Georgios Th. Zois [1]
The term “Constitutionalism” could be attributed to more than one sense, as it is associated with the historical evolution of the state phenomenon from antiquity[2] until today, and inherently linked to the request for entering into legal restrictions to the power of State (broad meaning of the term). However, Constitutionalism, as one understands it on the basis of the present information that give a narrower interpretation of the term, is the historical movement that claimed the establishment of a formal, i.e. written Constitution, from the end of the 18th century onwards under the influence of the great Revolutions of that time, namely the American (1776) and the French (1789)[3]. Its appearance is located during the period of the European Enlightenment with the main demands being the limitation of the absolute and arbitrary power of the monarch and the clear demarcation of state powers. Under its liberal version, the constitution demanded the separation of secular from ecclesiastical power, the delimitation of political power through its distribution among the various state bodies, and its limitation through guarantees of the exercise of certain rights. Under its democratic version, which complemented the liberal one, the main demands of the Constitution were the recognition of the universal suffrage[4] and the securing of the universal representation of the people in the legislature[5]. Since the first Revolutionary Constitutions in the early of nineteenth century, all Greek Constitutions that have been written, generally recognized to be the supreme law, in a way that it’s difficult to amend.
However, apart from the above versions, the request for the adoption of a written Constitution is also connected with a claim to political status for a Nation, in other words it is an element of an existential character. The first formal Constitution of a state coincides with the declaration of its independence. Thus, if for the French Revolution the Declaration of the Rights of Man and of the Citizen[6] and a little later the enactment of the Constitution of 1791 symbolized the transition from the Old Regime[7] to a new state, for the American Revolution the enactment of the Constitution of 1787 was the “Registry” of the birth of the mosaic that made up the American Nation. The French Revolution and the Napoleonic Wars were the events that triggered the Greek Revolution. Rigas Feraios, an intellectual and early revolutionary, tried to secure Napoleon’s support for an insurgency in the Balkans but he was betrayed and he was arrested by the Austrians who delivered him to the Ottomans who tortured and executed him. He became the first national hero of modern Greece and he inspired similar revolutionary activities, especially in the Greek diaspora, between merchants, students, and some Phanariotes[8].
Taking into account the above assumptions, the Greek Revolution of 1821 is not only connected with the birth of the Modern Greek State-Nation, but is also the birth act of the Greek Constitution. With the beginning of the Greek war of independence in 1821, the first regional governments were established: “the Organization of the Temporary Administration of Western Continental Greece”, the “Legal Order of Eastern Continental Greece” and the “Peloponnesian Senate”. Those governments were founded by regional assemblies during the first year of the revolution (1821) and facilitated provisional government and military set-ups, until the eventual establishment of the “National Assembly”. The latter would control regional administrations and possess all legislative powers[9]. The first Greek Constitution, signed on 1st January 1822 at the First National Assembly at Epidaurus, was entitled: The Provisional Regime of Greece (“Προσωρινὸν Πολίτευμα τῆς Ἑλλάδος”), sometimes translated as Temporary Constitution of Greece. That was a moment of fundamental importance in the modern political history of Greece, as it highlighted the necessity of the pioneering connection between constitutional formation and political stability. It is worth noting that the main inspirer and author of the constitutional draft, that was formed by a twelve-member committee of the first National Assembly, was the Italian revolutionary and philhellene Vincenzo Gallina (1795-1842)[10]. It was an event of paramount importance, as the elected representatives of an insurgent people expressed their intention to announce their political self-existence, thus sending a message both to the Interior by replacing the various local regimes (such as the “Organization of the Senate of the West Coast of Greece”, “The Legal Order of the East Coast of Greece” and “The Organization of the Peloponnesian Senate”[11], as well as the Abroad, and especially, the three most important powers of the time (England, France and Russia)[12]. This message is also expressed explicitly and solemnly in the moving Preamble of the Constitution, which, invoking the Holy and Indivisible Trinity, which reads as follows; “The Greek nation, under the horrible Ottoman dynasty, unable to hold the heavy and unparalleled yoke tyranny, and having shaked it off after great sacrifices, declares presently via its legal Representatives, who were met as national Assembly, before God and men, “Its political presence and independence””[13]. The theoretical background for the preparation of the Provisional Government of Greece, but also of the subsequent constitutional texts that replaced it is found not only in the works of the European Enlightenment, but also in the political ideas of the representatives of the Modern Greek Enlightenment (such as Rigas Feraios, Adamantios Korais, the “Anonymous” author of the “Hellenic Nomarchy”, i.e. The Greek rule of law, e.t.c.), as well as in the revolutionary Constitutions of the French Revolution[14]. Finally, one should not forget the efforts of constitutional government in the Ionian Islands during the pre-revolutionary period and until the integration of these islands in the Greek state (1864).
