Beginning with a review of the constitutional traditions of Eastern and Central Europe, Ludwikowski goes on to offer analysis of the recent process of political change in the region. A second section focuses specifically on the the new constitutions and such issues as the selection of the form of government, concepts of divisions of power, unicameralism vs. bicameralism, the flexibility or rigidity of constitutions as working documents, and the process of reviewing the constitutionality of laws. Individual states as framed in these documents are analyzed in economic, political, and cultural terms. Although it is too soon to fully consider the implementation of these constitutions, special attention is devoted to the effect of reform on human rights protection, a notorious problem of continuing concern in the region. A final section offers an insightful comparative study of constitutional law by reviewing the post-Soviet process of constitution-making against the backdrop of Western constitutional traditions.
Constitution-Making in the Region of Former Soviet Dominance is both a comprehensive study of constitutional developments in the former Soviet bloc and a primary reference tool for scholars of constitutional law, and Eastern European and post-Soviet studies.
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About the Author
Rett R. Ludwikowski is Professor of Law and Director of the Comparative and International Law Institute at the Catholic University of America School of Law.
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Constitution-Making in the Region of Former Soviet Dominance
By Rett R. Ludwikowski
Duke University PressCopyright © 1996 Duke University Press
All rights reserved.
Polish Constitutional Traditions
THE CONSTITUTION OF MAY 3, 1791
The constitutional history of a country begins when some institutions have been established and when procedures have been implemented to limit the government's power. "Constitutions," wrote Kenneth C. Wheare, "spring from belief in limited government." The process of limiting the king's power began in Poland as early as the fourteenth century; later, Poland became a constitutional monarchy when other major European countries were reinforcing their absolutism. At the end of the sixteenth century Poland with its system of "democracy of the gentry" looked like an island surrounded by monarchies that vested legislative, executive, and judicial power in one ruler. This system contributed to the internal crisis of the Polish commonwealth, which coincided with successful internal reforms in Russia, Prussia, and Austria. Its neighbors were interested in keeping Poland demilitarized, neutralized, and in a state of anarchy. In the eighteenth century a faction of politically mature nobles was formed; this faction was aware of the deficiencies within the Polish political system, and, despite internal opposition, it prepared sound programs of reform. By the end of the eighteenth century the nobles' activity resulted in the adoption of the first written constitution in Europe, one that substantially reformed the Polish political structure.
The Polish constitution of 1791 began with "In the name of God, the one and only in the Holy Trinity." It drew the distinction between Roman Catholicism and "other creeds," and it stated that deviation from Catholicism was recognized as apostasy. It confirmed, however, that "the religious freedom, and protection of the government for other [than Roman Catholic] religions is guaranteed."
Critics often tried to expose the nondemocratic character of the Polish constitution of 1791 and claimed that it was adopted by the nobility, served the interests of this single class, and did not solve crucial social problems. In fact, the constitution did not undermine the monopoly of the nobility's political power, but it introduced the burghers into the political arena and gave peasants better protection of law. The bicentennial comparative studies of the American and Polish first constitutions demonstrate that the traditional attempt to set the democratic American constitution against the nondemocratic Polish act is not justified, and comparison of the addressees of political rights in both constitutions shows much more impressive similarities than are usually admitted.
The critics of the first Polish constitution frequently argued that, despite the declaration that the highest authority was vested in the three powers of government, the whole concept of the distribution, separation, and balances of major governmental branches was not accomplished in the Polish constitutional reform. The Law on Government, as the May 3 constitution was officially called, and a few detailed statues departed from the original concept of checks and balances and granted far superior power in the Seym.
