11 ConstitutionalEngineering in Central and Eastern Europe

KLAUS VON BEYME

The study of constitutional practice and the processesthrough are which constitutions drawn up and appliedwas a major focus of political sciencein its early years,althoughit was one that tended to attract less attentionas behaviouralstudiesbecamemore dominant. The end of orthodox communistrule in Central and Eastern regimesin many counof Europeand the establishment democratic tries of the region was one of a range of factorsthat have brought constitutionalissuesand the processof constitutionalengineering arrangemcnts Constitutional to the forefront of the political agenda. play a large part in detcrminingthe relativeimportanceof the diforder and decidferentinstitutionsthat makeup the ncw democratic ing the 'rules of the game' by which they operate,while in some proccssitself becamean object of contextsthe constitution-making political struggle.To the extent that democratizattonin Central and of EasternEurope has involvedbasic questions statehoo4identity 'the political', constituand citizenshipas well as the very statusof tional engineeringhas been a particularly important part of the processof democratictransitionin the region. Aspects of Constitutional Engineering in Central and Eastern Europe processis From a normative perspectivethe constifution-making Theseinclude a range often expectedto meet certainrequirements.

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ought, firstly, to be written by of featuressuchas that constitutions assembliesand not by institutions that are specially convened already in existence(Elster, 1998, p. 117). Not all the East European constitutions met this condition in the first round of democratization. Sometimesfor good reasons:systemsthat chose a slow path of transition because a certain liberalization had already been achievedunder the old regime, such as Hungary or Poland,kept the old institutionsand constitutionaltexts and only of them according thc needs the process transition. to of amended The idea behind this demand was that constituentassemblies a shouldnot be dominatcd specialinterests, vieu' that reflected by in Constitutions, fact, abstract and ratheroptimisticassumptions. arenormally producedby the powerof dominantgroupswith some for compromises minorities(von Beyme,i968). assembly ought, secondly, involve to Electionsto the constituent the proportionalsystemratherthan follow majority principlcs.This forces rule did not alwayswork in situationswherepostcommunist remaineddominant,as they often hopedto preservetheir power by that a prokeepingthe old majority system- until they discovered portional electoral law was more likely to assist their efforts to retain power. There is often a demand thirdly, that a constituent assemblyshould not meet in the capital or a big city, which may 'Weimar Republic'in in apply to systems upheaval such as the Berlin was unsafe. Germanywhich had to meet in Weimarbecause proof of maturity that most East European It was a certain constitution-makers did not need these precautionsbecauseno players were threatening the fairness of the illegitimate veto process.It is also generallyregardedto be a constitution-making necessarydemocratic condition, fourthly, that thc constitution should be ratified by the people.But in situationswhere constitu'pact', this tional cngineering takesplaceon the basisof a political can sometimes- as in was not always feasible.Referendums - be a meansof concealing shortcomings the of Russiaor Romania process. the constitution-making The processof institution-buildingnormally beganwith the drafting of a new constitution.Constitutionscontain thc meta-rulesof a systemwhich are accepted most of the groupssupportingthe new by in regime.The third wave of democratization Europeafter 1989 led to a paradoxical situation, however:the meta-ruleshad to be fixed or while their foundationswere not yet consolidated agreedupon by many relevantpolitical forces of the transitionalregimes.More than

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a in former transitions,the written constitution - uhich represented of retumto democracy afteran episode drctatorship \\'asa promise for (1992,p. 161)calledthe 'partial the future.What PhilippeSchmitter were barely developed: regimes'of the constitutional systems there 'parfy system',and the systemof interwereparties,but hardly a true The problems of constitutionest groups remainedunderdeveloped. making under conditions of non-consolidationwere nevertheless many constitution-makers oriented themselves less difficult because models(Schweissfurth Allewcldt, 1997,p. 54) and towards Western most frequentlythoseof Franceand Germany.But the final result of legawas remarkably coherent mainly because many systemic of cies from the socialistconstitutions the ancien regime. One was the introduction a conceptof humanrights - in of exception now contrast positivesocialnghts.Most constirutions recognized to 'inalienable' period rightsthat had beenunknownin the communist (see,for instance, Bulgaria,fut. 6.1; Lithuania,Art. l8; Poland, Art. 30; and Hungary,Art. 8). in Therewere two roadsto constitutionalism Centraland Eastcrn Europe:pluralistbargaining the impositionof ideasby a domior nant group; and two kinds of outcome,in terms of reform of the old of constifution the introduction a new one (seeFigure I l. 1).The or figure showslittle correlationbetwecnthe natureof transformation and the road taken to constitutionalism.There were countries whose transition was characterizedby pluralist bargaining but which did not manageto produce a new constitutionand had to
Pluralistbargaining D o m i n a n tp o l i t i c a l g r o u pl m p o s e st s l ideas Many CIS statcs L i t h u a n i a( l 992) Yugoslavr ( 1 9 9 2 ) a Romania l 9 e l ) Croatia ( l ee0) Bulgaria i r 9 9 l ) i S l o v e n i a l 9 9 l) Slovakiai r 992)

