Polish National Day - 230th Anniversary of the 3rd of May Constitution Day
Wednesday, 5 May 2021
Consulate of the Republic of Poland
Her Excellency the Honourable Margaret Beazley AC QC
Dobry wieczor: Good evening
Bujari gamarruwa Diyn Babana Gamarada Gadigal Ngura.
I pay my respects to the Gadigal of the Eora Nation in the ‘Sydney language’ and acknowledge Elders, past, present and emerging.
Thank you Consul-General for this invitation to join you to mark a day of great significance to the people of Poland.
In reading for this evening, I came across an article intriguingly entitled: “Where were you going, Poland (before you were so rudely interrupted)?” by Professor Richard Butterwick-Pawlikowski , from University College London. He pointed out a saying, with which I am unfamiliar. That is “that while most countries abolished their nobilities, the Poles made everyone noble.” This adage is said to have its origins in two actions by General Tadeusz Kościuszko - after whom NSW’s highest mountain is named - during the 1794 insurrection, in which he donned a peasant cape and ennobled a brave peasant soldier.
As legend follows truth, this story emerged due to the significance of the event in Polish history we are here to commemorate: the enactment of the 3rd of May Constitution of 1791. The Government Act, as it is sometimes called, was the first modern constitution of Europe, adopted democratically, and indeed, second only to the United States Constitution of 1789 in its date of enactment.
A foreword to the English translation of the Constitution, by Franciszek Bukaty notes that:
“The Constitution of 3 May is undoubtedly one of the most important symbols of Polish independence. … The European Commission also appreciated its importance in 2015 when the constitution was awarded a European Heritage Label. However, the Government Act is not only a symbol; it is a valuable historical document, an important legal text, as well as a historical event which was so groundbreaking that the whole of Europe acclaimed it a revolution of its time.”
As a revolution, it was a ‘gentle’ and bloodless one. Consisting of discussion and debate, it culminated in the enactment of a constitution based on principles of democracy, rule of law, religious tolerance and individual liberty. British philosopher Edmund Burke (1729–1797) praised it as an example of peaceful transformation.
It is a fascinating and charming document. Elegantly written, with some lengthy sentences, its purpose was clear, to transform the Polish-Lithuanian Commonwealth; establish a constitutional monarchy, the first outside Britain; introduce political equality between townspeople and nobility and place the peasants under the protection of the government, thus mitigating the worst abuses of feudal serfdom. It legislated for a new separation and balance of powers. A symbol of Polish sovereignty, behind the scenes lay the spectre of partition.
Article V, on the Form of Government or the Definition of Public Powers, is the Article that is closest to our contemporary democracy. It said:
“All power in civil society should be derived from the will of the people, its end and object being the preservation of the State, the civil liberty and good order of society, on an equal scale and on a lasting foundation. Three distinct powers shall compose the government of the Polish nation according to the present constitution; 1st. Legislative power in the States assembled. 2nd. Executive power of the King and the Council of Inspection. 3rd. Judicial power in Jurisdictions existing, or to be established.”
It abolished liberum veto, the principle of free veto which enabled the overturning of legislation. Article VI on The Diet or Legislative Power excoriated:
“The majority of votes shall decide everything, and everywhere; therefore we abolish, and utterly annihilate, liberum veto, all sorts of confederacies and confederate Diets, as contrary to the spirit of the present constitution, as undermining the government, and as being ruinous to society.”
Professor Andrzej Chwalba, from the Jagiellonian University, has called the May 3rd Constitution, “an outstanding, future-oriented document, a proof of the patriotism of the Polish elites and their readiness to reform the state.” Richard Butterwick-Pawlikowski summarised it as “a partnership between a strengthened executive and a strengthened parliament, with vigorous local government.” And Franciszek Bukaty: “It could be said that the model of government outlined in the Constitution was almost the perfect example of the combination of Enlightenment political ideals and Polish tradition.”
Received joyously, and with poetry and song - perhaps because there were no lawyers involved in its authorship! - the Constitution was passed: “for the sake of the public good, for securing our liberty, and maintaining (the) kingdom and possessions.”
Despite lasting less than 19 months - Poland’s defeat by the Russian Empire had led to the much-feared partition of Poland - it proved to be a document in great demand in its 14 editions and 30,000 reprints, although almost lost to history.
