“The [current] crisis has its roots in 1989, when the country became the first Eastern bloc nation to hold partly free elections after decades of bitter and often-deadly struggle. It would take eight more years to create a constitution, one that Marcin Matczak, a professor of constitutional law at Warsaw University, said was ‘enacted within a post-totalitarian trauma.'
'There was a great fear that the government may be too strong and that we could return to the old times,’ he said. ‘Even the preamble of our Constitution says so. We remember the time when our human rights were infringed upon.’ Important among its provisions was a clear separation of powers between the courts and the politicians [emphasis added].”
- Marc Santora, New York Times, December 25, 2017.
The communist Constitution of 1952 – modelled on the Stalinist Soviet constitution – remained in force until 1997. It was amended several times, both before and after 1989.
The communist Constitution promised numerous rights, such as freedom of speech, but these were purely fictional paper guarantees.
On April 7, 1989, after the Round Table agreement between the communists and the mostly liberal elements of Solidarity who were willing to compromise with them, the communist-controlled Sejm passed several amendments, including the restoration of the Senate and presidency and the establishment of the National Council of the Judiciary.
The December amendments of 1989 changed the official name of the state and its institutions while ending the Communist Party's leading role and Poland's close friendship with the USSR. These amendments also restored the crown on the head of the eagle on Poland's official coat of arms and declared the country a “democratic state of the rule of law implementing the principles of social justice.”
The so-called “Little Constitution” [Mała Konstytucja] further amended the constitution and went into effect in December 1992.
It replaced the articles of the 1952 document that dealt with local self-government and relations between the executive and legislative branches.
The “Little Constitution” was provisional; it was passed in anticipation of a new constitution.
It reflected the power struggle between then-President Lech Wałęsa and the cabinet of liberal Hanna Suchocka.
The trend towards weakening the presidency evident in the “Little Constitution” continued (and intensified) in the 1997 Constitution. Many critics of the Consitution have argued for a new constitution based on a presidential system.
The body overseeing the process of passing a new constitution was the Constitutional Commission of the National Assembly, which functioned from 1992 to 1997.
Apart from its first chairman, all of its other heads were post-communists (Aleksander Kwaśniewski, Włodzimierz Cimoszewicz, and Marek Mazurkiewicz).
The post-communists remained largely passive on the constitutional issue for most of their term in office (1993 – 1997); they took the initiative only when their term was coming to an end.
On April 2, 1997, a constitutional draft endorsed by Kwaśniewski was passed by the National Assembly with the votes of post-communists and liberals.
The Solidarity-sponsored constitutional counter-proposal – which received over one million signatures – was not included on the ballot.
In other words, citizens could only vote for or against the Kwaśniewski-sponsored constitution. They were not given a choice between two competing drafts.
As a result, Solidarity urged its supporters to boycott the referendum.
The center-right and conservative opponents of the post-communist/liberal constitutional draft criticized it for several reasons, including (as one historian put it):
...the lack of a declaration stating the superiority of natural law over positive law and a statement about the defense of human life from the moment of conception. They also attacked Article 72, which they saw as an attempt to curtail parental rights, and, in particular, Article 90, which opened the possibility of ceding some of the powers of the state to international organizations. The Catholic Church also voiced reservations, and the bishops asserted that the draft passed by the National Assembly “gives rise to concerns of a moral nature”
(Source: Antoni Dudek, Historia Polityczna Polski 1989 – 2005, p. 340).
The constitutional referendum took place on May 25, 1997. 53 percent voted in favor, with a voter turnout of 43 percent.
Despite the fact that the voter turnout fell below the required 50 percent threshold, the Supreme Court recognized the validity of the referendum.
By contrast, the results of a 1996 referendum to enfranchise the citizenry were rejected on the basis of low turnout (32 percent), despite an overwhelming vote in favor of passage (95 percent).
The Constitution went into effect on October 17, 1997.
While very different from the communist constitution in content and tone, Poland’s 1997 Constitution was sponsored and passed by post-communists. Drafts by Solidarity and conservative groups were not allowed on the referendum ballot.
Rather than weakening the power of the state in general, the Constitution of 1997 weakened the presidency in particular, to the benefit of the legislative and judicial branches.
The Constitution provides a framework of democratic guarantees but leaves considerable room for the government to define the details in subsequent legislation.
The Constitution contains a number of inconsistent or conflicting provisions, including those regulating the judiciary.