Reform ofthe old constitution Ncw constitution

Hungary,Albania, Poland ( Russia I 993) Czech Republic( 1992)

and order FIGURE 11.1 Institution-buildins constitutional

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regimes, amendthe old one. But therewere also many autocratic in this group. Countrieswhich saw suchas thoseof the CIS states, a clear rupture from the old regimc in Schmitter'ssensewere in a ideas,either on the basis of a position to impose constitutional (Czech Republic, Slovakia, Lithuania) or democratic forum through the activities of reform communistswho managedto stay in power in the first period of transition (Romania,Bulgaria, cascdid not in But a new constitution thc second Albania,Serbia). There was an intersystcm. mean a new constitutional necessary game:wherenew states vening variablein the constitution-making of multi-ethnic commuof were creatcdbecause the disintcgration states or nist regimes,suchas in the Baltic states in the successor a new constitution were of Yugoslavia,the incentivesto create n'antedto cmphasizethcir old traThe new democracies stronger. preambles such as those deviscd in dition, not only in resounding Estoniaand Latvia, Slovakia Croatia.Only in two Baltic states, or did the searchfor continuity lead to the alternativeoption. They amendedthe prc-Sovietconstitution- abolishedfollowing the the Sovietannexationin 1940- in order to demonstrate continuity statehood. of their dcmocratic a Hungary and Poland demonstrated further paradox:the more democraticthe majority of citizenswho pushcdthe systeminto the to earlyconcessions the opposition, lessradicalwas thc dcgree innovationduring the first phaseof transition. of constitutional later attemptsto conThis paradoxcan be extendcdto encompass to Polandfinally managed produce struct wholc nervconstitutions: The new in a constitution 1997,but it was not very well received. on by Polishconstitutionwas endorsed nationalreferendum 25 May by 1997,but it was only accepted a narrowmargin (53:46 under conditionsof a low voter turnout of about 43 per cent).The rightwing parties, Solidarity trade union and the Catholic Church had The level of supportfor the proclaimeda boycottof the referendum. 'Third Polish Republic' did not promise much constitutionof the and it placed the pragmatismof Hungary's for its future success, inactivityin a more positivelight. constitutional (Arato, endgame' on Hungaryembarked a'constitution-making draftingcommitteewas established 1996,p. 31). A parliamentary in 1995,on which oppositionpartiesendedup with more represcntation than originally intended.The final draft of Hungary's new basic law was submittedto parliamentin May 1996.Although the basic featuresof the systemin operationsince 1989 were changed

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provokeda boycott of the sesonly moderately,the amendments numerous members of thc IndependentSmallholders' sions by of and somemembers the Hungarian Party,the ChristianDemocrats Forum. A decision on the draft was postponed Democratic most groups wcre able to live with the old patchwork that hardly embodieda constifutionat all. Furthermore,the morc clumsy the constitution-makingprocess,the grcater the advantagesfor the institution of the constitutionalcourt which thus acquired quasiconstifuent powers and channelled processesof constitutional (Arato, 1995,p. 48). change placeda strain on Theseparticular roadsto constitution-making myths that influenced the new democrats in the constitutional 'institutional engineering' Central and Eastern Europe: effective in on was generallymeantto be dependcnt success thc transformaIn into marketsystems. the fonner plannedeconomics tion of the (Hellman, 1996,p. 56) there is little quantitative light of studics evidence for the validity of this assumption.In a comparative of or context 'stopgapconstifutionalism', simple postponement the process, no discerniblepositive effectson had constifution-making the adoptionof economicreform. Hungaryand Polandare the high in in scorers termsof economicachievement spitc of being constituRepublic,on thc other hand"with the The Czcch tional latecomers. rapid consolidationof a coherentconstitutionand having stronger markct economy traditions betweenthc trvo world u'ars, did less well in the arcaof economicreform. The continuityof elitesand ideashas lcd in many countriesof Central and EasternEuropeto a strongemphasison plebiscitarian elementswhich had only existed on paper in the oid communist regimes.In formal terms,thepeoplecanbe involvedin constitutionmaking in two ways: o in the electionof a constitutionalassembly, o in deciding on the draft of the constitutionby a refcrendum. This double involvementof citizensin exercisingtheir constituent The fourth FrenchRepublic powerhasnot beenfeasiblein all cases. procedures not guardo that had shownin 1946147 ultra-democratic with good final results.On that anteea smoothbargainingprocess the Frenchcitizensrejected first draft for the constitutional occasion and assembly, a sccond- more conservative draft had to be elablastedonly a decadeuntil the orated. Evcn this shaky consensus

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Parllamentary constitution-making

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P l e b i s c i t a r i ac o n s t i t u t i o n - m a k i n g n

Assembl.v ( ex antc) Bargained institution-building G e r m a n y( 1 9 4 9 ) Hungary ( I 989) Poland( I 992) ( C z c c hR e p u b l i c 1 9 9 2 ) Slovakia( I 992) Latvia ( I 992) ( F r a n c e 19 4 7 ) Italy( I 948)

Ref'erendum (e x p o s t ) S p a i n( I 9 7 8 )

Leadershipofa dominant group

F r a n c e( 19 5 8 ) ( Lithuania I 992) ( R o m a n i a1 9 9 2 ) Estonia I 992) { Russi(1993) a

FIGURE 11.2

and Institution-buildins denrcqati:ation

and social in regime's collapse 1958.Due to their urgenteconomic problemsthe former communistcountricswere under even greater pressure had been,with the resultthat many of them had than France of no time for doubleconsultation the people.They optedfor either (see parliamentary plebiscitarian constitution-making Figure I 1.2). or Either path could be followed in a contextof fairly pluralist bargaining by democraticforces or by the leadershipof a dominant group that u,as largely democratic-minded.However, only a minority of pathto institution-building. cases follo\\ed the parliamentary