There is no doubt that Polish history and its stories of heroic patriotism, and struggles for freedom and sovereignty, stir the blood, the spirit - and the constitutional sensibility. As a jurist, one only has to look at Jan Matejko’s painting ‘The Constitution of 3 May’ - with the King holding aloft the Constitution through the massed streets of Warsaw - to have heartbeats rise by a notch, without even being Polish. In another footnote to this history, Tadeusz Kościuszko appears in the image … although which one is he, is unclear!
Through the lens of distance and history, it may seem incredible to us that these events were taking place at the same time as the colony of New South Wales was being established under a very different proclamation. It would be a long wait until the Commonwealth of Australia Constitution Act (1900), although NSW, on the ending of convict transportation, would have its first Constitution Act passed through the British Parliament in 1842.
Constitutions, by their nature, vary from country to country. Even the definition of ‘what constitutes a constitution’ can be contested. Yet, as Professor Dorf from Cornell Law School tells us: “Real constitutions include aspirational rights …Originalism does not.” This is the significance of the 3rd May Constitution. It was the first in Europe to introduce the principle of constitutional monarchy, adopted in a democratic manner by the Parliament.
Far from it being the “last will and testament of an expiring Fatherland,” throughout later history, Poland would return to this Constitution to revive principles of sovereignty and democracy.
The last words should go to the real hero of today’s celebration - the Polish Constitution of 3rd May 1791 - and the words from Article VII, that may be unsurpassed in any constitution, before or since:
“The happiness of the nation depends on just laws, but the good effects of laws flow only from their execution.”
Congratulations, Poland, on the 230th Anniversary of the 3rd May Constitution.
Where were you going, Poland (before you were so rudely interrupted)? Richard Butterwick-Pawlikowski - IFLA WLIC 2017 Keynote Speaker University College London , London, United Kingdom
 Krótka prezentacja z osią czasu: The Constitution of 3 May - The First Modern Constiution of Europe, adopted democratically:
2nd to the US (1787) and before France, 3 September 1791
 Anna Grześkowiak-Krwawicz Foreword by Franciszek Bukaty, Muzeum Łazienki Królewskie Archiwum Główne Akt Dawnych:
 Richard Butterwick-Pawlikowski: http://library.ifla.org/1838/1/071-butterwick-pawlikowski-en.pdf, page 6
 Richard Butterwick-Pawlikowski, page 6
 Article IV Peasants and Villagers, 165 words long
 As it was then called
 Particularly by Russia, which had been engaged in a war with the Ottoman Empire: Anna Grześkowiak-Krwawicz Foreword, Franciszek Bukaty: “Moreover, the debates had been carefully orchestrated by the authors of the Constitution - first creating an atmosphere of danger and presenting dispatches sent by Polish diplomatic representatives which threatened the danger of partition, and later, the bill of the Constitution was presented as being the only means of rescue”
 Anna Grześkowiak-Krwawicz, Foreword, Franciszek Bukaty: “some elements of these age-old traditions turned out to be surprisingly modern, particularly with regard to the conviction expressed in Article V of the Constitution” page 15
 Professor Andrzej Chwalba:
 Richard Butterwick-Pawlikowski, page 6
 Anna Grześkowiak-Krwawicz, Foreword, Franciszek Bukaty, page 14 and 15
 Anna Grześkowiak-Krwawicz, Foreword, Franciszek Bukaty. Preamble to the Government Act, page 17
 1793 and 1795
 Stanisław August Poniatowski (1764-1798), last King of the Polish-Lithuanian Commonwealth: Following the partitions: “Stripped of all meaningful power, Poniatowski abdicated in November 1795 and spent the last years of his life as a captive in Saint Petersburg's Marble Palace. A controversial figure in Poland's history, he is criticized primarily for his failure to resolutely stand against and prevent the partitions, which led to the destruction of the Polish state.”
 Michael C Dorf, Cornell Law School, The Aspirational Constitution, page 42:
 The words of two of the Constitution’s co-authors, Ignacy Potocki and Hugo Kołłąta:
 Franciszek Bukaty, Muzeum Łazienki Królewskie Archiwum Główne Akt Dawnych, Article VII, page 47: