WOJNA I POKÓJ W KONSTYTUCJI RP

Abstract

Art. 116 of the Constitution of the Republic of Poland provides that a state of war and the conclusion of peace are declared by the Sejm acting in the name of the Republic of Poland. These two notions, having no constitutional definition, come under the rubric of established notions, i.e. concepts whose meaning derives from doctrinal findings and provisions of law, as well as from constitutional principles and values. The Sejm’s power to declare a state of war and, consequently, declare the conclusion of peace is part of Polish system-of-governance traditions. The parliament’s power to declare war actually characterizes most of the democratic systems, even if it could be argued that waiving this prerogative in practice characterizes it as well, reflecting the preponderance of the executive power in the domain of foreign policy. The wording of Art. 116 rules out an invasive war, also in the form of a war of prevention or a preventive self-defence. The Sejm may adopt the relevant resolution only in case of armed aggression against the territory of the Republic of Poland, or if international treaties impose an obligation of common defence against aggression, i.e. as a consequence of an act of aggression. Being of key importance for the constitutional regulation of war and peace, this constraint is commensurate with international law, which the Republic of Poland is required to respect pursuant to Art. 9 of the Constitution, and is also commensurate with the Preamble to the Constitution. In a democracy, acts of war – as an important government prerogative – may only be conducted pursuant to the relevant constitutional provisions which define the conditions that must be met for such acts to be legitimate. The conduct of a war, after all, does not warrant the suspension of the Constitution. A democratic state ruled by law must not conduct a war otherwise than on the basis, and within the constraints, of law – if it is to retain its constitutional identity. For the use of armed forces abroad to be commensurate with the Constitution, such use must not represent an act of aggression, nor can it represent any acts violating the principles of the United Nations Charter. If past experience is to be a guide, democratic constitutions are not capable of preventing anti-democratic changes in the system of governance, nor are they capable of preventing wars. War represents a failure of the Constitution, by destroying its foundation, the belief in inalienable and inherent dignity of the person.