Dainius Žalimas: it has at all times been and continues to be necessary for advanced ideas not only to be created, but also to be fostered and actively defended
The speech delivered by the President of the Constitutional Court, Dainius Žalimas, in the joint Lithuanian and Polish discussion “The Constitution of 3 May 1791: Meaning and Lessons for Europe”, held at the Palace of the President of the Republic of Lithuania (2 May 2019, Vilnius)
A contemporary of the Constitution of 3 May and one of the drafters of its predecessor – the Constitution of the United States of America, the first President of the United States of America, George Washington, said: “We should not look back unless it is to derive useful lessons from past errors, and for the purpose of profiting by dearly bought experience.”
You will ask what lessons can be drawn from the Constitution of 3 May, knowing that its fate was tragic, as it was in force for some 14 months. It is likely that we could come up with the answer after recalling the circumstances of the adoption of this constitution, its content, and the reasons for its failure. Moreover, the circumstances surrounding the adoption of the Constitution of 3 May are indicative of parallels relevant nowadays.
The fight for civil rights was symbolised by the presence of black clothes. The beginning of the Constitution could possibly be considered to be the so-termed Black Procession, which was organised in November 1789 in Warsaw by representatives of residents of royal cities after they had drawn up “the act on the unification of cities”. Clad in black, they headed for the Royal Castle to voice the rights of townspeople. The demonstration proved its worth – a deputation for preparing the Act on Cities was formed and, in less than a year, it submitted “a draft act on correcting the model of governance” to the Four-Year Sejm (Parliament).
A considerable part of the Four-Year Sejm was at the time already composed of the advocates of Enlightenment ideas, who were conscious of their civil responsibility for the future of the state. Therefore, the drafting of the acts of the Constitution progressed at a swift pace. On 24 March 1791, the Act on Sejmiks (local assemblies) and, on 18 April 1791, the Law on Cities were approved; the latter law reflected the demands put forward by the Black Procession and was aimed at enabling townspeople to become an active and contributing segment of society, engaged in the creation of qualitatively new structures for the governance of the state.
The end of April witnessed the preparation of the draft of the main constitutional act – the Government Act; the whole composite Constitution is called the Constitution of 3 May according to the day when this act was adopted. The said draft act faced opposition from a considerable number of opponents. For this reason, having decided to take advantage of the fact that some members of the Parliament were away on the Easter recess, the drafters of the Government Act intended to hold a deliberation on the document on 5 May in the absence of the opposition holding hostile attitudes towards the Constitution. However, as news about the new Government Act had shortly reached the Russian envoy in Warsaw, he urged the deputies opposing the Constitution to return to the capital city. The proponents of the Constitution were forced to promptly change the date of the envisaged deliberation and, on 2 May, the draft Constitution was read in a semi-secretive meeting at the palace of the Radvila family.
On 3 May, tension was palpable in Warsaw. Demonstrating their loyalty to the main provisions of the Constitution, around 20 000 townspeople took to the streets. The army surrounded the castle of the King, where the Sejm was holding its session. Heated debates lasted for seven hours. Ultimately, 110 members of the Sejm approved the Constitution, while 72 were against it.
These are just a few focal aspects of the events and mood of the time, through which I would like to recall that neither 228 years ago nor now is it enough to merely put forward advanced ideas. Such ideas can only make their way through hard-fought fights while being defended by active citizens, who do not always constitute a majority, though.
The Constitution of 3 May 1791 of the Commonwealth of Two Nations is precisely such an idea realised during the fight between the evolving civic consciousness of the Nation and the selfish interests of estates.
It is not surprising that the Constitution enacted during this fight was a document of contrasts, as the drafters of the Constitution were committed to different ideals, pursued different ways of achieving them, and were influenced by the interests of different social layers and groups.
Thus, even though this Constitution did not abolish serfdom, it nevertheless guaranteed liberty for peasants, either those who would be newly coming to the Commonwealth of Two Nations or those who, having fled, would return to the Commonwealth. The Constitution declared tolerance to people of other faiths, but it immediately consolidated Catholicism as the national religion and forbade adopting another faith. Although it envisaged the establishment of independent courts and territorial self-governance, it provided for their organisation based on the principle of estates, etc.
However, most significantly, in the Constitution of 3 May, we can find quite a number of the modern principles of democracy that are part of European constitutional heritage and form the foundation of many contemporary constitutions, including the Lithuanian and Polish constitutions that are currently in force. These principles include the sovereignty of the nation, the independence of the state and its territorial integrity, as well as freedom of citizens and the equality of their rights. The Constitution also laid down other features characteristic of a democratic state governed by the rule of law: the separation of powers (between the legislative power and the executive power), the separateness and independence of the judiciary, and the parliamentary form of government (the Sejm, as the representation of the Nation, had a special place in the framework of the state and the right to exercise parliamentary control over the executive power).
I cannot fail to highlight one more objective that was sought by the drafters of the Constitution of 3 May and still continues to be highly relevant today, i.e. the stability of the Constitution. The provisions in relation to validity and alteration declared the Constitution to be entirely sacred and inviolable until, at the time prescribed by law and by its express will, the Nation deems it necessary to alter any of its articles. It was stipulated that “Willing to prevent, on one hand, abrupt and frequent changes in the national constitution and, on the other, recognising the need to perfect it after experiencing its effects upon public prosperity, we determine the period and time for the revision and amendment of the Constitution every twenty-five years”. Thus, as far back as 228 years ago, it was clearly perceived that the stability of the Constitution bears special importance for the development of the state and society, as well as that it is necessary to learn to live according to the Constitution and not attempt to adjust it to make it suit your own needs.
It is obvious that the Constitution of 3 May was a document of groundbreaking content at the time and, in the longer run, it had the potential of transforming the Commonwealth of Two Nations into a modern constitutional monarchy. In other words, the Constitution had inevitably to strengthen the state, to consolidate the Nation while helping it do away with influence exerted by hostile states, and to enable the state to become an example to be followed by other nations. Understandably, this did not suit some neighbouring countries and magnates who had yielded to the influence of Russia and viewed their privileges as more valuable than the common good. Therefore, shortly afterwards the Constitution was betrayed and the Commonwealth of Two Nations was destroyed.
The fate of the Constitution of 3 May shows that fundamental constitutional values do not constitute something that should be taken for granted and it has at all times been and continues to be necessary for advanced ideas not only to be created, but also to be fostered and actively defended. In any event, the ideas of the first written European constitution have remained alive and inspired more than one later generation to fight for rights, freedom, and democracy.
Let me also point out that, in history, in general, a great deal begins with the word “if” but is, more often than not, concluded by adding “nevertheless”. This means that, regardless of unfavourable circumstances, differences in opinions, and disputes or fights, it is sooner or later that citizens fight for and gain their rights through black processions, solidarity movements, singing revolutions, revolutions of roses, or revolutions of dignity. In this way, society overcomes a further turning point in history. Whether it will prove to be a turning point towards progress, largely depends on lessons that we have learned and on whether we are able to avoid repeating both our own mistakes and those of others. It also depends on whether we are mindful that the common good is created by every citizen – by not being indifferent, by feeling responsible and being aware of one’s rights, as well as by not being afraid to defend them. Since “freedom of not being afraid” summarises the whole philosophy of human rights.
This is probably the most important lesson that we should properly learn...