained representation along with a large number of independents and local and sectional labels under the fragmented conditions of 1991. In 1993 and 1997, the most successful Sejm parties benefited from a large premium but this by no means excluded the losers. The claim that the Senate has been more representative than the Sejm, as befits a chamber of consideration and reflection rather than of government, has, however, been only marginally true since 1993. The 1998 territorial reform, which reduced the number of provinces from 49 to 16, provoked much debate about its electoral consequences.58 The 2001 electoral law, however, stipulated 40 new Senate constituencies and that the Sainte-Lagüe allocation method be used. The anti-incumbent swing produced an overwhelming SLD-UP victory with 75 seats, the PSL with four, LPR two, Samoobrona two, Lech Kaczy´nski’s supporters one and one independent. The main opposition was the 15-strong ‘Senat 2001’ grouping, mainly composed of ex-UW centrists. (For the results of Senate elections in 1989, 1991, 1993 and 1997, consult Table 5.9 in Chapter 5.)

Government and the Mechanisms of Representation 189

Local government elections One of the most important aspects of democratization after 1989 affected the field of local government. Two elections were held in 1990 and 1994 under the structures inherited from communism, and a third in 1998, followed a major administrative reform. The ﬁrst election of 27 May 1990 was not exactly a founding election but it was critical as it began to separate representative from administrative structures and to replace communist with democratic elites.59 The electoral law of 8 March 1990 introduced a two-tier system. Party lists were distributed by the Sainte-Lagüe PR method, in communes with populations of over 40 000. Voting choice was by putting a cross against the name of the preferred candidate on the list. A simple majority system was adopted in small town and rural communes with population of under 40 000. Candidate nomination only required the signatures of 15 electors in the small communes while party lists required the support of 150 in the large ones. The most organized forces, Solidarity’s Civic Committees (although they often split up and competed against each other, notably in L⁄ ódz´˙ , and the PSL, put up the largest number of candidates and dominated the campaign. The result, on an average 42.27 per cent turnout, was predictably a considerable victory for the three prongs of the Solidarity movement (Civic Committees and the TU and RI forms of Solidarity: trade unions and private landowning peasants respectively) who gained about 55 per cent of the vote. Solidarity was particularly strong in large and medium towns and in provinces which had supported it strongly in 1989. There are conﬂicting estimates but it would seem that Civic Committees won 41.47 per cent of the seats. Solidarity RI 3.25 per cent and Solidarity 1.45 per cent.60 The PSL only gained 4.3 per cent of the vote, the SdRP 2.7 per cent, the SD 2.1 per cent and the KPN about 1 per cent. The political results were unclear, except for personnel renewal; about three-quarters of elected councillors were new compared to pre- and post-1990 turnover rates of under half. The next election, of 19 June 1994, took place under a largely unchanged electoral law except in special arrangements set in place for Warsaw. The party system had by now taken shape while the defeat of the right-centre in the 1993 Sejm election inclined them to collaboration in joint lists. The remaining main parties led slightly wider alliances, especially in the towns over 40 000 where national issues and identities predominated. Local ofﬁce had become very attractive in the large towns; their 5357 council seats were competed for by 39 839 candidates on 7831 party lists. In the small towns and countryside, 46 569 council seats were fought over by 142 061 candidates.61 Turnout fell to 33.78 per cent, well below the 1990 level, and was lower in the large cities (28.05 per cent) and higher in small towns and the countryside (38.25 per cent).62 The results are difﬁcult to quantify although they

190 Democratic Government in Poland

produced a more pluralist and rejuvenated council composition. The SLD and UW strengthened their hold in the big towns while Solidarity and the UPR also showed well. The PSL, independents and local labels predominated in the countryside. Aleks Szczerbiak confirms that the October 1998 local government elections strengthened the 1994 tendency in the large towns towards domination ‘by national political groupings rather than local brokered coalitions’.63 As we have seen, the 1997 parliamentary election polarized the party scene into two dominant AWS and SLD political camps, supported by two secondary UW and PSL formations. What has been described in France as the bipolar quadrille was encouraged further by the 1998 reform which produced three tiers of local government. While 16 provinces replaced 49, the intermediate county (powiat) level (abolished by Gierek in 1974) was reintroduced in the form of 272 councils, 64 for large towns (grodzkie) and 208 for rural and small town ones (ziemskie).64 The bottom level remained about 3000 communes. National issues and parties dominated the elections to the provincial and grodzkie county councils, although the trickle-down effect contributed to an increased overall turnout of 47.76 per cent.65 Independents and local groupings won the bulk of the 63 735 seats at issue. Szczerbiak estimates that Solidarity-AWS won 33 per cent of the vote, the SLD 31.5 per cent, the PSL-UP-KPEiR Alliance 11.9 per cent while the UW disappointed itself by falling back to its pre-1997 level at 11.6 per cent.66 The ROP alliance did even worse than in 1997, with 3.2 per cent of the vote. The quadrille’s domination of the 855 provincial seats was striking, with the SLD winning 342 seats. Solidarity-AWS 329, PSL-UP-KPEiR 89 and the UW 76. The elections thus seemed to confirm, for a while, the Polish pattern of growing voter identification, linked with a degree of structural instability of the parties themselves. The development of an electoral sphere dominated by national considerations also paralleled the administrative reform of the central state’s links with its provincial and large municipality level.

Dynamics and political consequences of voting behaviour The fit between voters’ preferences and results in terms of representatives elected is mediated by a large number of factors such as electoral rules and thresholds and methods of candidate nomination and drawing up constituencies. The political science debate since Duverger on the political consequences of electoral systems has nuanced his original generalizations. The effect of PR and ‘first past the post/single member’ systems on outcomes is now seen as multi, not uni, dimensional and as affected by a range of other factors in advanced democracies.67 There has always been a certain chicken-and-egg quality about this debate. The noted political scientist, Peter Mair, stresses the significance of party systems and cultural

Government and the Mechanisms of Representation 191

factors, which determine whether small or large parties are the most successful; these then tend to select the type of electoral system which petriﬁes the situation in their favour.68 No one denies the negative consequences of the two polar ideal types of electoral system.69 Stanislaw Gebethner rightly argues that a successful electoral system needs to balance its representational features very clearly against its government majority creating and supporting functions. There is also no a priori reason why a two-party system should be superior to a multi-party one.70 But political learning by both politicians and voters should not be discounted. The lesson learnt by the Polish right and centre through their exclusion from the Sejm in 1993, facilitated Krzaklewski’s formation of the AWS; it contributed materially to its 1997 electoral victory, thus also dramatically reducing the number of ‘wasted’ non-represented votes. In Poland’s less consolidated case, however, gaining parliamentary representation has had a crucial influence on crystallizing an emerging democratic party system. Technical features, such as the post-1993 thresholds, have been particularly important, forcing small parties into both wider electoral coalitions and firmer political conglomerates, notably the SLD and AWS. Presidential ballots have also forced leaders of even the most powerful parties, such as Kwa´sniewski’s to seek support in broader camps than their own formations. The simplifying, or deforming, effects of the electoral system upon Polish politics is very striking if one compares the 1991, 1993 and 1997 Sejm elections. Formally, 29 different labels received Sejm representation in 1991 but only six in 1993, five in 1997 and seven in 2001. The two most successful parties received 24.3 per cent of the vote in 1991, 35.81 per cent in 1993, 60.96 per cent in 1997 and 53.72 per cent in 2001: this gained them 26.9, 65.9, 79.4 and 61.8 percentage shares of the seats in these respective years. By 1997, the three leading parties also almost held a monopoly, with over 90 per cent of the seats. The collapse of the right and centre, and the entry of a populist party in 2001, was compensated for by the SLD-UP near achievement of an overall majority, with 46.5 per cent of the seats. ‘Wasted votes’ were crucial in encouraging the political stability of SLD-PSL governmental hegemony during 1993–97. The fact that the AWS-UW coalition held 56.8 per cent of the seats (for their 47.2 per cent of the vote), meant that the political arithmetic produced similar governmental stability during 1997–2001. The 2001 SLD-PSL coalition, however, held 56.8 per cent (258) of the seats on 50.02 per cent of the vote. Although studies of Polish voting behaviour indicate patterns of growing electoral stability after the plebiscitary election of 1989 and the fragmented one of 1991, this has been more for traditions and programmatic positions rather than for parties.71 Greater degrees of party identification with the parties of the PRL tradition stabilized the SLD and PSL.72 But the institutional structures of the right and centre remain exceptionally fluid. This added to estimates that electoral

192 Democratic Government in Poland

volatility averaged a third over the 1993 and 1997 elections (and increased in 2001), easily the highest level in East-Central Europe, does not bode well, as indicated by the fate of the AWS and ROP conglomerates in 2001.73 Electoral experience in the 1990s indicates that the right and centre remains open to new entrants and susceptible to basic reconﬁguration. The SLD conglomerate is better suited for survical as it has aligned along more solid lines of ideological and socioeconomic interest as well as earlier historical and religious cleavages.74

Party system and government Katz defines party government as being dependent on two factors. Firstly, free elections producing a responsible and answerable governing elite of politicians to fulfil ministerial functions; secondly, policy making within parties and negotiation between them in the case of coalitions.75 The number of parties in parliament, or required to produce a majority, are crucial variables determining whether governments will be based on single parties or be of a coalition character. The stability of a coalition government also depends not only on the number of parties composing it but also on the type of parties, particularly whether they are centralized and disciplined bodies capable of maintaining the party discipline required to honour coalition deals. As a strongly centralized unitary state, with a tightly connected level of provincial administration, Poland is largely saved the additional problems of regional diversity that faces federal systems, including that of having to integrate locally based parties. On the other hand, it differs fundamentally from the British fused system of executivelegislature single-party government. Poland would prima facie seem to ﬁt in closely with Jean Blondel’s depiction of European coalition and party dependent government, where the executive is highly penetrated and inﬂuenced, almost colonized, by political parties.76 The fundamental democratic right to free political organization and association is guaranteed by article 58 of the 1997 constitution. Article 11 also stipulates that party financing must be open; it defines party functions as being the exercise of ‘democratic methods to shape the state’s policy’.77 Extremist, racist, clandestine and terrorist parties are banned by article 13 and excluded from the judicial registration process.78 The problem also arose of whether extremist fringe parties such as the habitually aggressive right-wing Republican League (LR) should be delegalized for promoting violence.79 Political pluralism in the form of numerous, competing political parties, defined as ‘social organizations’, with equal rights and democratic functions, was embodied in the Law of 28 July 1990 on Political Parties.80 Registration was by the Warsaw Provincial Court, which examined motions supported by 15 signatures and a draft statute setting out aims and basic

Government and the Mechanisms of Representation 193

organizational structure. The TK also strengthened its right, in April 1996, of ruling on the constitutionality of a party’s aims, programme and organization.81 Whether this was implemented in subsequent practice was also important, as most parties were short lived and of the so-called ‘sofa’ character (small enough to accommodate all members on a sofa). Although the number of registered parties reached 222 by July 1993 and 265 by February 1995, Konstanty Wojtaszczyk estimated that over 40 per cent were entirely quiescent. Many of the remainder could barely be called interest groups or locally based groupings not fulﬁlling their statutory activities.82 At its peak, there were about 325 registered parties, when the number of required signatures was raised to 1000 by the fuller Law of 27 June 1997 on Political Parties. The essentials of the previous registration system were maintained while a greater adjudicating role was conceded to the TK.83 Registration now became more important, although not formally compulsory.84 The stricter regulations thinned the number of parties (re)-registered by mid December 1999 to under 80.85 In practice, serious parties always needed legal recognition in order to participate in the electoral-parliamentary process and to beneﬁt from public ﬁnancing. The debate on political parties in Poland has centred on two inter-related questions. Firstly, whether organizationally stable, and recognizably modern, political parties have developed. Secondly, whether a settled party system has emerged with something like a fixed number of political actors competing for parliamentary representation and, hence, for the capacity to participate in government. The ﬁrst dimension can be examined by looking at the transformation of originally institutionally amorphous and catch-all forums or conglomerates such as Solidarity, along with the other national independence and anti-communist groupings. Solidarity, initially a mass trade union based social movement, was in Duverger’s terms ‘externally’ created and directed.86 It lost this character and mission following the 1989 Negotiated Revolution and split up politically in the 1990 War at the Top. Subsequently, various liberal (KL-D and UD, later UW), conservative (PC), peasant (PSL-PL) and social democratic (RD-S, SP and, partly, UP) parties emerged out of Solidarity. From 1990 onwards, these parties competed for the anti PRL tradition, with a variety of forces emerging out of the National Independence, Catholic and Christian Democratic camp (notably the KPN, ZChN and UPR). Ranged against them on the primary political cleavage of the early to mid-1990s, were the parties of the pro-PRL tradition which struggled desperately to shake off the ex- or successor communist label.87 From 1991 onwards, the SdRP defeated its initial, and very transient, PUS competitor, and succeeded in forming and maintaining a broader SLD alliance of leftist and secular forces. The PSL likewise succeeded in appropriating most of the ZSL tradition and political space. The SD, by contrast, was almost completely displaced by new competitors. ‘Flash parties’ like Party X and,

194 Democratic Government in Poland

arguably, the BBWR, made short-lived early appearances but extremist parties were marginalized in terms of gaining votes and representation – as were interest groups such as the pensioners’ parties in 1997. They played unsettling extra-parliamentary and populist interest group roles, like Lepper’s Samoobrona before 2001. The latter’s electoral success in that year raised the question of whether it would continue as a Poujadist destabilizing force? Would its notables be incorporated into the system, as suggested by Lepper’s election as Sejm deputy Marshal and initial readiness to become a coalition partner? The need to oppose the dominant SLD-PSL alliance in the 1997 elections, had, however, allowed Krzaklewski to manoeuvre many of the right and centre parties into a Solidarity-dominated AWS conglomerate.88 In that election, this body saw off the residual challenge from the ROP very comfortably. Unlike its rival, the ROP failed to transcend its narrow political ‘chapel-like’ character. Sejm representation during 1997–2001 thus polarized along the lines of the bipolar quadrille but the right and centre then fragmented again. Herburt argues that Polish parties have not achieved high degrees of party loyalty and identiﬁcation nor become clearly and hierarchically structured mass membership organizations with distinct programmes and social bases.89 With the exception of the SdRP/SLD and PSL, and the partial and more ephemeral ones of the UW and AWS, the remaining parties resembled the cadres and electoral committee type. This produced a strong emphasis on central leadership and a significant degree of fragmentation amongst notables. Only the PSL still has a large, although declining, mass membership, based on a distinct socioeconomic milieu; whether this still Table 7.5

Size of party membership

Party

Membership

Date

Membership

Date

Membership

Date

SdRP PSL UD/UW KL-D AWS ZChN KPEiR UC-S ROP KPN KPN-OP SK-L UP UPR PLD

60 000 18 000 15 000 3 000

1991 1992 1992 1992

60 000 200 000 10 500

1995 1996 1996

60 000 150 000 14 000

1998 1998 1998

30 000 6 000 27 000

1998 1994 1997

40 000

1999

32 000 7 000 15 000 10 000 10 000 15 000

1999 1999 1998 1998 1998 1998

2 500

1999

21 000

1991

30–35 000

1993

3 500 3 000

1997 1998

Sources: newspapers and party materials for the period.

Government and the Mechanisms of Representation 195

produces significant numbers of old-fashioned party militants is debatable. Party membership as a percentage of the whole electorate started off from a low of 1.4 per cent in 1990, barely rising to 1.6 per cent in 1995. Studies demonstrate the increasing levels of party identiﬁcation favouring the SLD, AWS, and UW in the 1997 election, but fail to explain the latter two’s 2001 collapse. Conversely, there was a marked negative correlation between party identiﬁers and non-voters and voters for the smaller, weaker parties.90 Although the support for democracy and its political institutions rose steadily throughout the 1990s, political parties continued to be regarded by the general public as selfish, quarrelsome, divisive and, possibly, corrupt.91 The word partyjniactwo (partyness or party-partisanship) carries particularly pejorative undertones in Poland, best exemplified by Pil⁄ sudski’s interwar rantings against them. In democratic Poland, parties have always received the lowest ratings in terms of trust and conﬁdence, well below such institutions as the army, church and judiciary and, significantly, below the government, Parliament and trade unions.92 There was also a low level of party identification, estimated as only 15–18 per cent in the mid-1990s.93 These figures should, however, be seen within the context of a non-participatory and deeply sceptical Polish political culture. At the end of the first stage of the transition period from communism to democracy in 1993, only 10 per cent felt that they influenced public affairs, while a staggering 86 per cent felt that they did not.94 Such patterns were, superficially, almost identical to 1988, as the feelings of greater empowerment during 1989–90, had ebbed away. By 1993, four-ﬁfths of respondents felt that it was more important to be governed well as against a mere 11 per cent who wanted to participate directly in the process.95 The extreme political demobilization indicated by such results eased gradually during the 1990s but the initial legitimation of elite-led forms of democracy facilitated socioeconomic transformation in Poland. Parties have relied very heavily on the mass media, especially during election campaigns, in order to build up their leaders’ images and organizational identities. There were initially major differences between the parties in terms of their political and economic systemic preferences.96 However, a consensus has developed between the main parties on Poland’s external security (EU and NATO membership) and domestic democratic consolidation, so programmatic differences have become relatively minor.97 Issues of leadership style and personality, including previous biographies, have consequently become crucial. Speciﬁc sectional questions concerning the detail and speed of socioeconomic transformation have rarely provided the main focus of electoral debate. The above features of the more successful quartet of Polish parties, especially the SLD and AWS, would seem to fit in quite well with Kircheimer’s ‘catch-all party’.98 At first sight, this would appear a good replacement for the older Duverger and McKenzie definitions of ideologically driven,

196 Democratic Government in Poland

strongly organizationally structured and mass membership parties such as the pre-Blairite British Labour Party.99 Panebianco also emphasizes the importance of the top leadership and party professionals in attracting the vote, rather than of activists mobilizing their social milieu.100 This has much in common with Jean Charlot’s now half-forgotten intuition of the electorally dominant, ‘voter-directed party’ drawn from the experience of the late-1960s Fifth Republic.101 The general consensus is that the ‘cadresmass’ (the former focusing on leaders and activists and the latter on the more passive general membership) distinction does not fully identify the features of Polish parties. Lewis and Gortat also argued that organizational strength was more important than mass membership in the Polish context.102 The ‘cadres’ concept is more relevant to explaining the smaller, unsuccessful parties competing for, but not gaining, significant parliamentary representation. On the other hand, the latter dimension concerning successful entrants has recently centred around Katz and Mair’s idea of the ‘cartel party’; this maintains some catch-all and leadership features, arguing that parties are no longer brokers between social groups and the state but are largely elites competing for greater shares of power (and financing) within a state structure in which they have been fully integrated.103 As noted by Herbert Kitschelt and his collaborators, post-communist parties can mediate the links between society or the citizen in varied charismatic leadership, legislative faction (proto-party), clientelist-patronage and programmatic forms.104 Poland’s problems of incomplete democracy are replicated in older democratic systems with ‘increasing penetration of, and reliance on, the state’ by cartelized parties with weakening links to society.105 Attila Agh distinguishes an initial or genetic period when Eastern European party systems were marked by the polarized pluralism of the systemic issue of democratic transition.106 In Poland’s case, one-sided polarization occurred in 1989–90, around Solidarity’s Civic Committee. The Old Order, however, maintained formal parliamentary strength because of the 1989 contractual election. This allowed the SdRP to make an early start at rebuilding itself organizationally and to readjust to democratic conditions, although it was pushed very much onto the defensive. The extremely liberal 1991 PR system then inaugurated the second phase, marked by Agh’s concepts of overparticipation and parliamentarization.107 About a dozen parties achieved significant Sejm representation during 1991–93 but their capacity for creating cohesive coalitions was undermined by numerous cleavages that cut across various dimensions.108 The most successful only received around 12 per cent of the vote while an average 5 per cent support for the parties in the Sejm was significantly less than in Hungary and Czechoslovakia. Herburt also emphasizes the fragmented character of the multi-party system of 1991–93, with 14 parties involved in the coalition-