The Bfficient Parts of the Constitution: Regime-Buildingin Central and Eastern Europe Constitutionsnormally contain four parts.Two shorter sections'dignified parts' of the constitution- outline the concerningthe foundationsof the regime in a preamble and sometimesadd state goals. Neither type of dcclarationcan really be enforcedby law or 'efficient'- partsof 'constitutional complaint'.Two longer- more the constitution contain the organization of powers and declare human and citizens'rights. Thc latter have frequently also been 'dignified parts', and this is also the casewith countedamong the

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inherited from the the social rights which many new democracies former socialistideology.On this basistwo major decisionshaveto be taken in the processof regimebuilding: o the appropriate mix for accommodatingregional and ethnic interests: r the choice of an executivcwhich combinesboth fair representation and governmcnt effectiveness in executive-legislative relations. The searchfor the right institutionalmix was most difficult in forYugoslaviaand the Soviet mer federationslike Czechoslovakia, collapscd Czcchoslovakia ratherlate Union.A1l threefederations But even in non-federal in the processof consolidation. systems in with a somc form of autonomyfor the subsystems combination fair proportional electoral systcmwas inevitablc. The decision about an appropriate system of legislativeto executive relationssecmcd be lessdifficult. But the strugglein president parliament establish popularlvelected to a the Hungarian in the constitutionaldraft of 1996 showedthat cven this decision could causenever-ending conflict. In the secondround of democratization of former monarchiesafter World War I, in countries such as Finland and the Weimar Republic,the semi-presidential an systemrepresented attemptto devisethc rcpublicanversion of a monarchy.But in the third round, after 1989, the constifutional practiceof semi-presidentialism dominatedby a searchfor the was 'strong government'to which politicians were accustomed under can communist regimes.Semi-presidentialism thus suffer from an inborn conflict of two potcntial majorities- that for the president and anotherfor parliament.This doesnot mean that ultra-sceptics such as Juan Linz are right in maintainingthat only parliamentary systems guarantee a reliable path to democracy. Poland has system,which under Walesaregushown that a semi-presidential larly humiliated the legislativebranch with minor constitutional changes, could be transformedinto just anothervariant of the parliamentary systemin which Kwasniewskidoes not act very differently from a popularly electedpresidentas in Finland,Portugalor Austria. Least contradictoryhave becn the constitutionsof pure parliaPure mentary systemsexisting in Hungary and Czechoslovakia. parliamentansn with a presidentelcctedby the legislaturehas not,

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a however,guaranteed relationshipfree of tension betweenprime minister and president, the relationsbetweenHavel and Klaus in as the Czech Rcpublic, or Goncz and Antall in Hungary have shown. the to Gonczdid not accept weakpositionassigned him by the constitution,and the conflict betweenGoncz and Antall articulatedthe conflict betweenthe social forcesthat maintainedthe operationof the system. In 1991 the ConstitutionalCourt began limiting the president's powers.The conflicts seemed be ridiculous and were to reminiscent of the struggle for prestige in France betwcen President Chirac and Prime Minister Jospinunder conditionsof 'cohabitation':who had thc right, for example,to represent his The country at internationalconferences? compromisein Hungary systems: thc thus resembled typical solutionof semi-presidential both went to the conference Visegrad. of 'rationalIn most Central and East Europeansystemsa kind of ized parliamentarism' was developed in order to stabilize the executivebranch,which includesinstitutionssuch as: o thepopular electionof the president, accordingto Frenchor o limitations on the vote of non-conJidence provisions (a pure parliamentary system such as German Hungary adopted- as had Bclgium and Spain - the German 'constructivevote of non-confidcnce' an apparent terminologin ical contradiction itself), o collectit,e responsibiliQ of ministers: only Poland in its Small Constitution (supersededby the full Constitution of 1997) maintainedthe contradictoryprinciple that ministerial solidarity (Art. 53.3) was accompanied a provisionfor individualminby This contradiction isters to be dismissedby vote of censure. President Walesawho could get rid of minservedto strengthen isters who lost his confidenceby mobilizing the parliamentary groups that supportedhim. The presidentcould thus destabilize his governmentand impose himself as an arbiter.When Prime Minister Hanna Suchocka was toppled the president - even with the Solidarity before a formal vote of censure negotiated group and otherfoes of the prime minister.Solidaritythen threatenedstrikes.This did not go as far asthe mobilizationof the miners by thc first Romanian president, who was trying to put pressure on his prime minister. But in neither case did presidential actions servc the consolidation of parliamentary democracy.