The Greek revolutionary Constitutions, three in number, were pioneering, formed on the basis of the social, geographical and demographic characteristics of the Greek Revolutionaries. Despite the strong influence of the French Constitutions and the previous American Constitution of 1787, the Constitutions of the Struggle seem on the whole to reflect the Greek Revolutionaries’ new will for a constitutional conscience, with the ultimate goal of organizing the political sovereignty of the Nation through the representatives. A year later, in April 1823, after the adoption of the first Greek Constitution, the Second National Assembly, convened in Astros (Kynouria), to revise the Provisional Constitution of Epidaurus. The new Constitution, called “The Epidaurus Law”, was more concise and an example of good lawmaking. It also gave a slight advantage to the Legislative branch over the Executive given that the latter’s veto power was reduced from absolute to suspensory, it improved the provisions on the protection of individual rights and democratized the electoral law. The Third National Assembly, also known as the Troezen Assembly, convened between March 19 and May 5 1827. On April 14 1827, the Assembly elected Ioannis Kapodistrias as the “Governor of Greece” for a seven-year term and endorsed the “Political Constitution of Greece”. The Assembly established a democratic regime based on liberal principles and declared the sovereignty of the people (popular sovereignty): “Sovereignty lies with the people; every power derives from the people and exists for the people”. This declaration has been included in all subsequent revisions since 1864. The Governor was only granted suspending veto powers on the bills and no prerogative to dissolve the parliament. Even though the Governor enjoyed immunity for his actions, the Secretaries of State, i.e. the Ministers, were accountable for his public actions (signaling the start of the parliamentary principle). The Constitution of 1827 is distinguished for its rather progressive character in the treatment and protection of human rights, constituting one of the most comprehensive constitutions of its time, in particular for the protection of civil rights. The Assembly aspired to provide the country with a stable government, modeled on democratic and liberal ideas. The Troezen Constitution sought to combine the need for strong centralized power with the existence of democratic institutions and practices. However, the constitution remained in force only until 1828, shortly after the arrival of Ioannis Kapodistrias, who proposed in January 1828 the suspension of the operation of Parliament with well-designed political manipulations.
For the first time in Greek history, an explicit reference to the Nation as a source of sovereignty is made in Article 5 of the Constitution of 1827 (“Political Constitution of Greece”) adopted by the Third National Assembly of Troezen on May 1, 1827, which stipulated that “Sovereignty lies with the people; every power derives from the people and exists for the people” («Ἡ κυριαρχία ἐνυπάρχει εἰς τὸἜθνος · πᾶσα ἐξουσία πηγάζει ἐξ αὐτοῦ, καὶ ὑπάρχει ὑπὲρ αὐτοῦ»). It is noteworthy that the reference to the “Nation” as a source of sovereignty, with the sole exception of the period of Absolute Monarchy (1832-1844) and the Constitutional Monarchy (1844-1862/64), is repeated in the Constitution of 1864/1911, in the Constitution of Second Hellenic Republic of 1927 and the Constitution of 1952.
The role of the Constitutions was twofold: on the one hand assertive (insofar as it regulated the functioning of the pregnant state), and on the other as a guarantor in relation to fundamental, human rights. Thus, the paradoxical phenomenon appears that there are three mutatis mutandis perfectly legal statutory maps, but without the other elements that make up the classic concept of the State, as expressed by Georg Jellinek (“People and a certain Territory”)[15]. The first Constitution of Epidaurus, or the Constitution of 1822, did not provide full protection of individual liberties, but guaranteed the right to property, honor, security and freedom of religious conscience, while its most important provision in this chapter was the complete prohibition of torture[16]. Most of the provisions of the Constitution were inspired by the principle of equality, as a consequence of the popularity of Rousseau’s theory[17]. On the contrary, most of the constitutional text was devoted to the regulation of state institutions. The administration consisted of two bodies, the Parliamentary and the Executive. Members of Parliament were appointed as representatives who were elected for an 1-year term (however, the Constitution did not mention their number nor any electoral system). Although the Parliament exercised legislative power, the laws passed were valid only after their ratification by the Executive. The five members of the Executive were also elected for an 1-year term, appointing the first Secretary of State and the seven Ministers. Finally, the Judiciary, which consisted of eleven members, was appointed by a common decision of the Parliament and the Executive. According to a Law, justice was administrated by independent courts. The equivalence of the Parliament and the Executive, which had as the result the paralysis of the legislative function, constituted the main weakness of the Constitution of 1822. Nevertheless, the prominent English philosopher and jurist Jeremy Bentham (1748-1832) wrote in 1823 the following words with regard to the first Greek Constitution of 1822 “To find the provisional Greek Constitution in so high a degree comfortable to the principle of the greatest happiness of the greatest number has been matter of considerable and no less agreeable surprize to me”[18].