Government and the Mechanisms of Representation 197

making discussions and ten participating in the unstable governments of the period.109 Parties, however, used their parliamentary caucuses to develop their policy-making structures and the proceedings of the legislature to present their political profiles through the mass media as potential government leaderships. This struggle determined which would embed themselves permanently in the political landscape, which would become marginal and which would coalesce with other forces. In this sense, parliament was the central arena for party consolidation. By 1993, successful parties raised the entrance price for outsiders by introducing electoral thresholds to exclude newcomers. Most writers thus discern a move towards moderate pluralism, using Sartori’s term, with elections favouring the SLD-PSL in 1993 and the AWS-UW (while allowing the SLD to consolidate itself) in 1997.110 David Olson, perceptively, recognized 1993 as the year of relative consolidation, when Poland’s party system began to ‘freeze’.111 The party system concentrated, with only six parties entering the Sejm in 1993 and ﬁve in 1997. But it also crystallized into two broad camps, with the two-party coalition governments of 1993–2000 facing a recognizable opposition in each case until the UW left ofﬁce. The most compelling explanation of the political framework for post1989 party formation and electoral behaviour in Poland, has been Lipset and Rokkan’s long-established definitions of cross-cutting cleavages.112 There is widespread agreement that straightforward Left-Right divisions and social class explanations have limited explanatory power.113 They are widely understood and useful as preliminary indicators, as demonstrated by Tadeusz Szawiel, but have to be qualified by the specific features of Poland’s anti-communist struggle and democratization.114 Historical and political traditions are also analytically contentious. A major study of Polish political parties identified no less than 16 major streams, as well as another six minor ones, in the early fragmented and genetic phrase of party-formation.115 It is striking, however, how unsuccessful historic parties, such as the PPS and the Christian Democrat, conservative and nationalist parties, have been under post-communism, despite the widespread adoption of interwar labels and symbols.116 The PSL is more ambiguous, although its core elements follow on more closely from the ZSL of the communist period; it was certainly regarded as such by Solidarity-minded competitors such as the PL. Despite its efforts, the SdRP was perceived initially as a clearly successor-communist party, if only because of the long drawn out controversy over its PZPR-inherited funds and offices. Four years of responsible financial and social policies in government office in the mid-1990s, and external recognition of its democratic credentials through membership of the Socialist International in 1996, however, consolidated its transformation.117 The post-1999 SLD reaped the reward of successful internal restructuring by emerging triumphantly

198 Democratic Government in Poland

in 2001 as the dominant catch-all party, with strong social market values and working class and trade union links (OPZZ) in the European social democratic tradition. This contrasted dramatically with the uncertain futures of the PO, UW and SK-L groupings as liberal and conservative parties, and of the Solidarity tradition generally. Whatever the future might hold, it is generally accepted that the main political and electoral cleavage of the 1990s, both emotionally and in practice, was between the pro- and anti-PRL traditions. Experiences of martial law, 1980s dissidence, imprisonment and harassment, and Solidarity rivalry with the PZPR-sponsored OPZZ and reform communist movements, left a powerful legacy of personal hatred and animosity between activists. This explains why the UD/UW, PSL-PL and sections of the UP steadfastly refused to countenance coalition with the Kwa´sniewski–Cimoszewicz social-liberal SLD faction, despite the almost complete absence of programmatic differences after 1995. The grudging and informal cooperation which produced the 1997 constitutional compromise was, however, the harbinger of new trends and alignments, culminating with the emergence of the Civic Platform (PO) in 2001 as a possible, although far from keen, SLD coalition partner. The divisiveness of lustration issues will also diminish in time. With these reservations, one can follow Tomasz Zukowski in giving priority to the historic Solidarity – (successor) communist conﬂict in his fourfold set of cleavages.118 The second – nationalist – cleavage was originally cast in terms of regaining full independence and sovereignty from Soviet control. It has now been redeﬁned as a demand for a strong unitary state to protect the Roman Catholic (and, in some versions, peasant) Polish nation against varied globalizing and EU threats from outside, and minorities, multicultural forces and the socioeconomic transformation threatening traditional values and ˙ established social groups from inside. Zukowski’s remaining two categories are the catholic-secular and economic cleavages (the latter being deﬁned in terms of a spectrum ranging from market liberalism/privatization to state interventionism/social market). By August, 1993, the most politically traditional and pro-Catholic parties, deﬁned by opposition to abortion, favouring religious instruction in schools and constitutional and mass media respect for Christian values, were, in order, the ZChN, KP, KPN, BBWR, Solidarity and PSL/PL. The SLD, UP, KL-D and UD ranked as the most strongly secular parties. Economic liberalism can be deﬁned in terms of wanting rapid and thoroughgoing privatization and of accepting unemployment. The BBWR, KLD, UD, Solidarity, UP and UPR agreed most strongly with this while the SLD, PSL, PL, KPN and ZChN were the most opposed from radically different socially leftist and Catholic traditional standpoints.119 About a third (70) of AWS deputies elected in 1997 belonged to the national-Catholic tendency (ZChN, 24; Radio Maryja, 13 + 6 linked; Federation of Polish Families, 13) many of whom survived

Government and the Mechanisms of Representation 199

the 2001 débâcle in the LPR; of the remainder, only 58 deputies of Solidarity origins did not have connections with church or Catholic bodies.120 Other suggested typologies include Jerzy Wiatr’s threefold socioeconomic, religious and decommunization/historical responsibility model.121 Krzysztof Jasiewicz expanded the cleavages to ﬁve by adding democratic/ authoritarian divisions and closed versus open attitudes towards the nation state (westernization versus nationalism).122 Wiatr, in a later study, accepted the salience of all these cleavages but reiterated the priority of the ideological-historical division towards the PRL and, to a lesser extent, of socioeconomic factors in underpinning the confrontation between the two blocs which emerged and developed after 1993.123 The connections between electoral success and state-funding of parties have become much clearer since 1993.124 Lewis and Gortat identiﬁed the SLD and the PSL as making a net ﬁnancial proﬁt out of the parliamentary election of that year on the basis of ofﬁcially published state election refunds.125 In 1997, electoral success was rewarded, again very heavily. The AWS received back 6.3 million zl⁄ oties out of its total electoral expenditure of 11.1 million zl⁄ oties, the SLD 4.8 million out of 9.3 million while the UW got a mere 680 000 zl⁄ oties out of 7.6 million.126 Hostile critics of incomplete democratization in Poland saw this as evidence of the corporatistadministrative nature of the Polish state, with political parties competing to colonize the various presidential, governmental and parliamentary sectors.127 Gebethner stresses the importance of parliamentary allowances and expenses in funding party activists, thus permitting them the time to specialize in full-time political careers.128 Parliamentarians normally make up about 90 per cent of their party’s executive committees during periods of electoral success – as in the case of the AWS, SLD and UW in the Third Sejm.129 Poor electoral performance, as with the PSL in 1997, is consequently reﬂected in a dramatic decline of this percentage while small parties such as ROP, with only six deputies, also naturally have minority representation in terms of parliamentarians. Szczerbiak has also conﬁrmed the key role of parliamentary bureaux in providing organizational facilities and supporting staff for parties.130 The role of advisers in the presidential ofﬁce has occasioned particular debate about the need for formally laid down incompatibilities for ofﬁce holding. Ewa Nalewajko’s study, indicatively titled Protoparties and Protosystem, identiﬁes key aspects of party ideology, structures and political leadership as well as selection in the ZChN component of the AWS along with the SdRP, PSL and UW.131 Her working conclusions are that the post-communist SdRP and PSL owed much to their success to the centralized and hierarchical organizational structures which they inherited and which they adapted very successfully in ideological and programmatic terms to democratic conditions. The SdRP was also able to consolidate this initial inherited

200 Democratic Government in Poland

advantage into a permanent national appeal and support base during its 1993–97 period of parliamentary and governmental dominance. The PSL was, however, undermined by its declining rural base. The UD also beneﬁted from its appeal to the professional and intellectual classes to produce a strong leadership with a clear parliamentary and governmental vocation. It combined cadre features with catch-all ones much more successfully than the ZChN. It could thus maintain its identity and organizational integrity and produce a central core attracting less successful actors into its cartel. Basically, this is what the SdRP/SLD did to an even greater degree, and the PSL failed to do, although both beneﬁted from initial organizational and mass membership advantages. Polish parties have, in general, produced a number of fairly equal leaders, composing a leadership team or pool rather than a single dominant leader. The major exception was the KPN, which was dominated by Leszek Moczulski until Adam Sl⁄ omka split it by establishing KPN-Ojczyna (KPN-O) in the spring of 1996. A similar revolt and split occurred, also in 1996, against Janusz Korwin-Mikke’s domination of the UPR. This forced him to concede the leadership of the main party to Stanisl⁄ aw Michal⁄ kiewicz in 1997, although he resumed control two years later. The small PPS has in recent years been symbolized by its maverick leader Piotr Ikonowicz who left the SLD to head a three-strong parliamentary circle in November 1999. There was much debate during the 1990s on why Poland had produced so few statesmen with real political vision of the rank of Pil⁄ sudski, Dmowski, Witos, Grabski and Wyszy´nski since regaining independence in 1918. The ˛ Third Republic candidates to such stature were John Paul II, Wal⁄esa, Mazowiecki, Balcerowicz and Kwa´sniewski, followed by Glemp, Skubiszewski, Buzek and Miller.132 Polish parties and the party system are far from having achieved a permanent and ﬁnal shape. The SLD seems closest to having done so but the AWS and UW underwent considerable restructuring of their components before 2001 as a result of the shifting alliances which formed the PO and PiS. The approximately 50 centre and right parties learnt the lesson of their 1993 defeat but the 1997 losers went in three different directions. The UP joined a larger political camp (SLD), the PSL retained its identity and its capacity to participate in government but lost much ground to its more dynamic Samoobrona competitor, while ROP partially recreated itself as PiS. By 2001, one could discern how the previous decade had been dominated by two electoral and party tendencies. First a regular cyclical pattern of voting against incumbents, of throwing out the rascals, both reformist and conservationist, had crystallized. My view is that its fundamental mainspring was protest against the socioeconomic costs of the transformation. As in the French Fourth Republic, protest also assumed populist forms, as with Tymi´nski and Samoobrona, but these can be regarded as safety valves and the growing pains of modernization, to be eliminated on

Government and the Mechanisms of Representation 201

the successful completion of the process. Secondly, the additional secularreligious, pro- and anti-PRL, generational and regional cleavages, allied to exceptionally poor and quarrelsome political leadership on the right, produced a high degree of party political volatility. Sectarian political chapels and grouplets have united to join larger conglomerates, and seceded again to try their luck on their own, with bewildering frequency. Organizational ephemerality has, however, been compensated for by an underlying continuity of the political traditions and competition of the same political space by these movements. The ﬂuid and volatile party system may be regarded as the greatest threat to the Polish political system but it has not, so far, destabilized it. A capable and ﬂexible political class and a balanced constitutional framework have ensured that the excesses of the early years of the Third Republic, despite superﬁcial appearances, have largely been avoided, apart from the teething troubles of 1991–93.

Notes 1 See Olson, Compartmentalized Competition, op. cit. 2 Speciﬁed by the electoral law of 28 June 1991, Dz. U, 1991, no. 59, position 252. Cf. Zbigniew Jackiewicz, O prawie wyborczym regulajacym ˛ wybory do Sejmu RP I kadencji, Pa´nstwo I Prawo, XLVIII, no. 5 (April 1993), 51–7. 3 For an authoritative overview and summary, see Jacek Raciborski, Polskie wybory. Zachowania wyborcze spol⁄ ecze´nstwo polskiego, 1989–1995 (Warsaw: Scholar, 1997). 4 Aleksander Patrzal⁄ ek and Wieslaw Skrzydl⁄ o, Cele i zasady kodyﬁkacji prawa wyborczego w Polsce, Przegl ad ˛ Sejmowy, V, no. 2 (1997). 5 Ibid. pp. 9–21. 6 For the legal framework for Polish elections, see Garlicki, Polskie prawo konstytucyjne, pp. 117–43. See also Skrzydl⁄ o et al. Polskie prawo konstytucyjne, Ch. 10. Witkowski, et al. Prawo konstytucyjne, Ch.7. The subject is discussed by Jerzy Buczkowski, Podstawowe zasady prawa wyborczego III Rzeczpospolitej (Lublin: Wydawnictwo UMC-S, 1998). 7 A Polish curiosum is that criminals retain the right to vote if they are not speciﬁcally deprived of public rights by the courts. 8 Zdzisl⁄ aw Jarosz, Ordynacja wyborcza do Sejmu RP z 28 vi 1991r, Pa´nstwo I Prawo, XLVII, no. 10 (October 1991), 5–6. 9 See Andrzej Szmyt, in Pawel⁄ Sarnecki et al. (eds), The Principles of Basic Institutions of the System of Government in Poland (Warsaw: Sejm Publishing Ofﬁce, 1999), p. 126. 10 TK judgment W, 7/1995, Orzecznictwo Trybunal⁄ u Konstytucyjnego w 1995r. (Warsaw: TK, 1996), section 1, p. 278. Garlicki considers that the absence of a residence requirement in the 1997 constitution implies that it is generally no longer applicable but this is a disputed view; see Garlicki, Polskie prawo konstytucyjne, p. 122. Candidates have to be Polish citizens, but not necessarily from birth, as in the USA. This raised the intriguing possibility in 1990 that Zbigniew Brzezinski as a native-born citizen of Canada could technically become presi-

202 Democratic Government in Poland

11

12 13 14 15 16 17

18 19 20 21

22

23 24

25 26

dent of Poland but not of the USA where he had been Jimmy Carter’s National Security Adviser; Polish presidents could also possess dual citizenhood during the 1990s. Cf. Kazimierz Dzial⁄ ocha, Podstawy prawne integracji Polski z Unia Europejska w pracach nad now˛a. Konstytucji, Pa´nstwo i Prawo, LI, nos. 34–5 (April–May 1996). See Tomasz Bichta, Referendum w procesie transformacji ustrojowe w Polsce, in Zmigrodzki, Polityczne-Prawne aspekty transformacji systemowe w Polsce, pp. 9–22. Cf. Gazeta Wyborcza, 19 April, 1999, p. 2. Rzeczpospolita, 2–3 May, 2001. Rzeczpospolita, 5–6 May, 2001, p. A3. Wprost, 25 May, 2001. In view of the 2000 American presidential election shenanigans, with voter recounting in Florida, one should note that the Supreme Court also has the power of dissolving the Sejm and calling new general elections to both assemblies although it is difﬁcult to envisage such circumstances coming into play. See Janusz Mordwil⁄ ko, Protesty wyborcze w s´wietle ordynacji wyborczej z 1993r. do Sejmu RP oraz praktyka ich rozpoznania, Pa´nstwo I Prawo, L, no. 1 (1995), 37–44. See Senate Electoral Law of 10 May 1991, in Pol and Odrawaz-Sypniewski, ˙ Polish Constitutional Law, op. cit., pp. 159–67. Ibid. pp. 169–219, Dz.U., 1990, no. 67, position 398. Stanisl⁄ aw Bozyk, ˙ Konstytucyjne zasady wyboru Prezydenta RP, in Garlicki, Konstytucji, Wybory, Parlament, p. 34. Polish constitutional lawyers had great fun in discussing what would happen if one of the candidates died or withdrew between the two ballots. The 1997 Constitution, therefore, stipulated (art. 127.v) that in such an event the election would be postponed for an additional fortnight and that the candidate who had gained the third most votes would be allowed to step into the breach. This arrangement has been criticized as freezing a particular electoral balance; it has been argued that it would be better to hold the elections again from scratch as stipulated in France. Cf. Skrzydl⁄ o, Ustrój polityczny RP w s´wietle konstytucji z 1997 r. pp. 171–2. The option of adding the phrase ‘so help me God’ at the end is entirely voluntary. Cf. Danuta Gorecki, Ewolucja przepisów dotyczacych ˛ tryb wyboru Prezydenta w polskim prawie konstytucyjnym, Przeglad ˛ Sejmowy, IV, no. 2 (1996). See Wiesl⁄ aw Skrzydl⁄ o, Problemy i kierunki prawa wyborczego w Polsce in Garlicki, Konstytucja, Wybory, Parlament, pp. 170–71. On the campaign and candidates, see Stanisl⁄ aw Gebethner and Krzysztof Jasiewicz (eds), Dlaczego tak gl⁄ osowano. Wybory prezydenckie 90 (Warsaw: ISP PAN, 1993), Chs 1, 4–7. See also Bartkowski and Raciborski, Wybory Prezydenta RP: kampania wyborcza i wyniki in Jacek Raciborski (ed), Wybory i narodziny demokracji w krajach Europej ´Srodkowej i Wschodniej (Warsaw: Instytut Socjologii UW, 1991) ; Grabowska and Krzemi´nski, Bitwa o Belweder, op. cit. See Gebethner and Jasiewicz, Dlaczego tak glosowano, Ch. 2. See Krzysztof Jasiewicz, Polish Elections of 1990. Beyond the Pospolitej Ruszenie, in Connor and Pl⁄ oszajski, Escape from Socialism, pp. 181–98.

Government and the Mechanisms of Representation 203 27 For the campaign and results, see Raciborski, Polskie wybory, pp. 75–103. See also Frances Millard, The 1995 Polish Presidential Election, Journal of Communist Studies and Transition Politics, XII (March 1996), 101–9. 28 See the book containing his views, specially published for the election, J. Machajek et al. Kwa´sniewski: nie luby tracic czasu (L⁄ ódz: ˙ Hamal, 1995). 29 He had completed foreign trade studies at the economics department of Gda´nsk University but had not submitted his master’s thesis, which in the Polish system means that he had not actually obtained the degree. The Supreme Court ruled, immediately after his election, that this issue had not materially affected the result, Rzeczpospolita, 18 December 1995. 30 For a useful compilation of the candidates’ programmes, see Wprost, 1 November 2000, pp. 26–7. 31 See Gazeta Wyborcza, 16–17 September 2000, pp. 9–15. Polityka, 23 September 2000, pp. 15–16. 32 Its political supporters were reduced to playing up a gaffe by Kwa´sniewski’s long-time collaborator, secretary of state and BBN head, Marek Siwiec, who satirized Pope John Paul II by kissing Polish soil at the airport after returning from a trip outside Warsaw. 33 See Gazeta Wyborcza, 12 September 2000. 34 See Polityka, 2 September 2000, pp. 12, 15. 35 An OBOP poll showed 58 per cent regarding it as an electoral manoeuvre, 54 per cent thought it would cause social conﬂicts, while only 38 per cent thought that it was necessary as against a mere 14 per cent who considered it fair. Gazeta Wyborcza, 8 September 2000, p. 1. 36 See Dorota Macieja, Zakl⁄ adnicy etosu, Wprost, 3 September 2000, p. 31. 37 See Polityka, 24 September 2000, pp. 34–5. 38 See Gazeta Wyborcza, 16–17 September 2000, p. 4. Aleksander L⁄ askawy, Wprost, 1 October 2000, pp. 23–4. 39 Cf. Prezydencka ﬁkcja, Wprost, 8 October 2000, pp. 20–24. 40 See Wnuk-Lipi´nski in Wprost, 15 October 2000, pp. 20–21 and interview with Olechowski, ibid. 22 October 2000, pp. 19–20. 41 See Wprost, 4 March 2001, pp. 26–33. The UW did not help its cause by electing the uncharismatic Geremek as its leader on Balcerowicz’ resignation. 42 Cf. Krystyna Naszkowska, Trzecia sil⁄ a, druga tura?, Gazeta Wyborcza, 11 September 2000. 43 See Raciborski, Polskie wybory, p. 39. 44 The fullest study of the 1991 election is Stanislaw Gebethner and Jacek Raciborski (eds), Wybory’91 a polska scena polityczna (Warsaw: INP UW/ISP PAN, 1992). Cf. Krzysztof Jasiewicz, Poland, European Journal of Political Research, XXII (1992), 489–504. See also Frances Millard, The Polish Parliamentary Elections of October 1991, Soviet Studies, XLIV (1992), 837–55; George Sanford, Delay and Disappointment; the Fully Free Polish election of 27 October 1991, Journal of Communist Studies, IX (June 1993), 107–18; W. Webb, The Polish General Election of 1991, Electoral Studies, XI (1992), 166–70. 45 Fortunately, there had been 18 months of preparatory work and debate on the electoral law in the Sejm, including consideration by a special Committee, Kenneth Ka-Lok Chan, Idealism Versus Realism in Institutional Choice: Generalising from the Polish Experience of Electoral Reform. ECPR General Conference paper, Canterbury, September 2001. 46 See Antoszewski and Herburt, Polityka w Polsce w latach 90, p. 88.

