Can you imagine Poland saying concordat? If not, it is right, due to the fact that the authors of the Constitution of the Republic of Poland have ensured that this task is impossible, which can only be fantasized, as the authors of the books of the SF fantasize about travel to distant stars.
Here is simply a decalogue of reasons why Poland will not say concordat. Or rather, why don't they Polish political elites in the full foreseeable future.
I
Firstly, it is essential to amend the Constitution. This is no joke. Article 25(4) of our Basic Law states that “the relations between the Republic of Poland and the Catholic Church are determined by an global agreement concluded with the Holy See and the Law.” First the deal, then the bill. ‘Determining’, i.e. mandatory.
The authors of the Polish Constitution deliberately decided on a mandatory, legal global expression for determining the relations of Poland with the Vatican. A state without a concordat is so an unconstitutional state. No politician will sign the Treaty as long as this provision of the Constitution is worded. Cool? Yeah, for the Catholic Church. Imagine negotiating with the another party, who knows that you gotta sign a contract on even the worst terms for you or that you cannot quit on it for anything in the world.
Let's add more imposibilism sauce: in 2009 Constitutional Court Bohdan Zdańnicki ruled that the provisions of the concordat were "actually incorporated into constitutional matter". It's not an editorial mistake. The ink didn't spill. The Concordat became part of the act creating the state strategy in Poland.
The said settlement of the constitutional court is as consistent as possible with the letter and spirit of the fundamental law – it was no accident at work, excess or guerrilla in the kind of the Ayatollahs from the present TK of the Silesian Julia. This ruling shows, firstly, the correct explanation of the Constitution, and secondly, the state of attachment of Polish elites (from the 1990s onwards) to the catechism of the Catholic Church (the ruling group was truly distinguished lawyers). For a reminder – due to the fact that no 1 remembers it all day – according to Article 25(1) of the Constitution all churches and spiritual unions are in our country, strangely, equally entitled.
II
Secondly, for procedural reasons, the amendment to the Constitution concerning Article 25(4) is simply a mirage. The modification of the basic law requires an exceptionally strong political will from various primates of the state. Procedural obstacles, specified as a limited list of actors with a legislative initiative or the request to cooperate with the Sejm and the Senate, must be overcome. And for dessert, alternatively any national approval referendum, where the influence on the result of the vote would be obtained by those who can effectively influence public opinion, specified as the Catholic Church.
It is easy to imagine what position an episcopate would take to effort to remove from the mandatory treaty constitution the form of regulating its position in the country above the Vistula.
III
Thirdly, the consent expressed in the form of a bill is needed to terminate the concordat. So for a good morning (if we can change the constitution – although we know it will not succeed) a parliamentary majority would be necessary. This is again the dream of a beheaded person, due to the fact that specified a bill can be voted by a legislative authority in a different composition than the 1 that amended the basic law. The Sejm and the legislature majority would gotta make a simple fact without moral panic, making an obsolete 1 of the main reasons for concluding the concordat: that Catholic religion no longer adheres to the majority of Polish society.
Digression: this year, Israel besides concluded the Polish concordat, and 9 years ago, Palestine concluded a akin agreement. Thus, specified treaties are besides concluded with countries where Catholics constitute a vast minority. However, in the case of Poland, this is the majority indicated as the reason for the conclusion of the agreement, and its existence influenced the content of the agreement.
IV
Fourth, the law authorising the termination of the concordat would require the approval of the president of the Republic of Poland. The Heads of State to specified a law would have the same powers as to another laws submitted to it for signature.
Mr. Charles (let us say) to the bank, together with a well-founded request, will mention the substance to the Sejm for reconsideration. And then passing a bill authorising the concordat to terminate would require a majority of 3 fifths of the vote. And Mr Rafał – I would say that he would have noticed a number of lofty and noble reasons for the unconstitutionality of specified a law (even, I recall, after removing the current Article 25(4) from the Constitution) and sent it to, possibly already refreshed, the Constitutional Court.
And there – you know – a hammer and a murder. The present judges of this body are so intellectually numb that they will not even justify their decision.
V
Fifthly, even if the authorising act enters into force, it will inactive go to the Court (50 Members will do so). And here's the bonus: the right to address a motion to examine the constitutionality of specified an act will besides have... yes, yes, the Catholic Church! The law in question would cover cases falling within the scope of that institution.
