The status of the clause of the democratic rule-of-law state after the entry into force of the Polish Constitution of 1997

https://doi.org/10.63189/IRHK8378

The rule-of-law clause is contained in art. 2 of the Constitution of 1997, which states that the Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice. Before the entry into force of the said Constitution, the rule-of-law clause had been for the first time introduced into the Polish legal order by virtue of the December Amendment to art. 1 of the constitution of the People’s Republic of Poland of 1952. The notion of the rule-of-law state is a blurred one; hence, it was necessary for the Constitutional Tribunal to specify it in the practice of the application of law. Above all, the Tribunal defined generally the principle of a democratic rule-of-law state as an open collection of diverse values, which are explicitly or implicitly expressed in the Constitution, and which refer to law, the state’s system as well as relations between the state and individuals.^[1] It has also developed the meaning of this clause in its jurisprudence, and has derived the subsequent principles contained therein,^[2] which complemented the then incomplete constitutional catalogue.

Initially, in the period between the entry into force of the December Amendment and the enactment of the current Constitution the concept of the rule-of-law state served for the Constitutional Tribunal as a source of systemic principles – those are among others: sovereignty, democracy, the separation of powers, legality, decentralisation and political pluralism. The next category of principles derived from the rule-of-law state are human rights and freedoms. These include the following: the right to a court, the right to life, the right to the protection of dignity and the right to privacy. The said clause also gave rise to the principles of good legislation (the principle of the protection of trust in the state and its laws, i.e. the principle of loyalty, the principle of the certainty of law, the requirement for the precision of legal provisions, the protection of acquired rights, the principles lex retro non agit and vacatio legis). These principles were then not envisaged in the constitution in force, and especially the systemic principles as well as individual rights and freedoms later served as the foundation for the new constitutional system and are explicitly enumerated in the current Constitution. This concerns inter alia human rights such as the right to life (art. 38), the right to a court (art. 45), the right to the protection of data (art. 51), the principle of proportionality (art. 31).^[3] As for the systemic principles, inter alia the following ones are explicitly stated in the Constitution: the principle of legality (art. 7), the principle of sovereignty (art. 4), and the principle of the separation of powers (art. 10).

It is noteworthy that the entry into force of the Constitution of 1997 did not, however, break with the achievements related to the development of the content of the rule-of-law clause. Even if certain elements thereof are currently contained in the constitutional provisions, they are still embraced by the content of the rule-of-law clause. The Tribunal highlighted that art. 2 still serves for it as a source of many principles which are not expressis verbis contained in the Constitution. With regard to its previous jurisprudence, it was noted that the literal repetition of the content of the former art. 1 in the current art. 2 should be perceived as a clear expression of the constitution-maker’s intention to adopt the hitherto shape and understanding of the clause of a democratic rule-of-law state, as had been formed in the constitutional practice, especially in the jurisprudence of the past eight years. It was also stated that the fundamental content of the principle of the rule-of-law state, as expressed in art. 2 of the Constitution, may and should be understood in the same way as under the previous constitutional order. Certainly, modifications of this understanding are possible, and they may arise both from specific regulations of the new Constitution as well as from the general context of its provisions. Yet, until it is demonstrated that such modifications have taken place, it may be assumed that the hitherto findings and constructions referring to the said principle are up to date.^[4]

However, what changed was the position of the said clause as a higher-level norm for review. Namely, it no longer plays the role of a universal point of reference in constitutional review, and consequently, it has lost its independent character in that regard, as the specific consequences resulting from it were repeated and developed in the provisions of the Constitution.^[5] Hence, there is no need to refer to the general formula of art. 2 of the Constitution, and what should serve as the basis for constitutional review are specific constitutional provisions. Such provisions should have primacy over general principles; however, they do not exclude the review from the point of view of the principles of a democratic rule-of-law state given that the recognised role of those principles and general principles is to indicate the direction of interpretation and application of specific provisions. Also, according to the Tribunal, one should refer to the rule of law clause to invoke imperatives, rules, values which are not expressed in other constitutional regulations,^[6] but the rule-of-law clause should be a point of reference in constitutional review if there is no specific constitutional norm or if it is necessary to harmonise specific norms.^[7]