204 Democratic Government in Poland 47 See Zbigniew Jackiewicz, Ordynacja wyborca do Sejmu RP w s´ wietle do´swiadcze´n wyborow 1993r, Pa´nstwo i Prawo, IL, no. 3 (March 1994), 41. 48 See Kenneth Ka-Lok Chan, Poland at the Crossroads: the 1993 General Election, Soviet Studies, XLIV (1995), 123–45. See also Hubert Tworzecki, The Polish Parliamentary Elections of 1995, Electoral Studies, XIII (1994), 180–85. 49 CBOS communique‘, Przed wyborami. Zrodl⁄ a wiedzy o partia politycznych. Opinia spol⁄ eczna o nie akceptowanych formach kampanii wyborczej (Warsaw: August 1993), p. 4. 50 See Raciborski, Polskie wybory, p. 39. 51 Cf. Krzysztof Grabowski, ‘Dyktator’, Wprost, 27 October 1996. 52 Stanisl⁄ aw Gebethner (ed.), Wybory 97. Partie i Programy Wyborcze (Warsaw: Elipsa, 1997), p. 9. This volume contains useful analyses of the main parties as well as their electoral manifestos. 53 See Wprost, 24 August 1997, p. 23. 54 See chapters by Grabowska, Szawiel, Jasiewicz and Gebethner, in Radosl⁄ aw Markowski (ed.) Wybory Parlamentarne 1997 (Warsaw: Friedrich Ebert Foundation, 1999). See also Wprost, 21 September 1997, pp. 24–7 which tabulates party programmes under sectional headings. 55 Radio Maryja continued to have a strong mobilizing effect within its electorate. 19 of its 34 candidates won AWS seats, often, as in Warsaw, leapfrogging over better-known candidates who had been placed higher on the party’s electoral list. See Groblewski in Rzeczpospolita, 1 October 1997. 56 For an excellent analysis, see Aleks Szczerbiak, Electoral Politics in Poland; the Parliamentary Elections of 1997, Journal of Communist Studies and Transition Politics, XIV (September 1998), 61–71. 57 7508 candidates were presented on 403 constituency lists by 14 electoral committees. 58 See Stanisl⁄ aw Gebethner, Wybory jako demokratyczny sposob kreowania organów wl⁄ adzy publicznej, in Wiesl⁄ aw Skrzydl⁄ o (ed.), Ustrój i struktura aparatu pa´nstwowego i samorz adu ˛ terrytorialnego (Warsaw: 1997), pp. 52–3. 59 Cf. Raciborski, Polskie wybory, Ch. 3. 60 Ibid. pp. 119–22; Trybuna, 31 May 1990. 61 See Raciborski, op. cit., p. 124. 62 PKW communique‘ of 23 June 1994, Monitor Polski, 1994, no. 35, position 303. 63 Aleks Szczerbiak, The Impact of the 1998 Local Elections on the Emerging Polish Party System, Journal of Communist Studies and Transition Politics, XV (September 1999), p. 80. 64 See Zygmunt Niewiadomski (ed.), Ustrój samorz adu ˛ terytorialnego i administracja rz adowej ˛ po reformie (Warsaw: Diﬁn, 1998). 65 See Rzeczpospolita, 24/25 October 1998. 66 See Szczerbiak, op. cit. p. 90. 67 Cf. Maurice Duverger, Political Parties (London: Methuen, 1954). See also B. Grofman and Arend Lijphart (eds), Electoral Laws and their Political Consequences (New York: Agathon Press, 1986); Arend Lijphart, Democracies. Patterns of Majoritarian and Consensus Government in Twenty One Countries (New Haven: Yale University Press, 1984); Douglas Rae, The Political Consequences of Electoral Laws (New Haven: Yale University Press, 1971); Richard Rose in Vernon Bogdanor and David Butler (eds), Electoral Systems and their Political Consequences (Cambridge: Cambridge University Press, 1983).

Government and the Mechanisms of Representation 205 68 Peter Mair in Frederick Muller-Rommel and Geoffrey Pridham (eds), Small Parties in Western Europe (London: Sage, 1991). 69 Cf. M. Shugart and S. Taagepera, Seats and Votes (New Haven: Yale University Press, 1989). 70 See Stanisl⁄ aw Gebethner, Spo ‘ r o ordynacja wyborcza do Sejmu, Dzi´s, II, no. 9 (1991), 26–28. 71 See Raciborski, Polskie wybory, ch. 4. Antoszewski and Herburt, Polityka w Polsce w latach ‘90, pp. 88–93. 72 Banaszkiewicz, in Gebethner (ed.), Wybory parlamentarne 1991 i 1993, p. 79 ff. 73 Michael Gallagher, Michael Laver and Peter Mair, Representative Government in Modern Europe (Boston: McGraw-Hill, 3rd edn 2001), pp. 442–3. 74 Cf. Szczerbiak, op. cit. pp. 78–80. 75 Richard Katz, Party-Government in Rudolf Wilderman (ed.), The Future of Party Government (Berlin: De Gruyter, 1986), p. 43. For discussions of the relations between parties and governments, see Arend Lijphart, Democracies (New Haven CT: Yale University Press, 1984). Richard Rose, The Problem of Party Government (London: Macmillan –now Palgrave Macmillan, 1974). 76 See Jean Blondel, Towards a Systematic Analysis of Party-Government Relations, International Political Science Review, XVI (April 1995) 132; Jean Blondel and Maurizio Cotta (eds), The Nature of Party Government. A Comparative European Perspective (Basingstoke: Palgrave – now Palgrave Macmillan, 2000). 77 See Skrzydl⁄ o (ed.), Konstytucja RP, p. 43. 78 See Jan Majchrowski, Partie polityczne w s´ wietle nowej Konstytucji, Pa´nstwo i Prawo, LII, no. 11–12 (1997), 163–72. 79 The LR was blamed when an individual allegedly belonging to the Movement for the Republic (RdR) injured three people by throwing a ﬂare (petarda) at a First of May demonstration on Grzybowski Square in Warsaw in 1999. See Gazeta Wyborcza,5 May 1999, pp. 2 and 8. 80 Dz. U., 1990, no. 54, position 312. 81 Skrzydl⁄ o et al., Polskie Prawo Konstytucyjne, pp. 147–52. 82 See Chru´sciak et al., Polski System Polityczny w Okresie Transformacji, pp. 228–31. 83 Dz. U., 1997, no. 98, position 604. English text in Pol and Odraw a˛z˙ Sypniewski, Polish Constitutional Law, pp. 571–93. 84 See Marek Zubik, Uwagi na temat partii politycznych i ich osobowo´sci prawnej w s´ wietle Konstytucji i ustawy o partiach politycznych. (Warsaw: BSiE report no. 172, 2000). 85 For the complete list, see Kubiak and Wiatr, Between Animosity and Utility, pp. 183–7. Eight parties seem to have been de-registered in this period while another four were refused registration. 86 See Maurice Duverger, Les Partis Politiques 3rd edn (Paris: Armand Colin, 1958). 87 Cf. Paul Lewis, Party Development and Political Institutionalisation in Postcommunist Poland, Europe-Asia Studies, XLVI (1994), 777–99. 88 See Michal Wenzel, Solidarity and Akcja Wyborcza ‘Solidarno´sc´ ’: an Attempt at Reviving the Legend, Communist and Post-Communist Studies, XXXI, 2 (1998), 139–56. 89 See Antoszewski and Herburt, Polityka w Polsce w latach ‘90, pp. 117–19. 90 See Pawel⁄ Grzelak and Radosl⁄ aw Markowski, Identyfykacja partyjna Palaków, in Markowski (ed.), Wybory parlamentarne 1997. 91 Cf. Aleksander Smolar’s strictures in Gazeta Wyborcza, 25–26 September 1999. 92 See Plasser et al., Democratic Consolidation in Eastern Europe, pp. 114–17.

206 Democratic Government in Poland 93 Ibid., pp. 142–3. 94 See CBOS, Poczucie wpl⁄ ywu na sprawy publiczne i potrzeba polityczna aktywno´sci spol⁄ ecze´nstwa (Warsaw: August 1993), p. 1. 95 Ibid., p. 6. 96 See Wojtaszyk, in Chru´sciak, Polski System Polityczny w Okresie Transformacji, pp. 251–62 for a very useful breakdown of political parties’ statutory aims, membership requirements and their ideal conceptions of the political and economic system. 97 Refer to Paszkiewicz, Partie i koalicje polityczne III RP, op. cit. 98 See Otto Kircheimer, The Transformation of West European Party Systems, in Joseph La Palombara and Myron Weiner (eds), Political Parties and Political Development (Princeton: Princeton University Press, 1966). 99 Cf. Robert McKenzie, British Political Parties (London: Heinemann, 1963). 100 See Angelo Panebianco, Political Parties, Organisation and Power (Cambridge: Cambridge University Press, 1988). 101 See Jean Charlot. The Gaullist Phenomenon (London: George Allen & Unwin,1971), pp.63–84. 102 See Paul Lewis and Radzisl⁄ awa Gortat, Models of Party development and Questions of State Dependence in Poland, Party Politics, I, 4 (1995), 599–605. 103 See Richard Katz and Peter Mair, Changing models of party organisation and democracy; the emergence of the cartel party, Party Politics, I (1995), 5–28. 104 Post-Communist Party Systems. Competition, Representation and Inter-Party Cooperation (Cambridge: Cambridge University Press, p. 199). 105 See Peter Mair cited in Jan Zielonka, Explaining Euro-Paralysis (Basingstoke: Macmillan – now Palgrave Macmillan 1998), p. 142. 106 Agh, op. cit., pp. 103–4. 107 Ibid., pp. 105–9. 108 See Jerzy Wiatr, Political Parties and Cleavage Crystallization in Poland, in Kay Lawson, Andrea Rommele and Georgy Karasimeonov (eds), Cleavages, Parties and Voters. Studies from Bulgaria, the Czech Republic, Hungary, Poland and Romania (Westport CT: Praeger, 1999). 109 Herburt, op. cit., pp. 135–6. 110 See Giovanni Sartori, Parties and Party Structures (Cambridge: Cambridge University Press, 1976), pp. 131–45. 111 See David Olson, Political Parties and Party Systems in Regime Transformation, American Review of Politics, XIV (Winter 1993). 112 See Seymour M, Lipset and Stein Rokkan (eds), Party Systems and Voter Alignment: Cross-National Perspectives (New York: Free Press, 1967), pp. 1–66. 113 Cf. Jacek Wasilewski (ed.), Konsolidacja elit politycznych, 1991–1993 (Warsaw: ISP PAN, 1994), p. 32. 114 See Tadeusz Szawiel, Zroznicowanie lewico-prawicowe i jego korelaty, in Markowski (ed.), Wybory parlamentarne 1997. See also Krzysztof Pankowski, Lewicowo´sc´ – prawicowo´sc´ : deklaracje polityczne Polako ‘ w, 1990–1997 in Lena Kolarska-Bobi´nska and Radosl⁄ aw Markowski (eds), Prognozy i wybory. Polska demokracja ‘95 (Warsaw: Wydawnictwo Sejmowe, 1997). 115 See Dehnel-Szyc and Stachura, Gry Polityczne op. cit. 116 See Marian Grzybowski, in Sten Berglund and Jan Ake Dellenbrant (eds), The New Democracies in Eastern Europe: Party Systems and Political Cleavages (Aldershot: Edward Elgar, 1994), pp. 40–70.

Government and the Mechanisms of Representation 207 117 See Linda Cook, Mitchell Orenstein and Marilyn Rueschemeyer (eds), Left Parties and Social Policy in Postcommunist Europe (Boulder CO: Westview, 1999) Ch. 3. 118 Polityka, 10 July 1993, p. 15. 119 See CBOS, Orientacje polityczne zwolenniko ‘ w partii i ugrupowan wyborczych, (Warsaw: August 1993), p. 11. Table 1 covers both these spectra. 120 See Lisicka, in Antoszewski and Herburt, Polityka w Polsce w latach ‘90, p. 175. 121 See Jerzy Wiatr (ed.), The Politics of Democratic Transformation: Poland after 1989 (Warsaw: Scholar, 1993). 122 See Krzysztof Jasiewicz, Polish Politics on the Eve of the 1993 Elections, Communist and Post-Communist Studies, XVI (1993), 387–411. 123 See Jerzy Wiatr, Lasting Cleavages and the Changing Party System in Poland , in Kubiak and Wiatr, Between Animosity and Utility, pp. 11–29. 124 Cf. Paul Lewis (ed.), Party Structure and Organization in East-Central Europe (Aldershot: Elgar, 1996). See also Paul Lewis, in Peter Burnell and Alan Ware (eds), Funding Democratization (Manchester: Manchester University Press, 1998). 125 See Lewis and Gortat, Models of Party Development …, pp. 605–7. See also Rzeczpospolitia, 21 November 1996 for a summary. 126 See Wprost, 28 December 1999, p. 9. See also appendixes in Aleks Szczebiak, Cartellisation in Post-Communist Politics: State Party Funding in Post-1989 Poland, ECPR General Conference paper. Canterbury, September 2001. 127 See J. Mizgala, The Ecology of Transformation; the impact of the Corporatist State on the Formation and Development of the Party System in Poland, 1989–1993, East European Politics & Societies, VIII (1994), 358–68. 128 See Stanisl⁄ aw Gebethner, Problemy ﬁnansowania partii politycznych a system wyborczy w Polsce w latach 90 in Franciszek Ryszka et al. (eds), Historia–Idee–Polityka (Warsaw: Scholar, 1995), pp. 425–34. 129 193 deputies (41.9 per cent) held no party ofﬁces in the Second Sejm. 111 (24.1 per cent) held local party ofﬁce while 156 (33.9 per cent) held central party ofﬁce; see Kronika Sejmowa, Special edition December 1995, p. 10. 130 See Aleks Szczebiak, Testing Party Models in East-Central Europe: Local Party Organization in Postcommunist Poland, Party Politics, V (1999), 525–37. 131 See Ewa Nalewajko, Protopartie i Protosystem. Szkic do obrazu Polskiej wielopartyjno´sci (Warsaw: ISP PAN, 1997). 132 See Wprost, 1 November 1998, pp. 27–9 for a summary of articles during the autumn.

8 The Active Constitution in Practice

The constitutional and state tribunals Executive responsibility in Poland can now take both parliamentary and constitutional forms. The former is largely covered by the government’s responsibility for its political decisions and policies to the Sejm. Infringement of the law can, however – although the process is initiated politically – take the form of what in Poland is deﬁned as constitutional responsibility to legal bodies. In Poland’s Third Republic, this function is not fulﬁlled by the Supreme Court, as in the USA or India, but by the State Tribunal (TS) while constitutional veriﬁcation is carried out by the Constitutional Tribunal (TK). The western political tradition has a variety of forms of dual responsibility; but one can generalize that parliamentary responsibility has been overwhelmingly dominant in twentieth-century cabinet-parliamentary systems. Constitutional responsibility assumes greater importance in presidential systems where the president is not answerable politically to parliament, especially where there is full separation of powers as in America. Unlike Westminster, however, democratic Poland now falls more into a particular continental tradition. The prime minister, ministers and a variety of state ofﬁcials, and even deputies and senators in one respect, are vulnerable to stronger forms of constitutional responsibility. The process and charges are judicial in form but they are initiated and motivated politically. The two dimensions are usually blurred, except for extreme cases of administrative maladministration, corruption or arbitrariness.1 The TK was unknown in Poland before Jaruzelski since the Second Republic followed French practice in excluding judicial review and control of legislation. The PRL, likewise, rejected judicial review by establishing the constitutional ﬁction of Sejm dominance to mask PZPR control.2 The TK was introduced in 1982, actually established in 1985, and gained increased powers from 1989 onwards.3 The TK was originally modelled on the Constitutional Courts of Austria and Czechoslovakia, and to a lesser extent 208

The Active Constitution in Practice 209

that of Germany.4 The independent judiciary has developed, since then, within a framework of full separation of the powers which has produced effective checks upon the executive. Skrzydl⁄ o and Garlicki distinguish, although not entirely convincingly, between ‘concentrated’ European (a single central body with a capacity for abstract theorizing) and ‘fragmented’ American (general courts at all levels dealing solely with speciﬁc cases) models of judicial control;5 but despite the TK’s growing activism during the 1990s, and the superﬁcial resemblance of many of its functions to the US Supreme Court’s role, it still has a very long way to go before meriting close comparison. Its direct capacity to arbitrate between government and parliament, for example, still has to be demonstrated. The more passive European tradition of acting as the Guardian of the Constitution by checking on the conformity of laws, regulations, political parties and international agreements to the constitution, dominates in Poland, despite ambitious additional claims by TK advocates. Polish constitutional lawyers normally offer a fourfold deﬁnition of TK functions:6 1. To review and declare on the constitutionality of laws. This involves examining the conformity of laws as well as orders and regulations issued by state bodies with the constitution and ratiﬁed international agreements. The TK also considers whether laws and pre-ratiﬁed international agreements speciﬁcally referred by the president are in conformity with the constitution. 2. To examine constitutional complaints, a right which although given stricter constitutional deﬁnition in 1997, has proved difﬁcult to operate.7 3. As discussed in Chapter 7, to examine whether the statutes and activities of political parties accord with the constitution.8 4. Article 189 of the 1997 constitution extended the TK’s right of arbitrating competency disputes between state institutions; this is usually done indirectly by interpreting speciﬁc powers and procedures in abstract rulings.9 As in the past, it can also declare a president incapable of fulﬁlling his duties. The TK is fully independent and separate from the system of the general courts. It is part of the judicial system although not a court strictly speaking since it does not exercise justice. By 1997, it reduced the Polish Supreme Court almost entirely to its appellate law function.10 The overwhelming consensus on the need for a fully autonomous TK emerged with the ﬁrst uniﬁed constitutional draft of early 1996 when the left dominated. This resolved that particular ‘turf war’ with the more conservative favoured Supreme Court, to its beneﬁt in the 1997 constitution.11 The TK, however, lost its right of enunciating universally binding interpretations of law, having by then interpreted 75 bills. The 1997 constitutional compromise

210 Democratic Government in Poland

supported the Supreme Court’s argument that the foregoing infringed its judicial independence and the principle of the separation of the powers.12 How potentially different readings of the implementation of the same law can be reconciled remains unclear and has not been tested. In practice, article 193 of the 1997 constitution allows any court to seek TK judgment on the constitutionality of any law or ratiﬁed international agreement relevant to a particular case under consideration. The TK crystallized into its current form in the 1997 constitution and the Law of 1 August 1977 on the TK.13 It is now composed of 15 justices, appointed individually for a single nine-year term by the Sejm on the proposal of 50 deputies or its presidium.14 TK justices require legal qualiﬁcations equivalent to those of judges of the Supreme and Main Administrative Courts. They are irremovable, beneﬁt from immunity and are non-political, answering only to the constitution. They are guaranteed high salaries and a return to their previous employment. As of November 2000, no less than ten were law professors, two were procurators, two were lawyers, only one was a professional judge while three were women.15 The TK president and deputy president are appointed from its members by the state president from two nominations proposed by its general assembly. The TK president is an inﬂuential ﬁgure in the Polish political system and is often appointed to head other bodies such as the State Electoral Commission. The post was ﬁlled by Alfons Klafkowski (1986–89), Mieczysl⁄ aw Tyczka (1989–93), Andrzej Zoll (1993–98) and Marek Safjan (1998–). The TK met in the Sejm complex from 1985–94; since 1995, it has had its own building on Szucha Avenue in premises occupied by the interwar Main Military Library in central Warsaw.16 The TK convenes in public in three differing compositions depending on the level and type of judgment.17 All the justices convene together to consider issues of presidential responsibility and the conformity to the constitution of international agreements before ratiﬁcation as well as political parties. Five justices, numerically the most common form of composition, deliberate on the conformity of laws and ratiﬁed international agreements to the constitution or of the concordance of statutes to international agreements. The smallest body, of three justices, meets to examine the conformity of orders and regulations to the constitution and ratiﬁed international agreements as well as to consider complaints about the lack of implementation of earlier TK judgments. A judge disagreeing with the majority view may issue a votum seperatum which is published alongside the main judgment. The TK checks the constitutionality of international agreements, laws and regulations as well as the aims and activities of political parties and whether individual or civic rights have been infringed (art. 188). It can resolve disputes over the respective powers of central state institutions (art. 189), on the motion of the president, the Marshals of the Sejm and Senate,