On April 13th, 1823, the 2nd National Assembly, convened in Astros (Kynouria), passed the Constitution of Astros, which was named “Law of Epidaurus”, in order to emphasize the continuity with the previous Constitution of 1822. Also the new Constitution was characterized as temporary, although it was more complete than the previous one. A key feature of it was the strengthening of the Parliament against the Executive by the abolition of the absolute right of veto of the Executive. The new Constitution also strengthened individual rights with provisions that abolished slavery in Greece, established freedom of the press, the right to report to the Authorities and the right to a fair trial. An important innovation was the extension of property protection, honor and security to foreigners in Greece. Nevertheless, the civil war that broke out in Greece in 1824 prevented the implementation of the above pioneering constitutional requirements.
On May 1st, 1827, the 3rd National Assembly passed a new Constitution called the “Political Constitution of Greece”[19]. One issue that concerned the members of the National Assembly was the collective or single-person nature of the executive branch. Eventually, under the influence of the US Constitution, the one-person body was chosen. In general, the Constitution of 1827 was more complete than the previous ones and, perhaps, the most democratic Constitution in time. For the first time, the principle of popular sovereignty was proclaimed (Article 5), as was the explicit separation of powers (Article 36). In particular, the executive power belonged to the governor, who was elected for a 7-year term, appointed the six ministers and had the right of deferral veto vis-a-vis Parliament. Legislative power belonged to the Parliament, which was elected for a 3-year term and its members were renewed by one third (1/3) each year (Article 57). Finally, the Constitution of 1827 established the principle of equality (also with respect to tax burdens) and provided for the possibility of imposing expropriation for the purpose of public benefit over compensation.
The continuation of military operations against the Ottomans, the constant efforts to find a diplomatic solution to the Greek issue and the enormous difficulties encountered by the Governor (i.e. Ioannis Kapodistrias, who had been elected by the 3rd National Assembly on April 3rd, 1827) prevented the normal implementation of the Constitution. Subsequently, with a resolution of the National Assembly, the implementation of the Constitution was officially suspended (January 1828). After the London Protocol (February 1830)[20], the assassination of I. Kapodistrias in 1831 and the election of Otto of Bavaria[21] as the first king of independent Greece (chosen by the 3 “Protecting Powers”, England, France, Russia during the London Conference of 1832), the country was ruled without a Constitution until 1844. Regardless of their fate, the three revolutionary Constitutions, which established the “First Hellenic Republic”[22], were not only pioneering for their time, but also laid the foundations of the Greek constitutionalism and the formation of the democratic ideal and the modern Greek constitutional and national[23] identity.
(Words; 3.154)
[1] Georgios Th. Zois is a lawyer and a Ph.D. candidate in Constitutional and Public Law at the Faculty of Law of National and Kapodistrian University of Athens. He has published articles and studies in legal journals, as well as book and movie reviews on literary websites. During the last couple of years he has published papers in Greek Administrative Law Journal (Εφημερίδα Διοικητικού Δικαίου – “Sakkoulas Publications S.A.”) and “The Constitution” Journal (Το Σύνταγμα). Email; george.t.zois@gmail.com. My special Thanks to Mrs Eleni Chrysoulaki, Attorney at Law, LLM Law & Economics and member of the Association of Greek Public Law (EED), for all her hard work, diligence and excellent research assistance.
[2] The foundations of the state organization were laid already with the establishment of the ancient Greek city (city-state). For Aristotle (Politics III, 1278b, 10) “Πολίτευμα δ’ ἐστὶν ἡ πολιτεία“. See G. Glotz, La cité grecque, Éditions Albin Michel, Paris 1953. The codification of the legislation, i.e. the recording of the current rules and their exposure to public view (eg in a public building, “agora”), was another step towards closer organization. In this respect, the Romans were pioneers.
[3] See indicatively K. Chrysogonos, Theory of the State. The State as a form of organization of human societies, Sakkoulas Publications, Athens-Thessaloniki, 2nd extended edition, 2020, p. 347.
[4] By replacing the old system of “honorary” voting of the bourgeoisie.
[5] From the end of the 19th century onwards. The demand for the recognition of rights to collective action, such as the right to associate, trade union rights and the right to establish and participate in political parties, was also added.
[6] Déclaration des droits de l’homme et du citoyen de 1789.
[7] Ancien Régime.
[8] See A. Hatzis, “A Political History of Modern Greece 1821 – 2018”, in; Encyclopedia of Law and Economics (pp.1: 1-12), Chapter: A Political History of Modern Greece, 1821-2018, Publisher: Springer, January 2019, (this publication is available at; https://www.researchgate.net/publication/327405175, last update; 7/7/2021).
[9] See indicatively the “Constitutional History” in this link; https://www.hellenicparliament.gr/en/Vouli-ton-Ellinon/To-Politevma/Syntagmatiki-Istoria/ (last update 7/7/2021).
