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Ann Arbor MI 48106-1346 USA 313/761-4700 800/521-0600 THE INFLUENCE OF THE JUDICIARY UPON THE DEVELOPMENT OF THE RULE OF LAW IN POST-COMMUNIST POLAND DISSERTATION Presented in Partial Fulfillment of the Requirements for the Degree Doctor of Philosophy in the Graduate School of The Ohio State University By Michael David Sabados, M.A. ♦ The Ohio State University 1998 Dissertation Committee: Approved by Professor Goldie Shabad, Adviser Professor Anthony Mughan Adviser Professor Gregory Caldeira Political Science mil Number: 9911262 Copyright 1998 by SeQsados, Michael David All rights reserved. UMI Microform 9911262 Copyright 1999, by UMI Company. All rights reserved. This microform edition is protected against unauthorized copying under Title 17, United States Code. UMI 300 North Zeeb Road Ann Arbor, MI 48103 Copyright by Michael David Sabados 1998 ABSTRACT This work examines the development of the rule of law in post-communist Europe through a case study of Poland (1989 - 1997) that includes focused comparisons with other Eastern European states. The rule of law is an important subject for study because it is essential for democratic stability. This work shows that Poland and other Central European countries have made significant progress toward the rule of law and this raised two puzzles for investigation: What proximate factors were essential for the development of the rule of law? Why have the Central European countries made more extensive progress in the development of constitutional government than other post­ communist states? Addressing the first question, this work shows that democratization and judicial oversight of the state were essential proximate factors in the development of the rule of law. Democracy, through the separation of powers, checks and balances, judicial independence, and elections. created institutional oversight of the state and the accountability of public officials. Judicial oversight, principally by Constitutional Courts with the power of judicial review, contributed to the rule of law by establishing the legal accountability of state officials, by enforcing the constitution as the supreme prescriptive law, and by protecting human rights. This expansion of judicial authority in post-communist Europe may be viewed as part of an international trend that has alternately been labeled the "judicialization of politics" or the "due process revolution." In addressing the second question, this work shows that the Central European countries made greater progress toward the rule of law than those in the Balkans as a result of their more comprehensive democratization and because of their judiciaries' more vigorous oversight of the state. They did so because the process of political change in Central Europe was controlled by democratic movements while in the Balkan countries it was the ex- communists who dominated this process, often to the detriment of democracy, judicial independence, and the rule of law. m Dedicated to my parents IV ACKNOWLEDGMENTS I wish to thank my parents for their love, support, and encouragement throughout this entire process. I am grateful to my adviser. Professor Goldie Shabad, and my other dissertation committee members. Professor Anthony Mughan and Professor Gregory Caldeira, for their extensive stylistic and substantive corrections. I thank Professor Kazimierz Slomczynski for arranging the sponsorship of the Polish Academy of Sciences and Professor Krystyna Janicka for her assistance with the logistical aspects of the field research. I also wish to thank Dobrochna Bach for her tireless efforts in arranging interviews, translating, and facilitating my access to government archives. I am grateful to the Polish scholars and political figures who generously gave of their time to discuss Poland's contemporary political development. This research was supported by a Graduate Student Research Award from The Ohio State University. VITA March 27, 1967.......... Born - Stratford, CT 1994................... J4.A. Political Science, The Ohio State University 1990 - 1995............. Graduate Teaching and Research Associate, The Ohio State University FIELDS OF STUDY Major Field: Political Science VI TABLE OF CONTENTS Page Abstract.................................................. ii Dedication.............................................. iv Acknowledgments ........................................ v V i t a .................................................... vi List of Tables......................................... x List of Figures........................................ xi Chapters : 1. Introduction ...................................... 1 1.1 Confronting the LeninistLegacy .............. 5 1.2 The Puzzles and Explanatory Factors.......... 15 1.2.1 The Role of the Judiciary.......... 24 1.3 Case Study Methodology....................... 30 1.3.1 Case Selection..................... 34 1.3.2 The Case of Poland................. 37 1.4 Data 40 1.5 Summary .................................... 4 6 1.6 Endnotes .................................... 4 8 1.7 List of References........................... 51 2. The Rule of L a w .................................. 63 2.1 Defining The Rule of L a w .................... 65 2.1.1 Constitutionalism.................. 66 2.1.2 The State Under the L a w ............ 72 2.2 Summary .................................... 7 5 2.3 List of References.......................... 7 6 vu 3. The Polish People's Republic and the L a w .......... 5C 3.1 Constitutionalism............................ 82 3.1.1 The Morass of Polish L a w ....... 85 3.1.2 Civil Liberties................. 88 3.1.3 Due Process..................... 95 3.1.4 Summary of Constitutionalism... 102 3.2 The State Under the L a w .......................104 3.3 The 1980's: Post- Martial Law Reform....... 107 3.4 Putting the Leninist Legacy Into A Comparative Perspective .................. 113 3.5 Endnotes ..................................... 130 3.6 List of References............................ 135 4. The Rule of Law In Post-Communist Poland........... 143 4.1 The Reestablishment of Democracy............. 144 4.2 Constitutionalism............................ 147 4.2.1 The 1952 Constitution........... 147 4.2.2 The Little Constitution of 1992 .... 149 4.2.3 The Charter of Rights and Freedoms . 152 4.2.4 The 1997 Constitution........... 153 4.2.5 Laws of the Third Republic......151 4.2.5 Civil Liberties................. 155 4.2.7 Freedom of Speech and the Pluralization of the Mass Media .... 171 4.2.8 Social Rights................... 175 4.2.9: Overview of Constitutionalism.. 178 4.3 The State Under the L a w ..................... 17 9 4.3.1 Administrative Personnel ........... 180 4.3.2 Bureaucratic Lawmaking ............. 184 4.3.3 Establishing The State's Accountability ..................... 187 4.3.4 The Creation of Local Government ... 189 4.3.5 Overview of the State Under the Law 193 4.4 The Rule of Law In Post-Communist Europe .... 194 4.5 Endnotes ..................................... 215 4.6 List of References........................... 220 VIU 5. The Restoration of Judicial Oversight And Its Influence Upon the Rule of L a w ..................... 229 5.1 The Independence and Impartiality Of the Judiciary............................. 231 5.2 Judicial Personnel Turnover ................. 235 5.3 The Influence of the Judiciary Upon The Rule of Law .....................................237 5.3.1 The Regular Courts and The Establishment Of Due Process... 239 5.3.2 The Supreme Administrative Court: Establishing The State's Legal Accountability............... 245 5.3.3 The Supreme Court : Bringing Coherence To The Legal Codes 252 5.3.4 The Constitutional Tribunal: Establishing The Supremacy of the Constitution............. 255 5.3.5 General Activity of the Tribunal ... 257 5.4 Selected Issues Adjudicated By the Constitutional Tribunal ............. 2 63 5.4.1 Separation of Powers ................ 263 5.4.2 Social Rights and Equality Before The L a w ............................. 2 67 5.4.3 Delegated Legislation .............. 271 5.4.4 Civil Liberties..................... 276 5.5 Assessing the Constitutional