The Active Constitution in Practice 211

the prime minister, and the chairs of the Supreme and Main Administrative Courts and NIK.18 This is a potential power which has barely been used although it could in extremis become signiﬁcant in a case of political deadlock or emergency, as in India. The foregoing can also refer questions of constitutionality to the TK. So can 50 deputies, 30 senators, the KRS, the Procurator-General, the Spokesperson for Citizens’ Rights, all courts of any level and a wide variety of religious, trade union and local self-government bodies and individual citizens (as speciﬁed in art. 79). Wide and open access is thus ensured. TK rulings on the teaching of religion in schools, as well as on abortion and income tax questions, played an important role in resolving these contentious issues during the 1990s. The Spokesperson for Citizens’ Rights, for example, queried the constitutionality of an article in the 1996 amendment to the 1991 Law on Personal Income Tax. This was upheld by the TK in a judgment of 16 December 1997.19 The TK also, in ˛ and Oleksy’s goveffect, arbitrated the conﬂict between President Wal⁄ esa ernment over the 1995 budget and income tax levels. More controversially, the TK took it upon itself in April 1997 to rule that the 1996 abortion law was unconstitutional as the interests of the unborn child took precedence over a women’s preferences or difﬁculties.20 The 1997 constitution gives much fuller and detailed weight to the TK than the Little Constitution which merely set out its functions and composition in article 33a. Polish state-lawyers claim that this reﬂects a basic shift, fuelled by their efforts, towards a constitution which can be enforced. The TK has an indicative function to the extent that it can signal legal shortcomings in legislation and administrative regulations to the relevant authorities. The TK is, thus, attributed with a central role in three main areas: the judicial review of lawmaking; the deﬁnition of institutional limits and competences within the separation and balance of powers; and the defence and preservation of rights by dealing with individual complaints. The ﬁrst two aspects, especially the ﬁrst, concerns us most at this point in the discussion. Judicial review can assume either concrete or abstract forms depending upon whether a law is considered with reference to a speciﬁc case or not. The latter can also assume both a priori and a posteriori forms. The TK gained the powers of judicial review of laws on the president’s referral (widened subsequently as we have seen) as well as that of declaring universally binding interpretations of statute in 1989. During the life of the Little Constitution, the Sejm could overturn TK rulings by a two-thirds majority, but it generally accepted them. A TK judgment of 20 October 1993, however, increased its power. It stipulated that if the Sejm did not raise such a majority within six months, the law ruled unconstitutional would become void.21 The 1997 constitution stipulated, belatedly, that TK judgments, from autumn 1999 onwards, two years ahead, would become ﬁnal and authoritative. During 1989–93 the TK considered three presiden-

212 Democratic Government in Poland

tial referrals. The Second Sejm accepted 22 TK judgments on the conformity of statutes to the constitution, and only rejected three concerning the budget and taxes between September 1993–June 1995.22 The Third Sejm accepted ten and rejected three as well as accepting changes ﬂowing from the president’s referral of another three laws to the TK.23 Rejections normally involved an issue of principle as against increased public expenditure.24 The TK ruled, for example, on 17 December 1997, that retrospective aspects of a Law of State Assistance for Housing Credits were unconstitutional. The Committee on Justice and Human Rights, supported by the Committee on Regional, Building and Housing Policy, after hearing from a Finance Ministry spokesman that the ruling would cost the state budget an additional 20 million zl⁄ oties, voted to advise the Sejm to reject the judgment.25 Kwa´sniewski used the referral power very cunningly during his cohabitation with Buzek’s government after 1997, most notably, gaining a basic change in the provincial reform by forcing a change from 12 to 16 provinces. During 2000, the TK issued 52 judgments, receiving 16 legal enquiries and 31 constitutional complaints. Hardly surprisingly, the TK had the most developed relationship with the RPO (19 interventions) and trade unions and professional organizations (13 interventions) compared with only four such contacts with deputies. The Sejm debate on TK president Marek Safjan’s annual report, therefore, raised concerns about the weakness of their working relationship. Józef Zych (PSL), for example, suggested that as the Sejm could no longer overthrow TK judgments since October 1999, the justices should pay more consideration to the lawmakers’ intentions.26 Whether such increased contacts would beneﬁt the TK’s reputation for impartiality is debatable. In summary, the Constitutional Tribunal (TK), during its ﬁrst decade or so from 1986 until the end of 1997, examined the constitutionality of 128 laws (judgments published under the k signature) and 60 orders and regulations (u signature), ruled on 17 legal issues (p signature), initiated seven cases (Kw/Uw signature), interpreted the implementation of 84 laws (1990–97) and expressed 112 judgments, some of which were addressed indicatively to other bodies such as the Sejm.27 Many of its judgments, especially on moral and ﬁnancial issues, unquestionably involved the TK in political controversy.28 The general view is, however, that the TK remained independent of political conﬂicts and interests. It built up a justiﬁed reputation for the purely constitutionally based character of its judgments and its efforts to maintain the coherence of the legal framework. Overall, one can agree with a leading specialist that it has built up ‘a substantial track record’ of solid achievement in the above ﬁelds.29 In that sense, Poland certainly qualiﬁes as a country marked by strong judicial review processes. The TK may be dominant when interpreting the constitution but this only affects the overall sovereignty of parliament in a limited number of cases.

The Active Constitution in Practice 213

The existence of such a check is, however, as important factor in encouraging governmental and parliamentary probity as its actual usage. Democratic critiques of unelected and unaccountable judicial bodies as threats to representative government do not seem justiﬁed in the light of the TK’s relative restraint. But the problem remains, as illustrated by the abortion ruling; if constitutionally enshrined fundamental rights exist why should a particular TK composition dominate an equally ephemeral, although, at least, popularly elected political majority in parliament? The other side of the coin has been articulated by Wojciech Sokolewicz; one of the constitution’s primary functions as the supreme law is to protect ‘strenuously reached settlements’ enshrining core democratic principles and arrangements against accidental political majorities.30 He also argues that the constitution contains more than a negative prohibition of statutes which do not conform to it. Parliament has a positive afﬁrmative duty to enact legislation that is aimed at directly implementing its principles and provisions. The UK is a country of relatively weak judicial review, where the executive is fully responsible to Parliament, although the doctrines of Cabinet and Ministerial Responsibility have changed dramatically since the notorious Crichel Down case of 1953–54 which involved alleged maladministration in the compulsory purchase of land. They have been redeﬁned largely in terms of answerability. MPs can also answer to parliament for improper ﬁnancial or corrupt behaviour. But political responsibility is mainly to the electorate at a subsequent election and continually to the public through the mass media and the ritualized government-opposition confrontations in the House of Commons. The courts’ law-making role in such a system has traditionally been almost non-existent although government, and especially local government, actions have been ruled ultra vires. This type of parliamentary and political responsibility has developed in Poland but is (again relatively) much weaker. The lack of clarity of party election manifestos and the coalition nature of governments confuse the whole idea of an electoral mandate, something which has gone out of fashion in the UK anyway. The overwhelming predominance of the concept of parliamentary sovereignty in Britain has only recently been challenged by the backdoor smuggling in of the idea of constitutional responsibility through the application of EU documents such as the European Declaration on Human Rights as a surrogate, and, from 2000, binding, Bill of Rights. One can also argue that responsibility for issues, at the cusp between politics and administration, such as the Millennium Dome in the UK would have been identiﬁed much more clearly if a system of constitutional responsibility existed in the UK. By contrast, Poland has a strong tradition that the constitution is the supreme and fundamental law. The dual, constitutional and parliamentary, forms of responsibility were notable features of the interwar period but

214 Democratic Government in Poland

were omitted in the 1952 constitution.31 In the 1990s, the general trend was to protect the institutional balance and rights through judicial enunciation and enforcement of the statements in the constitution, mainly through extending the TK’s role. A number of ofﬁce holders, namely the president, prime minister, ministers, the NIK and NBP chairs, KRRiTV members, the commander of the armed forces as well as deputies and senators (but only in cases of economic corruption), can also be made to answer to the State Tribunal for constitutional infringements. At ﬁrst sight, this would appear to have much in common with the United States impeachment process. The TS is a 19-strong body headed by the First Chairman of the Supreme Court. It is composed of individuals, mostly deputies and senators, representing the parliamentary clubs fairly equally, elected for the term of a Sejm, half of whom must have legal qualiﬁcations for being a judge. The TS was established in 1982 and proceedings began against the pre-1980 Jaroszewicz government. These were, however, halted by the 1984 amnesty. The president was made constitutionally responsible to the National Assembly in 1989; this continued in the Little Constitution and the 1997 constitution. Cases during the 1990s were, however, uniformly against ex-ministers although only one, an alcohol scandal, was actually completed. The Sejm’s Committee on Constitutional Responsibility was kept exceptionally busy during the Tenth and First Sejm’s dealing with the charges against Mieczysl⁄ aw Rakowski for attempting to close down the Gda´nsk shipyard. As a result of the bitter political in-ﬁghting of the period, prominent ﬁgures such as Leszek Balcerowicz, Czesl⁄ aw Kiszczak, Waldemar Pawlak, Tadeusz Syryczyk, Janusz Lewandowski, Ireneusz Sekul⁄ a and Jan Krzysztof Bielecki, amongst others, found themselves involved in various stages of the process.32 Repeated and intensive efforts by the anti-PRL camp to make Jaruzelski and the whole of the Council of State answer for the State of War before the TS were, however, thwarted.33 In sum, the Committee dealt with six major cases involving 47 individual charges during 1990–95 with its activity tailing-off signiﬁcantly after that. Some politicians such as Kiszczak, however, faced charges on three separate occasions, while Jaruzelski and Balcerowicz were involved twice. Two of the ministers and ofﬁcials involved in the ‘alcohol affair’ (Dominik Jastrzebski ˛ and Jerzy Cwiek) were condemned by the State Tribunal in June 1997.34 Rakowski’s case got as far as the Tribunal which refused to consider it because of technical weaknesses in the legal indictment. All the other cases were discontinued, except for that of Janusz Lewandowski for allegedly infringing budgetary law; his case was quite literally left hanging in the air for a long period after 1994. The clear political in-ﬁghting character of much of this activity was best demonstrated by a right-wing attempt, dis-

The Active Constitution in Practice 215

continued in early 2001, to make Wl⁄ odzimierz Cimoszewicz and Marek Belka answer constitutionally for a technical failure to submit the 1997 budget in due time. The SLD-PSL reciprocated in a similar attack on Premier Jerzy Buzek and Finance Minister Jarosl⁄ aw Bauc for delaying submission of the 2001 budget.35 The deﬁnition of infringements of the constitution and of statutes by ofﬁce holders, as against the committing of straightforward crimes such as drunken driving, which can be dealt with by the ordinary courts, is by no means a straightforward matter. The president cannot be made to answer in ordinary courts during his term of ofﬁce so impeachment before the TS is in practice the only way in which a politically irresponsible or corrupt president can be called to answer or resign. Ministers can answer either to the TS or to ordinary courts. Deputies and senators can only answer to the TS for limited and speciﬁed forms of economic corruption and are dealt with by the criminal courts if Parliament agrees to the lifting of their immunity. In practice, prime ministers and ministers can be made to resign through the practice of parliamentary responsibility for mistakes or for going beyond their statutory powers. The TS cases of the early 1990s against ex-ministers reﬂected the bitterness of the conﬂict between the old and the new regime camps and of the lack of clearly established conventions. It would seem that the TS has come to be regarded mainly as the sole institution where a bad or controversial president can be called to account in between elections. Kwa´sniewski’s smooth practice of cohabitation makes it look unlikely that conﬂicts between the president and a hostile parliamentary majority will ever be allowed to reach such a pitch. That line was ˛ but he was saved by his historical reputation. almost reached under Wal⁄ esa One cannot look too far ahead into history but America has only had two presidential impeachments in over two centuries (Andrew Johnson in 1867–68 and William Clinton in 1999); both of these failed.36 The Polish process in the case of the president is initiated by a vote of 140 members (out of 560) of the National Assembly.37 The bill of accusation (stan oskarzenie) is prepared by the Sejm’s Committee of Constitutional Responsibility and has to be passed by a two-thirds majority (374) of the National Assembly. In such an event, the president is suspended and his functions are assumed by the Sejm Marshal. The Sejm appoints two prosecutors and the case is tried on judicial lines before the TS, acting in two instances as a differently composed ﬁve- and seven-strong body selected by lot. The president, if found guilty, can be banned from ofﬁce holding for a period ranging from two years to permanently and may lose voting and electability rights for between two to ten years. The same procedures apply to ministers and deputies/senators except that the initiating vote by the National Assembly is lowered to 115 while the Sejm requires a three-ﬁfths (276) vote to pass a bill of accusation.38

216 Democratic Government in Poland

Organs of state control and rights protection Poland’s Roman Law and codiﬁed legal tradition and the full independence of the judiciary and judges as a separate power were conﬁrmed by both the Little Constitution and the 1997 constitution. The state law literature makes much of the untrammelled restoration of principles such as the assumption of innocence, prosecution solely for legally deﬁned offences and right to defence.39 Other technical aspects, such as 48 hours detention before charge or release of the accused, had to be worked out in practice.40 The key importance of developed guarantees of the independence and security of judges and the whole judicial process in the post-communist period is stressed most strongly. As in most continental European countries, the role of the Minister of Justice has often been controversial and sensitive in the latter regard. The generalization applies especially in relation to the minister’s control of the state’s prosecuting arm, the professional and specialized procuracy, as procurator-general. Ministerial interference in the judicial process, as in before the early 1990s reform in Italy, is, however, a conceptually separate issue from the problem of restoring the rule of law after communist authoritarianism.41 The developed structure of general administrative and military courts (dealing with criminal, civil, family and social security issues), headed by the Supreme Court, are enumerated in article 175 of the 1997 constitution as actually exercising justice.42 Since the 1950s, every general court has functioned on the two-instance principle to ensure the possibility of appeal and review. This was given an additional cassation (annulment) dimension in the 1990s. Although the judicial system was plagued by ﬁnancial and personnel problems, the three-level structure of: (1) district/local courts; (2) provincial, and; (3) national appeal courts had almost achieved a settled shape by the end of 2000.43 District courts compose the basic level while provincial courts deal with the most serious offences and act as appellate bodies while the latter function is, in turn, exercised by regional courts for the provincial level. The EU considered that the Polish judicial system met European standards fully and protected all the necessary human, civil, minority and other rights satisfactorily; improvements such as faster working processes, better remuneration for judges to raise their quality, and a stronger campaign against corruption were, however, called for.44 The Supreme Court’s First President is appointed for a six-year term by the state president on the recommendation of the National Council of the Judiciary (KRS); so are all judges except that they are appointed for an indeﬁnite period (until they reach retirement age at 65, with the possibility of extension to 70). No judicial appointments have been challenged up until now, conﬁrming the independence of this sector. The Supreme Court is composed of four chambers (civil, criminal, military and administrative, labour and social security) which are headed by their respective

The Active Constitution in Practice 217

presidents. The Supreme Court is both the highest appeal court and cassation (annulment) court in the land but it also clariﬁes unclear legal regulations in general and legal issues in speciﬁc cases and also deals with electoral complaints in every type of election as well as referenda.45 Since 1980, Poland has also had a Main Administrative Court (NSA), harking back to the interwar French tradition; this Court was regulated by the Law of 16 February 1995. 46 Its previously unclear relations with the Supreme Court were due to be resolved by 2002 through full independence.47 Since the revision of the Code on Administrative Procedure in 1990, this body has, on paper, had the function of dealing with citizenstate disputes over the whole range of the state administration.48 Separate military courts were much criticized in the early 1990s but their jurisdiction in dealing with criminal offences committed by soldiers was conﬁrmed by the Law of 21 August 1997. Given Poland’s Roman Law, judicial tradition codiﬁcation has played a very important role in maintaining historical continuity and in producing a widely comprehensible set of rules of the game. The Civil and Criminal Codes, as well as the Code on Criminal Procedure, have their roots in both the partition and interwar experiences. The detail of their communist successors, although not their ideological justiﬁcations, were not only based heavily on them but like much else in the PRL reﬂected the central European Rechtsstaat tradition.49 Consequently, they did not require rapid and throughgoing revision after 1989 – only needing to be applied within the new democratic practice and framework set by an independent judiciary, representative government, free press and political parties. The codes were amended or replaced gradually during the 1990s but, again, much legal and historical continuity was maintained in their practical detail. The codiﬁcation of administrative law, however, proved particularly difﬁcult, necessitating a crucial increase in the judicial control of procedures and decisions in this ﬁeld.50 In Poland, however, the tradition of civil, not common, law predominates. Judges are, therefore, primarily concerned with relating a particular case to the general code and relevant statutes, not to other precedents. The Spokesperson for Citizens’ Rights (RPO), the Polish equivalent of an Ombudsman, was established in 1987, for the very ﬁrst time in the country’s experience.51 The incumbent is elected for a once-renewable, ﬁve-year term by the Sejm, which since 1989 has required the Senate’s approval. RPO functions are to guard the human and civic rights and freedoms, not only, of Poles, but also of resident foreigners and stateless people, guaranteed in the constitution, statues and international agreements, against either the actions or neglect of state bodies. The RPO is assured immunity and complete independence (from the administration, judiciary and procuracy) and the Spokesperson cannot hold any other position (except that of university professor) although he is closely linked to parliament and reports back to it

218 Democratic Government in Poland

annually. He acts as free agent, either on his own initiative or in response to complaints against public bodies and can refer queries to the TK.52 Although the RPO has no actual decision-making power, the capacity of ˛ Tadeusz Zieli´nski and Adam the ﬁrst three incumbents (Ewa L⁄ etowska, Zieli´nski) to intervene with the appropriate authorities and to publicize problems gained them great authority and popularity. Ex-TK chairman Andrzej Zoll, elected in 2000, was also an inﬂuential and much-respected ﬁgure. The institution was conﬁrmed and had additional attention devoted to it in the 1997 constitution (articles 208–212).53 Its success facilitated the establishment of a Commissioner for Children’s Rights and other similar bodies for data protection and the like.54 The Supreme Control Chamber (NIK), a powerful interwar body, is answerable to the Sejm and is charged with checking the activities of the central and local state administration, the NBP and all state controlled organizations.55 It is deﬁned as ‘the highest organ of state-control’ (art. 202.ii in the 1997 constitution). Its organization and activities were regulated by the Law of 23 December 1994 which conﬁrmed that its primary function is to examine whether such bodies have fulﬁlled their budgetary and statutory obligations.56 The list of bodies within its jurisdiction now includes the Sejm, the Senate and the presidential chancelleries, TK, NSA and KRRiTV, as well as the Labour Inspectorate.57 NIK acts either on its own initiative or on the direction of the president, premier, the Sejm Marshal and Presidium or a Sejm Committee, and can respond to deputies’ interpellations and questions. It is a large body, employing 1666 people in 1998, with a complex central structure and with provincial branches;58 the scale of its activity can be gauged from the fact that it carried out 5248 investigations in 1994, directing 175 reports to the premier, 530 to ministers and deputy ministers and 935 to provincial governors and their deputies.59 It sent Sejm committees 193 reports (about 10–12 per cent of its total) during 1997–2000, most notably, 77 to the Committee on State Control, 32 to that on Public Finances, 24 to that on Agriculture and 23 to the Treasury Committee.60 NIK’s chair is appointed (and dismissed) by the Sejm, on the motion of 35 deputies or the Sejm Marshal, and subject to Senate approval. Its chair is an important, wholly independent, ofﬁce-holder on the Polish political scene who can participate in Sejm debates and in the Council of Ministers. The NIK chair ultimately bears constitutional responsibility only before the TS. Although the chair is supposed to be non-political, the appointment of such a strongly political ﬁgure as Lech Kaczy´nski (PC) in the early 1990s inevitably drew accusations of partisanship. His successor in 1995, ex-PSL deputy Janusz Wojciechowski, saw out his full term because any controversies were primarily bureaucratic, rather than direct occasions for political in-ﬁghting. NIK was heavily embroiled in the controversy in autumn 2000 over its 27-month-long investigation into the responsibility for the failed

