Out of and into Authoritarian Law

OUT OF AND INTO AUTHORITARIAN LAW

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Out of and Into Authoritarian Law Edited by

Andras Sajo

Kluwer Law International The Hague / London / New York

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CONTENTS

CONTRIBUTORS

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Andrds Sajo Erosion and Decline of the Rule of Law in Post-Communism: An Introduction

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PART I - OUT OF AUTHORITARIANISM 1

2

Ruti Teitel Transitional Justice as Liberal Narrative Krisztina Morvai Hungarian Criminal Court Cases Concerning the (Retribution of the) 1956 Revolution

3 Alex Boraine Truth and Reconciliation in South Africa: The Third Way 4

5

6

1

3

15

31

Paul van Zyl Justice without Punishment: Guaranteeing Human Rights in Transitional Societies

53

Nenad Dimitrijevic Constitutional Democracy or How to Prevent the Rule of the People

75

Leszek Lech Garlicki The Democratic Limits to Authoritarianism in Democracy (When the State Knows Better What is Good for the People)

97

vi

7

Contents

Gabor Halmai The Making of the Hungarian Constitution

111

PART TWO - INTO AUTHORITARIAN LAW

123

8

9

Richard H. Pildes The Inherent Authoritarianism in Democratic Regimes

125

Susanne Baer Police Power for a New Century? Constitutional Traps and Constitutional Options Regarding Some Authoritarian Trends in Police Law

151

10 Istvan Szikinger Losing Track of Democracy: Post-Totalitarian Policing in Hungary

169

11 Denis J. Galligan Public Administration and the Tendency to Authoritarianism

187

12 G.M. Tamas On Post-Fascism: How Citizenship is Becoming an Exclusive Privilege

203

13 Martin Krygier The Quality of Civility: Post-Anti-Communist Thoughts on Civil Society and the Rule of Law

221

14 Gabor Halmai The Unmaking of Hungarian Constitutionalism?

257

15 Alexander Vashkevich The Republic of Belarus: The Road from the Past to the Past

265

CONTRIBUTORS

Baer, Susanne Professor of Law, Humboldt University, Berlin Boraine, Alex New York University School of Law and Vice-Chairman, South African Truth and Reconciliation Commission, Cape, South Africa Dimitrijevic, Nenad Professor of Political Science, Central European University, Budapest Galligan, Denis J. Professor of Law, Director of the Centre for Socio-Legal Studies, Wolfson College, Oxford Garlicki, Leszek Lech Justice, Constitutional Tribunal of Poland Halmai, Gabor Professor of Law, Szechenyi University, Gyor, Hungary Krygier, Martin Professor of Law, The University of New South Wales, Sidney Morvai, Krisztina Associate Professor, Eotvos Lorand University, Budapest Pildes, Richard, H. Professor of Law, The University of Michigan Law School Sajo, Andrds Professor of Law, Central European University, Budapest

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Contributors

Szikinger, Istvdn Lawyer (constitution law), Budapest, Hungary Tamas, G.M. Professor of Philosophy, Hungarian Academy of Sciences Teitel, Ruti Professor of Law, New York Law School van Zyl, Paul Program Director of the International Center for Transitional Justice, New York Vashkevich, Alexander Director, Belarusian Center for Constitutionalism and Comparative Legal Studies

EROSION AND DECLINE OF THE RULE OF LAW IN POST-COMMUNISM: AN INTRODUCTION Andrds Sajo Modern constitutional systems and constitutions presuppose some form of working democracy. There are only scattered provisions in most constitutions that would safeguard a robust democracy. On the other hand, fundamental rights and the various forms of checks and balances provide only limited protection against turning a democratically elected government into an illiberal mechanism. Fareed Zakaria, in a hotly contested article,1 claimed that democracy works only where it evolves within a preexisting liberal constitutional system. The debate on "illiberal democracies" concentrates on sequencing, i.e., whether liberalism has to precede democracy or vice versa.2 There is also a discussion regarding the sources of illiberal democracy and the socio-political conditions needed to overcome the illiberal elements of democracies. However, liberal constitutional theory is at loss to answer the following simple question: how is constitutionalism possible if genuine fair elections result in the expression of popular authoritarianism? (J.S. Mill, for example, had a simple answer: if such an uncivilized popular view is to prevail there is no place for democratic procedures.) Perhaps even less attention is devoted to the legal-normative dimension of the issue. Are there specific constitutional rules that help to prevent unfettered democracy (other than fundamental rights and separation of powers)? Are there shortcomings with the traditional constitutional recipes? For example, public order in the guise of compelling state interest is traditionally accepted

1

2

F. Zakaria observes that an increasing number of democratically elected governments are abusing their powers and repressing civil rights. "The Rise of Illiberal Democracy," Foreign Affairs, Vol. 76, No. 6 (November/December 1997) 22-43. The problem is discussed in this volume in chapters 5 (Dimitrijevic) and 13 (Krygier).

A. Sajo (ed.), Out of and into Authoritarian Law, p. ix-xxiii © 2002 Kluwer Law International. Printed in The Netherlands.

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as a ground for rights restriction. Public order as a restrictive concept is determined in the democratic process. On the other hand, given the many abuses of the democratic process, and elections in particular, isn't it a duty of constitutionalism to suggest constitutional safeguards against formal-electoral democracy? This is easier said than done. Perhaps in the long run democracy (and well-developed media) can limit authoritarianism and more progressive laws will become the norm. After all, police misconduct is exposed in many cities, sometimes resulting in reshaping the police. Nevertheless, some people would say that such exposures have a long history and hardly ever result in eliminating these pockets of institutional authoritarianism. Tax inspectors' manners have not changed throughout history. The practical relevance of these issues is obvious for post-communist and post-authoritarian countries. Authoritarianism in democracy, and in rule of law based legal systems, however, remains a major intellectual puzzle for constitutional theory, as it is very difficult to identify the specific factors of authoritarianism and illiberalism in the constitutional-legal systems. The residual (and reproduced) authoritarianism of specific organizations (police, immigration, tax inspection) still causes tensions in the West, too. Churches with authoritarian structures remain not only constitutionally protected; the authoritarian elements of their religious practices are often endorsed by the state. This is a constitutional anomaly in many liberal countries. National identity protection throughout the democratic process tends to add to the difficulties of constitutionalism everywhere. In Eastern Europe we simply do not have sufficient knowledge of the process and techniques of this slide towards democratic authoritarianism. The collapse of oppressive regimes in Eastern Europe raised high hopes. It was believed that the strong desire to get rid of communist authoritarianism and the wish to enjoy the advantages of a market economy would result in new societies committed to the rule of law and constitutionalism. It was also believed that the emerging societies would create institutions that would undo past injustices and be concerned about preventing the development of new injustices. Skeptics, on the other hand, argued that the social and economic conditions require a process of transition that does not favor such noble improvement, and that the cultural and structural traditions of these societies are not favorable to the rule of law and market fairness, nor are they sympathetic to human rights. At the turn of the millennium, the legal systems of the societies coming out of authoritarianism show trends of illiberalism and even authoritarian traits mixed with rule of law elements; moreover, the differences are enormous between the countries that previously belonged to the same, apparently mono-

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lithic, Soviet bloc.3 In some of the countries, non-democratic trends seem to prevail, elsewhere authoritarianism remains at the level of sporadic phenomena with a potential to degenerate in a partial suspension of the rule of law. Rule of law and constitutionalism are disregarded by those in power in the name of order and efficiency,4 democracy,5 or communalism. There are a number of clearly troubling phenomena. Some of these are related to the democratic "component" of constitutional democracy: the results of the electoral process might undermine constitutionalism, or government through plebiscite may establish irreversibly oppressive solutions and regimes. These are, to some extent, the external sources of the authoritarian shift. These political mechanisms established by the liberal constitutional system may bring in (or perpetuate) an authoritarian ruler or regime. A second set of events results in the internal erosion of the constitutional regime. Here the internal operations of the constitutional system (courts and legislation) result in an increasingly systematic departure from the rule of law, including a considerable disregard of human rights, at least in certain less visible areas of social life. The erosion is the result of the interplay among constitutional institutions. For example, certain divisions of the executive (president, chancellor, police, secret police) first penetrate parliament, then perhaps the prosecution; the judiciary fails to stop additional extensions of illegal power, then public opinion (the press) is tamed, and so on. Of course, the external and internal processes might be interrelated: an internal erosion of the rule of law may create an electoral institutional system (including the control of the media and of the opposition) that makes one-party rule through free elections possible.

See e.g., the Country and Territory Reports of Freedom House. Chapters 5 (Dimitrijevic) and 11 (Galligan) contain reasons why "the efficiency demand cannot be recognized as an independent criterion of the governmental process - only the demand for the legitimacy of limited government can be recognized as legitimate." (Dimitrijevic) Szikinger in chapter 10 describes how in the Hungarian Police Act of 1994 "both the separation of powers and the priority of human rights over operational requirements of the state were weakened for the sake of perceived police effectiveness." The anti-constitutionalist impact of democratic legitimation is exemplified by Szikinger in chapter 10: "The issue of the democratization of the police was absorbed by the question of reforming the general state structure. As the head of the ministry unit responsible for policing, Laszlo Korinek, put it: "The police is only a part of this, and if the state itself is democratic, its police should be the same. It does not depend on what organizational principles determine the police being created.' [Laszlo Korinek, "Modernization of Police," - Rendeszetl Szemle, 10 Special issue in English (1992) 3-14.] As a consequence, the police survived the change of the political system basically intact."

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What are the flaws in the legal system that we label "authoritarian"? The powers of the executive branch increase without proper checks and balances, delegated legislation prevails without adequate legislative guidance, and the budget is increasingly less controlled by parliament. All these are normal phenomena of cabinet dictatorships; however, when the prerogatives of parliamentary opposition are disregarded, parliamentary inquiry committees are not established, etc., the deterioration might become irreversible. It is argued by those interested in unfettered government power that separation of powers is considered outdated in the West and that the parliamentarianism that prevails in Western Europe is "based on the principle of the unity of power" (this position is quoted in Halmai's chapter 14). Free speech is restricted in the name of "personality rights." More and more public authorities are granted investigative powers, including secret surveillance. Preliminary detention and incarceration are increasingly used as punishment, to the extent that the per capita incarceration rate exceeds the percentages registered during communism. Constitutional courts have mixed records. Even where these courts try to breathe a liberal meaning into the constitution in line with the prevailing European trends, this is disregarded by ordinary courts and often by parliament as well. Ordinary courts rubberstamp requests for pretrial detention and secret surveillance. In the Czech Republic and Romania, ordinary courts are reluctant to enforce limits on pretrial detention, notwithstanding contrary findings of constitutional courts. Courts continue with narrow, unprincipled interpretations of rights provisions in clear disregard of the constitutional meaning of legal texts. Courts often fail to provide adequate and efficient remedies against abuses of discretionary power by administrative agencies and against various forms of discrimination. The integrity of the judiciary and prosecution are questioned because of scandals, among other reasons. The police and the revenue service are sometimes used to silence the political opponents, critics, and even business competitors of those in political power. The recommendations of the ombudsperson and even court rulings are simply disregarded in the name of distorted or blatantly misleading cynical interpretations of fundamental constitutional principles. The authorities collect more and more private data, which can be abused. Data collected (falsified) by communist secret services was not destroyed and is now used in political conflicts and for governmental and private blackmail. The executive makes attempts either to stay above the law or shape the law in such a way as to grant the executive and its clients "lawful"

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privileges. The situation is further aggravated by rampant corruption.6 A further complication is that radical and extremist nationalism has become not only popular and Salonfahig, but also to some extent part of governmental policies, endorsed by legislation. Official non-interference in racist and other discriminatory private practices is becoming normal. This apparently liberal noninterventionism contributes to the consolidation of authoritarianism in society - a phenomenon that is endorsed by emerging authoritarian political movements. Notwithstanding the above faults, one should not disregard the constitutional achievements of transition democracies. In most post-communist countries the fundamental structures of rule of law based legal systems were established: the problem is that the forms were not always filled with proper content, and further legislation and implementation of laws after the formative years tended to move away from the promises of the constitutions and early laws. Again, the trend is not without exceptions: for example, because the fundamental institutions of democracy were kept in a working condition, the trend was reversed at the polls in Slovakia. The European Commission finds that in the case of the European Union candidate countries the fundamentals of the rule of law and democracy are in place. (Criticism is voiced regarding judicial independence.) At least in Central Europe, important constitutional and institutional safeguards were built into the law to resist authoritarian attempts, including electoral authoritarianism7 and populist dictatorship. The judiciary in particular (see chapter 11 by Galligan and chapter 8 by Pildes) provides legal self-defense against inherent and external authoritarianism. In chapter 6 Justice Garlicki of the Polish Constitutional Tribunal argues that the new democracies have been able to use such self-defense mechanisms of constitutionalism. President Walesa's attempt to create a system based on his personal charisma was derailed by the Constitutional Court and other institutions; attempts to destabilize the system in favor of a populist plebiscite regime were thwarted in Poland and Hungary by referendum threshold rules and, in the case of Hungary, by the firm rejection of referendum initiatives by the Hungarian Constitutional Court. Where referendum was used to reshape the separation of powers or destabilize

I have described the emerging regimes as clientelistic regimes where political power is used for extortion. See The Political Corruption in Transition: A Sceptic's Handbook in S. Kotkin and A. Sajo (eds.), Budapest: Central European University Press (2002, forthcoming). In electoral authoritarian regimes multi-party elections and referenda are reinforcing the personal rule of a given group "[B]y utilizing the democratic procedures, ... [t]he end result might consist in bringing to power - legally and democratically - parties and politicians whose views of democracy and pluralism might be rather far from the standards of the beginning of the 21st century". (Chapter 6, Garlicki).

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institutions, the legitimacy of government and constitutionalism suffered (see e.g., Ukraine and Moldova). In Belarus it was through referendum that the separation of powers was undermined. It should be noted, however, that the possibilities of the legal system and of courts in particular are limited in protecting liberal democracies against authoritarian trends. As Pildes points out in chapter 8, in many states of the U.S., courts (and other branches of power) were unable to combat one-party democracy.8 The resistance of courts to electoral authoritarianism is limited as long as courts are interested in rights and not in structural problems of democratic electoral competition. The first step in constructing anti-authoritarian constitutional doctrine to deal with the distinct issues in cases involving the structuring of democratic institutions, then, is for courts to recognize that it is the structural features of the electoral system, not the intrinsic rights of individuals, that such cases are best conceived as presenting. Rights-adjudication is a vehicle for bringing these structural issues to the constitutional courts, but the rights at stake are instrumental toward constructing appropriately democratic structures as a whole. (Pildes)

The structural imbalances are those that might perpetuate the rule of those in power through elections. In the case of countries like Belarus, authoritarian or even dictatorial elements prevail and law shows little evidence of the rule of law, though the legal system differs fundamentally from the communist one. As Vashkevich's analysis demonstrates in chapter 15, even the Belarusian legal system makes attempts to resemble Western law. It seems that even in post-communist despotic regimes there is a need for legal formalities to be observed. Law and its interpretation are used to overcome the dictates of the rule of law that would frustrate the attempts of power holders to manipulate society to their advantage. Exceptions, tricks, and obviously unfair legislation are the means used. In other words, even in blatantly dictatorial post-Soviet regimes lip service is paid to Western legal ideals. Only in extreme cases is brutal force used to repress opposition. But contrary to communism, these new European authoritarian systems are not keen to create a system based on ideological loyalty.

One-party democracy is a form of electoral authoritarianism where the electoral system is shaped in such a way that it perpetuates the rule of the incumbents. One-party democracy was probably the dream of most political leaders in East Central Europe. Nevertheless, in the first ten years after the collapse of communism in the overwhelming majority of the nonSoviet post-communist countries no incumbent won national elections. (President Kwasniewski, who seemed to be very inclusive, is the exception that proves the point.)

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One could argue that the cluster of negative developments in many postcommunist countries points towards more systems like that in Belarus. Given the social, historical, economic, and geopolitical level of integration of East Central European countries with the West this is an unlikely scenario. However, the potential similarities make one think about the nature of the problem. Are the above phenomena (still far from the Belarus extreme) elements of authoritarianism? Do these developments reflect authoritarian rule and, consequently, authoritarian law? Authoritarianism and authority are some of the most confusing concepts in political science. As Galligan states in chapter 11: "the concept of authoritarianism, while clearly pejorative in its connotations, is not a term that is used with any precision; indeed, amongst political scientists and lawyers, it is not a term that is widely used at all." Authority, in the sense Hannah Arendt uses the term, refers to reliance on (unquestioned) inherited wisdom. "Against the egalitarian order of persuasion stands the authoritarian order."9 In authoritarian government, authority "is filtered down from above."10 It seems that in all the cases of legal mischief referred to above the formal supremacy of the rule of law is questioned and the supremacy of the executive and those who enjoy the protection of the executive (the clientele) is recognized. Decisions are based on authority filtered down from above. The ruler's legitimacy, often quite shaky, is based on conservative values. The government departs from the formalities of the law in the name of conservative values, promising public order or efficiency. Denial of the rights of criminals and the accused in the name of their unequal status ("unworthiness") or in the name of efficiency is a denial of equality among citizens and is justified by the assumption that the police and other authorities know the solution "better." These tendencies fit the concept of authoritarianism that is commonly understood as implying the rule of an individual, or a group of persons, "who arrogate themselves power and monopolize that power in the state."11 Modern authoritarianism does not rule out a formal democratic legitimation - the leaders govern at least on behalf of and for the majority or the community, though the specific decisions might be justified by the specific knowledge or other personal characteristics of the decision-maker. This is not a matter to be taken lightly: the majority of democracies are illiberal. Needless to say, the impersonality of the rule of law cannot coexist with authoritarian

9

H. Arendt, Between Past and Future, Eight Exercises in Political Thought, London: Penguin Books (1977) 93. 10 H. Arendt, On Revolution, New York: Viking Press (1963) 282. 11 Academic American Encyclopedia, Danbury, CT: Grolier, Inc., (1997) 802.

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rule, as authoritarian rule presupposes and requires the disregard of neutral, preexisting rules applicable to all. It is clear that in an authoritarian arrangement the limiting function of government is seriously imperiled, though the negative impact on most individual rights is neither clear nor inevitable. Alternatively, one could argue that concepts like "authoritarian elements in law" or "law conducive to authoritarianism" are not grasping the problem described above: what matters in Eastern Europe is that the law shows elements of illiberalism, this being part of a drift towards becoming illiberal democracies. One could argue that there is a prevailing conservative mood that influences the legal system. The mood stems from premodern values like primordial tribal values and denial of secularism. Such premodern conservativism is by definition illiberal and antiliberal; therefore, to the extent that these values determine law and its interpretation, law itself will become a tool of antiliberal restrictions. If one understands the liberalism deficit, or illiberalism, as a situation in which individual liberties as rights are curtailed, then the term "illiberal law" might be more adequate than "authoritarian law." However, the restrictions on individual freedom might be quite legitimate in view of other democratically determined or otherwise construed social value systems. As long as such restrictions on rights remain reasonable in a given society (and not primarily dictated by premodern concerns), the restrictions might be acceptable and even necessary without undermining constitutionalism. After all, the accommodation of religion in public life and public support to churches might result in limiting liberty. But as long as this is not affecting equality in the public domain and is not resulting in irreversible limits on value choices it might remain within the frame of constitutional democracy. The problem is not simply that liberal values and rights are disregarded. In the language of the socio-legal analyst (Krygier in chapter 13), the state attempts to penetrate civil society. The state acts as a police state. The term 'police state' is generally used to describe repressive systems. However, one has to emphasize that the expression is somewhat misleading, as in a police state not only the police themselves but the whole power structure tends to keep social currents and phenomena in strict order. A democratic state based on the rule of law is maintained and determined by society. In a police state, the political and administrative leadership wants to shape and control the population. This does not always mean repression. Providing people with services and even goods can well be part of the police state approach. The concepts of 'police state' and 'welfare

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state' certainly have something in common. At the same time, it is beyond doubt that the exposure of the individual and communities to public power prevails in a police state. This is the rule of men instead of the rule of law. Even if a police state is not understood as a system ruled by the police organization, law enforcement can contribute significantly to the destruction of constitutional values by substituting them with 'emergency measures' deviating from the democratic ideal by referring to the extraordinary needs of the fight against crime. (Szikinger, chapter 10)

The essays in this volume discuss the deconstructing of the oppressive (communist) law and the undoing of injustices perpetuated under communist law.12 Further, the papers discuss the replacement of communist law with a normative order. The central problem discussed in the papers is how and to what extent illiberal traits emerged. Law has an inherent tendency to be oppressive, illiberal, and even authoritarian, even if constrained by the rule of law and ideas of constitutionalism. "Authoritarianism is an inherent structural tendency of democratic regimes" (Pildes, chapter 8). The study of post-communist illiberalism has made it clear that in many respects the illiberal (freedom-reducing) phenomena are also present in Western (democratic) legal systems: it is quite often the application of these "Western" solutions that exposes, or perhaps even causes, the illiberal trends of the law in post-communism. However, in established democracies constitutional institutions, constitutional actors, and large segments of the society have enough independence, resources, and constitutional culture to resist these attempts to authoritarianism. The erosion of human rights has its limits. These societies have a level of social self-defense that Baer (chapter 9) and Krygier (chapter 13) both call civility. These elements are less effective in the post-communist countries, hence the increased concern. For example, the often arbitrary and capricious Kafkaesque investigations and unchecked investigative powers of revenue services are known in most democracies, and are seen as indicia of authoritarianism, or at least etatism running amok. This is certainly a troubling but "normal" matter if it occurs in Italy or the United States. ("Normal" in the sense that sooner or later the judiciary or the electorate or some other authority will restrict it, and it certainly will not become part of an oppressive political system.) Given the lack of established patterns of rule of law behavior in East European

12

The papers in this volume were originally presented at the 8th and 9th annual conferences of Central European University's "The Individual vs. The State" series in Budapest in 1999 and 2000. Financial support was granted by the Open Society Institute, Budapest.