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of Before 1989the reintroduction a secondchamberwas not on mind in Centraland EasternEurope.But when the presanybody's ident exercisedczar-like powers that threatenedto bring about second political stalematein Poland the idea of a strengthened in the form of the Senategained strength(EECR, counter-balance sysas Fall 1992,p. 13) Nevertheless, in other semi-presidential was not really in a position to pcrform tems, the secondchamber a finction that is feasible mainly in terms of the operation of a federalist second house (as in Russia,Yugoslavia and Bosniato chambers continue existin Poland Romania Herzegovina). Second a the Czech Republic,however.Sloveniahas also established and 'State Council', rvhich reprechamberin the form of a corporate It sentsa combinationof regionaland functional interests. was no Republic had problemsin establishingits accidentthat the Czech over detailsof Due to protracted struggles bicameralparliament. to the first elections the Senatedid not thc electoralmechanism take place until November1996 (Elsteret ol., 1998,p. 95). The to Hungarianparliament comesclosest the old British conceptof 'parliamentarysovereignty'. The real function of parliamentis normally,howcver,dependent quick and effectivc on the party systemand its ability to guarantee cabinet formation after elections.On the whole this has been in in way.The new democracics Centraland achicvcd a satisfactory East Europeare diffcrentfrom thosc of 1945 which installedthc long-lastingdominanceof a singleparty leaderin the West (Dc Adenaucr,De Gaulle after 1958)and in providing evenfor Gasperi, This was facilithe effectivepossibility of alternativegovernmenr. of as tatedby a unique constellation: representatives continuity the postcommunists had thc chanceto make a rapid comebackeven in the countries consideredmost anti-communist (Lithuania 1992, Poland1993,Hungary 1994)- a possibilitywhich wascxcludedtn after fascism. WesternEurope for the ancienregimeconservatives relations in Central Europe On the whole, executive-legislative much betterthan in Russiaor evenin Belaruswith their developed powers.The more mature overwhelmingdominanceof presidential systems- with minor exceptions- chosethc pure parliamentary the has system.Semi-presidcntialism not so far threatencd process of consolidationin any of the countriesconcetned.Thc hopc of most of these countries to enter both NATO and the European Union contributedto moderationin most cases.But even in the parliamentarysystem of Slovakia,a presidentlike Meciar could in this processof accommodation Europe. endanger

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a in There is no consensus any country on how elaborate constitution should be. Mainstreamviews are determinedby the fashions of constitutionalmythology.Three wavesdevclopedthree distinct The first generation- represented generations understandings. of by the Basic Law of the FederalRepublicof Germany- wantedto 'negative'liberal civil and political liberstick to the convcntional ties. The secondgenerationtried to include positive rights on the protection of human welfare, social security,leisure and housing. Even under the impact of EastGermanconstitutionalideology,the majority in Germany in 1994 was ready to acceptsuch demands 'stategoals'in orderto emphaamonggeneral only as declarations The third generationof rights size that they were not enforceable. protection and environmental includes cconomic development, preambles and state pcace.It was not by chanccthat suchattractive goal declarations were more frequentlyused in thc new democracies that had been accustomedto a propagandisticapproach to cilizens undcrcommunism. Where the constifutionwas meant to be valid only for a transitional period it was normally kept shor1,as in Hungary. The the Hungarianpreamblethus emphasizes commitmentto facilitate parstatewhile establishing the peaceful transitionto a constitutional 'social market economy'. The more liamentary democracyand a coherentCzechconstitutionof 1992was much more demandingand and world included'civic socieQ',as patl of the family of European exampleof sucha The most exuberant in democracies its preamble. the preamblewas thc Polish constifutionof 1997.It demonstrated 'Both betwecnthe forces in the country in such terms: stalemate thosewho believein God as the sourccof truth, justice, good and those beauty,as well as thosenot sharingsuch faith but respecting were invoked in the universalvaluesas arising fiom other sources' preamble.The referenceto God did not pacify the conservativc 'God The bishopsfound ironically that: Catholic fundamentalists. of as was definedin the Preamble the source truth,justice,good"and god of philosophcrs, and possibly is beauty.God so understood a is, first of all, a God of for masons, not of Christians whom God but love' (quoted in Spiewak, 1997,p. 92).True believersamong the in of the Catholicsresented presentation materialism the constitution as being no longer embeddedin Marxism but one sneakedin by and meansof Westernconsumerism hedonism.

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In many constitutions (for instance Bulgaria, Art. 22, and Slovakia,1rt. 31)political pluralism anilor the competitionof par'no party ties has been codified. Hungary cven mentioned that body'. The East should exerciseexclusivecontrol of a government Europeanconceptof a constitutionwas also different from that in the West insofar as it did not distinguish so strictly between the public and theprivate sphere,emphasized social rlgftls with more enthusiasmthan liberal negative rights, and incorporated many undcr commuof the dutiesto which the citizenswere accustomed nism. The Czech Republic in certain respectsis differcnt. Its preambleis more liberal and directedtorvarda 'civil society'. It containsthc anomaly (Sunstein,1995) that no itemizationof Thc historical such civil rights is to bc found in the constirution. reason for this was the Chartcr of FundamentalRights and passedin 1991 by the Federal Assembl,v the Czech of Freedoms and Slovak Republics.The Charter containedan ample sct of rights, but also certain social and economic privileges in favour and womcn, adolescents, parentsraisingchilof the handicappcd were provisionslike those of Art. 28: dren. Barely enforceable 'Employees are entitled to fair remuncration for work and to working conditions'. satisfactory Conflict betrveenthe two republics threw the stafus of the Charterinto doubt.The SlovakRepublicincludedthe Charterwith In of somemodifications. the CzechConstitution December1992 of only a hint of the protection suchrightswas includedinArt.3: 'Part of the constitutional order of the Czech Republic is the Rights and Freedoms'.Czech nationalists Charterof Fundamental had some doubts whether the Charter was really part of thc that Arts. 3 and 4 were the product Constitution.It was suspected pressurefrom the Council of Europe,requiring thc guarantces of however,came from traditional of basic rights. The real pressure, postcommunistforces who wantedthe social and economicrights Whateverthc doubtsas of the Charterincluded in the constitution. of to the legal statusof the Chartcr,the effectiveness the legal protection dependedon the ConstitutionalCourt establishedas thc 'judicial body for the protection of constitutionality'. Since the ConstitutionalCourt - unlike in othercountrics,suchas Bulgariawas included under the judiciary, Art. 4 must also apply to the Czech ConstitutionalCourt. In many budding democracies normally emphasizing developinginto'defective democracies', democraticparticipationmore than legal protection- the statusof