The Active Constitution in Practice 219

computerization of ZUS, the social security enterprise.61 NIK’s annual report on the fulﬁllment of the budget, and reports on other ﬁnancial plans, investigations and recommendations, feed into the Sejm’s work, especially that of its committees. The National Council for Radio and Television (KRRiTV) was established by the 1992 Law to supervise democratic standards following the break-up of the communist public broadcasting monopoly and the end of censorship.62 Article 213 of the 1997 constitution conﬁrmed its role as the guardian of freedom of information and the public interest in state, but not commercial, radio and television. Public television and radio in the 1990s has been run by two joint-stock companies, owned by the Treasury, Polish Television SA and Polish Radio SA, both of which have regional branches.63 The KRRiTV has nine members who resign from any political, social or trade union afﬁliations in order to maintain their independence. They are elected for six-year terms with three members being renewed every two years; four are elected by the Sejm, three by the president and two by the Senate – to which institutions the KRRiTV presents an annual report on the state of public broadcasting. The KRRiTV chairman is an inﬂuential ﬁgure who inevitably gets drawn into political controversy by warring political parties.64 He is elected by a two-thirds majority of the council but can nominate his deputy, subject to the council’s approval. The council can issue orders (rozporz adzenie) ˛ to regulate its sphere of operation.65 Its main function is to collaborate with the premier over broadcasting policy and to supervise the quality and ethics of programmes and the work of producers as well as to determine fees and the granting of concessions.66 Constitutional lawyers tend to view its role rather simplistically as a matter of guaranteeing civic rights and freedoms; the real problem in this sphere during the 1990s has, however, been that of political control and interference, the handling of religious-secular issues and alleged partiality in the granting of contracts. In practice, the KRRiTV has always been controlled by the political majority and has not succeeded in creating even the illusion of the British BBC’s public corporation autonomy.67 The UW, however, traded the election of Julian Braun as chairman in 1999 with the SLD, which maintained its composition with four SLD, two PSL, 2 AWS and one UW.68

The Lustration Act and process Jacek Kurczewski has argued that there was basic conﬂict during the PRL between a domestic standard of human and civic rights, what he calls ‘the hidden constitution’, and its denial by the communist system.69 This explains why KOR dissidents as well as Solidarity were so strongly committed to a culturally determined struggle for rights rather than for political

220 Democratic Government in Poland

democracy in the abstract. The struggle for the rule of law in Poland, therefore, generated as much pressure for the constitutional protection of rights and the incorporation of international standards as for the development of parliamentary sovereignty. The 1997 constitution, as discussed in Chapter 4, guaranteed as comprehensive a range of rights as could be wished for. But this was often merely the conﬁrmation of the development of such rights as the freedom of the press which had been worked out by 1990s political practice.70 One of the most controversial areas of political debate in the 1990s was over how the communist legacy was to be appraised and handled. As we have seen, the Round Table agreement and the negotiated revolution limited decommunization by resolving that pre-1989 politicians would not be made responsible for the general sins of the communist system. This conﬁrmed the argument that lustration was likely to be less severe in liberal communist systems which had negotiated their exit away from authoritarianism peacefully.71 Mere communist party membership would not involve automatic exclusion from public life. Individuals could, nevertheless, still answer for purely criminal offences through the legal process. In the end, political responsibility for martial law was left to historians and to the ‘bar’ of public opinion. The issues of justice for the victims of the Baltic seacoast shootings in 1970 and martial law repression in 1981, however, straddled the purely legal dimension of investigation by the procuracy as well as that of political blame. The opening of the trial against Jaruzelski, Stanisl⁄ aw Kociol⁄ ek, General Tadeusz Tuczapski and six other communist ofﬁcials for the former was delayed for many years – until May 2001 – by procedural and political factors.72 The trial of the platoon responsible for the nine Wujek coalmine deaths by shooting in December 1981 dragged on for ﬁve years. In September 1999, 11 defendants were acquitted and proceedings discontinued against another eleven. The Supreme Court laid this judgment aside and ordered a renewal. Proceedings restarted against Kiszczak in May 2001. Both the Baltic 1970 and Wujek 1981 trials, however, hung ﬁre and awaited the outcome of the 2001 Sejm election as the cases were less likely to be pushed to a conclusion if the SLD won. The problem of judges and procurators who had been involved in Stalinist trials also concerned public opinion. The case of the elderly procurator, Helena Woli´nska, now resident in the UK, for example, caused a stir when publicized in 1999 although the case had no actual consequences. The GKBZpNP (the IPN-KSZpNP predecessor) during 1991–98 investigated 1112 cases of judges and procurators who had participated in Stalinist processes, of which 693, involving 407 individuals, were completed. As a result, 75 individuals were tried and 20 Stalinists, most notably Adam Humer (a deputy director in the Ministry of Public Security), were convicted.73 There seems to have been much behind the scenes conﬂict during the 1990s over the transfer of SB ﬁles to the UOP and MSW and later on to

The Active Constitution in Practice 221

the INP, as stipulated by the Lustration Law, which made it possible to disqualify communist party ofﬁcials from holding elected or public ofﬁce. Much excitement was generated by the discovery in autumn 1999 of ﬁles from the SB Fourth Department revealing evidence about 4500 informers against the Roman Catholic church; as usual little developed from it. In the early 1990s, the main line of attack of the right-centre decommunization camp followed the practice of the Gauck Commission in Germany, and of Czechoslovakia. The aim was to eliminate from public life individuals who had worked for, or collaborated with, the security services. The lustration process in Poland got swallowed up in the evolutionary politics of the ‘thick line’. Minister of the Interior Macierewicz attempted to implement the Sejm resolution of 28 May 1992 by revealing the names of the politicians and state ofﬁcials who had collaborated with the security services; his attempt was curtailed by the defeat of Olszewski’s government. On 19 June 1992, the TK also ruled that the Sejm resolution was unconstitutional. Further lustration initiatives were nipped in the bud by the SLDPSL governments of 1993–97, although in July 1994, the RM gave preliminary consideration to a law on the conditions for public ofﬁce holding as an alternative. Voluntary lustration declarations could not be veriﬁed in the 1997 election. Nine Sejm and two Senate candidates, however, admitted collaboration with the security services; one, Jerzy Szteliga (SLD/Opole) was even elected to the Sejm.74 Lustration, therefore, had to await Buzek’s AWS-UW government in 1997 before it became a reality. The initial pressures for lustration were for purposes of retribution. The electoral victory of the anti-PRL camp, however, ensured that the issue would be maintained as an ideological campaign designed to undermine SLD claims to democratic legitimacy by demonstrating its unbroken links with the communist system. As we have seen in earlier chapters, the decommunization cleavage remained of primary psychological, value and self-image importance in political elite in-ﬁghting during the 1990s.75 The constitutional compromise between the UW, UP and PSL in early 1997, however, also extended to lustration. Public interest in the issue revived as a result of the Oleksy spy affair which discredited SLD hardliners. The informal alliance laid down the general principles, in the Law of 11 April 1997, for a moderate and limited form of lustration for public service in, or collaboration with, the security services during the 1944–90 period by individuals holding public ofﬁce. The SLD opposed the bill. It claimed that it wanted general public access to all security ﬁles, the exclusion of the intelligence services, the widening of the process to such groups as journalists, and a more precise deﬁnition of ‘collaboration’. These delaying tactics were brushed aside and the Sejm passed the law by 214 to 162 (the latter being mainly SLD) votes. The crucial factor was that the SLD beton was outmanoeuvred. The SLD social liberal wing tacitly supported Kwa´sniewski’s refusal to veto the law.

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The law established a separate Lustration Court but the problem of ﬁnding sufﬁcient judges to serve in it proved insuperable. By the time of the formation of Buzek’s government, barely half the required 21 had been recruited. The amended law of June 1998 therefore conﬁrmed it as a department of the Appeal Court in Warsaw. Controversially, Adam Strzembosz, the First President of the Supreme Court, appointed a senior judge, Bogusl⁄ aw Nizie´nski, as Public Interest Spokesman (RIP). As this was his last – and highly politically motivated – act before vacating ofﬁce, Kwa´sniewski challenged the appointment procedure (unsuccessfully) before the TK. Nizie´nski’s powers as a de facto lustration prosecutor were strengthened by the revised law for a six-year term. The lustration procedure was that all candidates for public ofﬁce (born before 10 May 1972) – including election to the presidency, Sejm and Senate, as well as nominations to the TK, TS, judges, procuracy and publicly owned mass media and press agencies – had to submit written lustration declarations. The latter’s veracity would be checked by the RIP. If evidence of falsehood were found in any of the state archives, suspicious declarations would be directed to the Lustration Court. The latter’s establishment and actual working was delayed until January 1999 by intracoalition disputes, but it then considered cases as a bench of three Warsaw appeal court judges. It was eventually decided that verdicts could be appealed, within a fortnight, to the Supreme Court. The limited, civilized and moderate nature of the process was highlighted by the character of the penalties – disqualiﬁcation from ofﬁce for a period of up to ten years – for those who were found to have lied. Merely being a communist member, activist or ofﬁcial was irrelevant. Even work within, or collaboration with, the security services, if admitted, merely had, again, to pass the bar of public opinion. The predominant feeling was that historical justice or individual retribution could be achieved in other ways. The latter could be done through the courts. The former was exercised by such symbolic acts as the AWS-UW majority’s release of hot air and indignation in the 1999 Sejm debate condemning communism as a criminal system. Lustration’s main purpose was, therefore, to decrease secrecy in public life and to ﬂush out the few remaining ﬁgures who had concealed security service links. The centre-right parties and Solidarity felt strongly that the judiciary had been compromised by its association with the communist system and had not been purged properly. The TK ruled as unconstitutional attempts to identify and remove allegedly discredited judges as compromising the new democratic principle of judicial independence. When the lustration declarations of judges, procurators and lawyers were handed in during early 1999, admissions of collaboration with the security services were published in the Monitor Polski. This gave Minister of Justice Suchocka the opportunity to shake-up the much criticized procuracy. About 96 per cent of all

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admissions were in the legal ﬁeld but these did not raise great difﬁculties as they were mainly from lawyers in the private sector. The real problem lay with politicians who might have lied in their declarations as evidence of their collaboration in the state archives might have been destroyed or polluted.76 Although lustration issues preoccupied the elite, general interest in the issue declined gradually during the 1990s. While 72 per cent in June 1994 thought that politicians who had collaborated with the security services should be removed from ofﬁce, the ﬁgure had declined to 53 per cent by May 1999. In 1993, 68 per cent and in 1996 74 per cent thought that all citizens should have access to their security service ﬁles but only 55 per cent thought so by January 1999 while the percentage considering that they might be affected also declined continuously.77 There was an almost equal division of opinion over whether lustration was merely a form of political in-ﬁghting. Support for lustration peaked at 76 per cent in December 1997 (‘deﬁnites/rather in favour’) compared with 56 per cent in April 1994.78 By December 1999, 22 643 individuals holding public ofﬁces speciﬁed in the law had handed in lustration declarations. This included 8337 judges, 5966 procurators, 6880 lawyers and 1460 deputies, senators, ministers and civil servants. There were 308 admissions of which the RIP published 138 in the Monitor Polski. The RIP had also directed 26 questionable cases to the Lustration Court; these included nine deputies, two senators, deputy premier Tomaszewski, two under-secretaries of state, nine lawyers, two judges and a procurator.79 Ten were eventually ruled to have lied, most notably ex-premier Józef Oleksy, and this necessitated his departure from the Sejm.80 Other notable casualties included Senator Marian Jurczyk (Szczecin) the second most prominent Solidarity leader in 1980.81 He played a controversial role in Third Republic politics as leader of Solidarity ‘80 and established an anticapitalist alliance with the SLD which elected him as president of the Szczecin city council. The court ruled that he had been forced into collaboration with the SB through genuine threats to his life. However, this did not release him from the obligation of admitting this in his lustration declaration. The complex and long-drawn-out character of the lustration process was demonstrated by the Supreme Court returning his case for reconsideration (it did likewise with the lawyer Jacek Hofman, the liquidator of PZPR assets). Two other senators, Jerzy Mokrzycki (SLD) and Zygmunt Ropelewski (AWS), however, lost their seats in spring–summer 2001 when the verdicts against them, for concealing collaboration with the SB in the 1970s, became deﬁnitive. Robert Mroziewicz (Solidarity/UW) and Krzysztof Luks (UW), a deputy Minister of Transport also had deﬁnitive negative verdicts returned against them. Ex-premier Wl⁄ odzimierz Cimoszewicz (SLD) was cleared, as were two provincial governors, Michal⁄

224 Democratic Government in Poland

Kulesza, the architect of the local government reform, and ambassador in Israel, Krzysztof Sidorkiewicz (AWS). A number of individuals also participated voluntarily in the process to clear their names of rumours and allegations. The court eventually cleared Bentkowski, Chrzanowski and Osiaty´nski in this way, but Moczulski’s case dragged on. So-called wild lustration, in the form of unsubstantiated allegations and rumours, affected a ˛ and Kwa´sniewski large number of individuals, most notably Buzek, Wal⁄ esa at various times. The revised 1998 law allowed deputies and senators to initiate lustration through a ‘denunciation’ process. This was used by deputy Adam Sl⁄ omka (KPN-O) against Buzek. It was rumoured that the most long-running case, Tomaszewski’s, which excluded him from political life for over two years, was initiated unofﬁcially either by political enemies within his own camp or by ex-PRL agents remaining in the security services.82 The lustration ˛ and Kwa´sniewski in the 2000 presidential elecprocess concerning Wal⁄ esa tion was delayed until the opening of the campaign. The issue was only resolved satisfactorily through various legal ‘rabbits’ being pulled out of a hat during tense last-minute court hearings. The episode occasioned an embarrassing public exchange of letters over lustration between the president and the premier.83 The UOP, ofﬁcially controlled by the premier through a coordinating minister, was accused of playing a questionable role. The Sejm Committee on the Security Services, however, only blamed it for delay in transmitting the required documents concerning ˛ to the RIP.84 The ﬁasco also caused the number of Kwa´sniewski and Wal⁄ esa opposers to lustration to grow larger than its supporters for the ﬁrst time. Much debate followed about the inadequacies of lustration and the role of the UOP and the IPN.85 Nizie´nski was criticized for letting presidential lustration lag until the last moment but the timing and order of many of his other actions were also challenged. The lustration process suffered from charges of politicization as an element in the struggle between politicians and parties, particularly as many of its victims were anti-communist oppositionists. It generally served to defuse the issue. It was a typical example of the modern Polish tendency of allowing time to erode underlying problems while avoiding maximalist or ‘heroic’ solutions as in the past. There was very strong debate during 1998 before an Institute of National Memory (IPN), deﬁned as a Commission for Investigating Crimes against the Polish Nation (KSZpNP), was formally approved, with the Sejm breaking the presidential veto in December.86 Eleven members of its directing college were nominated in July 1999, most notably Andrzej Paczkowski and Andrzej Friszke, two well-known academics in the Institute of Political Studies of the Polish Academy of Sciences.87 SLD representatives were excluded. Although the candidacies of prominent ﬁgures were mooted as its chairman, individuals such as Andrzej Zoll (ROP) and Marek Biernacki (Minister of the Interior) preferred other appointments. Many other names,

The Active Constitution in Practice 225

such as Bogdan Borusewicz, Andrzej Kern, Andrzej Rzepli´nski, Witold Kulesza, Professor Chwal⁄ ba and Jerzy Polaczek, were ﬂoated before the Sejm ﬁnally appointed Leon Kieres, a Solidarity senator from Wrocl⁄ aw in summer 2000. Witold Kulesza became the very aggressive head of its investigating department breathing ﬁery threats against Jaruzelski, Gierek and Kociol⁄ ek and other surviving communist dignitaries.88 The KSZpNP produced a number of indictments against ex-UB and SB agents. Its activity, especially its publications and exhibitions, did much to publicize the subject. The release of security ﬁles to individual citizens, however, proved a much more long-drawn-out and difﬁcult affair. The rule of law in Poland has now been deﬁnitely entrenched. Since 1989, debate, however, has continued over the balance between inherited and novel features. This is protected directly by the judicial and other bodies discussed in this chapter. In a larger sense this also guaranteed by the working out, by 1997, of a generally accepted constitutional framework. With EU membership ahead, the country’s residual cultural and socioeconomic problems, however major in certain areas, can only beneﬁt from being contained within the satisfactory constitutional and institutional framework developed during the 1990s.

Notes 1 On the post Second World War forms of judicial protection of the constitution in Western Europe, see Leszek Garlicki, S adownictwo ˛ konstytucyjne w Europie Zachodnie (Warsaw: PWN, 1987). 2 This was argued by Stefan Rozmaryn, Kontrola konstytucyjno´sci ustaw, Pa´nstwo i Prawo, III, no. 11 (1948). Stalinism had decayed sufﬁciently by Gierek’s time to allow the case for constitutional review to be presented by Feliks Siemie´nski, Problem konstytucyjno´sc ustaw w pa´nstwie socjalistycznym, Ruch Prawniczy, Ekonomiczny i Socjologiczny, XXXIV, no. 4 (1972). In theory, the Council of State watched over the constitution after the 1976 amendment. 3 See Zdzisl⁄ aw Czeszejko-Sochacki, Przebieg prac nad utworzeniem polskiego Trybunal⁄ u Konstytucyjnego (1981–1985), Przegl ad ˛ Sejmowy, II, no. 3 (1994), 22 ff. Only Yugoslavia of the socialist states established a Constitutional Court (in 1963). 4 See Brzezinski, op. cit., Chs 5–6. 5 See Skrzydlo, Polskie prawo konstytucyjne, p. 401; Garlicki, Polskie prawo konstytucyjne, pp. 44–6. 6 See Skrzydl⁄ o et al., Polskie prawo konstytucyjne, pp. 404–10. 7 Some hundreds of constitutional complaints have been submitted annually since 1997 but as they are normally badly drafted and cannot challenge court judgments, only their legislative basis, very few actually qualify even for preliminary consideration; see Wojciech Sokolewicz, Trybunal Konstytucyjny – geneza, organizacja, funkcjonowanie, Zeszyty Naukowe Wy˙zszej Szkol⁄ y Handlu i Prawa im. R. L⁄ azarskiego. Seria Prawo, no. 5, Warsaw, 2001, pp. 42–4. See also Garlicki,