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countries and given their history, similar phenomena of illiberalism are to be evaluated differently in these transition societies. Krygier (chapter 13) argues that post-communist societies operate without "tolerant pluralism," as the prevailing communitarian attachments are hostile to such activity. One of the theoretically most interesting aspects of the emerging and identified illiberal trends of law in the post-communist countries is that it offers an opportunity to look at the illiberal elements of Western legal systems. Because authoritarian elements are common in Western law, irrespective of the maturity of democracy, we have included a number of essays in the volume that deal with Western experiences or discuss authoritarianism in Western law in a comparative (transition democracies vs. mature democracies) perspective. Very often the legal rules and practices departing from the rule of law are not different in Eastern and Western Europe. However, such departure is perceived as being less dramatic and less systemic in Western Europe than in Eastern Europe. It remains a matter of future research and actual future developments as to what extent the illiberal potential will manifest itself in the countries emerging from communism and underdevelopment. What are the causes of these illiberal phenomena in post-communism? The essays in this volume offer a number of explanations: some are mutually exclusive, others are not. One possible reason is that past (primarily communist) injustices were not remedied, and without a resurrection of morals it is impossible to move away from the authoritarian past. Lack of cleansing allows the repetition of history. Using less moralistic (or social-psychological) language, one could argue that because past injustices were not remedied, the social actors who were part of the system of injustice continued to operate along patterns that can be traced back to authoritarianism. Moreover, without such changes, institutional continuity will occur, and if a country inherits its oppressive police and other agencies these will be inclined to perpetuate previous authoritarian elements (see the case study on the Hungarian police by Szikinger in chapter 10). In South Africa the social and economic legacy of apartheid is causing "unfinished business" that "has to be tackled; otherwise it will be impossible to sustain the miracle [of peaceful transition]" and "consolidate democracy" (Boraine, chapter 3). This was not the prevailing mood or understanding in Eastern Europe. Of course, "transitional societies invariably confront considerable political and practical difficulties in attempting to prosecute perpetrators" (not to speak of the difficulties of and social conflicts related to restitution of properties and paying adequate compensation for past injustices). "An approach to dealing with the past cannot ignore this reality and must seek to encourage credible alternatives" (Van Zyl, chapter 4). Ironically, as Morvai in chapter

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2 demonstrates, in most post-communist societies the justice claim was rejected in the name of the rule of law. The Hungarian Constitutional Court stated: "the certainty of the law based on objective and formal principles is more important than necessarily partial and subjective justice." Of course, the Czech Constitutional Court was of a different opinion. It upheld the law that declared (ex post) that the statute of limitations was not applicable in the case of communist crimes. However, this was the exception in Eastern Europe. Even where there was no personal continuity among past and present political and cultural elites, the patterns remained legitimate and therefore easily adaptable by the new elites. Halmai in chapter 14 argues that even new democratically legitimated elites might choose conservative and authoritarian paths, following dictates of power. There might be social, political, and historical reasons for the East European reluctance to deal with the totalitarian past. The reasons range from negotiated transition processes to lack of resources and too many accomplices and beneficiaries of past injustices. But perhaps the lack of a justice-based refutal of the past and a moral foundation for the new society through reparative and retributive justice is not a matter of deliberate choice. Imperfect justice pertains to the nature of transitional justice. Transitional justice cannot replace a revolution or some other act of collective liberation. Transition itself, as well as the "past" that transition is supposed to transcend, are not given "facts": as Teitel points out in chapter 1, these are matters of competing and developing narratives. The claim to justice is a liberal narrative; communal and other narratives may offer different versions of the past. The insistence on transitional justice based on restitution and punishment of "bad guys" might have been a Western liberal expectation and not a genuine East European concern. If Teitel is right, and trials "are well suited to the representation of historical events in controversy" and are "needed in periods of radical flux" then perhaps there was no radical flux in Eastern Europe (radical regarding the past). It is important to put transition and the reaction of the transition democracies to their immediate past into context: this is not a matter to be assumed but is rather subject to historical development. "The region's transitional accounts commence with the story of invasion and popular resistance; with the foe represented as foreign outsider, progressing to the ever more troubling discovery of collaboration closer to home and pervasive throughout the society" (Teitel). It should be noted, however, that even in regard to collaboration regarding ethnic and racist persecution that occurred before, during, and after World War II, there is no full recognition of national responsibility. A second possible explanation for the occurrence of authoritarian traits in law is that the authoritarian features of the legal system and of government in general follow from the lack of democratic traditions. Perhaps more im-

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portantly, powerful interests exist that need a non-transparent legal system. Lack of transparency and departure from the rules helps in procuring the spoils of transition (the "state capture" or "extortion regimes" approach).13 I have argued elsewhere14 that the state becomes a machine of extortion of bribes: the law will be applied or disregarded depending on the interests of the briber. G.M. Tamas argues in chapter 12, that the rule of law is undermined because the political power holders create dependencies outside the law: power offers the privilege of being outside and above the law. This occurs in the process of refeudalizing the society, where one's social status depends on the privileges granted outside state and law. This, of course, presupposes that the public bureaucracy is successfully forced to disregard the applicable rules. Where the bureaucrats depend existentially on the political power holders they will not operate neutrally and independently.15 Irrespective of one's specific approach regarding the use of government power in post-communism, it is clear that a departure from the rule of law is essential for those in control of political power. However, restrictions on individual rights do not directly follow from these trends, except in regard to regime criticism. For this reason, only those fundamental rights that have a direct impact on power, like free speech, access to information, and certain elements of privacy, are restricted. An alternative perspective considers the authoritarian erosion of the rule of law in a topographical manner. The collapse of the rule of law occurs in certain areas of society and the state. We are confronted here with a dual state. Authoritarianism is limited to a well-defined domain or dimension of the state and its law. The dual state was a key concept used by Fraenkel in describing Hitler's regime (see in this volume G. M. Tamas' essay in chapter 12). In the

13 D. Kaufmann, "Corruption: The Facts," Foreign Policy, (Summer 1997) 114; also see Kotkin and Saj6. 14 See Sajo, "Clientelism and Extortion: Corruption in Transition" in Kotkin and Sajo. 15 Ironically, even rule-following public bureaucracy, that great remedy against the departure from the rule of law, has its own authoritarian elements. "The administrative system appears to contain within itself a tendency towards authoritarianism that, although driven by its own internal forces, at the same time is likely to aggravate any authoritarian elements already contained in the laws and policies it implements. Administrative bureaucracies are naturally governed by procedural rigidity and a disregard for individualized differences; efficiency and self-interest prevail over fairness, and secrecy militates against explanation and justification. If authoritarian means the exercise of authority in a manner that is unacceptable to those subject to it, because of certain kinds of defects within it, then administrative bureaucracies would seem to be presumptively authoritarian. The result may be that authoritarian elements present in the laws and policies of the day will be augmented in the hands of the administration responsible for their implementation" (Galligan).

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Nazi regime there was a dualism between the prerogative state and the normative state, a duality hidden behind a community (Gemeinschafi) fa9ade. Today, G.M Tamas argues: This new extremism, which I call post-fascism, does not threaten, unlike its predecessor, liberal and democratic rule within the core constituency of 'homogeneous society.' Within the community cut in two, freedom, security, prosperity are on the whole undisturbed, at least within the productive and procreative majority that in some rich countries encompasses nearly all white citizens. 'Heterogeneous,' usually racially alien, minorities are not persecuted, only neglected and marginalized, forced to live a life wholly foreign to the way of life of the majority.

While Tamas considers the dual state a matter of class division, Dimitrijevic offers in chapter 5 a different division: In negative terms, the decision-making capacity of government denotes the capacity to exclude as irrelevant both issues and actors. If the choice of what and who is relevant, i.e., what and who deserves governmental scrutiny and decision, is left to the government, subject only to the condition of formal equality of political actors and to procedures relying exclusively on such formal equality, government will, in the end, have the freedom (only poorly restrained) to choose the problems and actors it deems relevant. Citizens, on their part, will be divided into those who have effective access to the decision-making stage and those who do not. As a consequence, in the name of democracy and the rule of the people, we would get something that really would approximate the old cherished ideal of self-rule. Still, it would be a limping approximation: some people, groups, and organizations chosen by government would - upon invitation - really enter the governmental apparatus, thus breaking the dividing line between rulers and ruled. But those 'some people' are likely to be of a special kind: politically-economically organized employers and employees, the arms industry, the tobacco industry, or mafia in some of the post-communist countries.16 This kind of 'rule by the people' leads directly to the establishment of the 'dual state.' The 'corporate state,' made up of agents of economically powerful interests, on the one hand, and the state apparatus, on the other hand, would pass many important decisions, standing in the shadow of the 'official' constitutional government.

16

Of course, the "likely to" or "would" minimizers are not entirely appropriate here, for the above is the story of "economic democracy" or "corporatism." The post-communist picture is surely different, at least in being much more grim - see the articles of diverse authors in the special feature on "Crime and Corruption after Communism," East European Constitutional Review Vol. 6, No. 4 (Fall 1997).

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Andrds Sajo

In Part One of this volume we present papers dealing with the undoing of past injustices and the building of new constitutional regimes that will be able to resist authoritarian trends of democracy and illiberal public (majoritarian) sentiments. The first chapters discuss the problem of dealing with the past, as a means of precluding the return of authoritarianism. Were the actual attempts to restore justice (through punishment and restitution) capable of limiting the impact of the authoritarian past? Teitel finds in chapter 1, that trials have such potential, but her concern is broader: she considers the handling of the cases of past perpetrators in various authoritarian regimes as constructing narratives of the past. Two fundamentally different approaches to the rolling up of past injustice through law are presented in this volume. Morvai's paper describes attempts in chapter 2 to call to account in criminal courts perpetrators of crimes committed during the 1956 Hungarian Revolt. South Africa represents a different experience. Here, different methods were used in order to help find the truth without destabilizing the political order. Boraine discusses in chapter 3 the moral dimensions of the truth and reconciliation approach, while van Zyl discusses in chapter 4 the legal choices that are and are not available in different transition processes. Though South Africa came out of an oppressive regime that was very different from communism, and the social and economic conditions of democracy in South Africa differ as well, these two South African papers were included to show the theoretical commonality of the problem. Interestingly, in the institutional design of the transition there was little interest in dealing with the past as a tool to prevent the recurrence of oppression. The constitutional designers were instead interested in mechanisms to prevent the return of communists in elections (see Halmai in chapter 7). Dimitrijevic argues in chapter 5 that constitutionalism is primarily a liberal device to foster freedom, and "democratic equality was brought into the liberal picture ... as an additional instrument of constitutionalism." Hence the restrictions built into a constitutional system to prevent "democracy turning against freedom" are legitimate, and efficiency considerations like those that argue that the state has to be strengthened in order to make democracy credible shall not prevail to the detriment of liberal constitutionalism. Garlicki offers in chapter 6 examples of successful institutional and legal resistance to attempts to undermine constitutional values (separation of powers) through the democratic process in three areas: the presidency, political parties, and referendum. Part Two collects essays that deal with the emergence of authoritarian rule or patterns in post-communism and in established democracies. Pildes discusses in chapter 8, cases of one-party rule in U.S. states and the limited success of courts to fight the emergence of authoritarianism in politics and in law. Baer in chapter 9 and Szikinger in chapter 10 analyze the emerging authoritarianism

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(particularly in the sense of the use of force) in the German and Hungarian police. Galligan finds in chapter 11 a tendency to authoritarianism in modern public administration in general that is countered to some extent by administrative justice. In post-communism, however, the problem is aggravated by the "inheritance of systems of public administration that were primarily instruments for implementing the policies of the party." Two papers (Tamas in chapter 12 and Krygier in chapter 13) put the demise of the rule of law and the nonavailability of fundamental rights protection in the broader context of East European social developments after communism. Krygier's emphasis is on the nature of the civil society, while Tamas, in a class-conflict oriented analysis, relates the authoritarian developments to the mode of social governance that is based on large-scale social exclusion. Halmai's second paper in chapter 14 describes specific attempts to undermine parliamentary traditions and bypass the rule of law in Hungary. Vashkevich describes in chapter 15 how a successful authoritarian system is established. We hope that these lessons will not be learned.

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PART I

OUT OF AUTHORITARIANISM

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1

TRANSITIONAL JUSTICE AS LIBERAL NARRATIVE*

Ruti Teitel

1

INTRODUCTION

The human rights account at the end of the last century reads as a disjunctive story, a sad litany of grave rights violations, and attendant legal responses. So it is that, strangely, Bosnia's massacres, and the Rwandan genocide, go hand in hand with the advancement in human rights law, such as the convening of the international criminal proceedings in the Tribunals for Rwanda and for the Former Yugoslavia. Attempts to deal with unsettled business relating to the atrocities of the so-called dirty wars of Chile and Argentina under military rule in the early 1980's, such as Spain's extradition request of General Augusto Pinochet, have revolutionized international law, already spurring other similar assumptions of jurisdiction, for example, the case of Habre in Senegal. Globalization of jurisdiction on behalf of victims in exile will have ramifications for years to come. Contemporary developments culminate in the call for the establishment of a permanent International Criminal Court. A historic agreement was made in Rome two summers ago to a permanent body to investigate and prosecute the most heinous war crimes, such as crimes against humanity and genocide. Securing ratification will take time. Yet, it is noteworthy that, for the first time since the postwar period half a century ago, there appears to be substantial international consensus on international criminal justice. What was extraordinary at Nuremberg is now being normalized.

These remarks offer a summary of my recently published book, Transitional Justice, Oxford: Oxford University Press (2000).

A. Sajo (ed.), Out of and into Authoritarian Law, p. 3-13 © 2002 Kluwer Law International. Printed in The Netherlands.

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Consider this puzzle: how is it that given the extraordinary political violence of recent decades, there is, nevertheless, the sense of progress in human rights. There is a paradoxical story in this contemporary moment as to the relation law bears to organized violence. While the violence is not new, but the accompanying rhetoric is. What is the content of justice as response to the political violence that has characterized this century? A recurring theme is the significance of some form of transitional justice. Transitional justice's main contribution, I contend, is to advance the construction of a collective liberal narrative. Narratives advance the transformative purpose of moving the international community, as well as individual states in transition towards greater liberalizing political change. In this essay, I will explore just how this account offers a liberal narrative, in particular, about the potential of law in constructing a story of changed facts, laying a basis for change in political direction. I begin with the trial, but the transformative dimension of the rule of the law can also be seen in other areas.

2

LAW'S HISTORY: THE USES OF THE HUMAN RIGHTS TRIAL

What is punishment's role in "historical justice?" Trials have longed played the arch role in transitional historymaking. Criminal justice creates public, formal shared processes that link up the relation of past to the future, and the individual to the collective. Trials are the historic ceremonial forms of memorymaking in collective, a way to work through community's events in controversy. Even the ordinary criminal trial's purpose is both to adjudicate individual responsibility, but also to establish the truth about an event in controversy; but the trial's role in settling historical controversies is most significant in periods of transition. Transitions follow regime change and periods of accentuated political and historical conflict; therefore a primary purpose of successor trials is commonly to advance a measure of historical justice. But what sort of "truths" are established in such periods? These are transitional critical truths; truths about the falseness of the predecessor regime and its ideology. Through the trial, the collective historical record produced delegitimizes the predecessor regime, and legitimizes that of the successor. While military or political collapse may bring down repressive leadership, unless the bad regime is also publicly discredited, its political ideology may well endure. An example is the historical trial of King Louis XVI, which served as a forum to deliberate over and to establish the evil of monarchic rule. Other leading historical trials, whether of the major war criminals at Nuremberg, or, of the public trials of Argentina's military junta, (first in that country's history) are

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now remembered not merely for their condemnation of individual wrongdoers, but for their roles in creating lasting records of the faces of particular state tyranny. Transitional criminal processes enable authoritative accounts of past evil legacies and collective historymaking. There are many enduring representations: the recreation and dramatization of the repressive past in the trial proceedings, and in the written transcript, trial records and judgment. There are also enhanced representational possibilities in the televising of court proceedings infusing popular culture. Thus, for example, the trial of former Central African Emperor Jean Bedel Bokassa offered ex post representation of the past dictatorship. Despite a subsequent amnesty, radio broadcasts offering nationwide reporting of the trial proceedings, offered an oral narrative of the prior dictatorship's brutality, and meant that its atrocities would not be relegated to oblivion. The role of law in the construction of history in transition is seen in that legal and historical judgments regarding persecutory pasts have commonly moved in the same direction. For example, legal definitions of responsibility established at the postwar trials shaped the initial historical understanding of Nazi persecution. Where responsibility for wartime persecution established at Nuremberg was top-down, Nazi policy is seen as Hitler-dominated; and responsibility attributed to the top Nazi echelon. According to the then prevailing historical intentionalist school, responsibility for wartime persecution begins with the individual at the top echelons of power. Over time, a more nuanced understanding of legal responsibility emerges, which goes together with and shapes change in the historical understanding of past wrongdoing. Lower-level trials, such as the subsequent Control Council No. 10 trials correspond to changes in understandings of responsibility. Historical interpretations shift from the "intentionalist school," to the "functionalist school," implying a decentralized view of responsibility diffused throughout all sectors of German society, and other countries. The convening of the Eichmann trial coincides with Raul Hilberg's The Destruction of the European Jews (1961). So, for example, in more contemporary prosecutions, such as the trials in France of Klaus Barbie in the late 1980's, and of Paul Touvier and Maurice Papon in the 1990's, the net expands to include collaborators, even in the lower echelon of power. The century ends with the recognition of a form of bystander responsibility in legal proceedings convened in the United States, England, Scotland, and Australia, arising out of these states' granting haven to persecutors at the war's end. These understandings of third party responsibility have begun to inform human rights law more generally. The above role of punishments in periods of political flux does not accord well with the traditional view of punishment. Trials' focus on the individual

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case and concern for due process is often thought inappropriate to do the political historical work of transition. In such periods, however, transitional justice mediates the false dualisms of the individual and the collective, through the law, through categories in the law, of policy, membership and motive. Trials play a more significant role, as they are well suited to the representation of historical events in controversy, needed in periods of radical flux. Out of the interaction of legal and historical constructions of responsibility emerges a complicated understanding of responsibility for wrongdoing under repressive regimes as perpetrated by individuals against a background of systemic policy. While criminal justice is ordinarily justified in dichotomous terms: of backward-looking retributive concerns, juxtaposed to forward-looking, utilitarian concerns; in its transitional form, punishment links up the past and the future. The question of whether to exercise criminal justice, of whether to punish or to amnesty, is rationalized in overtly political terms, relating to the transition. In these periods, the values of mercy and reconciliation, which are commonly treated as external to criminal justice, become an explicit part of transitional deliberations. The transitional form of punishment: "the 'limited' criminal sanction," is directed less at the individual wrongdoer than at advancing the political transformation's normative shift. This is seen in that the transitional limited sanction is characterized by criminal processes partial in nature, which culminate in little or no penalty. The limited sanction is illustrated historically in postwar policy, but also in the more contemporary transitions, in punishment efforts following regime change, wherever punishment takes the form of select limited operative acts of formal public inquiry into and clarification of the past, of indictment of past wrongdoing. Even in its arch limited form, criminal processes are a symbol of the rule of law which enables expression of a critical normative message, while advancing the shift that is central to liberalizing transition. Some of the operative effects constructive of transition that are advanced by the limited criminal sanction, such as establishing, recording, and condemning past wrongdoing, can also be advanced by other legal processes. The systemic wrongdoing that characterizes modern repression implies a mix of individual and collective responsibilities. This is seen in the pronounced overlap of criminal and civil institutions and processes in transitions. In these periods of political flux, individualized processes of accountability often give way to administrative investigations and commissions of inquiry; the compilation of public records, and official pronouncements about past wrongs. Frequently, these are themselves subsumed in state histories commissioned pursuant to a political mandate for reconciliation, as in South Africa and in much of postmilitary Latin America. Transitional practices whether through prosecutions,

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bureaucratic lustrations or historical inquiries share operative features to manifest new collectively shared knowledge concerning the past regime in the state's narrative. What counts as liberalizing knowledge? These productions are not original, or foundational; but contingent on state legacies of repressive rule. The successor truth regimes' critical function is responsive to the repressive practices of the prior regime. Thus, for example, in transitions after military rule, where the truth was a casualty of disappearance policies, the most critical response is the "official story." Whereas, after Communism, the search for the "truth" constituted a matter not of historical production as such, previous uses of official history were deployed as instruments of repressive control; but, instead, a matter of critical response to repressive state histories, and the securing of private access to state archives, to privatize official histories, and to introduce competing historical accounts.

3

NARRATIVES OF TRANSITION

Narratives constructed in transitions, whether through trials, administrative proceedings or historical commissions of inquiry make out a normative claim about the relation a state's past bears to its prospects for democracy. The very narrative structure propounds the claim that particular knowledge is relevant to the possibility of personal and social change. Narratives of transition offer an account of the relation of knowledge to the move away from dictatorship and to a more liberal future. Transitional narratives follow a distinctive rhetorical form: beginning in tragedy, they end on a comic or romantic note. In the classical understanding, tragedy comprises the elements of catastrophic suffering, injustice, or slavery, of the plight of individuals, whose fate, due to their status, implicated entire collectives, followed by some discovery or change from ignorance. In tragedy, knowledge seems only to confirm a fate foretold. Contemporary stories of transitional justice similarly involve stories of affliction on a grand scale; but, whereas transitional narratives begin in a tragic mode; they switch over to a nontragic resolution; there is a turn to what might be characterized as a comic phase. Something happens in these accounts; the persons enmeshed in the story ultimately avert tragic fates to somehow adjust and even thrive in a new reality. In the convention associated with transitional accounts, change involves a critical juncture, where the revelation of knowledge actually makes a difference. The country's past suffering is somehow reversed, leading to a happy ending, of peace and reconciliation.