Composed of two chambers, the senate and the chamber of deputies, the Seym held legislative power. Although the king presided over the senate, national sovereignty was vested in the chamber of deputies, which was declared "to be a temple of legislature." All bills were introduced to the lower chamber and then sent to the senate for further debate. The king did not have the right to veto the decisions of the lower chamber, a right that was vested in the senate, and the senate's veto could be overruled by the chamber of deputies in the subsequent session's second ballot. The legislative initiative was vested in the king along with the council of guardians, the deputies, and the local diets. The local diets retained the legislative initiative, but they could no longer vote on local taxes, and their instructions were not binding on deputies to the Seym, who were recognized as representatives of the whole nation. In this way, all legislative power was centralized in the Seym. The constitutionality of its decisions was not subject to any control. The Polish historian of law, Boguslaw Lesnodorski, wrote: "we do not have here [in the concept of the reformed government] the idea of the strict division of powers. There is no balance. There are good foundations for the symocracy of the nobility."
The constitution introduced a system that featured some attributes of parliamentary government. The legislature was recognized as a supreme power. The king, as head of the state, appointed the ministers for two years, but the nominations were to be presented to both chambers of the Seym, which could vote no-confidence in the king's nominees. Also, a two-thirds majority of the joint chambers could dismiss a minister during his two-year tenure. However, the constitution did not provide for any procedure that could dismiss the entire government. The king, as a chief executive officer, was no longer elected. After the death of Stanislas Augustus, the Polish throne was to become hereditary in the House of the Elector of Saxony. The king was not responsible for the parliament, but his decisions (as in the British government) could be exercised through, and on, the advice of ministers who were expected to countersign them.
The constitution provided that executive power be vested in the king and the guardians of law. The guardians did not constitute a formal cabinet; they were to perform the role of the king's council in which the "king's voice was to prevail." Similar to the president in the American system, the king assumed two roles: head of state and head of government.
The Law on Government of May 3, 1791, played a special role in Polish constitutional history. Under Russian pressure, the constitution was abolished by the rebel confederation in 1792 and was followed by the second partition of Poland of January 23, 1793. As advanced by the framers of the constitution, however, the basic principles of the government remained very much alive in Polish political thought. The Polish governmental law was not only the first European written constitution, but for generations of Poles it became a symbol of a mature political culture, and it left an important legacy that was followed by the twentieth-century Polish constitution.
POLISH CONSTITUTIONS IN THE PERIOD OF THE PARTITIONS
The Polish constitutions of the nineteenth century were granted by the foreign monarchies and displayed few similarities to the constitution of 1791. Those constitutions also exerted less influence on the development of current Polish constitutional thought. They require no extensive analysis here.
In 1794, Poland once again tried to end Russian tutelage. A national insurrection led by Tadeusz Kosciuszko, the hero of the American Revolution, was unsuccessful. That insurrection was followed by King Stanislas Augustus Poniatowski's abdication (November 24, 1795) and the third partition of Poland, which eliminated the Polish state. Most Polish territories were incorporated into Austria, Prussia, or Russia.
The next constitution was granted to the Poles by Napoleon. In July 1807 Napoleon established a small, independent buffer state carved from the Prussian segment of Poland. Napoleon summoned representatives of the Polish governing committee to Dresden and dictated a compact constitution that consisted of eighty-nine short articles and lacked the patriotic phraseology of the constitution of 1791. It confirmed the status of Catholicism as "a State religion," but it emphasized that "all religious worship is free and public." The proclamation of the constitution of 1791, which stated that "the deviation from Catholicism was recognized as apostasy," was deliberately omitted. The constitution of 1807 vested strong executive power in the king of Saxonia, who was to be the hereditary ruler of the duchy of Warsaw. The legislative power of the Seym was limited to taxation, civil law, and criminal law. The council of guardians from the constitution of 1791 was replaced by the French model of the council of state. The council, composed of ministers, was given vast powers to work on bills to be submitted to the Seym. It operated as an administrative court and a court of cassation. The constitution of 1807 "abolished slavery" and stated that "all citizens are equal in law." Generally, the constitution was fashioned on the French pattern and incorporated only a few Polish institutions. The constitution of the duchy of Warsaw served as a model for the constitution of Westphalia and for a few constitutions of the member states of the Union of the Rhineland.