226 Democratic Government in Poland

8

9

10

11

12 13

14

15 16 17 18

19 20 21 22 23

24

25 26 27

Polskie prawo konstytucyjne, pp. 325–8 and Bogusl⁄ aw Banaszak, Skarga konstytucyjna, Pa´nstwo i Prawo, L, no. 12 (1995), 4–13. For a range of complaints, see Opinie o wnioskach i skargach do Trybunal⁄ u Konstytucyjnego, Expertyzy i Opinie Prawne 1/31 (BSiE, 1999). This power has only actually been used once since 1997 in a judgment of 8 March 2000 so the TK’s role can largely be regarded as a reserve sanction in this respect. For example, the TK ruled on 10 May 1994 that the president’s right to appoint members and the chair of the KRRiTV does not carry with it an automatic right to dismiss them. TK resolution W.7/94 in OTK. 1999/1, position 23. For different constitutional conceptions of the KT, see Zdzisl⁄ aw CzeszejkoSochacki, Trybunal Konstytucyjny w s´wietle prokektów konstytucji RP, Pa´nstwo i Prawo, L, no. 2 (1995), 5–20. See Leszek Garlicki, Trybunal Konstytucyjny w projekcie Komisji Konstytucyjnym Zgromadzenia Narodowego, Pa´nstwo i Prawo, LI, no. 2 (February 1996), 4–5. See Skrzydl⁄ o et al., Polskie prawo konstytucyjne, p. 380. The law is published in Dz. U. 1997, no. 102, position 643 and was amended in 2000. Cf. Zdzisl⁄ aw Czeszejko-Sochacki, Komentarz do Ustawy o TK (Warsaw: Wydawnictwo Sejmowe, 1999). See also Mal⁄ gorzata Masterniak-Kubiak, Ustawa o TK (Warsaw: PWN, 1998). The TK appointed in 1985 originally had 12 members with differential four and eight year (and once renewable) terms in order to facilitate partial turnover but the current term was introduced in 1993. The appointment of the additional three new Justices in 1997 aroused criticisms of politicization against the incoming Buzek government which controlled their appointments. See Sokolewicz, Trybunal Konstytucyjny …, op. cit., p. 13. See the commemorative album Trybunal⁄ Konstytucyjny w RP (Warsaw: TK Bureau, n.d.). The TK’s supporting staff numbered about 80 in the late 1990s. See Sokolewicz, op. cit., p. 45 ff. Skrzydl⁄ o admits that this is a new constitutional function but like most statelawyers implies that such practical matters are best left for examination by political scientists. Ibid., pp. 409–10. This was accepted by the Sejm on 5 March 1998. Kronika Sejmowa, Third Sejm, no. 19, 4–10 March 1998, pp. 3–4. See Jarosl⁄ aw Majorowski, Karalno´sc´ aborcji w Polsce w s´ wietle ostatnich zmian legislacyjnych, Panstwo i Prawo, LII, no. 4 (April 1997), 65–74. See Garlicki, Polskie prawo konstytucyjne, p. 312. Sejm RP. II Kadencja. Informacja o dzial⁄ alno´sci Sejmu (19 wrze´snia 1993–30 czerwca 1995) (Warsaw: Wydawnictwo Sejmowe, 1995), pp. 52–9. Sejm RP. III Kadencja. Informacja o dzial⁄ alno´sci Sejmu (20 pa˙zdziernika 1997–31 grudnia 1998r) (Warsaw: Wydawnictwo Sejmowe, 1999), pp. 44–6. The Sejm had considered 19 TK judgments by 20 February 2001, http://ks.sejm.gov.pl. The TK is bound to inform the RM in such a case to determine how much time is required to allocate the necessary funds before the judgment comes into effect. Kronika Sejmowa, Third Sejm, no. 20, 11–17 March 1998, p. 1. http://dziennik.pap.com.pl/polska/20010705204516.html. http://www.tribunal.gov.pl/Orzecz/Statyst.htm. See Leszek Garlicki, La jurisprudence du Tribunal Constitutionelle polonais (1991–1995) (Warsaw: TK, 1997). TK

The Active Constitution in Practice 227

28 29

30 31 32 33

34 35

36 37 38

39 40 41 42

43 44

judgments and interpretations are published in the Dziennik Ustaw (laws and orders) and Monitor Polski (lower-level regulations) as well as in quarterly and annual bulletins – Orzecznictwo Trybunal⁄ u Konstytucyjnego (Warsaw: TK/C. K. Beck). For a summary, see Jerzy Oniszczuk, Orzecznictwo TK w latach 1986–1996 (Warsaw: Wydawnictwo Sejmowe, 1998). Jan Maria Rokita, Prawo jest ﬁkcja, Prawo i Zycie, 10 November 1998. Cf. Eugeniusz Zwierzchowski, The Polish Model of the Constitutional Judiciary, in Kazimierz Dzial⁄ ocha, Ryszard Mojak and Krzysztof Wójtowicz (eds), Ten Years of the Democratic Constitutionalism in Central and Eastern Europe (Lublin: Morpol, 2001). This publication is the record of the proceedings of a major international conference held at Kazimierz Dolny, Poland, in September 2000. I wish to express my gratitude to the organizers for their generous hospitality and for allowing me to participate. See The new role of the constitution in the post-socialist states in ibid., pp. 32–3. Cf. Michal⁄ Pietrzak, Odpowiedzial⁄ no´sc´ konstytucyjna w Polsce (Warsaw: PWN, 1992). See Biuletyn Komisji Odpowiedzial⁄ no´sc´ i Konstytucyjnej, Tenth and First Sejms. See Michal⁄ Pietrzak, Odpowiedzial⁄ no´sc´ konstytucyjna w Polsce w okresie przemian ustrojowych, Pa´nstwo i Prawo, L, no. 3 (1995) 17–28. Anna Karas (ed.), S ad ˛ nad autorami stanu wojenego: oskarzenia, wyja´snienia obrona przed Komisja Odpowiedzial⁄ no´sci Konstytucyjnej (Warsaw: BGW, 1993). See Wprost, 26 April 1998, p. 38. See PAP Dziennik Internetowy, no. 1048 of 6 July 2001. The AWS-UW majority used the plea of ‘exceptional circumstances’ to justify delay in order to prevent the four-month time period for a possible Sejm dissolution took place. Nixon also resigned to avoid impeachment. See Witkowski et al., pp. 354–5. See Garlicki, op. cit., pp. 339–41. In interwar Poland Pil⁄ sudski’s Treasury Minister, Gabriel Czechowicz, was accused by the democratic opposition of exceeding budgetary expenditure authorized by the Sejm before the State Tribunal in 1929. The proceedings lapsed, while an earlier attempt in 1924 to make the minister (J. Kucharski) responsible for the Zyrardów linen factory scandal never even got as far as the Tribunal. Cf. Witkowski et al., pp. 357–9. Cf. Leszek Garlicki, Prawo do s adu ˛ w Konstytucji RP, Pa´nstwo i Prawo, LII, no. 11–12 (1997), 86–105. See Wprost, 24 August 1996, pp. 18–20. Cf. Pedro C. Magalhaes, Politics of Judicial Reform in Eastern Europe, Comparative Politics, XXXII (1999), 43–62. Colleges for Misdemeanours ceased functioning in October 2001 exactly four years after the 1997 constitution came into force. They had acquired a bad reputation as they were used by the communist system to exercise social control and repression at the lower level. On the other hand, they fulﬁlled the functions of a British magistrate’s court; so as to prevent the overloading of the general courts’ system, a new type of local (grodzki) court was phased in by 2000. Two elected (for four-year terms) lay ‘benchers’ (l⁄ awników) also assist the professional presiding judge in the lowest level district courts. This is supposed to implement the principle of civic participation in the judicial process expressed in article 182 of the 1997 constitution. See Wprost, 16 October 1999, pp. 26–7. See Agenda 2000 – Commission Opinion on Poland’s Application for Membership of the European Union, DOC/97/16, 15 July 1997.

228 Democratic Government in Poland 45 See Andrzej Wasilewski, Wl⁄ adza s˛ adownicza w Konstytucji RP, Pa´nstwo i Prawo, LIII, no. 7 (1998), 11–12. 46 See Dz. U. 1995, no. 74, position 368. 47 See Izdebski, Administracja publiczna, pp. 240–44. 48 See Jan and Jerzy Jendroska, Nowy model sadownictwa ˛ administracyjnego w Polsce, Pa´nstwo i Prawo, LI, no. 8–9 (1996), 16–28. 49 Cf. Ewa L⁄ etowska and Józef Pi atkowski ˛ (eds), Civil Code of the Polish People’s Republic (Warsaw: Wydawnictwo Prawnicze, 1981). S. Wal⁄ tos (ed.), Code of Criminal Procedure of the Polish People’s Republic (Warsaw: Wydawnictwo Prawnicze, 1979). 50 See Izdebski and Kulesza, Administracja publiczna, Ch. 8. 51 See Leszek Garlicki (ed.) Rzecznik Praw Obywatelskich (Warsaw: IWZZ, 1989). 52 See Tadeusz Zieli´nski, Ombudsman – mozliwo´sci i granice skutecznego dzial⁄ ania, Pa´nstwo i Prawo, IL, no. 9 (1994), 3–15. 53 Cf. Biuletyny RPO. Material⁄ y, no. 36 (Warsaw: n.p. 1998) celebrating ROP’s tenth anniversary. 54 See Witkowski et al., Prawo konstytucyjne, pp. 441–4. 55 See Andrzej Sylwestrzak, Najwy˙zsza lzba Kontroli (Wrocl⁄ aw: PAN IPiP, 1990). 56 See Dz. U. 1994, no. 13, position 59. Jacek Mazur, ‘Nowa ustawa o NIK’, Pa´nstwo i Prawo, L, no. 8 (1995), 3–15. 57 See Skrzydl⁄ o et al., Polskie prawo konstytucyjne, pp. 423–36. 58 See Wprost, 1 March 1998, p. 30. 59 See Witkowski, Prawo konstytucyjne, p. 419. 60 See Sejm RP. III kadencja. Informacja o dzial⁄ alno´sci Sejmu (20 pa˙zdziernika 1997r–30 czerwca 2000r.), pp. 68–9. NIK representatives were also most present in the work of the Committees on Public Finances (56), Spatial Policy, Building and Housing (30), Territorial Self-Management and Regional Policy (25) and the Economy (23). 61 See Gazeta Wyborcza, 7 September 2000. 62 See Dz. U., 1993, no. 7, position 34. Jacek Sobczak, Prawo s´rodków masowei informacji (Toru´n: Dom Organizatora, 1999). 63 See Tomasz Goban-Klas, The Orchestration of the Media. The Politics of Mass Communications in Communist Poland and its Aftermath (Boulder Co: Westview Press, 1994). For comparative overviews, see John Downing, Internationalizing Media Theory. Transitions, Power, Culture. Reﬂections on the Media in Russia, Poland and Hungary, 1980–1995 (London: Sage, 1996); Liana Giorgi, The Post-Socialist Media (Aldershot: Avebury, 1995). Cf. Wojciech Sadurski, Freedom of the Press in Postcommunist Poland, East European Politics and Societies, X (1996), 439–56. 64 See Jakub Karpinski, Politicians endanger independence of Polish Public TV, Transition, II. no. 8 (1996), 28–30. The KRRiTV also appointed seven SLD-PSL members out of nine strong supervisory council of Polish TV just before the 1997 election. 65 See S. Piatek, ˛ Prawotworcza dzial⁄ alno´sc´ KRRiTV, Przeglad ˛ Sejmowy, II, no. 2 (1994). 66 See M. Rakowski, Uwagi o ustawowej regulacji instytucji KRRiTV, Pa´nstwo i Prawo, LI, no. 10 (1996). 67 See Wprost, 24 May 1993, pp. 27–8. 68 See Wprost, 18 July 1999, p. 22. 69 See Jacek Kurczewski, The Resurrection of Rights in Poland (Oxford: Clarendon Press, 1993), p. 441.

The Active Constitution in Practice 229 70 Cf. Wojciech Sadurski, Freedom of the Press in Postcommunist Poland, East European Politics and Societies, X (1996), 439–56. 71 See J. Moran, The Communist Torturers of Eastern Europe: Prosecute and Punish or Forgive and Forget, Communist and Post-Communist Studies, XXVII (1994), 95–109. 72 See Rzeczpospolita, 5–6 May 2001, A3. 73 See Wprost, 10 January 1999, pp. 32–4. 74 See Wprost, 1 November 1998, p. 26. 75 Cf. H. Welsh, Dealing with the Communist Past, Europe–Asia Studies, XLVIII (1996), 419–28. 76 See Nizie´nski interview in Wprost, 11 April 1999. 77 See Zagórski and Strzeszewski, Nowa rzeczywisto´sc´ , pp. 85–7. 78 Ibid., p. 84. 79 See Wprost, 12 December 1999, p. 33. 80 Oleksy had collaborated with military intelligence during 1970–78. Rzeczpospolita, 26 October 1999. 81 See Rzeczpospolita, 25 March 2000. 82 Tomaszewski resigned in September 1999 while his case was under investigation. The 21 February 2001 judgment clearing him was, however, set aside, on Nizie´nski’s appeal, in July 2001. Tomaszewski, who had left the AWS in June 2000, was thus left in a state of political limbo, although not formally disqualiﬁed, while the investigation against him restarted. This hampered his efforts to form a new political party, the Civic Forum (Forum Obywatelski – FO) to compete in the 2001 election. 83 See Gazeta Wyborcza, 12 and 13 September 2000. 84 See Wprost, 6 August 2000, pp. 19–21. 85 See Polityka, 23 September 2000, pp. 27–30. 86 Law of 18 December 1998 establishing the Institute of National Memory – Commission for Investigating Crimes against the Polish Nation. Dz. U., no. 155, position 1016. 87 See Monitor Polski, 1999, no. 26, position 393. 88 Interview in Wprost, 27 August 2000.

9 Conclusion: the Polish Constitution as a Framework for Democracy

This book has concentrated primarily on Polish politics and the continuities in the country’s historical and constitutional traditions which affected its democratization as well as its political life in the 1990s. It has shown how the Polish elites negotiated their exit away from communism and thus were able to move towards democratic capitalism and Europe. Voting behaviour over the period, as well as the party and value systems, were racked by major cleavages over many issues: decommunization; the pace and costs of socioeconomic transformation, and secular-Catholic disputes; excessive fragmentation and division, however, were avoided, except for a short initial period in the early 1990s. There were two primary reasons for this. First, the homogeneous Polish nation-state, achieved at the cost of so much earlier historical suffering, provided a good basis for enshrining popular sovereignty in the new demos, despite the presence of the residual strains of economic modernization. Some external carping, not with standing, Poland has successfully consolidated a form of civic republicanism, with only marginal expressions of ethnonationalism. Secondly, the elites have been able to refute earlier historical stereotypes about Poland. They have continued the evolutionary ‘Round Table’ type of political process, although, in a long drawn out debate about the new democratic system, the main political arenas have shifted to the Sejm, the Senate, the Constitutional Tribunal and Commission, the universities and the mass media. This has produced both compromises and consensus over governmental powers and the eventual balance between political institutions which were embodied in the 1997 constitution. Although the detailed focus of this work has been on Polish politics, we conclude with some generalizations about the changing role of constitutions in modern political systems, both for reasons of comparison and in order to identify Polish speciﬁcities. The role of constitutions is generally accepted to be establishing widely accepted rules of governance, protected by the courts, ﬁrst, in limiting government and second, in securing the 230

Conclusion 231

civil, or private sphere, of society from governmental encroachment. What is more contentious here is the signiﬁcance of contemporary trends. Such trends have extended the inﬂuence of constitutional and legal norms over political life, thus simultaneously judicializing politics and politicizing the judiciary.1 In the USA, this state of affairs has probably existed since Roosevelt’s New Deal conﬂict with the Supreme Court; it has certainly existed since the Warren Commission, the ofﬁcial investigation into the J. F. Kennedy assassination in the 1960s. In Europe, however, the French model of enshrining the national will (i.e. the vote at the ballot box) in a fully sovereign parliament and (in the French case) the ephemerality of constitutions since 1789, negated the prestige of the constitutional model and the signiﬁcance of judicial review. In France, the Constitutional Council, established as late as 1958, only achieved signiﬁcance in the second half of the Fifth Republic.2 The extension of judicial review – the capacity of general courts or specially constituted courts or tribunals to strike down legislation or regulations on grounds of constitutional incompatibility – has of course become a widespread feature, not only of democratizing Central and East European states,3 but of European, including EU, politics in the 1990s. What has been called the traditional British approach to the study of constitutions, from Bagehot and Bryce to Ivor Jennings and Kenneth Wheare, had the great merit of concentrating on the formal-institutional aspects.4 The constitutional separation and balance between the powers (fathered by Aristotle and Montesquieu) has been the nub of this approach.5 Constitutions were further classiﬁed by Wheare along six dichotomic dimensions: written/unwritten; rigid/ﬂexible; supreme/subordinate; federal/unitary; separated/fused powers and republican/monarchical.6 This study has adopted the institutionalist approach, expressed in Sammy Finer’s deﬁnition at the beginning of Chapter 4, as being most appropriate to the 1990s constitutional debate about the structural framework and balance between institutions in democratic Poland. For most of the period since the Second World War, the legal-institutional approach went out of fashion and for two reasons. Firstly, the intellectual reaction against Nazi and Stalinist totalitarianism caused writers such as Herman Finer (brother of Samuel, above) and Carl Friedrich to reemphasize the priority of constitutions as restraining mechanisms.7 It also led, both at the beginning and end of the Cold War, to excessive eulogization of liberal individualist Anglo-American political cultures. Hans Kelsen’s interwar positivist deﬁnition of the central European rule of law also received some what unbalanced criticism and this, in my view, detracted from an understanding of how this tradition limited totalitarianism and coexisted with pluralist forms of communist authoritarianism in the region.8 The distrust of all government as potentially autocratic as well as the need for constitutional checks became part of the postcommunist

232 Democratic Government in Poland

canon in 1990’s Eastern Europe. The need to dismantle communist political and economic bureaucracies was also in harmony with neo-liberal promarket critiques of ‘big government’. Even such apparently utopian writings as Jean Jacques Rousseau’s Considérations sur le Gouvernment de Pologne, have recently been reinterpreted. Ethan Putterman, for example, argues that Rousseau is really emphasizing the importance of an informed public opinion and of a good legal-constitutional framework in producing the transparency required to socialize and control rulers.9 The second aspect of the legal-constitutional approach has been the success of the Helsinki confidence-building process. From the mid-1970s onwards, this process and the subsequent growth of cosmopolitan democracy has provoked an unparalleled emphasis on human rights.10 Many commentators in the 1990s have largely recast constitutions as documents serving to protect human and civil rights.11 Rights-based constitutionalism, as developed philosophically by Ronald Dworkin and John Rawls, together with a growing emphasis on judicial review, has been accompanied by Supreme Court activism in the USA, by demands for a written Bill of Rights in Britain and by the post-Maastricht predominance within the EU of the European Court of Justice and of the European Convention on Human Rights. This emphasis has also been an important strand in the rejection and replacement of communism by democratic capitalism in Eastern Europe. In the Polish 1990s debate, however, the political construction of the formal rule-making institutions has, on balance, been more important. Unlike Britain, with its somewhat archaic ‘personalized’ conceptions of crown sovereignty, Poland ﬁts snugly into the mainstream European statecentred tradition.12 This is one of the main contentions in this study, leading to the initial emphasis on rehabilitating the continuity and reality of Polish domestic constitutional traditions One can agree with Wiesl⁄ aw Skrzydl⁄ o that the varied political institutions and legal procedures incorporated in the 1997 constitution are rooted deeply in ‘the traditions of the history of Polish constitutionalism’.13 Despite the loss of state sovereignty in the nineteenth century, and the authoritarian Pil⁄ sudski-ite and communist experiences in the twentieth century, Poland has generally succeeded in maintaining these values through long periods of foreign and authoritarian rule. The ethnically homogeneous Polish nation-state has now been entrenched in the Third Republic and the new European framework by the successful democratic consolidation of the 1990s.14 Many outsiders regard the political culture as far from perfect but the debate continues as to whether Polish or East European variants of democratic capitalism are either possible or desirable. What then are the main features of the 1997 constitution? Overall, it does not quite represent a ‘new start’ document such as that of the Bonn Republic; the 1997 constitution took the best part of a decade to negotiate and embodies many historical continuities. It certainly legitimizes the