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The structure of transitional narratives is manifest in the form of both fictional and non-fictional accounts of periods of political transformation. The national narratives read as tragic accounts that end on a redemptive note. Suffering is somehow transformed into something good for the country, to a greater self-knowledge, that enhances prospects for an enduring democracy. For example, after "Night and Fog" disappearance policies throughout much of Latin America, bureaucratic processes were deployed to set up investigatory commissions. Beginning with the reports entitled Never Again, the truth promises to deter future suffering. Thus, the prologue to the report of the Argentine National Commission on the Disappeared declares the military dictatorship "brought about the greatest and most savage tragedy" in the country's history; but history provides lessons. "[G]reat catastrophes are always instructive." "The tragedy which began with the military dictatorship in March 1976, the most terrible our nation has ever suffered, will undoubtedly serve to help us understand that it is only democracy which can save a people from horror on this scale." On these accounts, knowledge of past suffering plays a crucial role in the state's ability to make liberating transition. Other transitional reports follow a similar story line. Confrontation with the past is deemed necessary to democratic transition. The report of the Chilean National Commission on Truth and Reconciliation asserts that the disclosure and knowledge of past suffering is necessary to reestablish the country's identity. The decree establishing Chile's National Commission declares "the truth had to be brought to light, for only on such a foundation...would it be possible to...create the necessary conditions for achieving true national reconciliation." Truth is the necessary precondition for democracy. This is also the organizing thesis of the El Salvador Truth Commission. The story line is manifest even in the report's optimistic title: From Madness to Hope, which tells a story of violent civil war, followed by "truth and reconciliation." According to the report's introduction, the truth's "creative consequences" can "settle political and social differences by means of agreement instead of violent action." "Peace [is] to be built on [the] transparency of...knowledge." The truth is characterized as a "bright light" that "search[es] for lessons that would contribute to reconciliation and to abolishing such patterns of behavior in the new society." Even where the reporting is unofficial, the claims are similarly that the revelation of knowledge - in and of itself - constitutes a measure of political transformation and justice. Thus, the preface to the unofficial Uruguayan Nunca Mas or Never Again report declares that writing in and of itself constitutes a triumph against repression. The claim is that the transitional truthtellings will deter the possibility of future repression. It is the lack of "critical understanding which created a risk of having the disaster repeated.. .to rescue

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that history is to learn a lesson.... We should have the courage not to hide that experience in our collective subconscious but to recollect it. So that we do not fall again into the trap." In transitional history making, the story has to come out right. Yet, the transitional accounts imply a number of poetic leaps. To what extent is it the new truths that bring on liberalizing political change; or, is it the political change that enables restoration of democratic government, and reconsideration of the past? And, how exactly is the truth to deter future catastrophe? The claim that it is the truth that is liberating - and that the truth enables the move to democracy - seemed wrong as a matter of practical reality almost everywhere. For the transitions out of dictatorship did not await the truth; movement to free elections and more democratic political processes either preceded or coincided with historical production processes. Yet, despite these ongoing processes of political change, without some form of clarification of the deception and ensuing self-understanding, the truth about the evil past is deemed to be hidden, unavailable, external, foreign. So it is, for example, that the post-communist transitions are characterized by struggling with the accumulated past state archives. The region's transitional accounts commence with the story of invasion and popular resistance; with the foe represented as foreign outsider, progressing to the ever more troubling discovery of collaboration closer to home and pervasive throughout the society. In the narratives of transition, whether out of a repressive totalitarian rule in the former Soviet bloc, or out of authoritarian military rule, what is most pronounced is the tragic discovery. Whether Latin America's truth reports, or the "lustration" of the post-communist bloc, the stories all involve revelation of secreted knowledge. Knowledge's revelation implies that the possibility of future change is introduced through the potential of human action. Knowledge revealed suggests somehow that there was logic to the madness, and intimates there is now something to be done. What is propounded is the notion that, had the newly acquired knowledge been known, then, matters would have been different. And, conversely, that now that the truth is known, the course of future events will be different. This hope is the essence of liberalism. Accordingly, processes that illuminate the possibility of future choice distinguish the liberal transition. In the transitional accounts lie the kernels of a liberal future foretold. The revealed truth brings on the switch from the tragic past to the promise of a hopeful future. A catastrophe is somehow turned around, an awful fate averted by the introduction of a magical switch. Transitional justice operates as such a device: legal processes introduce persons vested with transformative powers, judges, lawyers, commissioners, experts, witnesses with special access to

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Ruti Teitel

privileged knowledge. A reckoning with the past, through mechanisms of revelation, enables the perception of a liberalizing shift. Narratives of transition suggest that minimally what is at stake in liberalizing transformation is a change in interpretation. Political and truth regimes have a mutually constitutive role. Societies begin to change politically when citizens' understanding of the ambient events change. As Vaclav Havel has written, the change is from "living within a lie to living within the truth." So it is that much of the literature in these periods are stories of precisely this move, from "living within a lie," to the revelation of newly gained knowledge and self-understanding, affecting and reconstituting personal identity, and relationships. These tales of deceit and betrayal are often stories of longstanding affairs, allegories of the citizen/state relation. Changes in the political and legal regimes shape and structure the historical regime. New truth regimes go hand in hand with new political regimes, indeed, they support the change. The pursuit of historical justice is not simply responsive to or representative of political change, but itself helps to construct the political transformation, the change in political regimes. The transitional historical accounts construct a normative relation, as they connect up the society's past and its future; narratives of transition are stories of progress beginning with the backwardlooking reflection on the past, but always in light of the future. The constructive fiction is that, had the knowledge now acquired been known then, the national tragedy would have been avertable. New societies will be built on this claim about knowledge. It is this change in political knowledge that allows the move from past evil and suffering to national redemption. Transitional narratives follow a distinct structured form. Revelation of knowledge of truth occurs through switching mechanisms, critical junctures of individual and societal self-knowledge. There is a ritual disowning of previously secreted knowledge, a purging of the past, as well as an appropriation of a newly revealed truth, enabling corrective return to the society's true course. A new course is charted. The practices in such periods suggest that the new histories are hardly foundational, but explicitly transitional. To be sure, historical narrative is always present in the life of the state, but, in periods of political flux, the narrative's role is to construct perceptible transformation. Transitional histories are not "meta"-narratives, but discrete, "mini," narratives always situated within the state's preexisting national narrative. Transitional truthtellings are not new beginnings, but build upon preexisting state political legacies. Indeed, the relevant truths are those implicated in a particular state's past political legacies. These are not universal, essential, or metatruths, a marginal truth is all that is needed to draw a line on the prior regime. Critical responses negotiated between historical conflict in contested accounts. Trans-

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itional histories accordingly offer a displacement of one interpretive account or truth regime for another; as the political regimes change, preserving the state's narrative thread. Transitional law transcends the "merely" symbolic to be the leading rite of modern political passage. Law epitomizes the liberal rationalist response to mass suffering and catastrophe; expressing the notion that there is something to be done. Rather than resignation to historical repetition; in the liberal society, hope is put in the air. Ritual acts enable the passage between the two orders, of predecessor and successor regimes. In contemporary transitions, characterized by their peaceful character within the law, legal processes perform the critical undoings of the predicate justifications of the prior regime, through public procedures that produce constitutive collective knowledge transformative of political identities. The paradigmatic feature of transitional legal response is that it visibly advances the reconstruction of public knowledge, comprehending operative features that enable the separation from the past, as well as integration processes. The importance of establishing a shared collective truth regarding the past repressive legacies has become something of a trope in the discourse of transitions. Study of such periods suggests that the meaning of "truth" is not a universal one, but is fully politically contingent to the transition. Paradigmatic transitional legal processes rely on discrete changes in salient public knowledge for their operative transformative action. Legal processes construct changes in shared public justifications underlying political decisionmaking and behavior that simultaneously disavow aspects of the predecessor ideology and justify the ideological changes constituting liberalizing transformation. What is politically relevant to transformation is plainly constituted by the transitional context, and by the legacies of displacement and succession of predecessor truth regimes. Legal processes are ways of changing public reasoning in the political order, for these processes are predicated on authoritative representations of public knowledge. Transitional legal processes thus contribute to the interpretive changes that create the perception of political social transformation. At the same time, transitional legal processes also vividly demonstrate the contingency in what knowledge will advance the construction of the normative shift underpinning regime change. The normative force of transitional constructions in public knowledge depends on critical challenges to the policy predicates and rationalizations of predecessor rule and ideology. Accordingly, what the "truth" is in transition is discrete and yet of disproportionate significance. For example, simply identifying a victim's status as a "civilian" rather than as a "combatant" can topple a regime (at least on the normative level) by undermining a key ideological predicate of the repressive national security policies.

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These reinterpretations displace the predicates of the prior regime and offer newfound bases for the reinstatement of, and adherence to, the rule of law. Law offers a canonical language, symbols and rituals of contemporary political passage. Through trials and other public hearings, legal rituals and processes enable transitionally produced histories, social constructions of a democratic nature with a broad reach. Indeed, it is these rituals of collective historymaking that construct the transition, they divide political time into a "before" and an "after." Transitional responses perform the critical undoings that respond to the prior repression: the letting go of discrete facts justificatory of the predecessor regime, critical to political change. The practices of historical production associated with transition often publicly affirm only what is already implicitly known in the society, historical inquiry processes bring forward and enable a public letting go of the evil past. Whether through trials or other practices, transitional narratives highlight the role of knowledge, agency and choice. Though the received wisdom on historical responses to past wrongs is that these are popular in liberalizing states emphasizing structural causation, transitional histories are complex accounts, dense layered narratives that weave together and mediate individual and collective responsibility. By introducing the potential of individual choice, the accounts perform transitional history's liberalizing function. By revealing "truths" about the past, these accounts are narratives of progress, as they suggest the cause of events might have been different - had this knowledge been previously known - adverting to the potential of individual action. The message is of avertable tragedy. This expression of the hope for prospective individual choice and human action goes to the core of liberalism. So it is that historical accountings have become a feature of liberalizing transition, connected to change in the state's political identity, that transitional narratives advance construction of the contemporary political order. In the transitional narratives, the direction of the story is neither tragically preordained, nor simply a question of brute power. It comports neither to preexisting world order nor merely to realist politics. Instead, these structured narratives emphasize the possibility of bounded choice, of the reconciliation of the potential for individual agency within a politics situated within parameters of set political circumstances. The notion is that, despite past legacies of wrongdoing, there are redemptive possibilities definitional of the contemporary liberal state. Transitional historical narratives emphasize the possibility of societal selfunderstanding and averting tragic repetition associated with the liberal political order. The structure of transitional narrative is a progressive story of hope. Transitional responses point to a fragmentary but shared vision of justice that is, above all, corrective. What is paramount is the visible pursuit of return,

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of wholeness, of political unity. To the extent that transitional justice comprises a turn to the corrective, it offers an alternative successor identity that centers on political unity. Thus, transitional justice offers a way to reconstitute the collective - across potentially divisive racial, ethnic, and religious lines - that is grounded in a contingent political identity grounded in the society's particular legacies of fear and injustice. A juridical discourse based on evolving critical processes offers a normative vision and a pragmatic course of action. The risk is that the state's pursuit of a political identity, based on unity, may attenuate the possibility of lasting political change. Such static entrenchments of identity are ultimately illiberal. A liberal posture, by contrast, necessitates nurturing the transitional modality as a critical space between the practicable and the redemptive in the political imagination.

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2

HUNGARIAN CRIMINAL COURT CASES CONCERNING THE (RETRIBUTION OF THE) 1956 REVOLUTION Krisztina Morvai

1

BACKGROUND

Mass killings, disappearances, torture, and arbitrary imprisonment were part of the experience of "existing socialism" everywhere, though their extent and intensity varied according to time and place. In Hungary alone, 300,000 people were victims of arbitrary criminal procedures.1 The most brutal acts of violence by the communist government against civilians took place during the 1956 revolution, when several hundred people were killed or wounded by government-controlled armed forces2 who shot into masses of peaceful demonstrators in different towns of Hungary. The immediate execution of "suspicious persons," without any judicial proceedings, was not unusual during the 1956 events. After the democratic transition, attempts to achieve justice regarding the past were targeted at those who were responsible for the mass murders and had been awarded rather than prosecuted. In order to understand the issue of "retroactive justice," some information is necessary about the events of the 1956 revolution. Instead of trying to give a full account of what happened, let me quote the Report of the Special Corn-

See F. Kahler, Joghaldl Magyarorszdgon 1945-1989 [The Death of the Law in Hungary, 1945-89], Budapest: Zrinyi Kiado (1993) 143. According to the report of the Fact Finding Committee of the Ministry of Justice, Sortiizek -1956 [Firing Squads - 1956], Lakitelek: Antologia Kiado (1993): the military forces, which were controlled by the communist party, consisted of the army, the police, the Authority for the Protection of the State (AVH) and the members of the Partisan Association. The army and the police typically avoided shooting at people, but instead managed to disperse the masses by lawful means (e.g., shooting into the air as the ultimate warning). Most of the mass murderers belonged to the AVH.

A. Sajo (ed.), Out of and into Authoritarian Law, p. 15-29 ;) 2002 Kluwer Law International. Printed in The Netherlands.

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mittee of the United Nations on the Problem of Hungary.3 Regarding one of the more than sixty volley firings during two months, the Report describes the situation at the Parliament Building on 25 October 1956: There were many people at the Parliament Building waiting for Prime Minister Nagy to appear, probably 20,000-25,000, perhaps more, half of them women and children, some even with babies in their arms. Between 11 a.m. and 12, when the demonstrators arrived at the square with the Soviet tanks [meaning those Soviets who joined the demonstrators, understanding and accepting their aims, as is obvious from an earlier part of the Report4 - author's note], AVH police and possibly Soviet soldiers, stationed on the rooftops of the surrounding buildings, opened fire on the crowd with machine guns. Other Soviet tanks approached from the side streets, and according to the witnesses, fire was exchanged between them and the Soviet tanks that had arrived at the square with the demonstrators. Several witnesses described how it was impossible to come to the aid of the wounded for about an hour. Everybody who tried to do so was shot at. One witness saw a woman doctor and two nurses, who attempted to rescue the wounded, shot down before his eyes. Many of the casualties were women and children. Estimates of the number killed vary from 300 to 800. A member of the British Legation counted twelve truckloads of corpses being removed from the square later in the afternoon.5

In Hungary, there were no legislative attempts to prosecute people for being communists, for joining or leading the party; not even for being a secret police agent.6 Instead, attempts were made to prosecute criminals who committed acts that were crimes according to the law in force at the time. The communists were confident that the power of a gigantic alien army would maintain their dictatorship long enough to escape responsibility for good. Why were they not prosecuted earlier? The answer is simple. In communist dictatorships the party wielded full control over the law, policing, and prosecution. Therefore, punishing "comrades" for their sins was out of the question until the collapse of communism. Contrary to our earlier beliefs, party control

3 4

5 6

United Nations, General Assembly, Official Records, Eleventh Session, Supplement No. 18 (A/3592), "Report of the Special Committee on the Problems of Hungary" New York (1957). According to the UN Report: "The tank crews were in friendly conversation with people in the streets, who had asked them why the Soviet forces were firing on peaceful demonstrators. After about an hour's discussion, a Soviet tank crew said they felt that the demands of the demonstrators were justified and that they should all go to the Parliament Building together and demand that Gero and the other Stalinists be expelled from the Government." UN Report, 82. UN Report, 83. UN Report, 83.

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was not exercised in an entirely informal way, such as "telephone justice." The chief prosecutor issued written "top secret" orders that were binding on all law enforcement bodies. They were requested to get the approval of the Hungarian Social Workers' Party before the arrest or prosecution of communist officials on any grounds. These "laws" were in effect until the late 1980s.7 According to recent research in the archives, criminal procedures were in fact initiated by people who witnessed the massacre in 1956, but these reports to the authorities were not followed by arrests or prosecutions.8 By the time the democratic transition took place, the statute of limitations (twenty years) had elapsed for "simple" cases of homicide, as opposed to crimes against humanity or war crimes, which can and should be prosecuted regardless of the time elapsed.

2

LEGISLATIVE ATTEMPTS TO ACHIEVE JUSTICE

After the democratic transition, there were two major legislative attempts to prosecute communist crimes. One was based on domestic law and the other on international law. The first is usually referred to as the "Zetenyi Bill"9 after its drafter, Zsolt Zetenyi, (former) Member of Parliament. (He belonged to the Hungarian Democratic Forum, a conservative party with the largest number of seats in the first democratically elected Parliament in 1990-1994.) According to the Zetenyi Bill, on the day of the first democratic election "the statute of limitations shall start again for the criminal offenses committed between 21 December 1944 and 2 May 1990...provided that the state's failure to prosecute said offenses were due to political reasons." (The expression "political reasons" is an obvious reference to dictatorial party control over law enforcement.) The

UN Report, 83. See Kahler, 67. Bill Concerning the Prosecution of Serious Criminal Offenses Committed between 21 December 1944 and 2 May 1990 that Had Not Been Prosecuted for Political Reasons. Adopted by the Parliament on 4 November 1991. The bill consists of the following two paragraphs: Section 7(1): On 2 May 1990 the period of the statute of limitations shall start again for the prosecution of criminal offenses committed between 21 December 1944 and 2 May 1990 that constitute criminal offenses under the law in effect at the commission of said offenses and are defined in Act IV of 1978 as treason [Sec 144(2)], murder [Sec 166(1)] and bodily harm resulting in death [Sec 170(5)], provided that the state's failure to prosecute for said offenses was based on political reasons. (2): The punishment prescribed under Section (1) can be mitigated without restriction. Section 2: This law shall become effective on the day of its promulgation.

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statute covered three categories of crime: treason, bodily harm resulting in death, and murder. The bill was enacted but never promulgated. The president of the republic exercised his right to send the law to the Constitutional Court for "preliminary review."10 The Court declared the bill unconstitutional on several grounds.11 At the center of the decision was the principle of the "rule of law" (or "Rechtsstaat" depending on the translation). The expression "rule of law" appears forty-seven times in the fifteen-page reasoning. With its usual activist attitude, the Court attributed a far-reaching normative meaning to the general clause of the Hungarian Constitution: "The Hungarian Republic is an independent, democratic state under the rule of law." The decision emphasized that "a state under the rule of law cannot be created by undermining the rule of law.... The certainty of the law based on formal and objective principles is more important than necessarily partial and subjective justice" [author's emphasis]. The reasoning indicates that treating the mere passing of time as the passing of the statute of limitations is the objective way of interpreting the black letters of the law, while any other interpretation is necessarily subjective. There was a short paragraph in the decision that pointed out that the machinery of justice was blocked during communism.12 The Court argued that it is for the judiciary (meaning the ordinary courts in actual cases) to draw conclusions from this fact regarding the elapse of the statute of limitations. Although criminal procedures were initiated, the prosecution refused to charge anybody, arguing that the statute of limitations had elapsed. (They applied "the objective" interpretation.) Therefore, at that stage, "retroactive justice" cases could not yet make their way to the ordinary courts. It is important to note that in Hungary the prosecution is "independent," which means that it is not supposed to carry out the political will of the executive (i.e., the Government).

10

According to Act No. 32 of 1989 On the Constitutional Court: "On a motion by the President of the Republic, the Constitutional Court shall investigate any doubtful provision of an act of Parliament enacted but not yet promulgated." (Art. 35) 11 11/1992 (III.5.) AB decision. 12 11/1992 (III.5.) AB decision states: "Subsequent to 21 December 1944, there were legal regulations, by the Chief Prosecutor and the Minister of Interior Affairs, which enforced the resolutions of the Party's central organs, such as 006/1955,001/1961, 002/1966, and 001/1985 directives by the Chief Prosecutor and the 008/1966 and 22/1985 directives by the Minister of Interior Affairs, according to which criminal procedures could only be initiated with the approval of the relevant party organs in cases of certain changing groups of people and criminal offenses. These legal regulations were fashioned after the right of immunity of members of Parliament. It is for the judiciary to decide in each proceeding what effect the resolutions based on these directives may have had on the statute of limitations. But the act under review has no influence on this matter."

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After the shock caused by the failure of the first attempt, the groups favoring "retroactive justice" began to consider new options for achieving their original aim of prosecuting communist offenders. They changed their strategy and used international law (as opposed to domestic law) as the means for achieving justice. In order to avoid vagueness, the draft law also made it clear that it was targeted specifically at crimes committed during the 1956 revolution. The bill13 was based on multi-national treaties: the Geneva Conventions Relative to the Treatment of Civilians in the Time of War and Relative to the Treatment of Prisoners of War of 194914 and the New York Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity of 1968.15 The documents are humanitarian laws initiated by the International Red Cross (Geneva Conventions) and the United Nations General Assembly (New York Convention). Although their titles do not indicate this clearly, the Geneva Conventions are meant to be applied in any case of armed conflict and not just in declared wars between states. According to the common articles of the Conventions: "violence to life and person" and several other forms of wrongdoing are also prohibited "in the case of armed conflict not of an international character."16 The Geneva documents do not include any provisions concerning limitations on the prosecution of these offenses. Nevertheless, several states made laws concerning this point and retroactively declared the absence of limitations on what have been called "Nuremberg crimes." The New York Convention regulates the issue of limitation, declaring that "no statutory limitation shall apply to [several categories of war crimes and crimes against humanity] irrespective of the date of their commission." This Convention was only ratified by communist and third world countries. The reluctance of other governments to accept it was probably caused by the lack of consensus over the actual scope of the vaguely described international crimes. The ratifying states, on the other hand, were obviously identifying crimes against humanity with the oppression of people by "imperialist" states, and considered the document a political statement reaffirming their ideological

13 14 15 16

The Act No. 90 of 1993 on the Procedures Concerning Certain Crimes Committed during the 1956 Revolution, enacted by Parliament on 16 February 1993. The Geneva Conventions of 12 August 1949 (Geneva: International Committee of the Red Cross, 1960). In Resolutions Adopted by the General Assembly During its Twenty-Third Session, UN General Assembly, Official Records, Supplement No. 18. Art. 3 of the Geneva Conventions (referring to prohibited acts with respect to "persons taking no active part in the hostilities").

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commitments. In 1968 they could hardly imagine that this step would ever backfire on them. The new Hungarian law combined the provisions of the Geneva Conventions, the New York Convention, and Hungarian domestic law and thereby interpreted the most brutal episodes of the 1956 Revolution as war crimes and/ or crimes against humanity. In its decision on the constitutionality of the bill17 the Constitutional Court interpreted Art. 7 (1) of the Constitution which provides that the "legal system of Hungary shall respect the universally accepted rules of international law, and shall ensure furthermore the accord between the obligations assumed under international and domestic law." The decision of the Constitutional Court emphasized that the not-yet-promulgated bill in fact ensured the enforcement of "universally accepted rules of international law," part of which are the humanitarian principles expressed in the Geneva Conventions. Although those "universally accepted rules" do not include the absence of a statute of limitations covering war crimes and crimes against humanity, Hungary undertook the obligation to prosecute those crimes retroactively by ratifying the New York convention.18

3

"RETROACTIVE JUSTICE" CASES BEFORE THE HUNGARIAN TRIAL COURTS

It is a sign of serious shortcomings in the Hungarian system of the administration of criminal justice that there is no way to find out exactly how many criminal proceedings have taken place so far in "1956 cases." In preparation for this paper I tracked down four cases in which final decisions have been made. What follows is a brief summary of these four cases and an introduction to the decision in the first case. The main dilemmas and questions raised in these proceedings will be analyzed in the last section.

17 18

53/1993 (X. 13.) AB decision. In its decision 53/1993 (X. 13.) AB the Constitutional Court found that the bill was partially unconstitutional. The Court established the requirements of constitutional application of the rest of the bill which was promulgated. In decision 36/1996 (IX. 4.) AB, the Court found that the act transpose in force violated the conditions of constitutional application, thus, it was unconstitutional.