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but constitutionalguarantees remained unclear or unenforceablc, this was hardly the casein the CzechRepublic. 'market economy'Amongst the dignified formula that of the 'social market economy' and most frequentlythe German version legal state'and the combinedform of the'social and democratic All was part of many constitutions. the other constitutionsadopted 'constitutionally legalized state'.The Anglosomevariationof the in Saxoninfluencewas more perceptible the formula of the'civil society' found in the preamblesof the CzechRepublic, Lithuania of might be and Slovenia. The morethe credentials the nation-state by doubted,the more the continuity was emphasized lengthy refervague:'many centuries ago', encesto history.Lithuaniaremained 'cultural Slovakia,hardly ever an indcpendentstate,invoked the 'historicallegacyof thc heritageof Cyril and Methodius'and the Great Moravian Empire'. Croatia even inserteda historical list operating within madc by the Croatianestates of all the decisions foreignempircs. in The separationof stateand churchhasbeenemphasized many constitutions.According to the predominantinterpretationthis is of no longeran attackon the free exercise rcligion.The privileged mentionof a 'traditionalreligionof the Republic'in the Bulgarian even in a constifution(Art. 13.3) is unique.It has no equivalent dominantlyMuslim stateas in Albania(tut. l0 of the 1998draft). Unique, too. \\'cre the good intentionsdcvotcdto the preventionof Most abuses communist of falling back into totalitarianism. systems \\'ere enumeratedand forbidden, such as forced labour, s))stems (Slovenia,Art. 1), and the death penalty (Romania, censorship Art. 17; CzechRepublic, Art. 15.3;Slovenia, Art. 22.3; Slovakia, CharterArt. 6.3).The right to life logicallyentailedthe outlawing (Bulgaria, Art. 28; Estonia, Art. 16).The right to of deathpenalties life was limited by the additionthat the deathpenaltyis permissible 'until its abolition by a federal law'. The counter-reaction againsttotalitarian dangcrsled to a frequenttendencyto include well-meaning provisions such as outlawing regulationsthat limit emigration (Poland,Art. 52; Russia,Art.27; Slovakia,Art. 23), or on torture,and medicalexperiments human forbidding deportation, Art. l8). beings(Estonia, 'civil society' was an important In EasternEurope the idea of vehicle for opposing the bureaucraticcommunist system. Civil 'citizenslzzp', which is society is intimately linked to the notion of as no longerunderstood a questionofwho getsa nationalpassport.

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is Citizenshipin many of the new constitutions linked to duties as much as to rights. In somecountriesthe deprivationof citizenship was outlawed.Only in Polanddid the provision that the president could deprivea citizenof Polishcitizenshipexist (Art. 4l of the old constifution Art. 744 of the constitutionof 1997),althoughit was , expressed terms of 'grantingand giving consentfor renunciation in Followingthe example the GermanBasic of of Polishcitizenship'. Law, the constitutionaliry parties appeared someof the constroJ in (Bulgaria,Art. 149.5. Estonia, tutions of the nerv democracies Art. 48.3; Poland Little Constitution, Art. 5). In Estonia social werealso included.In most countriesa Constitutional organizations Court was established.But only in a feu' cases - such as in rvith the responsibility Bulgaria - was the Court directly entrusted for deciding whether the constitutionality parties should be of endorsed not. or In most neu' constitutions protection of private properft was the new Poland(1991,Art. 20) emphasizes only privateownership not privand cooperation betu'een socialpartners,but evencreates the ileges for small farmers: 'The basis of the agricultural system of the State shall be the family farm' (Art. 23). This statementwas true even under communism- but this was preciselythe problem. Polandwas the cxception:a country where communismdid not do what communistsnormally did first, namely collectivize agriculture. Poland did not succeedin creating large and modernized The surviving family farms are now endangered and can estates. hardly maintain their existenceunder internationalconditions of growing market openness, while militant parties of small farmers problem for coalition-buildingin the Polish parliament. create a Perhaps the Polish provision should not ridiculed too much. After all, cven Switzerland only recently got rid of a typical interest group article (23 bis) which promised to promote 'agriculture in the mountains'. In countries with a certain continuity, such as in Yugoslavia (Art.20.2), stateownership (Art. 73), Bulgaria(Ar1. l8) and Slovakia was protectedin certainareaslike mining. This provision was even statesof the applied to agriculturalland in someof the succession former Yugoslavia.Expropriationwas usually cxcluded or placed 'The law will specify which under strict parliamentarycontrol: property other than property listed in Article 4 that is essentialto of meet the needs of society,the development the national economy, and public interestcan be ownedonly by the state'(Slovakia,