Conclusion 233

new democratic order but it holds the ring open on the religious-secular level and on the issues of breaking with the communist past and of the social and economic role of the state. No less than 51 of its 243 articles directly guarantee and protect rights, including a wide catalogue of social and economic rights, so it cannot be accused of neglecting this dimension. On the other hand, the bulk of the constitution speciﬁes in detail the powers of individual institutions and their relationships with other bodies. The constitution’s primary function, therefore, would appear to be that of conﬁrming the existing system as well as the institution building processes of the 1990s. The constitution clearly guarantees the rule of law and the democratic system in a variety of ways and conﬁrms the protective role of the Constitutional Tribunal. It leaves the issue of the size and scope of government, however, to be resolved by the electorate and by political debate. Using Wheare’s six criteria, the 1997 constitution is clearly the supreme law – written, unitary and republican in character and based on the separation of powers. Overall, it tends towards the moderately rigid rather than the ﬂexible end of the constitutional spectrum. In practical terms, most of institutional controversies of the early 1990s have now been resolved. Semi-presidentialism has ceded to almost full parliamentary sovereignty which in turn supports a prime ministerial-cabinet system. The president, however, still has greater reserve and potential powers than in an average system of this type. The greatest remaining strength of the presidential ofﬁce, as demonstrated by Aleksander Kwa´sniewski, is the capacity to exercise personal inﬂuence on political events. The Sejm, despite rationalization, still has greater powers of legislative initiative and amendment than most modern parliaments as well as powers of establishing a policy-making and implementation dialogue with government. The reorganization of the Council of Ministers, ministries and agencies has been supported by the strengthening of the role of the prime minister and by the slow, and as yet incomplete, emergence of a non-political civil and foreign service. The independent judiciary shares many problems with other continental states, notably that of insufﬁcient funding, poor quality personnel (including, in the case of Poland, those selected during the communist period) and tardy procedures. Any charge of political interference and corruption, when relevant, applies mainly to the procuracy. Overall, the balances worked out and incorporated in the 1997 constitution have resulted in the workings of representative democracy and parliamentary sovereignty being consolidated. This outcome has been defended by the Constitutional Tribunal itself, a body which has also contributed signiﬁcantly to rights protection. Any weaknesses in the Polish political system, however, lie more with its actors than in institutions themselves. Direct election of the president has worked well so far. The modiﬁcation of proportional representation

234 Democratic Government in Poland

through the introduction of thresholds produced clear two-party majorities and underlying governmental stability after both the 1993 and 1997 elections. Whether elite-led, ‘catch-all’ political parties with weak ideological proﬁles and membership support can resist fragmentation to reproduce the conglomerates necessary to secure future electoral majorities remains problematic. This question remains the major institutional Achilles’ heel in the present Polish system. It is, in my view, a much greater danger than the residual survival of non-mainstream western values in Polish political culture and social behaviour. On the other hand, during the 1990s, the Polish political elite demonstrated sufﬁcient willingness to compromise on essentials to compensate for the individual ﬁssiparous tendencies. This study concludes by inverting the Solidarity (and contemporary Anglo-American) dictum expressed by Edmund Wnuk-Lipi´nski, that: ‘efﬁcient political institutions can only develop in an adequate political culture’.15 On the contrary, a satisfactory constitutional and institutional framework, as suggested by the eminent economist Schumpeter, has proved crucial in containing both what Piotr Sztompka has called the ‘great trauma’ of socioeconomic transformation and cultural-behavioural deﬁciencies of a political character in 1990s Poland. The legitimacy of free elections and representative democratic institutions has been the underlying condition for breaking the previous cycle of state-society confrontations and crises which had characterized the PRL. Social protest, especially by agricultural and industrial workers, against modernization, however, continued to cause political blockages.16 But such protests now assumed the character of a safety-valve and this consolidated, rather than threatened to overthrow, the democratic system. The other main factor in Poland’s success has been the evolutionary and compromise process, examined in this book, which has deﬁned the respective powers of key institutions and the relationships between them. The successful working of constitutional politics has thus been the key factor in entrenching and consolidating democracy in the Polish Third Republic.17

Notes 1 See C. Neal Tate and Torbjörn Vallinder (eds), The Global Expansion of Judicial Power (New York: New York University Press, 1995). 2 See Stone, Alec, The Birth of Judicial Politics in France: the Constitutional Council in Comparative Perspective (Oxford: Clarendon Press, 1992). 3 See Mary Volcansek (ed.), Judicial Politics and Policy-Making in Western Europe (London: Frank Cass, 1992). 4 See Leslie Wolf-Phillips, Comparative Constitutions (Basingstoke; Macmillan – now Palgrave Macmillan, 1972), Ch. 2.

Conclusion 235 5 See Maurice Vile, Constitutionalism and the Separation of the Powers (Oxford: Clarendon Press, 1967). 6 See Kenneth Wheare, Modern Constitutions (Oxford: Clarendon Press, 2nd edn 1966), p. 2 ff. 7 See Carl J. Friedrich, Constitutional Government and Democracy (Waltham MA: Blaisdell, 4th edn 1968). 8 Kelsen’s writings have gradually become available in translation, see The Pure Theory of Law trans. M. Knight (Berkeley CA: University of California Press, 1967); Introduction to the Problems of Legal Theory (Oxford: Clarendon Press, 1992). 9 See Realism and Reform in Rousseau’s Constitutional Projects for Poland and Corsica, Political Studies, IL (2001), 481–94. 10 On the latter, see Onora O’Neil, Thomas Pogge and Charles Beitz in Chris Brown (ed.), Political Restructuring in Europe: Ethical Perspective (London: Routledge, 1994). 11 For discussion of ‘liberal’ and ‘republican’ readings of this debate, as well as of the emergence of liberal nationalism of an open European kind in East-Central Europe, (Neil MacCormick) see the Political Studies 1996 symposium edited by Bellamy and Castiglione, op. cit. 12 See Dyson, The State Tradition in Western Europe, op. cit., pp. 37–41. 13 See Skrzydl⁄ o, Ustrój polityczny RP w s´wietle konstytucji z 1997r., op. cit., p. 251. 14 See Pogony, in Bellamy and Castiglione, op. cit., p. 576. 15 See After Communism. A Multidisciplinary Approach to Radical Social Change (Warsaw: ISP PAN, 1995), p. 209. 16 See Grzegorz Ekiert and Jan Kubik, Rebellious Civil Society: Popular Protest and Democratic Consolidation in Poland, 1989–1993 (Ann Arbor MI: University of Michigan Press, 1999). 17 As my own contribution to Polish normality, I resist the prevalent Norman Davies inspired fashion in Polish studies and do not conclude with a literary ﬂourish and an obligatory citation from Mickiewicz, Pil⁄ sudski, John Paul II, Mil⁄ osz or whoever.

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Index abortion, 90, 95, 141, 174, 178, 183, 185, 198, 211, 213 Agh, Attila, 50, 64, 196 Albania, 29, 50 Alliance of the Democratic Left (SLD), xiii, 86–9, 94, 110, 111, 113, 118, 121, 124–5, 130, 132, 145, 148, 150, 152, 158, 160, 174, 183, 185–7, 188, 190–1, 193–5, 197–9, 200, 219–21, 223 All Poland Alliance of Trade Unions (OPZZ), 55, 113, 132, 197, 198 Andruszowo, Truce of, 9 Angevin dynasty, 4 Anusz, Andrzej, 107 Arato, Andrew, 61–2 Arendt, Hannah, 27 Army, 57, 70 n.57, 81, 83, 90, 144 Augustus II, 9 Augustus III, 9 Austria, 10, 15, 78, 80, 139, 167, 208 Babiuch, Edward, 156 backwardness, 2–3, 10 Balaban, Andrzej, 115 Balcerowicz, Leszek, 55, 57, 58, 59, 60, 79, 109, 113, 132, 153, 160, 161, 166, 183, 186, 200, 214 Baltic, 5, 37, 40, 52, 143, 220 Bartoszcze, Roman, 177–8 Bartoszewski, Wl⁄ adysl⁄ aw, 145 Batory, Stefan, 8 Bauc, Jarosl⁄ aw 215 Beck, Józef, 15 Belarus, 5–6, 67 Belka, Marek, 215 Bentkowski, Aleksander, 86, 224 Berman, Jakub, 25, 33 Bielecki, Jan Krzysztof, 59, 61, 81, 142, 144, 148, 149, 151, 162, 183, 214 Biernacki, Marek, 224 Bierut, Bolesl⁄ aw 25, 32, 33 borderlands, 6 Borowski, Marek, 109, 158

Borusewicz, Bogdan, 225 Braun, Jerzy, 161, 219 Brezhnev, Leonid, 29, 52 Britain, see Great Britain Brzezinski Mark, 10, 83 Zbigniew, 28, 29, 51, 201 n.10 Buchacz, Jacek, 160 budget, 34, 115, 124, 127, 132, 145, 152, 182, 211 Buell, Raymond, 6, 9 Bujak, Zbigniew, 59 Bulgaria, 29, 32, 55 Bulletin of Laws, 91, 116, 119, 164, 152 Bureau (Ofﬁce) for State Protection (UOP), 57, 91, 119, 153, 181, 220, 224 Buzek, Jerzy, xiii, 41, 61, 66, 93–4, 109, 119, 141, 143, 146, 147, 149, 150, 152, 153, 155, 157, 160–2, 163, 165, 168, 182, 186, 187, 200, 212, 215, 221, 222, 224 Cabinet Council, 140, 142, 156 Cardinal Laws, 11 Car, Stanisl⁄ aw 14 Catherine II (Empress of Russia), 11 Catholic Electoral Alliance (WAK), 175 Catholicism, 1–4, 24, 90, 91, 92, 179 see also Roman Catholic church Catholic rites Armenian, 14 Greek, 14 Roman, see Roman Catholic church Caul, Miki, 111 Ceausescu, Nicolae, 31 sç Centre for Strategic Studies, 153, 161, 165 Centre for the Study of Public Opinion (CBOS), 64, 114, 185 Centre Party/Agreement (PC), 59, 60, 86, 121, 144 Chancellor (West/United Germany), 83, 85, 93, 104, 146, 165

247

248 Index Charlot, Jean, 196 Chel⁄ m Manifesto, 32 Chief of the General Staff, 83, 140, 141, 142, 163, 181 China, 30 Chmielnicki, Bogdan, 9 Christian National Union (ZCh-N), 60, 85–6, 121, 132, 144, 161, 185, 193, 198, 199–200 Christian Social Union (CSU), 55 Chrzanowski, Wiesl⁄ aw 108, 224 Ciemniewski, Jerzy, 86, 97 Cimoszewicz, Wl⁄ odzimierz, 61, 85, 86, 88–9, 146, 149, 150, 151, 152–3, 157, 158, 160, 162, 177–9, 183, 186, 187, 198, 215, 223 citizenship, 6, 74–7 Citizens’ Militia, 57 Civic Committee, see Solidarity Civic Platform (PO), 110, 182, 188, 198 Clinton, William Jefferson, 106, 215 coalition formation, 130, 149, 157–62 coalition government, see government coalmining, 66, 152 Codes, 10, 141, 217 cohabitation, 93, 139, 142, 145 COMECON, 29, 37, 52, 58 Commander-in-Chief, 83, 92, 140, 142, 214 Commission for Investigating Crimes Against the Polish Nation (KSZpNP), 220, 224 Committee for the Defence of the Country (KOK), 155 Commonwealth of Poland–Lithuania, 3, 7–9, 128 communes, 36–7 Concordat, 14, 35, 94, 185 Confederation Bar, 11 Radom, 11 Targowica, 11 Warsaw, 7 Confederation for an Independent Poland (KPN), 59, 60, 86, 87, 110, 132, 161, 183, 185, 189, 193, 198, 200 Congress Kingdom, 10 Conservative-Monarchist Club (KZ-M), 76

Conservative-Popular Party (SK-L), 110, 161, 182, 197 Constitutional Committee, 82, 85–90, 125, 230 Constitutional Tribunal, xiii, 38, 78, 85, 86, 95–6, 104, 106, 116, 120, 127, 128, 129, 140, 142, 146, 174, 182, 192–3, 208–15, 221, 230, 233 constitutional interpretation, 209 judges, 210, 226 n.14 judicial review, 208, 210–14, 231 legislative control, 116, 209 political arbitration, 209 constitutions, 1, 78, 166–7, 230–1 3 May 1791, 1, 9, 11–12, 16, 60, 75, 123 20 February 1919, 13 17 March 1921, 1, 13, 14, 33, 53, 75 23 April 1935, 1, 13, 14, 15, 32, 178 19 February 1947, 1, 31–3, 53 22 June 1952, 1, 31, 33–5, 53, 82, 91, 123, 151, 214 17 October 1992, 1, 61, 75, 77–8, 80–5, 88, 91, 97, 104, 106–8, 115–6, 123, 126, 139, 141, 145–8, 150, 156, 166–7, 176, 179, 211, 214, 216 2 April 1997, 1, 61, 75, 80, 85–97, 104, 105, 116, 126, 141, 156, 174, 211, 210, 214, 216, 219, 232–3 Soviet constitution of 5 December 1936, 32–3 constitutional amendment, 14, 35–9, 55–7, 85, 96, 104, 125, 138, 140, 145, 176 constructive vote of no conﬁdence, 85 Council of Europe, 78 Council of Ministers; 30–1, 34, 92, 96, 104, 115, 116, 118, 123, 151–55, 233 appointment, 104 Bureau (URM), 93, 162 Chairman, see prime minister Chancellery, 93, 163–4, 165 dismissal, 104 Legislative Council, 52–3, 155, 164 Ofﬁce, 85, 162–4 Council of State, 33, 34, 37, 39, 115, 138, 139, 152, 214

Index 249 Council on Monetary Policy (RPP), 96, 104, 126 counties (powiaty), 37, 163, 190 courts, 78, 85, 215–16, 227 n.42 Crichel Down, 213 Cuba, 30 Curzon Line, 5 Cyrankiewicz, Józef, 156 Cwiek, Jerzy, 214 Czarniecki, Ryszard, 166 Czartoryski clan, 11 Czechoslovakia, 29, 30, 32, 50, 56, 145, 196, 208 Czesejko-Sochacki, Zdzisl⁄ aw, 123 Daszy´nski, Ignacy, 13 Defence Ministry (MON), 123, 140, 142, 163 Democratic Action – Civic Movement (ROAD), 59, 177 Democratic Party (SD), 54–5, 189, 193 Democratic Union (UD), 59, 60, 85, 87, 110, 111, 121, 145, 183, 185, 198 deputies, see Sejm dietines, see Sejmiki divorce, 178 Dmowski, Roman, 5, 13, 200 Drawsko lunch, 145 Duchy of Warsaw, 10 Duverger, Maurice, 139, 190, 193, 195 Dyboski, Roman, 9 East Prussia, 4 Education Commission, 11 elections, 35–6, 55, 61, 65, 107, 173–92 local government, 57, 188–90 National List, 55, 107, 175, 176, 183, 185, 187 presidential, 173–4, 176–82 Sejm, 24, 56, 60, 183–8 Senate, 55, 124–5, 188 thresholds, 130 ff., 173–5, 197 turnout, 55, 189 Electoral Action Solidarity (AWS), xiii, 61, 93, 108, 110, 111, 118, 121, 124, 125, 130, 132, 146, 147, 153, 157, 158, 161, 162, 165, 174, 175, 180, 182, 186–7, 188, 190, 191, 194, 195, 197, 199, 200, 219, 221, 222

electoral laws; 53–5, 78, 81, 173–6, 188, 196 d’Hondt, 78, 173, 176, 185 Hare–Niemeyer, 173 St. Lagüe, 78, 173, 175, 188, 189 elites, xiii, 2, 32, 52–5, 64, 74, 80, 83, 97, 129, 167, 192, 195–6, 230 European Union, 2–3, 63, 67, 74, 76, 78, 96, 104, 118, 125, 127, 142, 152, 153, 164, 174, 187, 195, 198, 225, 232 Falandysz, Lech, 82, 87, 147 Finer Herman, 231 Sammy, 77, 231 Finland, 79, 139, 143 Ford, Aleksander, 4 Foreign Ministry (MSZ), 57, 140, 163 Four Year Sejm, 11 France, 2, 9, 10, 13, 75, 78, 84, 93, 97, 120–1, 129, 139, 143, 150, 157, 164, 167, 175, 177, 190, 200, 208 Frasyniuk, Wl⁄ adysl⁄ aw 59 Frederick the Great, 3 Freedom Union (UW), 41, 61, 89, 93, 109, 111, 118, 121, 125, 130, 132, 146, 147, 150, 158, 160, 161, 162, 165, 175, 181, 186–7, 188–91, 194, 197, 198, 199, 200, 219, 221, 222 Front of National Unity (FJN), 37–8, 39 Galaj, Dyzma, 108 Galicia, 10 Garlicki, Leszek, 123, 209 Gaulle, Charles de, 84, 143, 144 Gazeta Wyborcza, 59 Gdansk, ´˙ 58, 59, 214 Gebethner, Stanisl⁄ aw 54, 80, 87, 139, 143, 186, 191, 199 Gehenna (Polish experience in the Second World War), 41 gentry, 6–7, 11–12, 16 Geremek, Bronisl⁄ aw 56, 81, 84, 97, 144, 148, 160 German Democratic Republic (DDR/East Germany), 29, 32, 41, 56 German Minority, 74, 110, 175, 186, 187 Germany, 2, 4–5, 10, 15, 25, 36, 50, 65, 67, 78, 85, 97, 143, 149, 209

250 Index Giedroyc, Jerzy, 76, 181 Gierek, Edward, 25–6, 29, 30, 32, 37–8, 190, 190, 225 Glemp, Józef, Cardinal, 53, 56, 200 Goclowski, Bishop, 185 Gomulka, Wl⁄ adysl⁄ aw 25–6, 29, 35, 36 Gorbachev, Alexander, 26–8, 51–3 government, see under individual prime ministers formation, 147–9, 157–62 dismissal, 150–51 government ministers, 123, 153–5, 164–6, 214, 215 Government-in-Exile (London), 16, 32, 78 Grabowski, Dariusz, 181–2 Grabski, Stanisl⁄ aw 14, 200 Great Britain, 62, 76, 78, 121, 163, 164, 166, 167, 168, 192, 195, 213, 220, 232 Green Party, 178 Grunwald, battle of, 4 Grzes´kowiak, Alicja, 81, 90, 109, 161 Gronkiewicz-Waltz, Hanna, 96, 177, 179–80 Grzybowski, Marian, 145–6 Gucwa, Stanisl⁄ aw 108 Hailsham, Lord, 168 Handke, Mirosl⁄ aw 165 Havel, Vaclav, 61, 106, 145 Henrician Articles, 8 Herburt, Ryszard, 61, 194, 196 Hofman, Jacek, 223 Holland, Henryk, 52 Holzer, Jerzy, 27 Home Army (AK), 24, 26 Humer, Adam, 220 Hungary, 28, 29, 32, 38, 50, 56, 196 Huntington, Samuel, 50 Ikonowicz, Piotr, 181–2, 200 impeachment, see under State Tribunal Imperative Mandate, 8 independence, xiii, 1–3, 39 India, 2, 208, 211 Institute of National Memory (INP), 120, 127, 161, 220–1, 224 interest groups, 64–7

Interior Ministry (MSW), 123, 140, 145, 163 Interrex, 8 Ireland, 80, 139 Izdebski, Hubert, 15 Jabl⁄ o´nski, Henryk, 37 Jackiewicz, Irena, 114 Jagieli´nski, Roman, 160 Jagiellonian dynasty, 5–8 Jaroszewicz, Piotr, 38, 214 Jaruzelski, Wojciech, 25–6, 29, 38, 39, 51, 52, 55, 57, 59, 138–40, 142–3, 156, 176, 185, 208, 214, 220 Jasiewicz, Krzysztof, 143, 179, 199 Jaskiernia, Jerzy, 121 Jastrzebski, ˛ Dominik, 214 Jedlicki, Jerzy, 10–11 Jews, 4, 5, 97 n.6 John Paul II (Pope), 35, 106, 200 Johnson, Andrew, 215 judicialization of politics, 231 Jurczyk, Marian, 223 Kaczorowski, Ryszard, 78 Kaczy´nski Jarosl⁄ aw 59, 85, 86, 144 Lech, 59, 144, 179, 188, 218 Kadar, Janos, 28, 38 Kalinowski, Jarosl⁄ aw 177, 181–2, 187 Kapera, Kazimierz, 65 Katowice, 124 Kelsen, Hans, 231 Khruschev, Nikita, 28, 32 Kiel⁄ minski, ´ Zbigniew, 158 Kieres, Leon, 225 Kiszczak, Czesl⁄ aw 53, 55, 56, 143, 148, 149, 214, 220 Klafkowski, Alfons, 210 Kociol⁄ ek, Stanisl⁄ aw 220, 225 Kol⁄ akowski, Leszek, 28 Kol⁄ l⁄ a˛ taj, Hugo, 11 Kol⁄ odko, Grzegorz, 145, 158, 166 Kol⁄ odziejczyk, Piotr, 59, 158 Korea (North), 29, 30 Korwin-Mikke, Janusz, 179–80, 181–2, 200 Kos´ciuszko, Tadeusz, 12, 26 Kozakiewicz, Mikol⁄ aj, 86, 108 Kraków, 3, 7, 35, 40, 56, 183