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3.1

21

The "Salgotarjan" case

On 8 December 1956 about 4,000 people (including many women and children) were peacefully demonstrating in front of the police headquarters of the town of Salgotarjan. They demanded the release of those revolutionaries who were recently imprisoned and the withdrawal of the Soviet troops, and they stressed that they did not acknowledge the legitimacy of the Kadar government. They were singing the Hungarian national anthem and somebody was waving a huge Hungarian flag. The demonstrators were shouting insults towards the members (volunteers) of the riot police (karhatalom), calling them betrayers of the nation. After a while the local head of the Soviet "peacekeeping" (occupying) armed forces ordered his men to fire. The Soviet soldiers, as well as the members of the communist riot police, were shooting into the masses. Forty-seven people died, including twelve women (one of whom was visibly pregnant), two children, and thirty-three men. The youngest victim was ten years old. Eighty-nine people were wounded; many of them were disabled for the rest of their lives. The youngest wounded person was eight years old. I will analyze this case in the next section.

3.2

The "Tiszakecske" case

Two army officers were prosecuted for the volley firing that took place on 27 October 1956. Seventeen people died and one hundred two were wounded when masses of peaceful demonstrators were shot at from above, from a military airplane. The two army-officer defendants were acquitted, because of the (alleged) non-applicability of the Geneva Conventions.

3.3

The "Tata" case

Four unarmed civilians were executed without any criminal proceedings in the town of Tata. The acquittal of the defendant - an army officer who was charged with ordering the executions - was based on the lack of evidence as well as on the non-applicability of the Geneva Conventions.

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The "Kecskemet" case

Two armed revolutionaries were captured and executed on the spot. The two army-officer defendants were convicted for crimes against humanity by the first instance court and then acquitted by the Supreme Court because of the non-applicability of the Geneva Conventions.

4

THE "SALGOTARJAN" DECISION WITH REFERENCES TO THE OTHER THREE DECISIONS

4.1

Some Facts and Figures About the Proceedings

The first decision in the chronology of the "1956 cases" was decided in the first instance on 31 January 1995 by the Metropolitan Court of Budapest (Fovarosi Birosag). This was the only one of the four cases that was examined by a civil (non-military) court. The Court held eighteen sessions before the judgment was given. The panel of two laypersons and one professional judge was led by Judge Janos Strausz, who has since become a Justice of the Hungarian Constitutional Court.19 Twelve defendants were prosecuted; two were convicted. So far this is the only case in which somebody was convicted and the conviction was upheld in the second instance.

4.2

The Structure of the Reasoning of the Decision

It is worth looking at the trial court's way of establishing the facts of the case. The following issues were considered to be relevant: The personal circumstances of the defendants The antecedents and historical background of the Salgotarjan events The characteristics of the riot police of the Kadar Government The political situation in Nograd county (the region of Salgotarjan) in November-December 1956 The activity of the communist riot police of Salgotarjan

19

Even though I promised a strictly factual introduction of the cases, I should note that the 99-page decision is a clear reflection of intellectual brilliance, accuracy, humanity, and outstanding analytical abilities.

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immediate antecedents of the demonstration on 8 December demonstration and the volley firing consequences of the volley firing: the victims events and developments after the volley firing

The establishment of the facts was followed by the evaluation of the available evidence, the legal reasoning, and considerations regarding sentencing. The legal reasoning of the judgment consists of the following elements: The antecedents of the prosecution: the trial court summarized the history of legislative attempts and the decisions of the Constitutional Court regarding criminal responsibility for the 1956 events. The charges: the prosecution charged the twelve defendants with crimes against humanity on the basis of Act 90 of 1993 and of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Art. 3.1). Dropping of some of the charges: the prosecutor had dropped the charges against three of the defendants due to lack of evidence. Acquittals: due to lack of evidence, the trial court acquitted seven defendants. Sources of law: the trial court pointed out that "several of the relevant laws are of declarative or interpretative character themselves, and the Constitutional Court had interpreted them further. Nevertheless, there are still several questions that are yet open, and therefore nothing prevents the trial court from interpreting the applicable law(s). It is necessary also because this is the first case in the history of Hungarian criminal adjudication in which the responsibility of the defendants must be examined on the basis of international law as opposed to domestic law."20 The nature of the violations of law and their legal definition. The principle of nullum crimen sine lege. Limitation. The circle of the perpetrators. The circle of victims. The actus reus (conduct). Effect in time. The existence of war or peace. The occupation. The mens rea (subjective guilt) of the perpetrators.

20

Decision of the Metropolitan Court of Budapest, F16.B.768/1994/88, "Salgotarjan" case, 73.

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The legal or illegal character of the incriminated acts. The possible existence of the order of a superior, duress, or threat as reason for non-punishability. On the basis of the detailed analysis of the above points the trial court concluded: All the three preconditions for applying the (Geneva) Convention - war, internal conflict, occupation - took place. It follows that crimes committed in this situation against protected persons qualify as crimes against humanity, as opposed to ordinary

The two defendants who were found guilty were convicted of crimes against humanity and were sentenced to five years of imprisonment. On appeal the Supreme Court of Hungary upheld one of the two convictions, acquitted one of the defendants, and convicted two additional defendants (who were acquitted by the first instance court). However, the Supreme Court changed the qualification of the crime (the basis for conviction) from a crime against humanity to a war crime. The Supreme Court pointed out that even though after the first instance decision the Constitutional Court declared Act 90 of 1993 unconstitutional, this has not fundamentally changed the relevant legal situation. The Act was a compilation, a legislative interpretation of international law that basically transformed certain rules of international law to domestic law - but did so in ways that violated international law as well as the Hungarian Constitution. The international norms (namely the Geneva Conventions) can obviously still be applied, but their interpretation is now the duty of the judiciary instead of the legislature. The Supreme Court argued that after the general attack of the Soviet army on 4 November 1956 - even though by 15 November the actual armed attacks were over - Hungary was occupied by the Soviet Union and therefore, according to Arts. 2, 4, 6, and 147 of the Geneva Convention Relative to the Protection of Civilian Persons in the Time of War, the Salgotarjan volley firing shall be qualified as a war crime (as opposed to a crime against humanity). The interpretation of the Geneva Conventions, in fact, became the central and decisive element of the further decisions in the 1956 cases.

21 Decision of the Metropolitan Court of Budapest, "Salgotarjan" case, 92.

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The main reason for the acquittal of all the defendants in the other three cases was the following. According to the argument of the trial courts, before 4 November 1956 (the general attack of the Soviet troops) there was neither war, nor occupation in Hungary. Even though the situation could be qualified as an "armed conflict not of an international character," it did not satisfy the preconditions for the application of Art. 3 of the Convention. According to the argument, Art. 3 must be interpreted and applied in light of Protocol 2 of the Geneva Conventions. The main consequence of this argumentation is that any events (even volley-firings) which took place before 4 November are outside the scope of the Geneva Conventions and therefore cannot be considered "international crimes" (crimes against humanity), "only" ordinary crimes, on the basis of domestic law. Given that homicide is a crime with a statute of limitations of twenty years, even if the cases are factually proven the defendants are acquitted. This is what happened in the other three cases. In all three cases the Court argued that the situation in Hungary before 4 November 1956 could not be qualified as "armed conflict of a non-international character" under Art. 3 and Protocol 2 of the Geneva Conventions. According to the interpretations of the Court, the application of the "Geneva Law" - in light of Protocol 2 - is impossible in the case of the Hungarian situation in October 1956, because prior to 4 November there was neither war nor occupation, and the armed groups allegedly did not fulfill the qualifications required by Protocol 2, such as responsible command, control over a certain territory, etc.

5

SOME ELEMENTS OF THE "RETROACTIVE JUSTICE DEBATE" IN LIGHT OF THE COURT DECISIONS

It is interesting to see the answers, in the actual proceedings, to some of the questions, dilemmas, and arguments that were raised during the passionate debate in Hungarian society about "retroactive justice." At this point I should note that, as opposed to prior experience, when human rights advocates (or people who considered themselves liberal, progressive, or enlightened) insisted on criminal proceedings by newly democratic states against brutal officials of the previous regime, after the collapse of communism, such an attitude was

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labeled "conservative" (non-liberal, non-progressive, non-enlightened) in Hungary.22 Some points raised during the theoretical/political/philosophical debates before the beginning of the criminal proceedings and some of the answers in the court decisions may be summarized with the following terms:

5.1

"How can we establish the facts of the cases? There is no consensus on what exactly happened from 23 October 1956 until 1957."

The first instance court (Metropolitan Court of Budapest) in the Salgotarjan case argued that the events of 1956 are very well known. According to the reasoning regarding the evidence, there was no need to use any expert witnesses. In the other three cases, however, historians, military historians, and even professors of international law were used as expert witnesses. According to the Court in the Salgotarjan case: The general political history of the 1956 Hungarian Revolution and war of independence, the fact of the Soviet intervention, the history of the events of the suppression of the revolution and of the retribution that followed were well known at the time in Hungary as well as around the world. Following three decades of silence, from about 1988 these can be considered well known today as well.... These events took place before the public...and not secretly. It follows that nobody can in good faith argue that the facts are unknown and should be investigated. At most, the background and the motivations could be hidden - not the events themselves, which are integral parts of the history of our age. This means that it is wrong to engage historical expert witnesses to examine these events....It follows that the usual judicial procedure for establishing the truth...is unnecessary here. According to Section 59 (2) of the Code of Criminal Procedure, generally known facts do not need to be proven. The Court...considered these historical events to be generally known.

The Supreme Court, upon appeal, upheld this part of the reasoning: Taking into consideration the above-mentioned party and government documents, it is proven to be a fact that the suppression of the December demonstrations with

22

See, e.g., N. Roht-Arriaza, "State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law," Calif. L. Rev. 78 (March 1990) 451; D. F. Orentlicher, "Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime," Yale L. J. 100 (1990/1991) 2537.

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arms, the deployment of the Soviet troops jointly with the riot police was decided earlier...on the government level.... [On the basis of the available evidence] the Court made the factual conclusion that by the first days of December the Kadar state and party leadership was ready to take action with arms, on occasion, against the civil population, in particular against laborers....On the day of the Salgotarjan volley firing a committee of revolutionaries from Nograd county (the Salgotarjan region) went to Budapest in order to talk to Janos Kadar. Minister of State Gyorgy Marosan received them. He called them to account for the strikes, turned on them with anger, called them ugly names ("dirty, stupid counterrevolutionaries") and declared that there would not be any negotiations. "From today we are going to shoot," he said, and turned the delegation out of doors.23

5.2

"Nobody will remember after all these years what happened. The memory of the witnesses has surely faded by now." Thirty-seven years passed until the investigation, thirty-eight until the trial. The passing of time usually overshadows memory. The general experience in cases concerning historical events is, as it happened in this case as well, that those who survived the events, or were their leaders, participants, or suffering subjects, can remember surprisingly well, even after decades. These kinds of events can make such a strong effect on, or can even determine the further life of these people that their testimonies are obviously...realistic, vivid, and graphic.24

5.3

"Criminal proceedings in these cases are basically about revenge." The demonstrators/victims did not make any incriminating statements against those defendants who themselves were pleading not guilty through the whole proced-

One of the victims (survivors) who was severely injured said during the procedure: "I do not want KJ. [the defendant] to be punished; the only thing I want is for someone to finally apologize to the orphans."26

23 Decision of the 24 Decision of the 25 Decision of the 26 Decision of the

Metropolitan Court of Budapest, "Salg6tarjan" case. Metropolitan Court of Budapest, "Salg6tarjan" case. Metropolitan Court of Budapest, "Salgotarjan" case. Supreme Court Bf. V. 1344/1998/3, "Tata" case.

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"Punishment, in these cases, cannot serve any useful and justifiable aim whatsoever." The punishment imposed in this case should make clear the principle that the criminal responsibility of those who perpetrated serious crimes, committing grave violations of the military rules and the humanitarian rules of international law, cannot fade away, no matter how much time passes until the person is held responsible before the law....It is true that, on the one hand, the objective weight of the crime committed by the defendants is extraordinary. On the other hand, however, it should be taken into account that four decades have passed since the events, the defendants today are old, physically and mentally tired, people with broken health.27

5.5

"Only those people will be prosecuted who had very limited responsibility for the events. The real sinners will remain unpunished. Those who shot into the masses were only following orders."

Indeed, no politicians, or high-ranking party or government officials have been prosecuted so far. Proceedings were carried out against two main groups of defendants: volunteers of the communist riot police and "medium-ranking" (professional) military officers who either shot or ordered others to shoot. ...the riot police consisted of volunteers only: they were factory workers, former officers, former AVH members, party functionaries. The main thing was their political commitment and reliability ...28 R. Sandor refused to carry out the order and he even left the scene. It follows that the defendants also could have had the possibility not to carry out the criminal order.29 ...probably those [politicians, high-ranking government and party officials] who had the real responsibility for the sins will never be prosecuted...the principle of equality before the law was also violated when investigation was not initiated in cases of leading personalities, against whom there would be at least as much, or more, evidence available.... Nobody has ever initiated the prosecution of those political and military leaders who are still alive and who are undoubtedly respons-

27 Decision of the Supreme Court, "Salgotarjan" case. 28 Decision of the Metropolitan Court of Budapest, "Salgotarjan" case. 29 Decision of the Supreme Court Bf V. 1. 760/1998/3, "Tiszakecske" case.

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ible for the bloodshed and the retribution in 1956.... Instead, simple average people were prosecuted, even though there was not reliable evidence against them.30 In November and December 1956 the defendants, undoubtedly voluntarily, undertook roles that served the politics [of the time]. However they were not able (not in the position to) actually form and influence the events.31 Let me conclude with yet another quote from the decision in the Salgotarjan case, which, I believe, is an excellent summary of the moral as well as the legal dilemma of the "retroactive justice" debate in post-transition Hungary: ...irrespective of rules of international law and domestic statutes, it is obvious that shooting to death peaceful civilians, demonstrators, women and children, without discrimination, is known and comprehensible by all to be a serious crime that should not be committed....

30 31

Decision of the Metropolitan Court of Budapest, "Salgotarjan" case. Decision of the Supreme Court, "Salgbtarjan" case.

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3

TRUTH AND RECONCILIATION COMMISSION IN SOUTH AFRICA: THE THIRD WAY

Alex Boraine

1

INTRODUCTION

In order to understand the nature and implications of the Truth and Reconciliation Commission in South Africa it is important to see the Commission both in the national and international context. South Africa has experienced racism and oppression of one form or another ever since the earliest days of colonialism. There are those who argue that the period under review for the Commission in South Africa should have started as far back as the first arrival of white settlers in 1652! Others are of the view that at the very least one should look at the period that began with South Africa's first Constitution in 1910. There are also many who maintain that the starting point should be 1948 when the National Party came into power. After careful consideration the Standing Committee on Justice in South Africa's Parliament decided to recommend that the period to be covered be March 1960 to December 1993. The first date coincides with the banning of political organizations, severe oppression of any resistance to apartheid, and the Sharpeville massacre. The end date was arbitrarily chosen as the date when the negotiation teams decided on an amnesty provision in the Interim Constitution (this date was later changed to 10 May 1994, largely to include a number of rightwing Afrikaners who engaged in violent acts immediately prior to the election in April 1994.) In 1910 when the first South African Constitution was promulgated, it characterized white hegemony and was fundamentally undemocratic, excluding as it did the vast majority of the population. It was also structurally racist, because the exclusion of the majority was in terms of skin color. However,

A. Sajo (ed.), Out of and into Authoritarian Law, p. 31-52 © 2002 Kluwer Law International. Printed in The Netherlands.

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this undemocratic and racist Constitution was further entrenched when the National Party came into power in 1948. Under the National Party, through its policy of apartheid, a policy of domination was enforced that was not only a denial of basic political rights, but a systematic piece of social engineering that embraced every area of life from birth to death. Thus the system of apartheid determined state policies relating to the franchise as well as to land, housing, residence, schools and universities, transport, health services, sports, hotels, restaurants, and even cemeteries. In other words, apartheid was a system of minority domination of statutorily defined color groups on a territorial, residential, political, social, and economic basis. It was a system that was entrenched for almost fifty years. Although the cards seemed to be stacked against South Africa achieving a relatively peaceful and relatively democratic election, the transition from oppression, exclusivity, and resistance to a new negotiated, democratic order was realized in 1994. The chains that bound the majority of her people in what appeared to be perpetual servitude were shattered. Many people, both within South Africa and beyond its borders, have described this transition as nothing short of a miracle. However, because of the social and economic legacy there remains unfinished business that has to be tackled; otherwise it will be impossible to sustain the miracle, consolidate democracy, and ensure a peaceful future for all South Africans. Therefore any serious attempt at dealing with the legacy of the past will include at least a strong commitment to transformation in the economic and social life of the majority of South Africa's citizens. There is also a compelling need to restore the moral order that was put in jeopardy by the abdication of the rule of law and gross violations of fundamental human rights - thus the birth of the Truth and Reconciliation Commission. But if delivery of housing, health services, a transformation of the education system, and an upgrading of social services is delayed, it will make the work of the TRC that much more difficult. Economic justice and the restoration of the moral order should be seen as two sides of a single coin. While the focus of the Commission will be on truth-seeking in the search for reconciliation and unity, serious delays in delivering social services will bring into disrepute any talk of reconciliation. One of the ways in which to start the healing process in South Africa is an honest assessment and diagnosis of the sickness within that society in an attempt to give people, both perpetrators and victims, an opportunity to face the past and its consequences and to start afresh. The Truth and Reconciliation

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Commission is an opportunity to make a serious contribution in order to deal finally with the past without dwelling in it and to help create the conditions for a truly new South Africa. While it is true that South Africa's Commission has been shaped very much by its own history and the circumstances and nature of its particular and peculiar transition, there are many similarities to the experience in Eastern Europe and South America which impinge on the Commission in South Africa. Briefly these are: A shift from totalitarianism to a form of democracy A negotiated settlement - not a revolutionary process A legacy of oppression and serious violations of human rights A fragile democracy and a precarious unity A commitment to the attainment of a culture of human rights and a respect for the rule of law A determination to make it impossible for the gross violations of human rights of the past to happen again South Africa, in company with many other countries, has had to face up to three critical questions: First, how do emerging democracies deal with past violations of human rights?

Second, how do new democratic governments deal with leaders and individuals who were responsible for disappearances, death squads, psychological and physical torture, and other violations of human rights? Third, how does a new democracy deal with the fact that some of the perpetrators remain part of the new government and/or security forces or hold important positions in public life? Priscilla B. Hayner reminds us that there have been some nineteen truth commissions in sixteen countries over the last twenty years, including those now in formation.1 In the work leading up to the appointment of the Truth and Reconciliation Commission, we were greatly influenced and assisted in studying many of these commissions, particularly those in Chile and Argentina. There were several choices open to South Africa as it sought to come to terms with its past. First, a blanket or general amnesty was proposed. This was strongly motivated by the former government, led by F.W. de Klerk, as well as the security forces, including the military and the police. This option, how-

1

P. B. Hayner, "International Guidelines for the Creation and Operation of Truth Commissions: A Preliminary Proposal," 59-AUT Law and Contemp. Probs. (Fall, 1996) 173.

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ever, was untenable for the African National Congress, representing the majority of people who suffered gross human rights violations in the past. The second option was that of calling to account those who were directly responsible for the gross human rights violations that took place and to put them on trial and prosecute them so that justice could be seen to be done. This approach, akin to the Nuremberg Trials, was strongly supported, for a very long time, by the liberation movements while they were still in exile. As Thabo Mbeki, Deputy President of South Africa, put it: "Within the ANC the cry was to "catch the bastards and hang them" but we realized that you could not simultaneously prepare for a peaceful transition. If we had not taken this route I don't know where the country would be today. Had there been a threat of Nuremberg-style trials over members of the apartheid security establishment we would never have undergone the peaceful change."2

A third option was the one that gained majority support. This was to appoint a special commission that was at first referred to as a "truth commission" and was later introduced formally as a "truth and reconciliation commission." This commission would offer the possibility of truth relating to victims and perpetrators, the restoration of dignity for victims and survivors, a limited amnesty, and a search for healing and reconciliation. Judge Richard Goldstone put it this way: The decision to opt for a Truth and Reconciliation Commission was an important compromise. If the ANC had insisted on Nuremberg-style trials for the leaders of the former apartheid government, there would have been no peaceful transition to democracy, and if the former government had insisted on blanket amnesty then, similarly, the negotiations would have broken down. A bloody revolution sooner rather than later would have been inevitable. The Truth and Reconciliation Commission is therefore a bridge from the old to the new.

While there can be little doubt that Mbeki's commitment to "a peaceful transition" was a valid reason for not following the Nuremberg option, there can be no doubt that the strength of the rightwing and state military and security forces was a major factor that informed choices at the negotiating table. In a private interview with President Mandela, he made it absolutely clear that senior generals of the security forces had personally warned him of dire consequences if members of the security forces had to face compulsory trials and prosecutions

2

Interview in the Cape Times, 24 February 1997.

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following the election. According to Mandela, they threatened to make a peaceful election totally impossible. Some compromise had to be made and in the Postamble of the Interim Constitution provision was made for the granting of amnesty to advance reconciliation and reconstruction and for its legislative implementation. The point has already been made that South Africa learned a great deal from other countries who had undergone transitions towards democracy, but there are some unique features of the South African model in terms of its Truth and Reconciliation Commission and I now turn to some of the more important of these features.