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Art. 20.2). Three vague general clausesraise misgivings that a wide range of possibilities for state property remains open. The ofproperty rightshas been conception Centraland EastEuropean (Elsteret al., 1998,p. 84).The as correctlydescribed 'trans-liberal' boundariesbetween individual right and institutional guarantees Rationalizedparliaare frequentlyblurred in the new democracies. wilh governmental stability, mentary systems havebeenconcerned and the presidenthas often been subjectto clear rules ofconsultation in order to avoid giving too much discretion to the head of state(Hungary,Art. 33.3; Bulgaria,Art. 99). It was the Swedish this reform of l9'71thatfirst introduced kind of proconstitutional havc prcservedsome vision. Although many ne\4 constifutions plebiscitarianelements the former socialistconstitutions, the of in dcmocracy termsof recall manipulativc excesses communist of (Poland Little Constitution,A-rt. 6) or the imperativemandatefor (Bulgaria,fut. 67.1)wereforbidden, deputies The most important test of the democratic convictions of in constitution-makers the new regimeswas the treatmentof ethnic 'multinationalpeople' of minorities.There were declarations the 'democratic (Russia,Preamble) invocations the of tradition of or (Yugoslavia, 4) which recalled rhetoricof the Art. nation-building' was the most the old regime.The treatmentof different languages important part of the ethnic relations. Sometimes an official state language was fixed (Bulgaria, Art. 3; Lithuania, Art. 14). Regulations u'eremostilliberalin Bulgaria:l'rt.36.2 and 36.3stipthe 'study and use of the Bulgarian languageis a right ulated that the and obligationof everyBulgariancitizen'.In certainsifuations This was language was a legal requirement. sole use of the official very much in thc tradition of the Bulgarizationof Turkish namesin of the 1980s, which did not stop at the cemeteries thc Muslims in formulation(Art.34.2) wasthe Slovakian Bulgaria.Lessemphatic 'right of the which did not impose a duty but only mentioncdthe ethnic minoritics to learn the official language'.This did not rule out the possibility of conflict with the Hungarianminority, where tensions were as severe as those in the case of the Turks in of Bulgaria.The Council of Europeevenhad to intervenebecause Slovakizationof names.The most curious provision an aggressive After forty yearsof propaganda was found in the rump Yugoslavia. language underTito, the constitufor an integratedSerbo-Croatian restricted notion 'Serbian'to two the tion under Serbiandominance It dialects written with Cyrillic characters. was apparcntlythosc

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countries that were fairly homogeneousin ethnic rcspects that could afford to be most liberal - like Hungary. Nobody can deducethc socialreality of ethnicpolitics from constitutional texts. Ethnic relationscan only be studied in practice. in The Czech Republic and Hungary were most generous granting help affirmative action and offering financial and organizational in in also emphasized the abstract Romania(Art. 6) and Slovakia (Art. 34.1). But constitutional provisionsare just an indicatorof in of deficiencies the protection rightsof cthnicminoriticsin thosc countries.Even a country like Estonia,which was the most developed in the Soviet Union and is consideredin many respectsas being mature enough for membershipof the European Union, showedso many illiberal practicesin its treatmentof the Russian minority that Europcaninstitutionshad to intervene.Surveyshave suggestcdthat, while institutions and policies can quickly be the adapted Europcanstandards, civic societythat hasto give life to Asked who should to suchformal provisionsis still underdeveloped. and citizen of the Baltic countries, per cent of thc Estonians 34 be a 43 per cent of the Latvianswere willing to acceptonly pre-1940 residents of the country - thus excluding all Russians. Only in Lithuanians(12 per cent)weremore generous this respect(Rose, 1997 p.43 ) - but conditionsare differentin that country,and there , minority that often forms a majority in major cities. is no Russian The 1e-sacics the old regimeshave been most visible in the of declaratiorto.fsocial rights and citizens'dutiesin the Constitution. l-rt.77) promiscdto supportthe 'crePoland(Little Constitution, ative intelligentsia'.Under early communismin East Germany,the constitution of the Land Saxony-Anhalt in 1946 stipulated the 'right of youth to pleasure' a fairly ridiculous variationof thc old 'pursuitof happiness'. One could ask why only young principleof genaftcr 1989therefore pcoplehavethis right?Most constifutions just a 'right to eralizedand neutralizedthe sameidea, mentioning plcasure'.Under communismmany citizcns had abusedthis right even during working hours. policy hasalsobeena featureof constitutionsin thc Environmental of West,but mainly as the declarations a stategoal. When postcomthe 'right to an auspiciousenvironment'in munist countriesaccepted their constitutions, they transformed it immediately into a duty: 'Everyone is obliged to protect and enhance environmentand the the cultural heritage'(Slovakia,1'rr. 44.2). Duties like military selice were norrnal, though rarely mentioned in Western constitutions.

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under the new markct conBut a duty to pay taxeswas discovered Art. 53). The combination social rights and of ditions (Romania, ifthe systemdcvclops politicalduticscan develop coercive aspects in the directionof illiberal democracy. Someconstitution-makers, (Art. 51), 41.1) and in Slovakia as in the CzechRepublic(Charter 'can be claimed only were aware of the fact that the social rights theseprovisions'. within the limits of the law that execute There is an old constitutionaldebatc surroundingthe idea that such rights should not thereforebe mentionedin the constitution (the Basic Law in Germany),and that thosereformerswho emphado sizethc ncccssity suchdeclarations so mostly as a reminder of non-consolidation for legislators. of Under condrtions democratic such positivc rights tend to shift the centreof activity for impleThe excessive enumermentationfrom the courts to the executive. ation of theseduticswas an ancienregimelegacy,althoughmilitary serviceand tax-payingseemto be normal obligations.But Poland protection- as many former in 1997not only addedenvironmental postcommunist constitutions - but also'loyalty to the Republic did of Polandand concernfor the commoneood'(Art. 84).

