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Poland: Ex-Communist Constitutional Courts Face Similar Problems

  • Julie Moffett

Washington, 29 September 1998 (RFE/RL) -- Most of the constitutional courts of the former communist bloc are facing similar problems in implementing the rule of law.

That is the general opinion of a series of experts who spoke at an all-day conference in Washington Monday called "Constitutional Revolution in the ex-Communist World: The Rule of Law." The conference was held at the Washington College of Law at American University and featured a variety of constitutional scholars, lawyers and judges from the U.S. and the former communist bloc.

According to Herman Schwartz, a law professor at American University, since the collapse of communism and the demise of the Soviet empire, every one of the former communist-bloc nations created a constitutional court or tribunal.

Schwartz told RFE/RL that these courts are unique because unlike the regular judiciary, they are not created to settle conventional disputes of either a private or public nature. Instead, he said they have been formed to resolve constitutional questions, primarily, although not exclusively on behalf of high state officials, members of the parliament or legislature, and the normal judiciary.

Lech Garlicki, a judge on Poland's constitutional court, said there are generally three major problems facing the courts.

The first, said Garlicki, is with the constitutions themselves. He said that many countries are still in the process of creating and writing a new constitution. Others, he added, are revising old ones. All are trying to determine just what a working, viable, applicable constitution is.

Garlicki explained: "What exactly is a constitution? It is just a text....and this was the case for many years of the communist constitutions. They were very nice texts with a lot of nice sentences and phrases. But nobody knew exactly what they meant."

For example, Garlicki said one of the first tasks of the newly created constitutional court in Poland was to determine exactly what the constitution said. Then, the court had to figure out a way to translate the constitution into something that could be judicially applicable and suited to the realities of life in Poland.

To make matters more difficult, Garlicki said the constitutional courts in the ex-Communist bloc are hampered by societies and systems of government without a long-standing constitutional culture. He said the former Soviet bloc lacks a deep-seated tradition, as in the U.S., of a society and a system of government that is founded on and closely tied to the principles of a national constitution.

The second major problem facing the constitutional courts, said Garlicki, is the economy.

Garlicki said: "I always thought that the constitutional court would deal with important public, human and individual rights, religious freedom, free press and so on. But when I entered the court, I found that there are very few cases like that....The vast majority of our docket was filled with cases dealing with social rights, economic regulations, and financial and tax regulations."

Looking back, Garlicki said he considers it quite normal now. He explained that for a country in transition to democracy, the biggest transformation will come in the economic sphere. He said this kind of major transformation would naturally provoke a number of significant changes and problems in both the society and government which need to be rapidly addressed by the constitutional court.

The third major problem for the courts, said Garlicki, is ensuring compliance with it's decisions. He said that it is natural for the court and the legislative body of the government to often be in contradicting positions. For example, Garlicki said that between 1986 and 1990, the Polish constitutional court spent most of its time striking down government decrees as unconstitutional.

But he said that the parliament can just as often ignore the court decrees and do nothing to ensure their implementation. Also, Garlicki said other problems arise when other sections of the nation's judiciary refuse to implement or recognize the decisions of the constitutional court.

Mikhail Pastukhov, a former member of the constitutional court in Belarus, said another problem facing the new constitutional courts is excessive control over the court by the government or the president.

For example, Pastukhov said that the first constitutional court which was formed in Belarus in April 1994, was essentially dissolved by President Lukashenka when the court opened a case against him for violations of the constitution.

Pastukhov said that the case was essentially blocked by Lukashenko for a "lack of appropriate parliamentary law on the case," causing six of the eleven constitutional court justices to submit their resignations in protest.

Pastukhov said the new Belarussian constitutional court, which was formed in January 1997, is composed of six justices, including the Chief Justice, who have been appointed on the order of President Lukashenka. Five more justices were elected by the upper house of the parliament, he said.

Concluded Pastukhov: "The (Belarussian constitutional) court has transformed from an active independent body of constitutional control into a legal institute dependent on the president and lacking any initiative or principled position. The constitutional court in its current form, has come to be more like a decoration than a branch of government."

Still, Schwartz says that the new constitutional courts in the former communist bloc are making a "significant contribution toward promoting the rule of law." He says it is encouraging that most of the decisions taken by the courts have largely been sensitive to people's civil and human rights and liberties.