2

UNIQUE FEATURES OF THE SOUTH AFRICAN MODEL

2.1 The process by which South Africa arrived at its Commission is quite different from any other that I know of. It was essentially democratic and gave as many people as possible an opportunity to participate in the formation of the Commission. The idea of a truth commission came first from the African National Congress (ANC) prior to the election in 1994. Ironically, that is, seen against the background of widespread human rights violations committed by the South African state over many decades, the ANC was accused of perpetrating human rights violations in some of its camps while in exile. The response of the ANC was to appoint an internal commission of inquiry. A report was published but there was considerable criticism that it lacked impartiality. A second independent commission was appointed. Its findings were made known to the national executive of the ANC and their decision was that there were grounds for criticism, but that these should be seen against the overall human rights violations that gripped South Africa over a very long period, and the way to resolve this was to appoint a truth commission. A very important contribution was made by Kader Asmal when he held the Chair of Human Rights at the University of the Western Cape and delivered his inaugural lecture entitled "Victims, Survivors and Citizens - Human Rights, Reparations, and Reconciliation." Many who either heard or read the lecture lent their voices in support of South Africa having its own commission. Two major conferences were held under the auspices of Justice in Transition, a non-governmental organization. The first was simply entitled "Dealing with the Past" and was held in February 1994 in Cape Town. A number of leading scholars and human rights practitioners from Eastern Europe, Central

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Europe, and South America were invited to share their experiences with a group of South Africans.3 A second conference was held in July of the same year, also in Cape Town, entitled "Truth and Reconciliation." The majority of participants were from South Africa, but there were key participants from Chile and Argentina as well. The Minister of Justice, who had been appointed soon after the election, was the keynote speaker and he outlined the idea of a commission, notice of which he had already announced in Parliament. A second book was published by Justice in Transition.4 A number of workshops and conferences were held throughout South Africa looking at the concept of a truth and reconciliation commission and considerable input was gained from these deliberations, which contributed significantly to the final model. In fact, this input from participants from civil society was placed before the Parliamentary Standing Committee on Justice, which was charged with the finalization of the Parliamentary Bill. Public hearings were held and this was followed by the debate in Parliament itself where the Promotion of National Unity and Reconciliation Bill was finally passed by an overwhelming majority. One further contribution to the democratic process was President Mandela's decision to appoint a small, representative committee consisting of individuals from major political parties and civil society who together accepted responsibility for the selection process leading to the appointment of members of the Commission. People from all walks of life were encouraged to nominate potential appointees and almost three hundred names were received by the selection committee. After a lengthy process, which involved public hearings, the committee sent twenty-five names to President Mandela and he, in consultation with his Cabinet, appointed seventeen Commissioners who now form the heart of the Truth and Reconciliation Commission. It will be seen, therefore, that from the very outset the process leading to the actual promulgation of the Act as well as the appointment of the Commissioners has been as open, as transparent, and as democratic as possible. This is in marked contrast to most other truth commissions. I think this will contribute in no small measure to any success that the Commission may achieve.

3

4

A book was published under the title of the conference, Dealing with the Past: Truth & Reconciliation in South Africa, in A. Boraine, J. Levy, & R. Scheffer, (eds.), Cape Town: ID ASA (1994). It was distributed widely throughout South Africa and the debate was joined. The Healing of a Nation? in A. Boraine and J. Levy (eds.), Cape Town: Justice in Transition (1995).

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2.2 I have already referred to the Act of Parliament that brought the Truth and Reconciliation Commission into being. This, too, is very different from any other commission that I know of. In most instances, the commission is appointed by the President or Prime Minister of the country concerned and they have to work out their own procedures, objectives, methodologies, etc. The benefit of a commission being based in an Act of Parliament is that a democratically elected group of people participated in the debate and finalized the content of the Commission. Objectives were clearly set out, restraints were laid down, and the Commissioners have to abide by the Act. In the Act provision is made for seventeen Commissioners who serve fulltime. The Commission has to complete its work in two years (an additional three months is allowed in order for the Final Report to be completed). The Act also provides for three separate committees: The Human Rights Violations Committee, which conducts public hearings for victims/survivors. A prescribed form was made available for all applicants to complete. While many victims and survivors appeared in public before the Commission, thousands more completed the application form itself and it is estimated that approximately 22,000 applications will have been received before the life of the Commission ends. The first public hearing for victims/survivors took place in East London in April 1996. The Reparation and Rehabilitation Committee, which is charged with developing a policy for long-term reparation as well as urgent interim relief for ratification by the President and Parliament. It was decided very early on not to finalize any such policy until the Human Rights Violations Committee hearings were complete so that the policy could be informed by the victims/survivors themselves. The Amnesty Committee, which hears applications for amnesty. Because the amnesty hearings are taking far longer than anticipated, the life of the Commission has been extended for a further four months. This required an amendment to the Act that had to be passed by a majority in Parliament. There were initially five persons appointed to the Committee; three were judges of the Supreme Court. This Committee has since been trebled in size to cope with the volume of work. In addition to the seventeen Commissioners, fifteen permanent Committee Members are provided for, plus a professional and administrative staff and an Investigative Unit. Provision is also made for a Witness Protection Program. The total staff complement is in the region of three hundred. In order to cover as much of South Africa as possible, four offices have been set up. The first,

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which is also the head office, is in the Western Cape, the second in Gauteng, the third in KwaZulu/Natal and the fourth in the Eastern Cape. However, hearings have not been confined to the major centers. Commissioners have traveled the length and breadth of the country in order to accommodate victims from the remotest, most rural parts to the urban townships and city centers. A critical decision was made during the Standing Committee hearings as to whether the Commission's hearings, both human rights violations and amnesty, should be in public or in camera. Despite the risk and the additional complications, it was decided that hearings should be open to the media and to the general public. This has placed a heavy burden on the Commissioners who travel throughout South Africa conducting hearings, because they do not have the benefit of working quietly and in private, but are constantly under the scrutiny of the media and the public. On the other hand, there is the enormous advantage of the nation participating in the hearings and the work of the Commission from the very beginning through radio, television, and the print media and the right of anyone to attend any of the hearings. This enables transparency and also a strong educative opportunity so that truth-telling, healing, and reconciliation are not confined to a small group but are available to the entire nation. A further difference from most commissions is the kind of powers that are vested in the Commission. The Commission has powers of subpoena and of search and seizure. This enables the Commission to invite alleged perpetrators or those who may have critical information to come to the Commission and share that information with the Commission. If that invitation is spurned it can proceed to subpoena those concerned. It also means that the Commission can secure files and documents that have been secreted away by the previous government and its agents. This has resulted in agreements made by political parties and military and security institutions to make public submissions to the Commission. The South African model has also widened the mandate to include public hearings of major institutions such as political parties, the legal system, the business, labor and health sectors, the faith communities, and the armed forces. There is also a major difference in the approach of South Africa's Commission to the granting of amnesty. This is of such importance that it deserves a separate section.

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AMNESTY PROVISION

The provision of amnesty to perpetrators of gross human rights violations has been and is a source of heated debate and controversy. South Africa has not escaped this debate. Many prominent jurists and human rights activists are totally opposed to any form of amnesty and this arises primarily from the many cases of general or blanket amnesty that have been granted in countries that moved from a dictatorship towards a democratic society. The following quotes exquisitely sum up the contradiction inherent in "blanket amnesty:" "How can I ever have peace when every day I risk meeting my unpunished torturer in the neighborhood?" (tortured ex-political prisoner, Argentina) "How is reconciliation possible when lies and denials are institutionalized by the responsible authorities?" (human rights activist, Chile) "No government can forgive. No commission can forgive. They don't know my pain - only I can forgive and I must know before I can forgive." (widow testifying to a TRC amnesty hearing in South Africa in 1997).

A serious question that faced all involved in the process leading up to the TRC was, how do we limit crass impunity? There is, of course, considerable merit in securing justice through prosecution and that does strike a blow at impunity. Further, such a process helps to give back to victims, in some measure, their personal and social dignity and to an extent can expose the truth. But this process has certain limitations, and full justice is not always possible in a society in transition. It is my own view that when considering historic human rights violations committed during a period of oppression and conflict, the historical, political, and social circumstances, as well as the nature of the particular transition, must be borne in mind. In the case of South Africa, the resolution of conflict was through negotiation, not through victory on the field of battle, nor through the collapse of the former regime. Inevitably, negotiation politics involve a search for consensus and this includes compromise. Even when a war crimes tribunal has been appointed, it is not always possible to fulfill in its entirety the mandate to bring to justice all of those who were directly involved in gross human rights violations. In the former Yugoslavia and in Rwanda it will not be possible to bring all those implicated in gross human rights violations before the tribunals. In addition, criminal prosecutions are time-consuming, and securing evidence leading to a conviction is often problematic. Most countries are simply unable to afford costly trials, so relatively few will be prosecuted. The majority of offenders will go free.

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A very important point to make is that in war crimes tribunals the final word is punishment. But in a deeply divided society this cannot be the final word if healing and reconciliation are to be achieved. Stern measures have to be taken against genocide, but consideration must always be given to reconciliation so that the risk of the process being repeated is at least, to some extent, diminished. There is a strong case for a mechanism similar to the Truth and Reconciliation Commission to be introduced into countries that have experienced widespread conflict and remain deeply divided. In the South African model attempts have been made to limit impunity, and the first decision was to reject a general amnesty. In many other ways, the amnesty provisions have tried to ensure that amnesty is not something cheap and easily accessible. First, amnesty has to be applied for on an individual basis - there is no blanket amnesty; Second, applicants for amnesty must complete a prescribed form, which is published in the Government Gazette and which calls for very detailed information relating to the specific human rights violations; Third, applicants must make a "full disclosure" of their human rights violations in order to qualify for amnesty; Fourth, in most instances applicants will appear before the Amnesty Committee and these hearings will be open to the public; Fifth, there is a time limit set in terms of the Act. Only those gross human rights violations committed in the period 1960 to 1994 will be considered for amnesty. Also, there is a specified period during which amnesty applications may be made: from the time of the promulgation of the Act, which was in December 1995, to 10 May 1997; Finally, there is a list of criteria laid down in the Act that will determine whether or not the applicant for amnesty will be successful. Whether a particular act, omission, or offence is an act associated with a political objective shall be decided with reference to the following criteria: The motive of the person who committed the act, omission, or offence. The context in which the act, omission, or offence took place, and in particular whether the act, omission, or offence was committed in the course of or as part of a political uprising, disturbance, or event, or in reaction thereto. The legal and factual nature of the act, omission, or offence, including the gravity of the act, omission, or offence. The object or objective of the act, omission, or offence and in particular whether the act, omission, or offence was primarily directed at a political

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opponent or state property or personnel, or against private property or individuals. whether the act, omission, or offence was committed in the execution of an order of, or on behalf of, or with the approval of, the organization, institution, liberation movement or body of which the person who committed the act was a member, an agent, or a supporter. The relationship between the act, omission, or offence and the political objective pursued, and in particular the directness and proximity of the relationship and the proportionality of the act, omission, or offence to the objective pursued. However, it does not include the following criteria: Acts for personal gain: an act, omission, or offence by any person who acted and received money or anything of value as an informer of the state or a former state, political organization, or liberation movement, shall not be excluded only on the grounds of that person having received money or anything of value for his or her information.

or Out of personal malice, ill will or spite, directed against the victim of the acts committed. Finally, it is important to bear in mind that the truth and reconciliation process is not a substitute for criminal justice. A number of trials and prosecutions have taken place simultaneously with the work of the Commission. The combination of judicial stick and TRC carrot may emerge as a potent force in flushing out former operatives who adopted a "wait-and-see" approach in relation to the Commission. Notwithstanding the above, there are problems relating to the amnesty provisions. There are those in South Africa - some organizations and individual families - who have suffered very grievously from human rights violations and believe that there ought to be no amnesty provisions whatsoever. They want nothing more and nothing less than trials, prosecutions, and punishment. More especially, they are concerned that, in terms of the Act, those who apply for amnesty and are successful will never again be liable, either criminally or civilly. Some are even prepared to accept that if one has to pursue the way of amnesty as a price for peace and stability in South Africa, there still ought to be an opportunity to bring civil action against either the organization, the state, or the individual.

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There are those who felt so strongly about the question of amnesty that they brought a case against the Commission before the Constitutional Court of South Africa. The Court ruled in favor of the Commission. They did so on the grounds that the Constitution (Section 33) sanctioned the right of limitation to access to the court based on the Postamble of the Constitution granting amnesty. It also held that the amnesty provisions were not inconsistent with international norms and did not breach South Africa's obligations in terms of public international law instruments relying on the distinctions between conflicts among parties within the same state, and, for example, conflicts between a colonial power and a struggle for self-determination against colonial and alien domination of a country. Despite this ruling, there is still deep-seated opposition to the amnesty provisions. On the other hand, there is also a strong view that if reconciliation is to become a reality in South Africa, then both victim and perpetrator must be encouraged to participate in the life and work of the Truth and Reconciliation Commission. The dilemma is that if people are encouraged to apply for amnesty but are still liable in a criminal court or in a civil court, where is the incentive to come forward? There must surely be a window, or a period of grace, to give public expression to private grief and suffering and to grant a second chance to those who participated in gross human rights violations under particular circumstances and during a particular period in a country in conflict. South Africa's experience is very similar to many other countries in that witness after witness at the Human Rights Violations Committee hearings have emphasized their deep fundamental need to know the truth surrounding the loss of a loved one. Over and over again people have pleaded to know what happened to a father, a mother, a sister, a brother, a son, or a daughter. They want to know where he or she is buried, they want to know why they were killed and under what circumstances. This is a common refrain at every public hearing. It is significant that witnesses use almost exactly the same set of words whether they are in South America, Northern Ireland, or South Africa. Their plea in different languages is, "I want to forgive, but I must know who to forgive and for what." In other words, knowing the details and circumstances of the human rights violation in itself is part of the healing process. But how will they know the truth if perpetrators do not come forward? The fact of the matter is that repression and concealment have been with South Africa for generations and there is very little likelihood of new evidence coming to light or even of witnesses being prepared to testify. The only way victims are going to know some of the truth is for perpetrators to come and tell their story of what they did and to whom and how. This may be small comfort, but in terms

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of the pleas of victims, it is of some consolation to them as they try to reconstruct their lives. Truth revealed offers not only comfort and peace of mind but also a limited form of justice. Amnesty is a price that South Africa has had to pay for a relatively peaceful transition. It is also a price many victims have had to pay in order to know some of the truth of the horrendous past. Earlier the point was made that amnesty was the price South Africa paid for a free and fair election and a relatively peaceful transition. The haunting question that has yet to be answered is, are the needs and objectives of the state synonymous with those of the violated individual? Essentially the Truth and Reconciliation Commission is committed to the development of a human rights culture and a respect for the rule of law in South Africa. In this sense, therefore, the Commission is not so much about the past but about coming to terms with the present challenges and future goals. It is, however, impossible to cope with the present, invaded as it is by the dark shadows of the past, and it is impossible to plan with any certainty for the future without jettisoning some of the baggage from the past that threatens to overwhelm and paralyze every effort. In attempting to build for the future there is an irreducible minimum, and that is a commitment to truth. As president Patricio Aylwin of Chile said when he assumed office in 1990: This leaves the excruciating problem of human rights violations and other violent crimes that have caused so many victims and so much suffering in the past. They are an open wound in our national soul that cannot be ignored. Nor can it heal merely through mere forgetfulness. To close our eyes and pretend none of this ever happened would be to maintain at the core of our society a source of pain, division, hatred, and violence. Only the disclosure of the truth and the search for justice can create the moral climate in which reconciliation and peace will flourish.

More recently, Switzerland has been confronted by its past, especially in relation to its treatment of Jews during the Second World War and its cozy relationship with the Nazi regime. Thomas Borer, who has been entrusted with the investigation, states: "Jews are not our enemies. Our history is not our enemy. But the way we deal with or not deal with our own history - that would be our enemy." Switzerland's Foreign Minister Cotti echoes this approach: "I have spent ten years in the government and until last year no one, I mean no one, spoke of the fundamental necessity of re-examining Swiss history. Now I realize this must be done because a country that has not really faced its past cannot decide its history."

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However costly the search for truth and knowing the truth might be, it is of fundamental importance if South Africa is to achieve a degree of peace and unity. South Africa has come out of a period where its society was based on lies and deceit. Radio and television were little more than a giant propaganda factory producing a packaged product to reinforce oppression and exclusivity. The search for truth and the recording of that truth can exorcise the fantasy of denial that makes transformation impossible. A critical question is: What kind of truth-telling lies at the heart of the Commission's work? The Commission has distinguished between four kinds of truth. First, there is factual or forensic truth. The Act which governs the work of the TRC requires us to "prepare a comprehensive report which sets out its activities and findings based on factual and objective information and evidence collected or received by it or placed at its disposal" [Section 4(e)]. This mandate operates at two levels. First, there are findings at an individual level. The Commission is required to make findings on particular incidents with regard to specific people - concerning what happened to whom, where, when, how, and who was involved. In order to fulfill this mandate, the Commission adopted an inclusive policy of verification and corroboration to ensure that findings were based on accurate and factual information. In the second place, the Commission is responsible for findings on contexts, causes, and patterns of violations. It is this search for patterns underlying gross human rights violations which engages the Commission at a very broad and deep level. Although the Commission, through its Investigative Unit, database, and research, has attempted to do the above with the highest degree of efficiency possible, there are always limits in the search for truth and even in truth-telling. Michael Ignatieff's words are pertinent: All that a truth commission can achieve is to reduce the number of lies that can be circulated unchallenged in public discourse. In Argentina, its work has made it impossible to claim, for example, that the military did not throw half-dead victims in the sea from helicopters. In Chile, it is no longer permissible to assert in public that the Pinochet regime did not dispatch thousands of entirely innocent people.5

5

M. Ignatieff, "Articles of Faith," Index on Censorship, 5 (1996) 113.

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It follows, of course, that in the South African context it really is no longer possible for so many people to claim that "they did not know." It has become impossible to claim that the practice of torture by state security forces was not systematic and widespread, to claim that only a few "rotten eggs" or "bad apples" committed gross violations of human rights. It is also true that it is impossible to claim any longer that the accounts of gross human rights violations in ANC camps are merely the consequence of state disinformation. Second, there is Personal and/or Narrative Truth. Through the telling of their own stories, both victims and perpetrators have given meaning to their multi-layered experiences of the South African story. Through the media these personal truths have been communicated to the broader public. Oral tradition has been a central feature of the Commission's process. Explicit in the Act is an affirmation relating to the healing potential of truthtelling. One of the objectives of the TRC is to "restore the human and civil dignity of victims by granting them an opportunity to relate their own accounts of the violations of which they are the victims." It is important to underline that the stories we have listened to have not come to us as "arguments" or claims as if in a court of law. They were often heart wrenching, conveying unique insights into the pain of our past. To listen to one man relate how his wife and baby were cruelly murdered is much more powerful than all the statistics in the world, and gives insight into the conflicts of the past. By facilitating the telling of "stories," the Commission not only helped to uncover the existing facts about past abuses, but also has assisted in the creation of "narrative truth." This enabled the TRC to contribute to the process of reconciliation by ensuring that the silence relating to individual subjective experiences has at last been broken. The Commission is about the task of "restoring memory and humanity." A great deal of this material will be captured in the Commission's Final Report, but together with the Report must be seen the transcripts of hearings, individual statements, a mountain of press clippings, and video material. Third, there is Social or "Dialogical" Truth. Judge Albie Sachs, even before the Commission began its work, talked about "microscope truth" and "dialogue truth." "The first is factual, verifiable and can be documented and proved. Dialogue truth, on the other hand, is social

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truth, truth of experience that is established through interaction, discussion, and debate."6 People from all walks of life were invited to the TRC process including the faith community, the SADF, NGOS, the media, the legal and health sectors, and political parties - and obviously the wider South African community through the media and public scrutiny. What I am emphasizing here is that the process of acquiring the truth is almost as important as the establishing of the truth. This process of dialogue points to a promoting of transparency, democracy, and participation as a basis for affirming human dignity and integrity. Finally, there is Healing and Restorative Truth. The Act requires the Commission to look back to the past and to look to the future. The truth that the TRC is required to establish must contribute to the reparation of the damage inflicted and to the prevention of it every happening again in the future. But for healing to be a possibility, knowledge in itself is not enough. Knowledge must be accompanied by acknowledgment; in other words, the accepting of accountability. To acknowledge publicly that thousands of South Africans have paid a very high price for the attainment of democracy affirms the human dignity of the victims and survivors and is an integral part of the healing of the South African society. In The Healing of a Nation?, I stated: It is when South Africa begins to take its past seriously that there will be new possibilities for all; for some to say sorry and for many more to be ready to forgive.7

South Africans desperately need to create a common memory that can be acknowledged by those who created and implemented the apartheid system, by those who fought against it, and by the many more who were in the middle and claimed not to know what was happening in their country. H. Richard Niebuhr puts it succinctly in his book, The Story of Life: Where common memory is lacking, where men do not share in the same past, there can be no real community and where community is to be formed common memory must be created...the measure of our distance from each other in our nations and

6 7

supra note 4,105. supra note 4, xv.

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our groups can be taken by noting the divergence, the separateness and the lack of sympathy in our social memories. Conversely, the measure of our unity is the extent of the common memory.

4

RECONCILIATION

The Truth and Reconciliation Commission has been criticized from its very inception. This despite the fact that the title of the founding Act speaks volumes for the fundamental intent of the Truth and Reconciliation Commission, i.e. "The Promotion of National Unity and Reconciliation Act." The long title of the Act develops this theme: To establish the truth in relation to past events as well as the motives for and circumstances in which gross violations of human rights have occurred, and to make the findings known in order to prevent a repetition of such acts in the future. The pursuit of national unity, the well-being of all South African citizens, and peace require reconciliation between the people of South Africa and the reconstruction of society. A need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimization. In order to advance such reconciliation and reconstruction amnesty shall be granted in respect of acts, omissions, and offences associated with political objectives committed in the course of the conflicts of the past. There is a Zulu saying that "All truth is bitter" and there is no doubt that many in South Africa have found the disclosures made by the Commission unpalatable. Many victims and survivors have had to re-visit their own experiences of grief and mourning while those who claim they did not know that gross human rights violations were taking place have had to come to terms with the fact that either their eyes were tightly shut or they actually did know what was happening but preferred not to acknowledge it. This is never easy individually or collectively. It is for this reason, possibly, that there has been so much direct opposition to the Commission. A number of individuals, through their lawyers, have taken the Commission to court, primarily protesting against the lack of due process. The National Party, always lukewarm if not hostile to the Commission, finally decided to take the Chairperson and the Deputy Chairperson of the Commission to court, demanding a public apology from the former and the resignation of

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the latter. The Inkatha Freedom Party has referred a long list of complaints against the Commission to the Public Protector and that is still under review. Many in the white Afrikaans community have accused the Commission of being biased, of being one-sided, of actually trying to destroy the white Afrikaner, and have made their feelings known in newspapers and on radio and television programs, but also in anonymous letters, many of which were extremely threatening. Some of the Commissioners have had a barrage of anonymous phone calls including death threats. In other words, the Truth and Reconciliation Commission was not only born in controversy with very powerful constituencies opposed to it at its very inception, but a lot of opposition has continued. What price then reconciliation? It must be conceded that although the opportunities presented by the appointment of the Truth and Reconciliation Commission are far-reaching, nevertheless there are clear limitations as well. In the same way that the healing of a nation and bringing about genuine reconciliation cannot be achieved merely by holding conferences or writing books, it must also be stated that there is no guarantee that through the life and work of the Commission healing and reconciliation can automatically be guaranteed. Discussion, debate, analysis, listening and the recording of the truth can be a significant part of the healing process, but only that. Much, much more will need to take place over many years. The wounds incurred in the long and bitter period of repression and resistance are too deep to be trivialized by imagining that a single initiative can on its own bring about a peaceful, stable, and restored society. In particular, it must be restated that without measurable steps taken to address the everwidening gap between wealth and poverty, conflict rather than reconciliation will be the order of the day. At best the Commission can, through its work and through its recommendations, lay down what could be termed building blocks that could point to the possibility of coexistence, of mutual respect, leading to the long, difficult and painful process of reconciliation. That in itself may be a significant contribution and it could be argued, even at this early stage, that the Commission has made other contributions that impinge on the quest for reconciliation. There will be many critical commentaries written on the Commission in due course and the process is still under way; the jury is still out. Nevertheless, it is possible to point to a number of modest goals that the Commission has achieved. First, it has broken the deathly silence surrounding the grotesque consequences of the apartheid system. The Commission was enjoined in the Act to "establish as complete a picture as possible of gross human rights violations perpetrated between 1960 and 1994 by conducting investigations and hearings."