Index 251 Kresy, see borderlands Kropownicki, Jerzy, 161 Krzaklewski, Marian, 59, 60, 90, 157, 161, 177, 180–2, 186, 191, 194 Kubiak, Hieronim, 65 Kuklinski, ´ Ryszard, 185 Kulesza, Michal⁄ , 163, 223–4 Kulesza, Witold, 225 Kultura (Paris), 76, 181 Kurczewski, Jacek, 219 Kuro´n, Jacek, 27–8, 55, 112, 179–80 Kutrzeba, Stanisl⁄ aw 9 Kwas´niewska, Jolanta, 146 Kwas´niewski, Aleksander, 82, 84, 86–90, 91–3, 96, 119, 120, 139, 141, 142, 146, 148, 160, 175, 177, 179–80, 182, 186, 191, 198, 200, 212, 215, 224, 233 Labour Solidarity (SP), 185, 193 Labour Union (UP), 41, 87, 89, 111, 124, 125, 132, 158, 185, 186–7, 188, 190, 191, 193, 198, 221 League of Polish Families (LPR), 188 Law and Justice (PiS), 188, 200 legislation, 104, 115–21, 124 passage of bills, 116–20 presidential veto, see Presidency of the republic role of Senate in, 116 Lepper, Andrzej, 65, 75, 109, 152, 180, 181–2, 188, 194 Letowska, ˛ Ewa, 95, 218 Lewandowski, Janusz, 60, 214 Liberal-Democratic Congress (K-LD), 59, 85, 144, 183, 193, 198 Liberum Veto, 8–9, 12, 103 Lijphart, Arend, 79–80 Linz, Juan, 50, 54 Lithuania, 5, 6, 67, 141 lobbying, 129 local government, 37, 57, 85 L⁄ ódz, ˙ 189 L⁄ opuszanski, ´ Jan, 74, 181–2 Lukashenko, Alexander, 6 Luks, Krzysztof, 223 Lustration, 26, 41, 65, 83, 95, 181, 183, 185, 198, 219–25 Lustration Court, 181 Lwów (Lv’iv), 5

Macierewicz, Antoni, 82, 144, 221 Mackintosh, John, 166 MacMahon, Maurice de, 84 Magdalenka, 53–4 Main Administrative Court, 96, 174, 210–11, 217, 218 Main Statistical Ofﬁce (GUS), 153, 164 Malinowski, Roman, 108 March Events 1968, 37, 52 May 1926 coup, 12 Mazowiecki, Tadeusz, 56, 57, 58, 59, 60, 61, 82, 86, 112, 130, 140, 141, 148, 149, 151, 153, 157, 162, 167, 177–9, 200 Mazurkiewicz, Marek, 89 McKenzie, Robert, 195 Media, see Radio and Television Committee Messner, Ryszard, 156 Mexico, 2 Michal⁄ kiewicz, Stanisl⁄ aw 200 Michnik, Adam, 28, 55, 144 Mikol⁄ ajczyk, Stanisl⁄ aw 32, 46 n.80 Milczanowski, Andrzej, 145 Military Council of National Salvation (WRON), 38 Miller, Leszek, 149, 153, 155, 187, 200 Minc, Hilary, 25 Miodowicz, Alfred, 55 Moczar, Mieczysl⁄ aw 26 Moczulski, Leszek, 59, 86, 177–8, 179–80, 183, 200 modernization, xiii, 2–3, 10, 17, 188, 234 Modzelewski, Karol, 27 Mojak, Ryszard, 140, 141 Mokrzycki, Jerzy, 223 Monitor Polski, 164, 176, 222, 223 Montesquieu, Charles Louis de Secondat, 12, 29, 77, 231 Mo´scicki, Ignacy, 12, 15 Movement of One Hundred, 181 Movement for Rebuilding Poland (ROP), 90, 110, 181, 186–7, 191, 194, 199, 200 Mroziewicz, Robert, 223 Nal⁄ ecz, ˛ Tomasz, 109 Nalewajko, Ewa, 199 Napoleon, 10

252 Index Napoleonic Code, 10 Inﬂuence, 167 Legions, 26 Narutowicz, Gabriel, 13 National Assembly, 55, 81, 86, 88, 89, 90, 106, 108, 125, 141, 142, 176–7, 214, 215 National Bank of Poland (NBP), 96, 104, 106, 120, 124, 140, 147, 155, 214, 218 National Council for the Homeland (KRN), 32, 33, 138 National Council of the Judiciary (KRS), 55, 96, 104, 140, 216 National Council on Radio and Television (KRRiTV), 104, 126, 140, 161, 214, 218, 219 National Democrats, 13, 14 Nationalism, 10, 23 n.98, 197 national minorities, 5, 14, 74, 175 National School of Public Administration (KSAP), 164 National Security Bureau (BBN), 147 National Security Council (RBN), 147, 155 National Symbols, 105 coat of arms, 32, 57 national day, 60 Negotiated Revolution (1989), 24, 27, 50–5, 193 Niesol⁄ owski, Stefan, 48 n.125 Nieszawa, Statute of, 7 Nihil Novi statute, 7, 103 Nizienski, ´ Bogusl⁄ aw 222, 224 Non-Party Bloc for Cooperation with the Government (BBWR), 13 Non-Party Bloc for Supporting the Reforms (BBWR), 87, 110, 144, 181, 185, 193, 198 normality, 2, 146, 180, 235 n.17 North Atlantic Treaty Organization (NATO), 2, 67, 74, 142, 195 October 1956, 25–6, 36, 40 Oder–Neisse frontier, 4, 5 Offe, Claus, 66, 74 Ofﬁce for Public Administration (UAP), 156 Ofﬁce for Public Contracts, 163

Olechowski, Andrzej, 145, 180–2 Oleksy, Józef, 61, 86, 88, 108, 145, 149, 150, 151, 152, 157–8, 160, 162, 165, 186, 211, 221, 223 Olszewski, Jan, 61, 81, 82, 84, 86, 88, 90, 108, 114, 130, 144, 148, 149, 150, 151, 153, 157, 158, 160, 162, 165, 177, 179–80, 181, 186, 221 Olisadebe, Emmanuel, 98 n.11 Olson, David, 197 ombudsman, see Spokesperson for Citizens’ Rights Onyszkiewicz, Janusz, 160, 179 Orders/PM-RM regulations (rozporz adzenie), ˛ 92, 115, 151, 157 Orwell, George, 27 Osiatynski, ´ Wiktor, 224 Pacta Conventa, 8 Paczkowski, Andrzej, 27, 224 parliament, see under Sejm; Senate partitions First 1772, 9 Second 1793, 9, 12 Third 1795, 9, 12 party system, 192–201 Party X, 110, 193 Parys, Jan, 81, 144 Pastuszek, Stefan, 87 path dependence, 52 Patriotic Front of National Rebirth (PRON), 39 PAX, 55 Pawlak, Waldemar, 61, 108, 145, 148, 149, 150, 152, 157, 158, 160, 162, 180, 187, 214 Pensioners’ Party, 187, 190, 193 People’s Democracy, 29, 32, 34 Permanent Council, 11 Piast dynasty, 4, 5, 7 Pietrzak, Jan, 179–80 Pil⁄ sudski, Józef, 1, 6, 12,16, 59, 83, 103, 143, 195, 200, 232 Piotrowicz, Kazimierz, 177, 179–80 Piotrowski, Leszek, 165 Piotrowski, Walerian, 86 Piskorski, Pawel⁄ , 166 Pius XI (Pope), 14 Pl⁄ azy ˙ nski, ´ Maciej, 97, 109, 161, 166, 182, 186

Index 253 Pl⁄ ock, 52 Podemski, Stanisl⁄ aw 81 Polaniec Manifesto, 12 Polish Committee of National Liberation (PKWN), 32–4 Polish Social-Democratic Union (PUS), 58 Polish Peasant Party (PSL), 33, 41, 61, 86–7, 89, 90, 94, 112, 118, 124, 130, 132, 145, 148, 150, 151–2, 158, 160, 161, 175, 180, 183, 185–7, 188–9, 191, 193, 197, 199, 200, 215, 219, 221 Polish People’s Republic (PRL), 11, 15, 17, 24–7, 32, 34, 39–40, 57, 60, 63, 67, 75–6, 78, 83, 89, 94, 95, 108, 110, 130, 138, 143, 147, 151, 155, 167, 183, 185, 200 Polish Republic (PR), 57, 60, 76, 141 Polish Socialist Party (PPS), 13, 24–5, 33, 181, 197 Polish-Soviet War 1920, 5, 15 Polish United Workers’ Party (PZPR), 1, 25, 26, 30–1, 38, 39, 53–5, 57–8, 106, 115, 155, 183, 197, 198, 208 central committee, 31, 53 congress, 31, 37 politburo, 30 secretariat, 30, 31 statute, 31 Polish Workers’ Party (PPR), 24, 32, 33 political camps, 39, 59, 158, 197 political parties, 93–4, 129–32, 190–201, 209 Polonia, 75, 76 Pomerania, 4, 10 Poniatowski, King Stanisl⁄ aw Augustus, 9, 11, 16 Popiel⁄ uszko, Father Jerzy, 39, 40, 95 Portugal, 79, 139 Post, Barbara, 114 Potocki, Ignacy, 11 Potsdam, 24 Poujadism, 2, 65, 188, 194 Pozna´n, 10, 40, 52, 56, 143 Presidency of the republic, 13, 33, 54–5, 77–8, 83–4, 108, 115, 116, 119, 120, 128, 138–47, 210, 214, 215 President of the republic, see Jaruzelski; Wal⁄ esa; ˛ Kwas´niewski Pridham, Geoffrey, 16, 51

Primate of Poland (Roman Catholic), 8, 40, 53 Prime Minister, 13, 77, 83–5, 115, 142, 147–51, 155–7, 214 privatization, 57–8, 90, 152, 198 procuracy, 57, 211, 216, 222 protest, xiii, 65 Protestants, 7 provinces, 37, 146, 182 Prussia, 3, 9, 10, 11, 15–16, 167 see also Germany Przemyk, Grzegorz, 40, 95 Putterman, Ethan, 232 Pyjas, Stanisl⁄ aw 40 Queuille, Henri, 168 Raczkiewicz, Wl⁄ adysl⁄ aw 15 Radio Maryja, 65, 90, 186, 198, 204 n.55 Radom, 37, 40, 52 railways, 65, 152 Rakowski, Mieczysl⁄ aw Franciszek, 53, 55, 156, 214 Rationalized parliamentarianism, 12–13, 80, 83, 128–32, 149 Rechtsstaat, xiii, 217 Recovered Territories, 25, 35 Referendum, 33, 39, 75, 80, 81, 84, 85, 87, 89, 90–91, 93, 96, 125, 142, 174, 217 1946, 24, 103 1987, 39, 52, 174 1997, 90, 174 EU entry, 96, 125, 127, 157 Regulations (zarz adzenie), ˛ 92, 152, 164 Religious instruction in schools, 198, 211 Republican League (LR), 192 Rhodes, R. A. W., 166 Riga, Treaty of, 5, 15 Rokkan, Stein, 79, 197 Rokita, Jan Maria, 112, 157, 162–3, 166, 186 Rokosz, 9 Roman Catholic church, 8, 10, 12, 14, 35, 36, 39, 94, 129, 155, 178, 180, 183, 198, 221 Romania, 29, 31, 50, 55, 79 Ropelewski, Zygmunt, 223 Rosati, Dariusz, 145

254 Index Rose, William, 10 Round Table, 51, 53–6, 60, 87, 90, 97, 103, 167, 220, 230 Rousseau, Jean Jacques, 77, 232 Rozmaryn, Stefan, 31, 35, 115 Rule of Law, see Rechtsstaat Russia, 2, 6, 9, 10, 15, 67, 79, 141, 167 Rydzik, Tadeusz, 65, 90 Rzeczpospolita, 8 Safjan, Marek, 210, 212 Sajo, Andras, 77 Samoobrona (Self-defence), xiii, 181, 188, 194, 200 Sanacja, 13, 14, 15 Sarmatian, 7 Saxon dynasty, 9 Saxony, 10 scandals, 60, 179, 214 Schumpeter, Joseph, 62, 234 Second Republic (Poland), 12–15, 16, 78, 92, 103, 128, 201 Sejm, 7–9, 10, 11–14, 30, 32, 34, 39, 54–5, 75, 66, 81–2, 83, 84–6, 88, 90, 92, 96, 103–37, 141, 208, 211, 219, 222, 230, 233; Chancellery, 105, 109 Committees, 116, 118, 119–23, 218; investigative, 122–3; permanent, 120–22 Convent of Seniors, 109–10, 121, 128 debates and plenary sessions, 109, 119, 120, 128, 129, 133 n.26 deputies, 90, 129, 106–7, 110–14, 174 dissolution of parliament, 13, 84, 93,105, 126, 142, 182 functions, 104–5; communications, 104; control over the executive, 123–4; government formation, 104, 147–9; government dismissal, 104, 150–1; legislative see legislation interpellations, 119, 124, 128 Marshal, 12–13, 97, 107, 108–9, 116, 118, 121–2, 128–9, 158, 161, 210, 215, 218 party circles, 110 party clubs, 109–10, 160, 175, 183 presidium, 109, 121, 218 questions, 124

resolutions, 119, 122 standing orders, 105, 109 term (kadencja), 105 voting methods, 120 Sejmiki, 6–8, 103, 123 Sekul⁄ a, Ireneusz, 58, 214 Senate, 7, 13, 15, 54–5, 66, 75, 78, 79, 81, 83, 86, 88, 92, 103, 105, 109, 124–8, 133 n.11, 142, 175, 218, 222, 230 committees, 128 role in legislation, 116, 120, 125–7 Marshal, 108, 210 Senators, 108, 124–5, 136 n.89, 174 Serbia, 79 Sici´nski, Wl⁄ adysl⁄ aw 9 Sidorkiewicz, Krzysztof, 224 Sienkiewicz, Henryk, 4, 18 n.2 Silesia, 10 Siwicki, Florian, 56, 143 Skilling, H. Gordon, 28 Skrzydl⁄ o, Wiesl⁄ aw 209, 232 Skubiszewski, Krzysztof, 55, 143, 166, 200 Skwarczynski, ´ Pawel⁄ , 8 Sl⁄ omka, Adam, 90, 200, 224 Smigl⁄ y-Rydz, Edward, 15 Sobieski, Jan II, 9, 15 Social-democracy of the Polish Republic (SdRP), 41, 58, 60, 189, 193, 194, 197, 199 Sokolewicz, Wojciech, 57, 213 Solidarity, 16, 38, 51–2, 53–5, 58–61, 67, 87, 88, 89, 94, 140–1, 143–4, 161, 175, 179, 183, 189, 193, 198, 219, 223; Congress, 58, 59; Civic Committee, 53–5, 58, 130, 189, 196; National Executive Committee (KKW), 58; parliamentary club (OKP), 58, 81, 183; rural (RI), 54, 189 Solzhenitsyn, Alexander, 28 Soviet Union, 2, 15, 24, 27, 29, 32, 33, 34, 36, 38, 51–2, 74, 140 see also Russia Spokesperson for Citizens’ Rights (ROP), 85, 95, 104, 126, 161, 211, 217–18 Spokesperson for the National Interest (RIP), 222–4 Stajszczak, Mirosl⁄ aw 182 Stalin, Joseph, 33

Index 255 Stalinism, 14, 25–6, 33–4, 109, 120, 138, 220–1 State Atomic Agency, 153 State Electoral Commission (PKW), 174, 176, 179, 183, 210 State of War, 38, 40, 115, 122, 138 State Tribunal, 38, 104, 106, 107, 108, 115, 124–5, 141, 143, 208, 214, 215, 218–19 Stepan, Alfred, 50, 54 Strzembosz, Adam, 222 Suchocka, Hanna, 61, 82, 84, 122,130, 144, 148–9, 151, 152, 157, 158, 160, 162, 163, 165, 179, 185, 222 Supreme Control Chamber (NIK), 33, 38, 95, 106, 120, 122, 124, 126, 155, 208, 209, 211, 214, 218–19 Supreme Court, 106, 120, 176, 177, 208, 209, 210–11, 216–17, 220, 216–18, 220 Sweden, 9 Syryjczyk, Tadeusz, 55, 214 Szczepkowska, Joanna, 55 Szczerbiak, Aleks, 190, 199 Szklarski, Bohdan, 64, 67 Szlachta, see gentry Szteliga, Jerzy, 221 Sztompka, Piotr, 66, 234 Taras, Ray, 3, 39, 50, 62 Tejkowski, Bolesl⁄ aw 65, 75, 177–8 Teutonic Knights, 4 Thatcher, Margaret, 166 Then, Artur, 175 thick line, 40, 59, 143, 183, 221 Third Republic (Polish), 17, 41, 60–1, 78, 90, 126, 130, 132, 166, 202, 208, 232, 234 Tomaszewski, Janusz, 153, 186, 223, 229 n.82 totalitarianism, 24–5, 27–8, 39 trade unions, 65, 129, 195 transition, xiii, 50 ff., 70 ff. Tuczapski, Tadeusz, 220 Turkey, 9 Tusk, Donald, 109, 182 Tyczka, Mieczysl⁄ aw 210 Tygodnik Solidarno´s´c, 59 Tymi´nski, Stanisl⁄ aw 59, 65, 162, 174, 177–9, 200

Ujazdowski, Kazimierz M, 166 Ukraine, 5, 6, 9 Uniates, see Catholic rites (Greek) Union of Lublin, 7–8 Union of Real Politics (UPR), 110, 186, 189, 200 United Peasant Party (ZSL), 36, 54, 55, 61, 108, 197 Universal Wealth-Holding Law, 146, 181 Urban, Jerzy, 58, 70 n.59 Ursus tractor works, 52, 65 USSR, see Soviet Union Valois, Henri de, 8 Vatican, 14, 94 Versailles, Treaty of, 15 Vienna battle of (1683), 9 congress of (1815), 10 Vietnam, 30 Vilnius (Wilno), 5 Vistula, River, 105 Wachowicz, Mieczysl⁄ aw 146–7 Walendziak, Wiesl⁄ aw 163, 165, 166, Wal⁄ esa, ˛ Lech, 53, 55, 58, 60, 61, 77, 78, 81, 82–4, 85, 87, 92, 106, 138–9, 141, 143–6, 150, 152, 158, 160, 165, 177–80, 181–2, 185, 211, 215, 224 Walicki, Andrzej, 27 War at the Top, 59, 143, 177, 193 Warsaw, 7, 38, 53, 105, 124, 161, 175, 183, 189 Pact, 29, 58 provincial court, 192, 222 Uprising (1944), 40 W asacz, ˛ Emil, 165 Wawrzyniak, Jan, 91 Waza dynasty, 8 Welnicki, Tomasz, 175 Western Territories, see Recovered Territories Wiatr, Jerzy Józef, 163,198–9 Widzyk, Jerzy, 163 Wilecki, Józef, 65, 83, 181–2 Winczorek, Piotr, 87, 97 Witos, Wincenty, 200 Wnuk-Lipi´nski, Edward, 234 Wojciechowski, Janusz, 109, 218 Wojciechowski, Stanisl⁄ aw 13

256 Index Wojtaszczyk, Konstanty, 193 Wojtyl⁄ a, Karol, see John Paul II Wolinska, ´ Helena, 220 Workers’ Defence Committee (KOR), 16, 37, 52, 219 Wrzodak, Zygmunt, 65 Wujek coalmine, 220 Wycech, Czesl⁄ aw 108 Wyrzykowski, Mirosl⁄ aw 97 Wyszynski, ´ Stefan, Cardinal, 25, 35, 37, 40, 47 n.94, 200 Yalta, 5, 24, 32

Yugoslavia, 6, 28, 29, 32

Zamoyski family, 76 Zielinski, ´ Adam, 218 Zielinski, ´ Tadeusz, 95, 177, 179–80, 218 Znak (the Sign), 55 Zoll, Andrzej, 210, 218, 224 Zych, Józef, 88, 109, 158, 212 Zygmunt II Augustus, 7 Zygmunt III, 8 Zygmunt IV, 8