Constitutional expert Wictor Osiatynski shares his insights on the making of constitutions in countries that are transitioning to democracy.
As a veteran of the Polish Constitutional process and a consultant to many more, Osiatynski has years of experience reviewing the building blocks of democratic societies. In his estimation, there are a number of things that make up a strong constitution, including and, arguably most importantly, separation of power and a body meant to independently adjudicate. However, he noted that in some developing countries, the major conflicts that have arisen have been within branches of government, not between them.
Access to the constitution is crucial, meaning that the document is written for the whole citizenry, not just the advantaged classes. "The US had a constitution for 165 years and it was no good to anyone but the rich and powerful," he said. Further complicating the situation in the States is the complex system of checks and balances. "We learned that checks and balances are important, but too many are unrealistic," he said. "We recently saw the US government shut down; it was paralyzed by excessive checks and balances."
Another cornerstone of a strong constitution is the inclusion of rights. When reviewing drafts, Osiatynski identifies what rights are missing from the document. When citizens and their rights are left out of constitutions, NGOs can be crucial in stimulating change. Osiatynski cited the work, beginning in the 1920s, of the National Association for the Advancement of Colored People (NAACP) in the U.S. and its struggle to bring racial discrimination into the national conversation, with the goal of overturning the "separate but equal" legal doctrine.
"The watchdog or 'access to justice' NGOs should be almost constitutionalized," he said. "I have in mind, these types of NGOs that resemble political parties that force the system to respond to people and to rights violations."
Once a constitution is ratified and in place, how well does the document perform and how flexible is it? Osiatynski contends that a constitution should be difficult to change. In order to preserve the document and its tenets, a large consensus should be required to change the document, he said.
As difficult as it may be to build a constitution in a developing country, it is still harder in countries at war or in post-conflict situations. "In divided societies, it is very hard to constitutionalize solutions to ethnic conflicts," he said. He named the 2010 Kenyan Constitution, which includes a number of important changes including land rights, as the best contemporary constitution he has seen and he expressed the hope that the government could live up to it.
Osiatynski holds degrees in law and sociology from Warsaw University and the Polish Academy of Sciences and has, since 1995, been a university professor in legal studies at the CEU. He is also a counsel to the Open Society Foundation. He was an advisor to a number of constitutional committees of the Polish Parliament and he has written extensively on constitutional developments in post-Communist Poland and Eastern Europe.
The event was co-sponsored by CEU's School of Public Policy and the Department of Legal Studies. Renata Uitz, head of the Department of Legal Studies moderated the discussion.
By Colleen Sharkey