Protection of Rights and ConstitutionalCourts The protectionof rights w'asa major issueafter the collapscof communism.It has been said (Posner,1995,p. 72) that we roman'rightsfetishism'. This ticizerightsand that thereis a good deal of 'civic religion'of rightswas unavoidablc to ideological approach a in postcommunistregimes.Austria rvas the torchbearerfor introTherewas a simducingconstitutional courtsinto the constitution. ilar tradition in the old GermanEmpirc and a codification for such an institutionfeaturedin the revolutionaryconstitutionof Frankfurt a in 1848.The Germanmodel createdin 1949 established wider rangeof 'judicial review'than the SupremeCourt in thc USA, and from Spainto Russia. this was widely adoptedby new democracies 'Austrianmodel'was popular in In Centraland EasternEuropethe it because was betterequippedthanthe US versionto supcrvisethe separationof powers and relations betweenthe public agencies. The only drawback was that the US judicial rcview systems to the to seemed be more appropriate ovcrsee defenceof individual rights. The Supreme Court was no special constitutional court. In Central and East Europc it was agreedfrom the outset that the

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from thc ordinary court constitutionalcourts should be separated system.Sometimes- as in Bulgaria and Albania - it becamepart further to the chapterson the of the constitutionalarrangemcnts judiciary. There are two options for thc protection of human and civil rights: judicial review, and the more patrimonial way that devel'right to petition' in the Scandinavian opcd from an established in countrics, expressed the personof the ombudsmanPolandhas combinedthe two traditions,which had frequentlybecn considered incompatible,and had already createdan ombudsman(Art. 208) besidesthe ConstitutionalCourt in the closing months of the communist regime.The outgoing regime did not anticipatehow effecconditions,as tive suchan office could be evenunder authoritarian for 1988-92,Ewa Letowska(1995, p. 63), the first ombudsman of of statedin the first evaluation the new office. The coopcration and the ConstitutionalCourt the trvo institutions,the ombudsman as u'ell as the High Administrative Court - was also better than expected. The ombudsmanwas the most active agencyin submitPolishcourts The officc haspushed ting complaints theTribunal. to by to apply internationalhumanrights standards looking for precedents in legal decision-making at the Strasbourg Court. The to of morcovcr. contributed the instruction the pubhc ombudsman, This is espeof on the rule of law and the principles a civil society. which mostly cially importantin dealingwith thc bureaucracies, *'orked in the spirit of thc old regime.The coopcrationwas, however, not always marked by full harmony, and clashesoccurred betrveen the ombudsman and public prosecutor (Jaster, 1994, pp. 113tr, 144f). There are also ombudsmen a parliamentary as (Art. 159), auxiliaryinstitutionin Romania(Arts. 55-7), Slovenia (Art. 55.3) and Hungary (fut 32B), where ombudsmen Ukraine are also provided for nationaland ethnic minoritics. The principle of judicial review by constitutional courts was introducedin someCentraland EastEuropeancountriesbefore the end of communism,althoughthe principle was obviouslynot compatible with the hegemonicclaims of the party. In Polandthe constitution was amended as early as 1982, and the Constitutional Court began to work in 1986. In the first year of its existenceit (Garlicki in Landfried 1988,p. 208). Thc issuedsevensentences Hungarian ConstitutionalCourt earnedthe highest marks for its activities,althoughthe possibility of thc public raising casesfor its jurisdiction placed an unusual burden on the shoulders of the

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judges.Most of them were theoreticians and not usedto servingas judges, becausemost of those with judicial experiencehad been compromised in the communist period. Therefore, even in of Hungary a further professionalization judges will havc to take place for democracy to be further consolidated(Brunner, 1993; Majoros, 1993).The recruitmentproblemwas, however,a problem that facedjust one country.Judgesare generallybadly trained and Most of the lawyershavea rather courtshave an overloadof cases. passive perception their role. Thc dontinance theprocuracy, of of which monopolized the procedureunder communist conditions, (Petrova, 1996,pp. 67,70). Poleshave hasyet to be fully overcome Tribunal of Human increasinglyturned therefore,to the European with cases Rights becausethe courts in Polandare overburdened (Spieu'ak, 1997 p. 95). , 'outsourcing'of issueshave to Traditions of arbitrationand the civil societyin Central of be learnedin the process consolidating Court is mentioncdin the and East Europe.If thc Constitutional outsidethe contextof the judiciary - as in Bulgaria constitution more as a political Lrt. 147 this could meanthat it is considered country has the institution.But in no Centraland East European Court prctendedto a rule that was comparablewith that of the Court underValerii Zorkin until 1993 (sec Russian Constitutional most constitutional von Beyme 2001a,pp. 1I 1ff). Consequently , - with the exception of Albania, Yugoslavia and partly courts Bclarus - do not act on their own initiative. Most constitutional the to courtsarecompetent inten enein conflictsabove jurisdiction only stateorganshave In of other stateinstitutions. most systems the right of complaint,and only in Hungary has the institution of a been institutionalized. popular right to complain (Popularklage) of An importantcontributionto the development civil societyhas 'constitutionalcomplaint', first develbeen the introductionof the insefiedprocedures oped in Germany.Half of thc new democracies for constifutionalcomplaint into the Constitution(Albania, 1998, Art. 127 Slovakia, Art. 125; Poland 1.rI.'79.1; 174i; Croatia, Art. 160; Slovenia, courtdecisions; although in this caseagainst not and the CzechRcpublic,Art. 87.1d).In PolandArt.19 introduced 'everyonewhose constitutional rights and freethe possibility that doms havc been infringed shall have the right of appeal to the Constitutional Tribunal for its judgment on the conformity to the Constitutionof a statuteor anothernormativeact.'Wisely enough, this possibility did not apply to thc imputed infringement of