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These investigations and hearings have taken place in public and the impact has been considerable. The investigations have not merely been scientific and legal, but also essentially the people of South Africa have appeared before the Commission and have told their simple and yet powerful stories of human suffering and indignity. As a consequence, the stories of victimization and human rights violations have been told not merely in statistics and incidents, but with a poignant human voice. Furthermore, the victims/survivors themselves have experienced a degree of catharsis because, for the very first time, they have been received by a compassionate and a sympathetic state-appointed commission. Their experience prior to this was of a hostile state. When loved ones were missing they went first to the local police station and were treated in many instances as nuisances, and in many more as people who were of no consequence. When they went to state hospitals looking for sons and daughters and fathers and mothers they received similar treatment. It was no better when they went to the mortuary in a final attempt to find a missing person. Now, at least, they were being received publicly, with dignity, and the whole of South Africa had an opportunity to share in their grief and sorrow. Second, against the background of a country where for decades a cover-up was the order of the day and propaganda masqueraded as truth, the Commission's ability to bring forth truth is perhaps one of its greatest contributions to an open society. Many victims who never knew who had taken their loved ones into custody, where they had been taken, under what circumstances, the nature of the torture, the manner of the killing, now know. Perpetrators have come forward not in scores, not in hundreds, but in thousands, to confess their involvement in gross human rights violations. The truth has now, in no small measure, been uncovered, and there has been an emerging pattern that helps to understand and appreciate what was taking place in a climate created by politicians and a system implemented by generals and foot soldiers. There has also been not only an accumulation of knowledge, but in many instances of acknowledgement. Through the hearings of major institutions, including political parties, the business and labor sectors, health, media, judiciary, the faith community, and others, many people have publicly acknowledged their own collusion with apartheid. This acknowledgement should never be under-estimated by those who have been victimized and indeed dehumanized in the past. The generosity of spirit by the majority of victims/survivors has been one of the most remarkable experiences of those of us who have sat on the Commission and this has spilled over to the wider community. But acknowledgement has gone one step further. The Commission has made it impossible, particularly for white South Africans, to continue to declare "I didn't know." If they didn't know then, they certainly know now. It takes a

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conscious effort to avoid the story of South Africa's Truth and Reconciliation Commission. A remarkable feature of the Commission has been the media coverage of its progress. There has hardly been a day since the beginning of 1996, when the Commission started its work, when newspapers have not featured the Commission, either on their front pages or in the body of the paper, in editorials and feature articles. As far as television is concerned, hardly a day has gone by without the life and work of the Commission being featured on its major news bulletins, over and above the highly professional and effective one-hour weekly program on a major television station. But radio has probably had even more impact. Not only have hearings been broadcast live throughout South Africa for four hours per day, but broadcasts, commentaries, discussions, and debates have featured prominently in all the eleven languages used in South Africa, so that even those who cannot read or write but have access to radio have participated in the developing story of the Reconciliation Commission. Finally, within the restraints of a negotiated settlement, major compromises were made. It can be argued that South Africa's Truth and Reconciliation Commission, despite those restraints, has achieved the best possible outcome. South Africa decided to say "no" to amnesia and "yes" to remembrance; to say "no" to full-scale prosecutions and trials and "yes" to forgiveness. South Africa chose the third way. Those who have committed violations of human rights will, if they apply for amnesty, in most instances go free. In South Africa's circumstances, where there was no victor and vanquished, it had no real alternative. For South Africa, as many other countries, the central tension has been between the politics of compromise and the radical notion of justice. This tension has been expressed in different ways by different analyses of the transition from authoritarian rule in South America and Eastern Europe to a democratic form of government, and is a genuinely universal issue. Garreton, from Chile, sees it as "ethical logic" versus "political state logic."8 Jelin, drawing on Greek tragedy, sees the tension as the "logic of mourning/remembrance" versus "political logic."9 Political scientists, such as O'Donnel, state the dilemma somewhat more pragmatically. For them it is the need for democratic or stable democratization against the notion of justice, equality, and restitution.

8 9

M. A. Garreton, "Human Rights in the Process of Democratization," Journal of Latin American Studies, 26:1 (1994) 221-34. E. Jelin, "Barrio Women: Between the Urban and the Feminist Movement," Latin American Perspectives, 21 (1994) 32-48.

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Another way of stating the tension is to distinguish between retributive justice on the one hand, and a prudential focus on the common good and future injustice on the other. The former is the Nuremberg model based on the positive duty of successive governments to dispense justice for past crimes. This approach, as an analysis of the Nuremberg trials will reveal, has very real limitations and indeed challenges the very notion of justice itself. Furthermore, many countries emerge from a totalitarian system not via a military victory but through a state of collapse and/or through negotiation and therefore have to deal with the messy business of compromise. Restorative rather than retributive justice can be a potent force for transformation and healing. In South Africa, the transition was essentially determined by a political compromise and a recurring question is "was there a moral basis to that compromise?" I think in a real sense there was. It is morally defensible to argue that amnesty is the price we had to pay for peace and stability. Whether in fact a military coup was a reality or not, one thing is certain: if negotiation politics had not succeeded the bitter conflict would have continued and many more human rights violations would have occurred and hundreds, and possibly thousands, would have been killed. Hard choices had to be made and it does not follow that the choices that were made lie easily on the consciences of the politicians who made them. The alternative was, in my view, far less desirable and potentially much more destructive. One of the overarching problems the Commission faces is the unwillingness of some political leaders to accept accountability for the past. As in so many other parts of the world, it is the foot soldiers, the middle management of the security forces and even the generals who are blamed for implementing the policies and laws devised by political parties and political leaders. The political leaders of the previous regime find it excruciatingly difficult to assume responsibility for the consequences of the racial laws they placed on the statute books. They find it even more difficult to accept that the climate created by these laws made it possible for gross human rights violations to occur. The moral order can only be restored when it begins where people make the laws, i.e., in Parliament. It can only flourish when judges and magistrates interpret those laws for the benefit of the disadvantaged, the oppressed, and the poor. Reconciliation begins when new laws and their interpretation are implemented. Without political will and courage they remain words and phrases with no life. This is beginning to emerge in South Africa. In the Truth and Reconciliation Commission, in government, in civil society, and in the professions there is a determination that what we have experienced in the past must never happen

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again. It is this new spirit, this commitment, that is primarily the TRC's greatest contribution to a country emerging from a very dark night of the soul into a new day.

4

JUSTICE WITHOUT PUNISHMENT: GUARANTEEING HUMAN RIGHTS IN TRANSITIONAL SOCIETIES

Paul van Zyl*

1

INTRODUCTION

At the dawn of the new millennium, societies across the world are reviewing past human rights abuses with renewed vigor. The agreement to establish an International Criminal Court (ICC) is symbolic of the world's determination to deal with the past. It is a cause for celebration that a majority of nations have resolved to constitute a court to pursue criminal accountability for gross violations of human rights. But there is also a hidden danger. Although they are important, prosecution and punishment should not be viewed as the only, or even the most important, means to end impunity. If we confine the struggle to guarantee human rights to courts, then we ignore scores of other equally important initiatives designed to assist victims, rebuild societies, and defend democracies. In this paper I hope to offer an approach to dealing with the past that is not concerned solely with prosecutions. I do so for a number of reasons. First, the debate in international law regarding state obligations in the wake of mass violations has tended to focus too much on the "duty to punish,"2 with the unfortunate consequence of drowning out the exploration of other strategies that deal with the past. Second, the ICC will at some stage have to rule on the permissibility of amnesties or other mechanisms that fall short of ensuring full accountability for past crimes. It is my contention that it should not focus its

*

I am grateful to Professor Norman Dorsen for his comments and advice. The views expressed herein are solely those of the author.

2

See for example, D. Orentlicher, "Settling Accounts: The Duty To Prosecute Human Rights Violations of a Prior Regime," Yale L. J. 100 (1990/1991) 2537.

A. Sajo (ed.), Out of and into Authoritarian Law, p. 53-74 ) 2002 Kluwer Law International. Printed in The Netherlands.

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adjudication solely on the obligation to prosecute, but should rather develop an approach that takes cognizance of the full spectrum of state initiatives designed to end impunity. Finally, it is my view that transitional societies invariably confront considerable political and practical difficulties in attempting to prosecute perpetrators. An approach to dealing with the past cannot ignore this reality and must seek to encourage credible alternatives, rather than simply condemn, when punishment is realistically not possible. If the law does not respond to this reality then it will be increasingly ignored and cease to regulate and encourage appropriate state conduct in this area. First I outline two grounds upon which a society may legitimately decide not to prosecute those responsible for human rights abuses. This is followed by a brief overview of a state's international obligations in dealing with a legacy of human rights abuse. In this section I also discuss the conditions under which it may be possible to derogate from these obligations. Finally I offer a framework for judicial review of state violations in the wake of gross violations of human rights.

2

LEGITIMATE GROUNDS FOR FAILING TO PROSECUTE

There are two legitimate reasons why a successor government may be unable to prosecute those responsible for human rights abuses during the tenure of a prior regime. First, the security forces3 under the control of, or loyal to, the previous regime may be so powerful that any attempt to prosecute them or their political allies could lead to one or more of the following events: A refusal to allow a transition to democracy A return to military rule or a coup d'etat An outbreak or resumption of hostilities The killing of civilians or political opponents Significant damage to the country's economy and infrastructure Of course, a successor regime may decide not to prosecute for a number of illegitimate reasons, including: Excessive timidity

3

In this paper I will use the term security forces to refer to the military, para-military units, the police, and other armed formations loyal to, or under the control of, a previous regime responsible for human rights abuses.

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An interest in preserving the power and perquisites associated with political office A desire to conceal its own involvement in human rights abuses A willingness to pander to the interests of political or economic elites Nevertheless, it cannot be denied that in certain circumstances militaries do pose substantial and genuine threats to both newly established democratic governments and society as a whole. It would be irresponsible and unacceptable to demand the prosecution of perpetrators if this would lead to the loss of hundreds of lives or result in significant damage to a country's economy or infrastructure. In such cases successor governments may, for principled reasons, elect not to prosecute so as to avoid a widespread loss of life or massive social and economic disruption. Second, a state may be faced with insuperable practical difficulties that make it impossible to punish more than a minute percentage of those responsible for gross violations of human rights. A combination of the scale and nature of past crimes, the absence of evidence, and a dysfunctional criminal justice system may mean that a state is simply unable to punish. It is important for these practical realities to be accepted and acknowledged by bodies such as the International Criminal Court, because too often successor regimes are held to have violated their "obligation" to punish in circumstances where it was impossible to do so. The following is a list of difficulties that successor regimes may confront when attempting to prosecute: 2.1 Successor governments often inherit criminal justice systems that are practically inoperative. This may be because perpetrators have deliberately murdered personnel such as judges and prosecutors precisely in order to prevent future accountability.4 In certain countries, criminal justice systems were created in a climate of oppression and human rights abuse. Law enforcement personnel were trained and authorized to employ methods of evidence gathering, prosecuting, and adjudicating that would be impermissible in a constitutional democracy.5 It may be necessary to retrain virtually the entire police force

According to several experts, only eighty percent of the Rwandan Judiciary survived the genocide in the country. It is clear that they were deliberately targeted. See W. Schabas, "Prosecuting International Crime: Justice, Democracy, and Impunity in Post-genocide Rwanda: Searching for Solutions to Impossible Problems," Criminal Law Forum 7 (1996) 532. This is certainly true of the South African criminal justice system. Under apartheid, police regularly extracted "confessions" through torture rather than having to rely on more difficult, but legitimate, evidence-gathering techniques. This has left them unprepared to solve crime under a democratic dispensation.

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before it can play an effective role in dealing with crime under a democratic dispensation.6 Furthermore, in some cases those who staff the criminal justice systems retain a strong institutional loyalty to the old regime and therefore cannot be relied upon to prosecute its operatives. In some cases the very individuals charged with investigating political crimes were involved in, or complicit with, the commission of such crimes. It may take many years before sufficient numbers of new recruits are trained to undertake this task. 2.2 Transitions from repressive rule are regularly accompanied by enormous social, economic, and political change. These changes may result in significant social upheaval and dislocation and in many instances lead to a dramatic increase in crime.7 Successor regimes are often unable to cope with current crime and may run the risk of being overwhelmed by lawlessness if they divert significant resources to attempt to solve political crimes, many of which occurred up to fifteen years earlier.8 2.3 In many transitional societies there are insufficient skills and resources to solve ordinary crimes committed by common criminals. It is therefore almost impossible to solve crimes committed by highly trained security force operatives skilled in covert operations and expert in concealing evidence. It is equally difficult to prosecute political leaders who provided general authorization for such crimes. In many cases the leadership of repressive regimes issued ambiguous orders to the security forces, thereby enabling them to "plausibly deny" that they authorized or condoned human rights abuse.9

In some cases it not appropriate to "rebuild" criminal justice systems that have been destroyed during past conflict. This is because, prior to their destruction, they were biased, corrupt, and did not dispense justice in compliance with international standards. In such cases criminal justice systems must be reconstructed "afresh" rather than restored to their previous state. See Schabas, 531. Post-communist Russia and post-apartheid South Africa are perhaps the best examples of this general phenomenon. This assertion must be qualified in those circumstances in which those responsible for past "political" crimes are currently involved in purely criminal syndicates. In such cases, dealing with past crimes may contribute to reducing current crime. However, in transitional societies there is no necessary correlation between past and present crime. In South Africa, bodies such as the State Security Council (which was comprised of key political and security force leadership) issued policy directives, which included instructions to "eliminate" and "neutralize" anti-apartheid activists. Members of the security forces testified before the Truth and Reconciliation Commission that these directives clearly authorized the killing of political opponents. Politicians, however, disputed this interpretation, claiming that they only intended to authorize legal methods to combat resistance. See Report of the Truth and Reconciliation Commission, Presented to President Nelson Mandela on 29 October 1998,

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2.4 Most post-transition societies are in economic crisis or face significant economic difficulties and challenges. Governments face difficult choices about the appropriate allocation of scarce resources. They must choose whether to prioritize the building of houses, schools, jails, hospitals, or courts. They must also decide whether to hire more teachers, doctors, prosecutors, policemen, or judges. In circumstances in which a high percentage of the population is homeless or unemployed and unable to access basic services, it is often impossible for a government to justify a sufficient allocation of resources to the criminal justice system to make prosecutions a viable prospect.10 2.5 Transitional governments often cannot afford the cost of thousands of trials that would have to be held in order to prosecute those responsible for human rights abuses. The accused in many of these trials are former state employees (generally members of the security forces), and in some cases governments are therefore obliged to pay for the costs of their legal defense.11 Even in those cases where governments do not pay for defense costs, they are still required to use large teams of investigators, prosecutors, and witnesses for prolonged periods of time if they are to ever hope to secure convictions. In many cases the only way to ensure the safety of witnesses is to place them on expensive witness protection programs either within the country or abroad. The prosecution of thousands of perpetrators is an extremely expensive endeavor that may divert resources from more pressing societal needs.12 2.6 Human rights trials often require an enormous amount of time to prepare and conduct. This is particularly so when the perpetrators are important, wealthy, or supported by powerful domestic or international constituencies. Such perpetrators are able to afford excellent defense lawyers and the high-

10

11 12

214-218. Schabas captures the issue succinctly in the Rwandan context: "Realizing judicial guarantees ...depends on resources. These rights cannot be guaranteed in the same way in a poor country as in a rich country, despite the admonition in relevant international instruments to the contrary. They are positive rights, not negative rights, in that they require a state to act, and not to abstain from acting. Consequently, a state such as Rwanda must make hard choices between investing in its judicial and correctional system in order to meet the norms set out in the ICCPR or to invest in education, health care and environmental protection, so as to respect the claims of the ICESR... ." Schabas, 532. In just two "hit-squad" trials in South Africa the government was required to pay over R17 million ($2.1 million) to defense attorneys. For a more detailed discussion of the costs of political trials in South Africa, see P. Zyl, "Dilemmas of Transitional Justice: The Case of South Africa's Truth and Reconciliation Commission," J. Int'l Affairs 52/2 (Spring 1999) 647-667.

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profile nature of their trials often results in delays caused either by the need for extremely thorough preparation on behalf of the prosecution or by diplomatic or political interference in the trials themselves. The extradition proceedings regarding General Augusto Pinochet are an excellent example of this phenomenon. It took almost six months from the date of his arrest for the United Kingdom's highest court to make a final determination on a narrow jurisdictional question. If Pinochet ever stands trial, in Spain or any other country, for the crimes he is alleged to have committed, it will take years before his guilt or innocence is finally established. The trial of former South African State President PW Botha, for the relatively minor offence of failing to comply with a subpoena issued by the Truth and Reconciliation Commission, took almost nine months from the date charges were laid until his conviction and sentencing. A trial on more substantive charges, such as murder,13 would last considerably longer. It is not only the trials of high-profile perpetrators that can be drawn-out and time consuming. Attempting to prosecute low-level perpetrators, the socalled "trigger-pullers," can also be a lengthy endeavor. Two hit-squad trials in South Africa (the "Malan Trial" and the "De Kock" trial) lasted a combined period of almost two and a half years and secured only one conviction. 2.7 Transitional societies are often left with a legacy in which thousands (in some cases hundreds of thousands) of people are victims of gross violations of human rights. Criminal justice systems are designed to maintain order in societies in which the violation of the law is the exception and not the rule. These systems simply cannot cope when, either as result of state-sanctioned human rights abuse or due to internal conflict or war, the violation of the law becomes the rule and not the exception. In order for criminal justice systems to serve as a check on the arbitrary exercise of power and private acts of vengeance, information must be gathered and presented in accordance with accepted evidentiary rules. Furthermore, trials must be conducted in a fair and impartial manner. The time and resource implications of these requirements are enormous and are discussed in greater detail above. It is not simply due to an absence of will or insufficient power that thousands of perpetrators in Argentina, South Africa, Ethiopia, Rwanda, and post-war Germany, Belgium,

13 The TRC's Final Report found PW Botha to be guilty of, inter alia, deliberately planning gross violations of human rights, including the killing of political opponents. See Report of the Truth and Reconciliation Commission, 223-225.

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Holland, and France have remained unpunished.14 In fact, Germany has made the most comprehensive attempt yet to punish the tens of thousands of perpetrators responsible for mass crimes during World War n. Post-war Germany inherited a relatively efficient and functional criminal justice system but nevertheless managed to secure fewer than 7,000 convictions from a total of 85,882 cases brought to trial.15 Furthermore, the majority of those convicted received relatively mild punishment and served only a small percentage of their sentences. Even those who argue most strenuously that states have a "duty to punish" those responsible for gross violations of human rights concede this duty is impossible to fulfill when these violations have occurred on a massive scale.16 2.8 The difficulties referred to above apply to the conduct of domestic trials, but many of the same problems confront those seeking to prosecute before international courts and tribunals. In addition, international courts and tribunals must overcome their own specific sets of problems. First, they must obtain jurisdiction over those whom they seek to punish. Serbia's failure to cooperate with the International Criminal Tribunal for the Former Yugoslavia has effectively prevented the Tribunal from commencing the trials of a large percentage of indictees. Second, although the current international tribunals are comparatively well resourced,17 they will never have the resources to allow them to prosecute more than a relatively low number of perpetrators. International criminal tribunals and courts will therefore have to make difficult decisions

14

"It should be kept in mind that no judicial system, anywhere in the world, has been designed to cope with the requirements of prosecuting crimes committed by tens of thousands, and directed against hundreds of thousands. In Europe following World War II it is doubtful whether 87,000 people [the number of people awaiting trial in Rwanda after the genocide - it should noted that this number has since risen to almost 110,000 in 1999] were judged by all of the courts of the most highly developed legal systems. Even a prosperous country, with a sophisticated judicial system, would be required to seek special and innovative solutions to criminal law prosecutions on such a scale." See Schabas, 534. 15 T. Rosenberg, The Haunted Land: Facing Europe's Ghosts After Communism, New York: Vintage Books (1995) 312. 16 D. Orentlicher concedes on this point: "In a country like Argentina, where some 9,000 persons are estimated to have disappeared during the military junta's 'dirty war against subversion,' a requirement that the government attempt to prosecute everyone who may be criminally liable could place impossible demands on the judiciary. Even a well-functioning judicial system would be incapable of discharging such a burden; much less can this be expected following the wholesale collapse of the judicial process." Orentlicher, 2596. 17 Exact figures are difficult to obtain and calculate but interviews by the author have ascertained that the current budget for the International Criminal Tribunal for the Former Yugoslavia is approximately $100 million per annum.

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about prioritizing prosecutions. Although there is some debate about how these selections should be made,18 there is a general consensus that they should endeavor to prosecute high-level perpetrators responsible for organizing and authorizing heinous crimes. While this may be a sensible allocation of scare prosecutorial resources, it means that those selected for prosecution are, in most cases, precisely those individuals an international body is least likely to be able to place in custody. If the success rate19 of the international tribunals is any indication of the performance of the ICC, then, notwithstanding the important contribution international prosecutions make towards ending impunity, we should not rely too heavily on this approach in efforts to protect and promote human rights.

3

DEALING WITH THE PAST - STATE OBLIGATIONS UNDER INTERNATIONAL LAW

In outlining the requirements of international law regarding a successor state's obligations in dealing with past abuses, I will focus on the decisions of the Inter-American Commission (the "Commission") and Inter-American Court of Human Rights (the "Court"). I do so for two reasons. First, these rulings provide an accurate summary of, and are not inconsistent with, the current state of international law in this field.20 Second, both the Court and the Commission have had to review amnesty laws and human rights initiatives in several Central and Latin American countries in the wake of gross violations of human rights. Their decisions are therefore sensitive to both the abstract requirements of the law, and the objective circumstances in the countries under scrutiny. In its 1985/86 annual report, the Inter-American Commission on Human Rights seemed to endorse amnesty laws provided that they are passed by democratic institutions and that some effort is made to discover the truth about past human rights abuses. The report states:

18

See for example, M. Morris, "The Trials of Concurrent Jurisdiction: The Case of Rwanda," Duke J. Comp. & Int'l L. 7(Spring 1997) 349. 19 Measured by the number of convictions obtained per dollar spent or per year that each tribunal has been in existence. 20 Other international judicial bodies that have ruled on this issue include, inter alia, the European Commission and Court of Human Rights, The Human Rights Committee established pursuant to the International Covenant on Civil and Political Rights, and the Committee against Torture.

