A republican interpretation of the Polish Constitution

In this paper I present a republican interpretation of the Constitution of the Republic of Poland. I claim that in the past Polish Constitution has been commonly interpreted in libertarian terms. My research is focused mainly on meanings ascribed to main constitutional principles, such as freedom, equality and sovereignty of the Nation. The paper consists of five sections. In the first section, I discuss the idea of contemporary civic republicanism. In the next two parts, I introduce two alternative interpretations of Polish Constitution – the libertarian and the republican one. Then, I present two examples of application of the republican reading of Polish Constitution in practical context. In the last, concluding part, I raise a question about the status of the republican interpretation of the Constitution.

The executive power in Polish Constitution of April, 2nd 1997 – assumptions and political reality

The purpose of this article is to present and analyze the position of the executive power in the contemporary Polish Constitution after 20 years of its entry into force. As its provisions proclaim, “the system of government of the Republic of Poland shall be based on the separation and balance between the legislative, executive and judicial powers”. Moreover, “executive power shall be vested in the President of the Republic of Poland and the Council of Ministers” (Art. 10 of Polish Constitution).

The scope of considerations made in this paper contains: 1) general remarks on the fundamental constitutional provisions before the enactment of 1997 Constitution; 2) the main conceptions and projects of the executive power – that is to say the position of the President of the Republic of Poland and the Council of Ministers – within the formal projects of the Constitution that were presented before 1997; 3) the consideration of the principle of separation of powers in comparison with the particular functions and competences of the both of above mentioned organs; 4) the position of the President of Republic of Poland as well as the position of the Council of Ministers; it is to be emphasized, that none of them is formally more powerful than another; in the contrast with, for example, French Constitution, Polish President does not stand above the government; 5) the fact that constitutional functions and competence of these organs seem to be different – but are faced with the situation and we shall remember that the Council of Ministers shall conduct the internal affairs and foreign policy of the Republic of Poland and shall manage the government administration. The most significant from legal and political point of view is the provision: “The Council of Ministers shall conduct the affairs of State not reserved to the other organs or local government” (Art. 146 sec. 2 of Polish Constitution).

However, the President reserves some important competence by which the governmental policy may be limited and obstructed. On the other hand, sense of mutual cooperation of those two organs is of great importance, and because of that it is deeply reflected from political, personal and the idealistic provision from the initial parts of the Polish Constitution. The President of the Republic of Poland is to the highest formal representative of the State and the guarantor of its continuity. Presidential duty is to observe the realization of the Polish Constitution and being the guardian of the sovereignty and the security of State as well the integrity of its territory. However, there exists a problem concerning the essential values and precise division of legal competences between the President and the Council of Ministers, as well as legal instruments which both of those organs can use within the above spheres of policy.

The important part of the article is presentation and criticism concerning the institutional/political practice. They concern the period after 1997, but it must be admitted that three years (2015, 2016, 2017) are especially critical, as we consider the principle of a democratic state ruled by law.

Norms of the Constitution as a source of limitations of evidence in civil procedure

The right to prove the truth in the court is the implementation of the constitutional right to a fair trial. Polish Code of Civil Procedure does not contain a general regulation concerning the restrictions on admissibility of evidence in the context of the legality of its acquisition. Courts invented the method of assessing the admissibility of evidence, confronting the right to a fair trial with another constitutional value that has been violated by the producing of evidence. While exercising this method, courts use a weighing mechanism similar to the Alexy’s model of balancing of principles. On the ground of the Polish Constitution, within this mechanism, the proportionality test should be used, and the principle of legalism of the actions of the State should be taken into account. This means that the court should not allow for the inclusion of evidence collected with violation of the law by public authority, because the state authorities do not have the constitutional right to a fair trial to justify the violation. Furthermore, this method allows the courts to settle a collision of values based on the axiology contained in the norms of the Polish Constitution.

Territory and State territoriality appear to be evolving categories, subject to an ongoing blurring of their original and traditional meaning, if not in a downright crisis. Such crisis can be attributed to a multitude of causes. Among them: the dissociation between the political state and state of law; the tension between the principle of universality, as an integral part of the market structure, and the principle of territoriality, as an integral part of the State’s structure; the web’s global spatial revolution. All of these complex phenomena fuel two conflicting tendencies: the “miniaturization” of the State and the increasing of control over national territory through a re-articulation of powers. The tendency to despatialization of State territory isfurther enhanced in the specific European context, where the most refined attempt ever made at organizing the political space without recourse to the territorial paradigm is taking place.

Commentary to the resolution of the Supreme Court of May 31st, 2017 (Ref. No. I KZP 4/17). The scope of the presidential power of pardon

The dispute over the scope of the power of pardon, caused by the decision of the President of the Republic of Poland Andrzej Duda to apply this power before issuance of a final judgment by the court, is undoubtedly one of the most interesting problems in the field of constitutional law under the Polish Constitution of 1997, with which the courts and the doctrine of law must currently deal with.

I believe that, in its argument concerning the scope of the presidential power of pardon, the Supreme Court did not take into account one important argument which is based on the norm expressed in Art. 99 § 3 of the Polish Constitution.

I believe that the scope of the presidential power of pardon specified in Art. 139 of the Polish Constitution is also determined by the norm expressed in Art. 99 § 3. The application of the power of pardon in the form of the so-called individual abolition against a deputy or senator accused of committing a crime prosecuted by indictment and penalized with deprivation of liberty, impedes the possible execution of the principle contained in Art. 99 § 3 of the Polish Constitution, and thus violates the norm expressed in Art. 7 and Art. 126 § 3 of this Constitution. The nature of presidential pardon, including the scope of its limits, should be determined by way of a joint interpretation of the provisions of the Polish Constitution, also taking into account its Art. 99 § 3.