The fall of Napoleon ended the short life of the duchy of Warsaw. Early in 1813 the Russian army again entered Polish territory. After the Congress of Vienna (1815), the western part of the duchy of Warsaw (the grand duchy of Poznan) was incorporated into Prussia. A tiny autonomous state, the republic of Cracow, was formed from the district of Cracow. From the remainder of the former duchy of Warsaw, Russia created the kingdom of Poland. In November 1815 the new state was granted a constitution. The text was drafted by the Polish aristocrat, Adam Czartoryski, and was edited considerably by Tsar Alexander I. The king, acting simultaneously as the Russian tsar, reserved for himself the legislative initiative and the right to veto the Seym's statutes. Both chambers were allowed to discuss the government's reports and legislative projects. The chamber of deputies could question the ministers and submit complaints about governmental officials to the senate. The meetings of the Seym were to be open to the press, an arrangement intended to guarantee public control over the lawfulness of governmental actions.
The constitution was quickly recognized as the most liberal in Europe. In numerous pamphlets Polish commentators glorified the "magnanimous tsar" and emphasized his "unlimited generosity" and truly liberal convictions. Common optimism as to the glorious future of the kingdom under the tsar's liberal government reached its height shortly before the first session of the Seym in 1818.
The Poles expected that the two-chamber organization of the legislature would enable them to participate in the political process. The first session, however, showed that the deliberate use of ambiguous constitutional language by Alexander I could provoke many clashes between deputies and government. The practice quickly proved that the apparently liberal constitution was a mere declaration whose provisions were manipulated, avoided, and violated at whim by the tsarist administration. The constitution lasted until the next Polish upheaval, called the November Insurrection of 1830. Following the defeat of that insurrection, Tsar Nicholas I declared the constitution null and void, and he abolished both the Seym and the Polish army. In 1832 he granted the Polish kingdom, linked to Russia by the personal union, an Organic Statute, which was to give the kingdom separate administrative and civil rights. "The Statute, however," wrote S. Kieniewicz, "was never enforced and the country was kept in a state of emergency."
Until World War I the Polish territories remained part of the partitioning empires of Austria, Prussia, and Russia. Poles living in Galicia, the Austrian part of the Polish territories, were reintroduced into constitutional practices in the early 1860s when Emperor Franz Joseph granted two constitutional acts, the Diploma of 1860 and the Patent of 1861, which were to regulate the organization of the empire's governmental departments. After the Austro-Prussian War, the Reichstrat, the parliament in Vienna, in 1867 enacted the constitution under which the Austrian part of the monarchy was governed until 1918. The empire was divided into "the historic kingdom of Hungary" and the "historic kingdoms and lands" of Austria (including Galicia).
In the loose confederation of German states after the early experience with the Napoleonic constitutions, the era of constitutional experiments began with the revolutionary events of the Spring of Nations. The Nationalist movement of January 1848 sparked a local revolution in Sicily that overturned the monarchy in France in February 1848 and extended rapidly throughout Europe, reaching the German states in March. The governments in the German states promised to adopt a constitution, and the national assembly was convened at St. Paul's Church in Frankfurt to draft a German constitution. European constitutional models were carefully examined, but the framers drew most heavily from the American constitutional experience. Besides the federal structure patterned on the American model:
references to and comparisons with the U.S. Constitution within the commission and the National Assembly covered many important subjects to be dealt with by the draft constitution—for example, the separation of church and state, and freedom of religion; a republican form of government; election system; citizenship; immunity and indemnity of members of parliament; the presidential system; amendment of the constitution; freedom of trade and occupation; free movement within the Union; freedom of the press, and jury trial; and states of emergency.