[10] “[…] The Constitution of Epidaurus consisted of one hundred and ten short paragraphs, divided according to the French standard into ‘titles’ and ‘sections’. […] », See N. Alivizatos, Introduction of the Greek Constitutional History, Vol. I, Antonis Sakkoulas, 1981, p. 30.
[11] Ὀργανισμός τῆς Γερουσίας τῆς Δυτικῆς Χέρσου Ἑλλάδος, Νομικὴ Διάταξις τῆς Ἀνατολικῆς Χέρσου Ἑλλάδος και Ὀργανισμός τῆς Πελοποννησιακῆς Γερουσίας.
[12] See indicatively N. Alivizatos, Introduction to Greek Constitutional History, Vol. AD, 1821-1941, p. 29 ff. and G. Anastasiadis, Political and Constitutional History of Greece 1821-1941, Sakkoulas Publications, Athens-Thessaloniki, 2001, p. 5 ff.
[13] «Τὸ Ἑλληνικὸν Ἔθνος, τὸ ὑπὸ τὴν φρικώδη Ὀθωμανικὴν δυναστείαν, μὴ δυνάμενον νὰ φέρῃ τὸν βαρύτατον καὶ ἀπαραδειγμάτιστον ζυγὸν τῆς τυραννίας, καὶ ἀποσεῖσαν αὐτὸν μὲ μεγάλας θυσίας, κηρύττει σήμερον διὰ τῶν νομίμων Παραστατῶν του, εἰς συνηγμένων Ἐθνικὴν Συνέλευσιν, ἐνώπιον Θεοῦ καὶ ἀνθρώπων, “τ ὴ ν Π ο λ ι τ ι κ ὴ ν α ὐ τ ο ῦ ὕ π ά ρ ξ ι ν κ α ὶ ἀ ν ε ξ α ρ τ η σ ί α ν”». As N. N. Sariplos characteristically wrote, “Πᾶς Ἕλλην δὶς καὶ τρὶς καὶ τετράκις καὶ πάλιν ὀφείλει νὰ ἀναγνώσῃ καὶ ἀπὸ στήθους μάθῃ αὐτήν (τη Διακήρυξη)”, N. N. Saripolou, System of Constitutional Law and General Public Law, V. I, Athens, 1903.
[14] X. Contiades, The adventurous history of the revolutionary constitutions of 1821, Kastaniotis Editions S.A, 2021 and P. Kitromilides, The Origins of the Greek Constitution (1797–1827), in; 30 Years since the Constitution of 1975, Hellenic Parliament Publication, Athens, 2004, p. 15-24.
[15] See G. Jellinek, Allgemeine Staatslehre, Verlag von O. Haring, Berlin, 1914, p. 183, according to whom; «Als Rechtsbegriff ist der Staat demnach die mit ursprünglicher Herrschermacht ausgerüstete Körperschaft eines seßhaften Volkes oder die mit ursprünglicher Herrschermacht ausgestattete Gebietskörperschaft».
[16] See N. Alivizatos, Introduction of the Greek Constitutional History, Volume I, Antonis Sakkoulas, 1981, p. 30 – 31.
[17] See N. Alivizatos, The Constitution and its Enemies, 1800-2010, Polis, 2011, p. 43.
[18] See F. Rosen, Bentham’s constitutional theory and the Greek Constitution of 1822, Balkan studies, V. 25, 1984, p. 31-54.
[19] See indicatively A. Pantelis, Handbook of Constitutional Law, Livani Publishing Organization, 2020, p. 198 – 200.
[20] The London Protocol (February 3rd, 1830) was an agreement between the three Great “protecting” Powers (The United Kingdom of Great Britain and Ireland, The Kingdom of France and the Russian Empire) established Greece as an independent, sovereign state.
[21] Otto Friedrich Ludwig von Wittelsbach (1815-1867).
[22] See J. S. Koliopoulos and T. M. Veremis, Modern Greece: A History since 1821, Chichester, Wiley-Blackwell, 2010, p. 15.
[23] See A. Liakos, La storia della Grecia come costruzione di un tempo nazionale, Contemporanea, Vol. 4, No. 1 (gennaio 2001), pp. 155-169. It is worth to add that, according to article 2 of the Constitution of 1822, “All indigenous inhabitants of the Land of Greece (Hellas) believing in Christ are Hellenes and are entitled to an equal enjoyment of every right” («Ὅσοι αὐτόχθονες κάτοικοι τῆς ἐπικρατείας τῆς Ἑλλάδος πιστεύουσιν εἰς Χριστόν, εἰσὶν Ἕλληνες, καὶ ἀπολαμβάνουσιν ἄνευ τινὸς διαφορᾶς ὅλων τῶν πολιτικῶν δικαιωμάτων»).