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The Commission considers that only the appropriate democratic institutions usually the legislature...are the only ones called upon to determine whether or not to decree an amnesty or the scope thereof, while amnesties decreed previously by those responsible for the violations have no juridical validity....Every society has the inalienable right to know the truth about past events, as well as the motives and circumstances in which aberrant crimes came to be committed, in order to prevent a repetition of such acts in the future. Moreover, family members of the victims are entitled to information as to what happened to their relatives. Such access to the truth presupposes freedom of speech, which of course should be exercised responsibly; the establishment of investigating committees whose membership and authority must be determined in accordance with the internal legislation of each country, or the provision of the necessary resources so that the judiciary itself may undertake whatever investigations may be necessary.21

Three years after this report, the Inter-American Court of Human Rights handed down a groundbreaking decision regarding a state's obligations when confronted with gross violations of human rights. In the Velasquez Rodriguez case,22 the family of an activist who had disappeared in Honduras challenged the terms of the Honduran amnesty that made it de facto impossible to discover the truth about his disappearance or to receive some form of compensation for his death. The Court held that a state had: a legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose appropriate punishment and to ensure the victim adequate compensation [emphasis added].23

The Court did not provide a definition of what it considered to be "appropriate punishment," but it did refrain from explicitly calling for the criminal prosecution of those responsible for the disappearances. This is despite the fact that legal representatives for the victims called on the Court to issue such an order.24 The Court only ordered the Honduran government to pay monetary compensation. Furthermore, the Court declined to order the payment of punitive damages, stipulating that the term "fair compensation" used in Art. 61(1) of the Inter-American Convention on Human Rights should be interpreted as

21 22 23 24

Annual Report of the Inter-American Commission on Human Rights (1985-1986) 192, 205. Inter-American Court of Human Rights, Series C, No. 4 (1988). Inter-American Court of Human Rights, Series C, No. 4 (1988), para. 174. N. Roht-Arriaza, "State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law," Calif. L. Rev. 78 (1990) 473.

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compensatory and not punitive.25 The Velasquez Rodriguez judgement underscores the fact that in 1988 the Inter-American Court placed greater emphasis on discovering the truth and ensuring prevention and redress than on an unconditional obligation to prosecute. Four years after the Velasquez Rodriguez case, the Inter-American Commission on Human Rights handed down three decisions regarding the granting of amnesty. The cases dealt with laws adopted by the governments of Argentina,26 Uruguay,27 and El Salvador.28 In each case the Commission concluded that the amnesties violated a state's obligations to investigate gross violations of human rights, to identify those responsible, to provide victims with adequate compensation, and to prosecute and punish perpetrators. However, like in the Velasquez Rodriguez case, the Commission failed to recommend to either the Argentinean29 or Uruguayan30 government that perpetrators of human rights violations be prosecuted or punished. Only in the Salvadoran case did the Commission explicitly recommend an exhaustive, rapid, complete and impartial investigation concerning the event complained of, in order to identify all the victims and those responsible, and submit the latter to justice in order to establish their responsibility so that they can receive the sanctions demanded by such serious actions [emphasis added].31

In 1997, the Inter-American Commission provided clarity regarding these inconsistencies in its attitude towards amnesties. In two separate decisions

25

26 27 28 29

30

31

For a fuller discussion of this issue see T. van Boven, "Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms," United Nations Economic and Social Council, E/CN. 4/Sub.2/ 1993/8 (1993) 38. See Inter-American Commission on Human Rights, Report No. 28/92 (2 October 1992). See Inter-American Commission on Human Rights, Report No. 29/92 (2 October 1992). Las Hojas Massacre Case, No. 10.287, Annual Report of the Inter-American Commission on Human Rights (1993). The government of Argentina was urged to "pay petitioners just compensation for the violations referred to in the preceding paragraph [and to] adopt the measures necessary to clarify the facts and identity of those responsible for the human rights violations that occurred during the past military dictatorship." Inter-American Commission on Human Rights, Report No. 28/92, para. 52. The Commission only recommended to the government of Uruguay that, "...it give the applicant victims or their rightful claimants just compensation [and that] it adopt the measures necessary to clarify the facts and identity of those responsible for the human rights violations during the de facto period." Inter-American Commission on Human Rights, Report No. 28/92, para. 54. Las Hojas Massacre Case.

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regarding the amnesty the Chilean military granted to itself in 1978, the Commission recommended the Chilean government conduct investigations for the purpose of identifying the guilty parties, establishing their responsibilities and effectively prosecuting, thereby guaranteeing to the victims and their families the right to justice that pertains to them [emphasis added].32

The Chilean amnesty decisions confirm that the Commission now views prosecution and punishment as an important component of a state's obligations in dealing with a legacy of human rights abuse.33 In a similar finding, the Commission recommended that the Peruvian government repeal its amnesty law and punish those responsible for the forced disappearances of a number of individuals.34 In summary, by 1998 the Commission had held that a state must fulfill the following five obligations in coming to terms with gross violations of human rights committed by a previous regime: Investigate the identity, fate, and whereabouts of victims Investigate the identity of perpetrators Provide reparation or compensation to victims Take affirmative steps to ensure that human rights abuse does not recur in the future Prosecute and punish those guilty of human rights abuse It is evident from this brief review that the jurisprudence of the Court and Commission has evolved in the past decade. In the mid-1980s they adopted a perspective that granted to successor states a wide discretion in developing a response to human rights abuse. By the late 1990s they held a fairly prescriptive position that sets out a number of specific obligations a state must

32 33

34

Chanfeau Orayce v. Chile, Annual Report of the Inter-American Commission on Human Rights (1997) 512. The Commission held that "amnesties constitute a violation of [Art. 1.1 of the Inter-American Convention on Human Rights] and they eliminate the most effective measure for the exercise of those rights - the trial and punishment of the responsible individuals." Chanfeau Orayce v. Chile, 526. In Ruiz Davila v. Peru, the Commission recommended that "the Peruvian State carry out a serious, impartial and effective investigation of the facts by means of the competent organs to establish the whereabouts of Estiles Ruiz Davila and to identify those responsible for his detention-disappearance, and, by means of appropriate criminal proceedings to punish those responsible for such grave acts in accordance with the law" (emphasis added). Annual Report of the Inter-American Commission on Human Rights (1997) 742.

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fulfill. It is no coincidence that the Commission and Court have, over the past ten years, adopted more stringent standards regarding state obligations in the wake of repressive rule. As democratization has deepened and militaries have loosened their grip on power, these bodies have made recommendations that governments are more capable of fulfilling than they were a decade ago.35 This illustrates an important point about the nature of international obligations. It is futile and perhaps even counter-productive to impose obligations on states that they either cannot fulfill or can only fulfill at a tremendous cost. A prudent approach to imposing such obligations must carefully consider whether a state is actually able to discharge its duties. In most cases the Commission only recommended punishment when it felt reasonably confident that a state was able to fulfill this obligation. While this approach is both responsible and pragmatic, it does have the unfortunate effect of relieving a state of the obligation to justify why it is unable to fulfill its obligations under international law. It would be preferable for a judicial body to assert that a state must always investigate human rights abuse, identify perpetrators, pay reparation, transform state institutions, and punish perpetrators, unless it is able to demonstrate that there are legitimate grounds to derogate from these duties. This approach may achieve the same result that the Court and Commission sought to achieve, but it places the onus on a state to justify its non-compliance, rather than preemptively relieving it of its obligations. In the following section, I set out standards with which a state must comply in order to legitimately derogate from such obligations.

3.1

Derogation

Once the requirements of international law have been established, it is important to consider under which circumstances, if any, it may be permissible for a state to derogate from its obligations. Of the five obligations listed above, the duty to punish is likely to prove most difficult for transitional regimes. This is not to suggest that successful investigations or the payment of reparations are easily achieved, or that the transformation of state institutions to prevent the recurrence of human rights is a simple endeavor. However, for the reasons outlined in part 2, I believe that the prosecution of perpetrators poses special problems that would be irresponsible and impractical to ignore. It is beyond the scope

35

This shift of emphasis may also be attributable to the increased number of human rights lawyers and activists serving on the Inter-American Commission over the past ten years.

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of this paper to embark on a lengthy discussion on the law pertaining to derogation. For our purposes it is sufficient to note that a state is entitled to derogate from its duty to punish in the following circumstances: 1.

The existence of a grave threat to the life of the nation

A state may derogate from an international obligation if "an exceptional situation of crisis or emergency [exists] which affects the whole population and constitutes a threat to the organized life of the community."36 In order for derogation on this basis to be permissible, a state must comply with the following conditions:37 a. It must provide reasons that justify its failure to punish. b. It must outline the exceptional nature of the threat that prevents punishment. c. It must demonstrate that the measures taken (for example, an amnesty) are proportional to the threat posed. d. It must apply its decision not to punish (or grant amnesty) in a non-discriminatory manner. e. While it may be permissible, under certain exceptional circumstances, not to punish, it is never permissible to derogate from certain inalienable rights (such as the right to life and the right not to be subjected to torture).38

36 Orentlicher notes: "International law does not, of course, require states to take action that poses a serious threat to vital national interests." See Orentlicher, 2596. See also Lawless v. Ireland, Ser. A, No. 3, European Human Rights Report 1/15 (1961) 31-32. 37 These conditions have been drawn from several sources: F. Aolain, "Legal Developments: The Fortification of an Emergency Regime," Alb. L. Rev. 59 (1995/96) 1366-67; Shestack, "Human Rights in Crisis: The International System for Protecting Human Rights During States of Emergency," Am. J. Int'l L. 90 (1996) 171; Gardeniers, Hannum, and Krugey, "The 1981 Session of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities," Am. J. Int'l L. 76 (1982) 409-410; R. Quinn, "Will the Rule of Law End? Challenging Grants of Amnesty for Human Rights Violations of a Prior Regime: Chile's New Model," Fordham L. Rev. 62 (1993/94) 945-946; R. Macdonald, "Derogations under Art. 15 of the European Convention on Human Rights," Colum. J. of Transnat'l L. 36 (1997/98) 225; F. Aolain, "The Emergence of Diversity: Differences in Human Rights Jurisprudence," Fordham Int'l L J. 19 (1995/96) 101. 38 Certain scholars (such as Roht-Arriaza, 487) argue that the "derivative" obligation to punish those responsible for the violation of non-derogable rights (such as the right to life) is itself non-derogable on the basis that punishment is the only effective means to ensure such rights. This assertion is not settled law nor is it supported by the facts in every case. In certain instances prosecution may lead to war or conflict that will lead to further violations of the rights Roht-Arriaza claims punishment will protect. In other cases, in which it is simply impossible to prosecute for practical reasons, the reform of the criminal justice system may do more to protect non-derogable rights than punishment.

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2. Impossibility of performance A state may derogate from its duty to punish if, owing to the state of its criminal justice system or the scale and nature of the crimes committed, it is objectively unable to prosecute those responsible for human rights violations.39 It is a well-established rule of international law that treaties should not be interpreted so as to impose impossible obligations on states.40 In the following section I will seek to develop a framework for judicial review of measures taken by states in the wake of mass violations of human rights.

4

TRANSITIONAL JUSTICE - A FRAMEWORK FOR JUDICIAL REVIEW

In this paper I have sought to articulate a successor state's obligations under international law regarding steps it must take in dealing with a legacy of human rights abuse. I have asserted that in certain instances there may be serious obstacles to fulfilling the obligation to punish, the two most important of which are the threat posed by powerful security forces and the considerable practical difficulties entailed in prosecuting those responsible for mass or systematic violations of human rights. In these circumstances, international law permits a state to derogate from its obligation to prosecute and punish perpetrators. However, this derogation should be conditional on a state fulfilling a range of other obligations and satisfying a number of requirements. In this section, I set out a series of requirements that an international or foreign judicial body should consider in assessing whether a state has fulfilled its international obligations in this regard. This framework will also assist judges in determining whether and under what circumstances amnesties should be upheld or ignored. In order for a state to fulfill its obligations under international law, it must satisfy all of the following four requirements: Requirement No. 1 A state must present detailed and convincing evidence that demonstrates that it was impossible to prosecute those responsible for human rights abuse.

39

40

Orentlicher asserts that, "[a] prerequisite of any law requiring prosecution of particular offenses is that the national judiciary must be capable of handling the burden imposed by that law." Orentlicher, 2596. "[TJreaties should be interpreted in a manner that avoids imposing impossible obligations or duties whose discharge would prove harmful." Orentlicher, 2600.

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A state may only advance one (or both) of the following grounds in order to justify this failure to punish: 1. A transition from undemocratic or repressive rule would not have occurred without some form of amnesty agreement and the country, as a whole, would have suffered severe consequences as a result. Severe consequences include occurrences such as the death or injury of significant numbers of people, serious long-term economic damage, or prolonged and serious conflict or war. 2. The state is objectively unable to prosecute more than a tiny percentage of those responsible for human rights abuse. The state must list the reasons41 why it is unable to prosecute and demonstrate why some form of amnesty arrangement will better serve to achieve the other obligations imposed by international law. A state must also show that the costs of allocating sufficient resources to make it possible to prosecute perpetrators are prohibitive and that there are other pressing social needs (such as housing, health care, sanitation, food supplies, etc.) to which the state intends to allocate its scarce resources. A court should subject to careful scrutiny a state's representations regarding an inability to punish on the second set of grounds described above. A state must present a convincing case as to why a proactive step such as the granting of amnesty or pardon is preferable to simply doing nothing and waiting until it has either the evidence or resources to bring prosecutions. For example, a state may choose to offer a limited and conditional amnesty if this provides perpetrators with an incentive to make full disclosure, thereby achieving some measure of truth, acknowledgement, and accountability that would not otherwise be obtainable through the criminal justice system. Furthermore, a state may seek to justify a conditional amnesty offer as a means to provide for the orderly release of suspects who have been held incarcerated for lengthy periods in unacceptable conditions, in respect of whom there is no reasonable prospect of achieving convictions.42

41 Such as those outlined in part 2. 42 For example, the Rwandan government may be able to justify a failure to punish on the basis that it is objectively impossible to fairly investigate, prosecute, and convict more than a miniscule percentage of the hundreds of thousands of perpetrators both in custody and at large.

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Requirement No. 2 A majority of citizens must freely endorse the transitional justice policy that the state has adopted.43 In some cases this may be evidenced by legislation passed by a democratically elected parliament. In other cases the policy may be ratified by popular vote in a referendum or plebiscite. A self-amnesty granted by a repressive regime can never satisfy this requirement and may be regarded by a court as void ab initio. Requirement No. 3 A state that fails to prosecute perpetrators for the reasons outlined in Requirement No. 1 above must make a good faith effort to comply with all other obligations under international law.44 1. A state must endeavor to discover the truth about victims. This should include both investigations to discover the identity, fate, and whereabouts of victims and an official acknowledgment of their suffering.45 2. A state must aim to discover the truth about the identity of perpetrators. Where possible, individual responsibility should be attributed both for authorizing and for perpetrating human rights abuse. 3. A state must take meaningful steps to ensure that human rights abuse does not recur. A state should endeavor either to abolish or transform state institutions directly or indirectly responsible for human rights abuse. It

43

44 45

Some authors support this test. See D. Cassel, "Lessons from the Americas: Guidelines for International Response to Amnesties for Atrocities," Law and Contemporary Problems, 59 (1996) 219. However, Orentlicher rejects popular ratification of amnesties, arguing that constitutions are inherently anti-majoritarian and are designed to protect vulnerable minorities (such as victims) against expedient or unjust decisions taken by the majority (Orentlicher, note 260). This argument is unconvincing because Orentlicher herself concedes (at 2610) that a majority of legislators (and by extension, a majority of the population) may be entitled to adopt a treaty that permits derogation from constitutionally protected rights under certain narrowly defined circumstances. Popular ratification of a decision to grant amnesty under circumstances of grave threat or impossibility of performance is therefore analogous to a democratic legislature ratifying a treaty that permits derogation from international obligations. Furthermore, while constitutions with bills of rights do tend to protect the rights of minorities, they do not always defer to them. Courts regularly uphold laws that adversely affect one section of the population, provided the government is able to articulate just and rational reasons for its policies. A similar approach is articulated by R. Weiner, 'Trying to Make Ends Meet: Reconciling the Law and Practice of Human Rights Amnesties," St. Mary's L. J. 26 (1994/95) 857. See Cassel, 44.

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should also proactively attempt to promote a culture of human rights among its citizens. This may entail a number of measures such as exerting civilian control over the security forces, retraining and restructuring the security forces, providing human rights education for all state employees, and including human rights awareness in educational curricula. 4. A state must provide victims of human rights abuse with adequate reparation. This may take a number of forms, including the payment of state pensions; free access to health care, educational institutions, or state housing; and the provision of appropriate mental health care. The state should also consider providing some form of symbolic reparation by establishing monuments to remember and honor victims or establishing national days of remembrance. It may not be possible for a state to identify every victim, name every person responsible for human rights abuse, pay full compensation to all victims, or instantly transform every institution responsible for human rights abuse. A state must, however, demonstrate that it has made, and continues to make, a bona fide effort to achieve all these objectives. Requirement No. 4 A state that fails to punish must actively seek to minimize the extent to which this impedes the fulfillment of its other international law obligations. For example, a state may not pass a blanket amnesty because this serves to conceal the truth about the fate of victims and the identity of perpetrators. A corollary of this requirement is that any amnesty law should be structured so as to assist in the fulfillment of a state's remaining international law obligations. For example, the granting of amnesty should be conditional on disclosure of the truth regarding the crime for which amnesty is sought and the victim of that crime. Furthermore, victims of crimes in respect of which amnesty is granted should automatically be entitled to reparation. In addition, a state should consider disqualifying persons to whom amnesty is granted from holding public office, as a means to facilitate the transformation of state institutions. If a state is able to show that it has satisfied all four of these requirements, then either a domestic or foreign court applying international law or an international judicial body should hold that the failure to prosecute perpetrators is a legitimate derogation of the duty to punish. Such judicial bodies should not overturn domestic amnesties or subject perpetrators to criminal penalties. There are two exceptions and one qualification to this approach. No court should be required to uphold amnesties for crimes against humanity, genocide,

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or war crimes, nor should a third state be required to apply this approach in instances where its own citizens have been victims of human rights abuse.46 Furthermore, nothing in this approach should preclude individuals from bringing civil claims against perpetrators in the courts of third countries.47

4.1

Changed Circumstances: A Post-hoc Dilemma

A complex situation may arise in the following circumstances. A state legitimately grants amnesty on the basis that there is a substantial threat to the life of the nation or that it is practically impossible to prosecute.48 Several years pass resulting in a significant change to either or both of these circumstances. In other words, there may be a significant decrease in the threat posed by the security forces, or the criminal justice system receives sufficient resources and evidence to prosecute significant numbers of perpetrators. Should a domestic, foreign, or international court take this into account when considering the validity of an amnesty law? This is an extremely complex question to which there are no easy answers. A domestic court should probably not use the decrease in the power of the military as a basis for invalidating an amnesty, provided that the amnesty initially complied with the requirements listed above. If domestic judiciaries rescind amnesties as soon as militaries no longer pose a threat to society, then militaries will seldom, if ever, agree to a transition to democratic rule. This may cause a country to suffer the type of irreparable harm, in the form of a widespread loss of life or severe economic damage, that the approach proposed in this paper seeks to avoid. Alternatively, if they do agree to transition, militaries will structure the hand-over so as to entrench their power and will actively resist any reform efforts that may erode their grip on government and render them liable to prosecution. In this scenario, the military will ensure that it poses a constant threat to democracy and will retain a perpetual veto over democratic decision-making. This may forever impede the transition to genuine

46 On this basis the Spanish government would not be required to uphold the legality of the Chilean amnesty in so far as it grants amnesty to persons criminally responsible for the deaths of Spanish citizens, even if it were to meet the requirements set forth in this paper. It should be noted, however, that the Chilean amnesty does not satisfy several of the requirements set forth in this paper. 47 Such as those claims pursued in terms of the Alien Tort Claims Act, 28 U.S.C. § 1350. 48 See Requirement No. 1 above.

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democracy, thereby creating the basis for continued conflict and human rights abuse. Furthermore, a domestic court should not overturn an amnesty procedure that was established in order to cope with severe resource and evidentiary problems.49 If thousands of perpetrators, in respect of which there is no reasonable prospect of obtaining convictions, are granted amnesty on the basis that they have satisfied a number of conditions,50 then it would be unfair to undo this amnesty at a later date because the resource and evidentiary constraints that first motivated this agreement no longer apply. Perpetrators who make full disclosure of their crimes in exchange for amnesty may claim that their rights have been violated if they are later prosecuted for disclosed crimes. If, however, a government facing resource problems chooses not to grant amnesty but rather to wait until its criminal justice system is sufficiently equipped to undertake large-scale prosecutions, then there can be no complaint from perpetrators that they have been prejudiced. Perpetrators obviously cannot rely on a deal that was never made. If domestic courts uphold certain amnesties notwithstanding a change in circumstances, what attitude should foreign or international courts take? First, it should be noted that a decision by a non-domestic court to overturn an amnesty because the initial concerns that motivated it no longer apply potentially poses the same danger as a similar decision taken by a domestic court. Militaries may be more reluctant to relinquish power even with guarantees such as amnesties if they know these can be overturned by foreign and international courts. However, if militaries are offered a measure of security at home, they are less likely to resist a transition or continue to pose a threat to democratic rule solely on the basis that an international court may not uphold an amnesty. It is unlikely that the threat of international prosecutions will prove decisive in a military's decision to allow a transfer of power, particularly if they are provided with an assurance that they will not be extradited. Therefore, if a member of the military is foolish enough to place himself under the jurisdiction of a foreign or international court, that court should be entitled to overturn a domestic amnesty. However, it should only do so if it can be demonstrated that the military no longer poses a substantial threat to the life of the nation. An international court should be entitled to consider whether the prosecution

49 An additional implication of this approach is that domestic courts should refuse extradition requests made by international or foreign courts, provided all requirements listed above are satisfied, 50 Such as providing full disclosure about the crimes for which amnesty is sought or agreeing to assist in providing reparation to victims.