Hence, the Tribunal refers to art. 2 when elements of the rule-of-law state are not expressed in other constitutional provisions. If they are indeed expressed in other provisions such as in art 45(1) (the right to a court) or in art. 78 (the right to appeal against a judgment), then these provisions should be indicated as higher-level norms for review, and not art. 2. Reference to art. 2 in such cases leads to the discontinuation of proceedings before the Tribunal.^[8]

Art. 2 may serve as an independent basis of a constitutional complaint if the complainant indicates that an individual right has been violated in relation to the violation of the rule-of-law principle. Namely, certain systemic principles may formulate in their essence human freedoms and rights, which means that one should not a priori assume that all constitutional rights and freedoms have been contained in chapter 2 of the Constitution, which refers to rights and freedoms. Individual rights which may be inferred from the said principle are the right to protect ongoing interests, the protection of acquired rights, the protection from arbitrary creation of retroactive law.^[9] Moreover, art. 2 may constitute an independent basis for a constitutional complaint if the allegation of the infringement of an individual right protected under art. 2 is specified, or if the violation of other freedoms or rights of the individual is alleged in manner that is clear and does not give rise to any doubts. Hence, art. 2 is in general treated as a supplementary and indirect basis of individual rights.^[10]

The above corresponds to the idea expressed by the Tribunal that after the entry into force of the Constitution of 1997, the “capacity” of the rule-of-law clause has not been reduced insofar as it has not been covered by the new specific regulations; hence, it still contains e.g. the principle of the citizen’s trust in the state and its law.^[11] This clause is namely still a source of many principles which are not explicitly contained in the Constitution, i.e. the principles of good legislation.

^[1] Węcławska-Misiurek, M. (2021). ‘Znaczenie zasady państwa prawnego w prawie Unii Europejskiej i polskim prawie konstytucyjnym w kontekście zasady wzajemnego zaufania’, International Journal of Legal Studies, 9(1), p. 19. The judgment of the Constitutional Tribunal of 25 November 1997, K 26/97, OTK 1997, nos. 5–6, item 64.

^[2] Morawska E., (2003) Klauzula państwa prawnego w Konstytucji RP na tle orzecznictwa Trybunału Konstytucyjnego. More on the meaning of the rule-of-law clause, see the judgment K 26/97 cited above.

^[3] The judgment K 26/97 cited above.

^[4] The judgment K 26/97 cited above. Likewise: Tuleja, P. Commentary on Article 2, in Safjan, M. and Bosek, L. (eds.) Konstytucja RP, Komentarz, Legalis.

^[5] K 26/97 cited above.

^[6] The judgment of the Constitutional Tribunal of 2 June 1999, ref. no. K 34/98, OTK ZU of 1999, no. 5, item 94.

^[7] More on that Morawska E., ibidem, p. 417 et seq.

^[8] See for instance the judgment of the Constitutional Tribunal of 23 November 1998, ref. no. 36/98, OTK 1999, no. 3, item 40. See also, Tuleja P., ibidem.

^[9] Morawska E., ibidem, p. 418. SK 19/99. More on the possibilities of invoking art. 2 in a constitutional complaint, see Szmulik, B. (2006) Skarga konstytucyjna Polski model na tle porównawczym, p. 85 et seq. or Łabno, A. (2002) ‘Skarga konstytucyjna w Konstytucji III RP’, [in] B. Banaszak, A. Preisner, Prawa i wolności obywatelskie w Konstytucji RP, Warsaw, p. 769 et seq. Cf. the judgment of the Constitutional Tribunal of 9 June 1998, ref. no. K 28/97, OTK 1998, no. 4, item 50. Trzciński, J. (2000) ‘Zakres podmiotowy i podstawa skargi konstytucyjnej’, [in] Skarga konstytucyjna, ed. Trzciński J., Warsaw, p. 55 et seq.

^[10] More on that Zubik M., Sokolewicz W., commentary on art. 2, [in:] (eds.) Garlicki L., Zubik M., Konstytucja Rzeczypospolitej Polskiej. Komentarz. Lex. See also for instance the judgment of the Constitutional Tribunal of 3 April 2006, ref. no. SK 46/05, OTK ZU 4A/2006, item 39.

^[11] Ibid. See also the judgment of the Constitutional Tribunal of 13 April 1999, ref. no. K 36/98, OTK 1999 no. 3 item 40.