The counterrevolution's victory in Germany hampered the constitutional movement until the adoption of Bismarck's constitutions of 1867 and 1871. The first, in 1867, followed the Austro-Prussian War and the formation of the North German Federation in October 1866; the second, the 1871 constitution of the German empire, resulted from the victorious war with France. Under the constitution of 1871 the emperor controlled foreign policy and the military forces, but Germany remained a federal union. Aristocratic-monarchical order was preserved in the individual states whose rulers were represented in the Bundesrat (federal council). The Reichstag (imperial parliament) exercised legislative power. Prussia, which led the other German states into the federal union, adopted for itself a short-lived constitution in 1848. The constitution of 1850 was seriously inadequate by democratic standards, and the influence of the German constitution of 1871 and the Prussian constitutions on political life in the Polish province was insignificant.
CONSTITUTIONS OF THE RESTORED POLISH STATE AFTER WORLD WAR I (1918–1939)
World War I brought Poland independence. The new state wished to continue the Polish constitutional traditions, and in January 1919 the "Ankieta" group was called to draft a project of the basic laws. "Ankieta" held seventeen meetings between February 17 and March 12, 1919, and prepared a project that vested broad executive power in the office of the president. The process for electing the president was based on the American model.
However, the new constitution of March 17, 1921, disappointed those who believed that the new republic needed a strong presidential system rather than an impotent seymocracy. In fact, the constitution of 1921 referred directly to "the glorious and memorable traditions of the Constitution of May3." Despite 130 years that divided the constitutions, their major principles showed many similarities. The preambles of both the 1921 act and the constitution of May 3, 1791, began with the phrase, "In the name of the Almighty God." The position of the Roman Catholic faith, being the religion of the great majority of Poles, was referred to in the 1921 constitutional text as "predominant among equal worships." Article 2 of the 1921 constitution, resembling article 5 of the constitution of 1791, proclaimed that "the supreme power belongs to the nation" and explained that this power was to be divided among legislature, executive, and judiciary. Although the new state adopted a republican form of government, this form was denoted as a "commonwealth" in reference to the traditional name of the Polish state in the period of elective monarchy. Similar to the constitution of 1791, the separation of powers in the new constitution did not amount to their equality. The Seym had been given a far more predominant role among the powers. Although the constitution of 1921 referred to the traditions of Polish constitutionalism, its drafters also borrowed heavily from contemporary political systems, particularly from the French constitution of 1875.
As a result of the coup d'etat of 1926, the constitution was amended, with the act of August 2, 1926, enhancing the president's power. On April 23, 1935, the constitution was changed. The new act, known as the April constitution, declared that total and undivided power was to be vested in the president of the republic. Thus, the new constitution departed from the spirit of the constitution of 1791 and presaged a distinct evolution toward an authoritarian government.
Excerpted from Constitution-Making in the Region of Former Soviet Dominance by Rett R. Ludwikowski. Copyright © 1996 Duke University Press. Excerpted by permission of Duke University Press.
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Table of Contents
I Constitutional History,
1 Constitutional Traditions: The Overview,
2 Constitutional Legacy: The Confrontation of East and West,
II The Era of Constitutional Transformation,
3 Political and Constitutional Reforms of the Glasnost and Postglasnost Periods,
4 Constitution-Drafting in the Former People's Republics of East-Central Europe,
5 The Fabric of the New Constitutions: Overview of a Model,
6 Constitutional Rights, Freedoms, and Duties,
Conclusion: One or Many Models?,
Law on the Major Constitutional Provisions of the People's Assembly of the Republic of Albania,
Constitution of the Republic of Belarus,
Constitution of the Republic of Bulgaria,
Constitution of the Czech Republic,
Republic of Estonia Constitution,
The Constitution of the Republic of Hungary,
The Constitution of the Republic of Kazakhstan,
Constitution of the Kyrghyz Republic,
The Lithuanian Nation,
The Constitutional Act of Poland,
Constitution of Romania,
Constitution of the Russian Federation,
Constitution of the Slovak Republic,
Constitution (Fundamental Law) of the Union of Soviet Socialist Republics,