The procedure before the Constitutional Tribunal could be initiated by the Apostolic Capital itself through a nuncio, a conference of the episcopal mandated by the Vatican. It is worth letting the imagination go and reasoning how the diamonds of Polish constitutional law would respond to specified a request in the persons of the martial law prosecutor Stanisław Piotrowicz and the state prosecutor Bogdan Święczkowski.
VI
Sixth, only the president of Poland can make the concordat. However, even if there is simply a bill agreeing to specified a step, the highest typical of our country will not be bound by it at all – he may benefit from it, but he does not have to. Is imagination able to draw a communicative in which Mr. Rafał or Mr. Charles without murmuring implement the bill? Would any of them point out that more than 30 years after the signing of the global treaty with the Catholic Church, the concordat in its present text no longer corresponds to the aspirations of citizens, and has become a origin of unnecessary burdens for public finances and a symbol of the privileges of clergy and church institutions?
VII
Seventhly, the act of the president would require for its validity a countersignate of the Prime Minister, who would be liable to the Sejm. So the President-Parliament would have reached another curious organization with its political and spiritual agenda. Importantly, the Prime Minister would not be obliged to specified a countersignature, and without his signature to terminate the agreement with the Vatican would not happen.
Can you identify specified a modern Prime Minister of the Polish Government, who would be able to accept the fact of the progressive and nonsubjective process of secularization of Polish society? Yeah, it's not easy.
VIII
Eighthly, in accordance with the global Agreements Act, it is the government that adopts a resolution to submit an global agreement to the head of the state for termination. So before the Prime Minister countersigns the act of the President, the full Council of Ministers would gotta express its approval of the concordat. How would it look in practice? It is worth experimenting mentally with the current ruling coalition.
IX
After nine, the concordat between Poland and the Catholic Church does not contain a clause allowing this agreement to be terminated at all. Under the Vienna Convention on the Law of Treaties, an global agreement without a denunciation clause is not subject to any denunciation or withdrawal from it unless it can be established that the parties were intending to let the anticipation of termination or specified a law may be presumed to be of the nature of the Treaty.
In the case of the concordat in force in Poland, it cannot be established that the parties to the agreement intended to let it to be terminated. Rather, legal circumstances point to the opposite. The preamble to the agreement and its individual provisions illustrate the pursuit of a lasting arrangement of common relations and the intention to make and modify them through successive treaties (i.e. not through a "non-concordat" state).
In addition to the taste: the ratification clause included in February 1998 a message made by the president of the Republic of Poland on behalf of the Polish State that the concordat would be "invariably preserved". Varsovia locuta, causa finita?
X
Ten o'clock, quit all hope.
By signing the concordat in July 1993, the government of Hanna Suchocka acted in violation of the regulations of Polish interior law concerning the competence to enter into an global agreement with the Catholic Church. At that time, there was inactive a provision that remained in force in the 1952 Constitution, which provided only for a statutory form of determining the relation between the state and the Church. At the time, the anticipation of regulating these relations through an global agreement was excluded.
The government of Hanna Suchocka had so no constitutional basis for concluding the concordat. This violation of the fundamental rules of interior law may have had consequences under the Vienna Convention on the Law of Treaties, which allows the country afraid to accept the agreement to be bound by an global agreement as invalid if the agreement was expressed in violation of interior law concerning the power to conclude treaties, and this violation was apparent and afraid a standard of interior law of fundamental importance.
These conditions were fulfilled in the case of a concordat signed by then minister of abroad affairs, Krzysztof Skubiszewski. For the last 31 years, however, no Polish government has wanted to invoke them. And the State loses its right to trust on the grounds for annulment of the Treaty if, after the State has been informed of the grounds for annulment, it must be judged, from the conduct of that State, that it has recognised the validity of the Treaty.
This means that subsequent Polish governments after July 1993 declared this invalid at the time of conclusion of the concordat crucial and binding. Already the Waldemar Pawlak government in January 1994 brought the bill on ratification of the concordat to the Sejm. So this way has been swept long ago.
* Oh, my God *
In little than 3 months we will celebrate the century of signing the first Polish concordat by the authorities of the Second Republic. possibly it's worth a small concordat subversion for the beginning of the next century. If specified a treaty has any social value, it is all the more crucial to consider what it is and what it contains.
**
Dr Radosław Skowron – legal advisor, constitutionalist.