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was citizens'socialrights(Arts. 80, 8l ). Whenthe new constitution passedthe first ombudswoman Poland had some doubts about of She expected large number of coma this importantmechanism. plaints - accompanied growing social impatience because by of from citizens lengthydeliberations, evenaggressive and responses when complaintswere not accepted the ConstitutionalTribunal by (Letowska,1997,p. 81),All thesemrsgivings werejustified in thc light of German experience.But there was some comfort from in its base in Karlsruhe:in spite of all these shortcomings the process constitutional the of complaintit did not undermine posiby tion of the prime court when public trust is evaluated opinion
SUTVCVS.

a The old elites - who still constituted majority in the 1990s networkamongststaff in the middle rangesof the institutional Courts havecertain in the lon-srun rvill discoverthat Constitutional In advantages. democraticsystemsthey perform important func'blame-sharing'. Governmentalone is not tions in the arca of for but which responsible certainunavoidable unpopularmeasures Fairnessis an to be taken in order to consolidate democracy. have institution-building. importantprincipleon the road of democratic - which is normally underrated the first in E/ficiencvis anotherone period of democratization. the first instance new democracies In normally pay most attentionto the legitimacyof the ncw order and only in thc sccond place direct their attcntion to the principle of efficiency. This does not only apply to the first All branches tn'o branchesof governrnentin new democracies. 'costsof liberty' andrecognitionof for haveto developa sense the , the negativeliberties implies a public machineryfor the protection This involvcs thc activof rights and meansfor thcir enforcement. judges and lawyers.Thc costsof ities of the police, prosecutors, positive liberties in terms of social benefits have been studied but little is known about the costs of protecting and extensively, under comenforcing negativeliberties, which were safeguarded system(Posner, munism by the provisionsof a generallyrepressive 1995,p. 72).

Conclusion 'Transitology'has on sharpened perspectives a certaintrade-off our betweenthe protection and democracy, betweenconstitutionalism

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of rights and the possibilities for participation. The communist participationrather than the protection of legacy has emphasized rights, although communist constitutionscontainedan impressive list of rights on paper - which is where they mostly remained. may complementdemocracyby maintainWeak constitutionalism ing a high level of stability in social decision-making.Strong constitutionalismmay correspondinglyconflict with democracy and too much incrtiafor because therecanbe too manyimmunities to social decision-making be effective(Lane, 1996,p. 264). The and democracyhas necessarybalancebetween constirutionalism in not yet been found in most of thc new democracies Central and EasternEurope. Some scepticsthought at the outset that positive guarantees rights in participatorydemocracycould never fully of of be reconciledu'ith negativeguarantees rights under liberal contendsto be rational,limiting the Libcral democracy stitutionalism. By decision democracy. autonomous possibilitie of participatory s liberal democracythus fetters itself - like Ulysses- in order to of preventthe self-destruction the system(Merkel, 1999,p. 370). 56 According to FreedomHouse statistics, countriescan bc classifiedas illiberal democracies lying betweenconsolidatcd political parMost of them emphasize and autocracr'. democracv of ticipationmore thanthc protection civil rights.Russia(andmost 'illiberal CIS mcrnber statcs) and Slovakiawere classificd as demoo'acies' the end of the century(Merkel, 1999).Most of the at the achieved level had countries already Centraland EastEuropcan of 'liberal democracy' b1' this stage, however, Only Albania, 'deJbctive Bulgaria. Yugoslavia,Romania, and Ukraine remained 'illiberal'category. wasalso Russia of a dernocracies', sub-type the in mentionedamong the delegativedemocracies the first years of of . its existence Estoniaand Latvia - because their treatmentof the 'exclusive Russian minority - originally received the label of democracy'. Belarus, alone among European states,was clearly 'autocratic' In most of thesenegative not cases evenbasicdemo. 'free cratic rights are fully guaranteedand clcctionsare generally 'anocracy' at the but not fair'. In an carly classificationwhich puts centre of attention - a mixture of anarchy and autocracy(Gurq 1991) - there are r.'ariousintermediatestagesbctween illiberal A autocracyand liberal democracy. classificationby von Beyme Romaniaand (1996,p. 167) has also shownthat regimeschange. Bulgaria in the nerv century seemto have improved their position and moved towards democracy (Merkel et al., 2002, p. 182);

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the sameholds true for Slovakiaand Bulgaria.The aim of integration within the EU providesan importantdegreeof momentum for of As theserapid changes. a broadoutcome,the development a balin and the of ancebetween principles democracy constitutionalism Europcis alreadyquite inrprcssive. Centraland Eastern