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would pose a substantial threat to a nation and decide not to prosecute if this condition, together with the other requirements listed above, is satisfied.51

4.2

Application of this Approach

This approach to considering whether a state has complied with its international obligations should be applied in a number of contexts by the following entities: The International Criminal Court, international tribunals and foreign courts These judicial bodies should apply this approach in deciding whether a state has complied with its obligations under international law. For example, a court may rule that a blanket amnesty is invalid and that an alleged perpetrator may therefore be prosecuted. It may also rule that victims have been provided with inadequate reparation, that a state has failed to discharge its responsibility to name specific perpetrators, or that there has been a failure to take sufficient steps to transform institutions responsible for human rights abuse, and on this basis decline to uphold the validity of an amnesty. Foreign governments In the formulation of foreign policy and the structuring of international relations, governments should assess whether a successor state has complied with the requirements articulated in this paper. A failure to comply may jeopardize the provision of foreign aid, the expansion of trade and investment, or the entry into international organizations, or lead to a reduction in international cooperation on a range of issues. Conversely, a demonstration that a state has made a good faith effort to comply with its obligations may result in greater cooperation and assistance. International organizations Organizations such as the United Nations, the World Bank, and the International Monetary Fund should assess whether a successor state has complied with these

51

One danger of this approach may be that militaries will attempt to create disruption in circumstances in which a member is facing prosecution abroad in order to demonstrate that they do pose a substantial threat to the nation. A court should carefully consider the objective threat posed, not the impression of a threat created by a military for tactical purposes.

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requirements in deciding on the nature and extent of the assistance they provide. They may also stipulate that certain forms of assistance are conditional on a government complying with these requirements. Negotiators and mediators International mediators and negotiators should use these requirements as basis for determining what terms and conditions are acceptable and unacceptable in the brokering of peace agreements and other conflict resolution initiatives.52 For example, they should inform parties that blanket amnesties are impermissible under international law and that any settlement must include measures designed to provide assistance to victims of human rights abuse. Transitional governments Transitional governments should apply this framework in formulating their policies designed to deal with the past. If they have the power and resources to prosecute perpetrators, then they are obliged to do so. However, they need not become fixated with punishment if they are able to assert bonafide reasons why they are unable to prosecute. In these circumstances they should allocate the time, energy, and resources they would have committed to prosecutions to fulfilling their other international law obligations.

5

CONCLUSION

Building a human rights culture and entrenching the rule of law in the wake of mass violence is a complex and difficult task. Transitional societies face considerable political, social, and economic challenges. New governments often have a precarious grip on power and struggle to maintain peace and stability. They cannot always rely on efficient and loyal state institutions to defend their mandate or implement their policies. In this context it is not always possible or prudent to demand prosecutions. International law cannot turn a blind eye to these realities. Punishment for past wrongs is a very important, but not indispensable, strategy in dealing with the past. An inflexible approach to

52

Cassel argues that it is unacceptable for international mediators not to be guided by the requirements of international law in the brokering of settlements (Cassel, 205).

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punishment should not divert resources or distract the international community from formulating and implementing other initiatives designed to promote and protect human rights.

5

CONSTITUTIONAL DEMOCRACY, OR HOW TO PREhVEN THE RULE OF THE PEOPLE

Nenad Dimitrijevic

1

INTRODUCTION

We speak about "democratic constitutionalism." Upon using this expression, we are ready to entertain our minds with the difficult problems that the concept has to face today. Dealing with those problems is an enterprise that is both perfectly justified in academic terms and badly needed in "real-life" terms. But one preliminary consideration might not be necessarily out of line here: namely, it might be useful to try and see once more what the term "democratic constitutionalism" denotes. Before exploring possible ways and techniques of improving constitutionalism, we need to ask what is to be improved. The main purpose of this sketchy contribution is to argue that the alleged tension between the liberal concept of limited (constitutional) government, on the one hand, and liberal democracy, on the other hand, should not necessarily present a problem for the conceptualization of a well-ordered liberal polity. What we need in order to overcome this tension is primarily a proper understanding of the term constitutional government. I will try to show that constitutional government is a comprehensive concept, in the sense that since the introduction of the general right to vote it embraces democracy as its constituent feature. I will use the argument that democracy ought to be considered a necessary addendum to the original liberal principle of the primacy of individual freedom. We cannot abandon the powerful appeal of democratic equality. Still, we can argue that democratic equality was brought into the liberal picture not as an independent value, but rather as an additional instrument of constitutionalism, aimed at further stabilization of the liberal concept of individual rights. Since this view may conflict with a somewhat different understanding of democracy, the bulk of the argument of this paper will be negative, aimed

A. Sajo (ed.), Out of and into Authoritarian Law, p. 75-96 © 2002 Kluwer Law International. Printed in The Netherlands.

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at saying what democracy is not. In the first section I will offer an abbreviated exposition of the essence of constitutionalism. The second section will be devoted to the critique of the notion of democracy that prevails in modern and contemporary constitutions, as well as in part of constitutional theory. I will argue that this concept of democracy contradicts the idea of constitutionalism. The third section will outline a desirable instrumental relation of democracy to constitutionalism. This will be supplemented by a short defense of the claim that some of the most difficult contemporary threats to constitutionalism are based on an unreflective acceptance of the idea that democracy has something to do with the rule of the people. Before turning to these questions, I would like to make a short clarification. This text could easily be written off as a conservative exercise that merely sketches an old, probably outdated, and probably culture-specific (Western, or even only Anglo-Saxon) picture of liberal constitutionalism. But I believe that all of the obvious concepts sketched below are an exercise in recalling the universal core of constitutionalism, the core that transcends the local moralities of particular contexts of particular countries. This is not to say that constitutionalism is not culture-specific.1 Still, what is specific for the meaning of constitutionalism in a plural (heterogeneous) polity, or in a post-communist polity, or in South Africa of today, I would like to consider probably necessary, but nevertheless auxiliary features of the universally-valid core concept.2 What does this mean with regard to the main pillars of constitutionalism, the concept of limited government, and the primacy of individual rights? First, one can argue that in some post-totalitarian contexts a certain amount of concentration of governmental authority is a necessary prerequisite for overcoming grave economic, societal, and political crises. This claim seems to obtain additional strength from the insight that, in contrast to the Western path of gradual development of constitutionalism and democracy over a period of centuries, the "newcomers" have to simultaneously start and articulate often

On the complex relationship between universal principles of constitutionalism and situated givens of particular communities, see: M. Rosenfeld, "Modern Constitutionalism as Interplay Between Identity and Diversity," in M. Rosenfeld (ed.), Constitutionalism, Identity, Difference, and Legitimacy, Durham, NC and London: Duke University Press, (1994); R. Goodin, "Designing Constitutions: The Political Constitution of a Mixed Commonwealth," Political Studies, Special Issue XLIV (1996) 635-646. This of course does not mean that all countries in the world should - as a matter of normative difference between right and wrong -resort to constitutionalist universalism. In other words, this is not to deny that in some polities a specific concept of the good can override the demand for the universal right. I simply argue that in such cases the use of the category of constitutionalism would not make much sense.

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contradictory processes of state building, the development of a market economy, the establishment of constitutional democracy, and the promotion of social justice. Since the actors in these processes are not easily identifiable, it follows that an "open society" ought to be implemented as a model, and that the main agent of bringing it to life should be the state.3 The further claim is that this paradoxical condition demands a certain concentration of authority in order for the state to be able to perform the context-specific multitude of tasks. This demand for a concentration of authority is to be understood as the demand for a "temporary" relativization of the procedural arrangement of the separation of powers, which is otherwise crucially important for bringing to life the concept of limited government. Therefore, it should be borne in mind that these context-specific demands amount to an "architecturally unprecedented and highly risky operation."4 In other words, a "certain concentration" of authority must not challenge the core of the universal principle of limited government. Below, I will argue in more detail that the efficiency demand cannot be recognized as an independent criterion of the governmental process - only the demand for the legitimacy of limited government can be recognized as legitimate. Secondly, one can argue that the context of post-totalitarian constitutionalism demands a broader approach to rights, in which the distinction between legally guaranteed subjective fundamental rights, on the one hand, and institutionally guaranteed entitlements, on the other hand, will not always be perfectly clear.3 The proliferation of rights - not only in the form of social rights benefits, but also in the form of state aspirations and promises disguised as rights - is typical for post-totalitarian constitutions. Such "institutional guarantees"6 seem to arise

3

4 5

6

This paradoxical insight was - in academic terms at least - at the heart of controversies surrounding post-communist constitutionalism in the early nineties. See e.g., C. Offe, "Capitalism by Democratic Design. Democratic Theory Facing the Triple Transition in East Central Europe," Social Research 4 (1991) 865-892; S. Holmes, "Back to the Drawing Board," East European Constitutional Review 4 (1993) 21-25; J. Elster, "The Necessity and Impossibility of Simultaneous Economic and Political Reform," and L. Kolarska-Bobinska, "The Role of the State: Contradiction in the Transition to Democracy," both texts in Constitutionalism and Democracy. Transitions in the Contemporary World, D. Greenberg et al. (eds.), Oxford: Oxford University Press (1993). Holmes, 25. For a detailed analysis of this problem, see U. PreuB, Constitutional Aspects of the Making of Democracy in the Post-Communist Societies of East Europe, Bremen: Zentrum fur Europaische Rechtspolitik (1993) 18. The concept of institutional guarantees was in constitutional theory developed by C. Schmitt, in his analysis of the Weimar Constitution. Schmitt holds that in contrast to "real" individual rights, which are all derived from the fundamental human right to liberty, institutional

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in contexts that are marked not only by fear of totalitarian power, but also by fear of economic and social collapse. This fear is sometimes elevated to a very high degree by real or imagined problems in defining the political identity of newly formed states.7 In such a context, constitution-makers often follow the criterion of instrumental rationality, where the highest act is used as a technical means aimed at taming sources and appearances of fear. The first consequence of such a poorly controlled constitutional dynamism is the suspension of the distinction between constitutional and normal politics. The second consequence is the normative overload of the constitution. The third consequence is uncritical expansion of the notion and content of basic rights, which in turn is likely to result in devaluation of this fundamental category of democratic constitutionalism.8 Ideally, one could simply argue that in such a context it would be highly preferable to reduce the catalogue of rights to legally identifiable and judicially enforceable "classical" rights. But, since the picture described here departs from "ideal rationality," the first step could consist in recognizing that "the concentration of all political, economic, social, and cultural aspirations in a document that claims unconditional and unqualified legal force may well entail a normative devaluation, just as any inflation is only a particular expression of depreciation."9 The universal threshold of constitutionalism should hold good in such contexts as well: institutional guarantees of different kinds must not challenge the primacy of legally identifiable and directly enforceable individual rights. Preservation of the concept of limited government against the challenge posed by "efficiency demands," and preservation of the legal nature of individual subjective rights against the inflation of state-centered benefits and

guarantees are essentially products of the state, introduced to "fulfil particular tasks and meet particular goals." C. Schmitt, Verfassungslehre, Munich: Duncker & Humbolt (1928) 170-71. For the conceptual meaning of fear in the constitution-making process, see A. Sajo, Limiting Government. An Introduction to Constitutionalism, Budapest: Central European University Press (1999) 3: "The image of a constitution as the means for creating a rational order, and as an achievement of state engineering, is built on the Enlightenment tradition, which promises to override irrational inclinations like fear. The modernity of Enlightenment is built on the rational suppression of fears, but true rationalism is not oppression but the recognition and comprehension of those fears." Liberal constitutionalism cannot be indifferent to the manner and reach of the suppression of fears. What is at issue is not merely to curb the appearance of fear, but rather to recognize and comprehend its nature and its sources in society, in order to be able to control it. Too much indiscriminate suppression of fear exercised in the form of over-ambitious constitutional engineering is itself irrational, for it aims at controlling what escapes control. Leaning toward a new form of totalitarianism would not be the least likely consequence. PreuB, 13.

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promises amount to the difference between a constitution that meets the requirements of constitutionalism and a constitution that fails to meet these requirements. We who were fortunate enough to have to study the fine nuances of communist "constitutionalism," recall the famous dictum of Ferdinand Lassalle: "All countries, in all times, had a real constitution. The true distinguishing feature of modernity is not - and this is something that should always be kept in mind - the existence of real constitutions, but simply the existence of written constitutions, or pieces of paper."10 What counts is not the piece of paper, since "constitutional questions are always questions of power."11 Still, as Stephen Holmes is ready to remind us, pieces of paper sometimes do matter.12 Those constitutions that define and help to bring to life fundamental demands of constitutionalism are much more than pieces of paper. Or, they are pieces of paper which turn Lassalle's phrase upside-down: "Questions of power are primarily constitutional questions."13

2

CONSTITUTIONALISM

In liberal constitutional thought, the question of the tightness of the fundamental-legal regime is primary. This is because the regime is a program for coercion. When we abide by a constitutional regime in place we collaborate in coercion of the ideally and presumptively free and equal individuals who live or come within its jurisdiction. For that collaboration, we liberally feel, some justification is owing. Justification means showing that the legal order's constitutive or fundamental laws are substantively right. Or at least there is something about them giving reason for obedience in their tendency toward tightness.14 Liberal constitutionalism is based on a simple, experience-mediated intuition. As the possessor of the monopoly of coercion in society, governmental authority is something prima facie bad. And it is not simply that we who are not rulers are confronted with a frightening apparatus of compulsion. The capacity to coerce comes from a more fundamental capacity of the state authority, which

10 F. Lassalle, O sustini ustava, Beograd (1907) 40. [F. Lasselle, Rede uber Verfassungswesen, (1862); Europaische Verlagsanstalt (1993).] 11 Macht, in Lassalle. 12 S. Holmes, "Foreword" in A. Sajo, x. 13 U. PreuB, Revolution, Fortschritt und Verfassung, Berlin: K. Wagenbach, (1990) 8. 14 F. Michelman, "Constitutional Authorship," Constitutionalism. Philosophical Foundations, in L. Alexander (ed.), Cambridge: Cambridge University Press (1998) 82.

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can be summarized as the legal and political supremacy of the state: all its general rules are binding, any of its particular commands is authoritative.15 How can we then explain the fact that a minority of the people rule over the majority by passing binding norms and issuing commands the enforceability of which is made realistic due to the minority's monopoly of coercion? This unpleasant relationship between rulers and the ruled needs justification. At this most general level, liberalism does not necessarily differ from premodern social and political formations. Still, in pre-modern times the practice of political authority was essentially a one-dimensional process, both in terms of its formation and exercise, and in terms of its justification. Authority used to be created, maintained, and confirmed as the "earthly representative" of final truths. Being presented as the embodiment of ultimate reasons, authority was consequently seen as unquestionably justified and valid. On the other hand, since authority itself was perceived as a part of a pre-defined order, its freedom from legitimacy demands that could be posed by subjects did not signify an absolute lack of constraints. Authority was supposed to act within the frames of law, though the subjects were expected to "fit into the cosmos."16 In other words, the nature of the authoritative relationship did not leave room for the subjects to address questions of the tightness of the normative basis, of the legal framework, or of the very practice of authority, as long as this practice was presented as being in accordance with higher values and the valid law.17

15 J. Kis, Political Neutrality: A Defense, manuscript on file with author, Budapest (1996) 22-23. 16 See e.g., the classical interpretation offered in the thirteenth century by the English lawyer H. Bracton in his De Legibus et consuetudinibus Angliae: "Ipse autem rex non debet esse sub homine sed deo et sub lege, quia lex facit legem." Quoted after Edward Corwin, The "Higher Law " Background of the American Constitutional Law, Ithaca, NY: Cornell University Press (1957) 27. This formula offers an accurate summary of the complex position of the pre-modern authority in its relation to the law and to subjects. The fact that the monarch is not responsible to his subjects does not provide for the reduction of his responsibility to the metaphysical source only. Responsible to God, the king is responsible to the law as well. The king, though the bearer of the supreme authority, is not the author of the law. To the contrary, it is the law that makes him the king. Or, in Hobbessian words, the monarch is only the actor: his right to act as the "representative" of the metaphysical order is derived from his faithfulness to the law, because only the law is the direct embodiment of the "higher order." 17 The relevance of this complex one-sided arrangement for later generations would become discernible with one particular predicament that King John had to face in 1215. His subjects claimed that they ceased to owe him the duty of obedience, due to the fact that he had abused the royal authority by violating \hewfolkrights. The rebellion was justified as the restoration of the higher order. But the process of shaping of Magna Carta Libertatum, apart from enumerating subjects' privileges, brought to the fore what has probably remained as one of the basic constitutional questions: how can the authority be kept to the letter of the law?

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Following the long, painful, and sometimes contradictory processes of the dissolution of the old regimes, the validity of the given order ceased to be selfcomprehensible. Revolutionary Enlightenment took individual liberty as the starting point in reconsidering the problem of the legitimate relationship between the individual and the state: it proposed the idea that society is not based on anything preemptively binding, but is built exclusively around the value of personal autonomy. Then the normative picture of the liberal polity had to meet the following obvious question: what is the "rational-natural order of things," in the light of the superior principle of freedom? This seems to be a difficult problem, because from the primacy of freedom it follows that the plurality of values, convictions, and interests ought to be respected. It also follows that conflicts among those who are equally autonomous, but are - as human beings - different, are not only likely, but are legitimate as well. It might further follow that free individuals can legitimately exercise their autonomy to challenge the very fundamentals of community. On the other hand, it is equally clear that such an unlimited reflection should somehow be prevented, for no community can exist if it is not guaranteed a minimum necessary degree of stability. Or rather, there is no community that would normally be ready to open for discussion the question of its existence. To have this question on the political agenda is the sign of a deep crisis that not only challenges the legitimacy of authority, but also questions the legitimacy of community as such. Liberal constitutionalism has to live with this tension between individual liberty and unquestionable commonality. The necessary peaceful reconciliation should be guaranteed, observed, and carried out (in part) by government. The "in part" qualifier is to remind us that liberty, scrutinized in the catalogue of rights, should not be seen as the product of state authority; equal freedom for all members of the community presents a normative standard that binds the state authority as the ultimate criterion of its legitimacy. In order to make this criterion the operational basis of the individual-community relationship, the constitution should contain rules which: 1) define individual liberty and equality through the formalized system of fundamental rights, and 2) limit the government. Limited government and the protection of rights are core features of constitutionalism. But, of course, for constitutionalism it does not suffice to have these two features on the piece of paper. The destiny of rights is decisively dependent on a system of limits on governmental authority that effectively prevents those to whom a citizen's private judgment is surrendered from doing whatever they

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please.18 From this follows the original humble ambition of liberalism: political authority is an evil that is necessary because citizens, in their partial instrumental rationality, are likely to be tempted to do harm to each other or to the community. Therefore, they should be guaranteed freedom, while at the same time prevented from acting in an unconstrained manner. But the other aspect of the harm is even more important when discussing the need for rights and limited government. Citizens are under threat both from fellow citizens and from the state. If government is equipped with the task of protecting freedom, it is of primary importance that those who exercise power be prevented from ruling in an unconstrained manner. The only way to achieve this latter goal is to prevent individuals who happen to occupy ruling positions from any independent capacity to rule. What does this mean? The state authority has to be depersonalized, neutral, and responsible. How can this be achieved? The preliminary answer is unambiguous: everybody has to be subject to abstract, generally valid rules.19 "Everybody" should be taken literally, as a characterization that embraces citizens and state officials alike. Since authoritative positions are occupied by human beings, the "government of laws and not of men" is a metaphor. But it is intended to be a powerful one: a governing process that is not carried out in accordance with general, abstract, known rules is not a governing process at all. It is merely an illegal and illegitimate abuse of power, through which the state becomes personalized, partial, and irresponsible. And individual freedom will be the first victim. In dealing with rights and limited government, constitutionalism is supposed to do more than merely build a Berlin Wall between citizens and authority, for "open society" cannot be reduced to a society in which the private sphere is closed to rulers. Constitutionalism deals "more comprehensively with the organization of state-society relations,"20 meaning that the legal identification of individuals and the legal identification of authority are supposed to create a common framework for an open communicative relationship, a framework that will guard and direct both the "horizontal" and "vertical" relations within society and community. This points to the one-sidedness of the view according to which constitutional rules that define rights and limit government are exclusively negative, existing only to protect individual privacy from the

18 19

20

"Constitutions are about power; a constitution impregnated with ideas of constitutionalism is about limited power." Sajo, 2. "Constitutions restrict the discretion of power-wielders because rulers, too, need to be ruled." S. Holmes, Passions and Constraints. On the Theory of Liberal Democracy, Chicago: University of Chicago Press (1995) 6. Holmes, "Foreword," in Sajo, xi.

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Leviathan's intrusion. Rules empower as well, both citizens and the state authorities. In order to prevent government from acting in a voluntaristic manner, the constitution has to state clearly what government can do. Though the idea of the exclusively negative ("disabling") character of constitutionalism cannot stand logical scrutiny, it always has to be re-emphasized that "enabling constitutionalism" is the constituent feature of the concept of limited government.21 What is at stake is to create government that is able to "guard society against the oppression of its rulers," "to guard one part of society against the injustice of the other part," and to protect "the rights of individuals, or of the minority...from interested combinations of the majority."22 Using more empirical terms, we could say that constitutional limited government, since its early modern Nightwatcher appearance, has always been a strong government.23 Therefore, to paraphrase Hannah Arendt, the question for constitutionmakers is not simply how to limit power, but how to establish power that 1) is enabled to perform a multitude of difficult tasks that are all crucially relevant for individual liberty, and 2) still remains accountable, i.e., limited.24 The openness of this arrangement, in which societal and political processes take place within the limits of the law, should provide room for the legitimate exercise of power, i.e., for a relation between the rulers and ruled that is capable of standing the test of justification. But, in order to make sense of the legitimacy problem in a liberal polity, we need to recall that constitutionalism empowers not only rulers, but subjects as well. This brings us to the question of the meaning and reach of democracy in the constitutional setting.

2

DEMOCRACY - WHAT IT Is NOT

It is almost a truism to say that democracy is a highly contestable term. The statement that the "rule of the people" is hardly conceivable in a "pure form" does not necessarily need further elaboration. Still, many people who devote their time to thinking about the meaning of this term feel that somehow justice needs to be done to its etymological signification. If the people cannot really rule, we still need to look for an arrangement that would at least approximate

21 22

Holmes, Passions, 1. A. Hamilton, J. Madison, J. Jay, The Federalist Papers, No. 51, in Gary Wills (ed.), New York: Bantam Books (1982) 263-264. 23 F. Neumann, The Democratic and the Authoritarian State, New York: Free Press (1957) 259260. 24 H. Arendt, On Revolution, Harmondsworth: Penguin (1973) 148.

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that rule; on ideological, symbolic, legal, and institutional levels, the original ideal ought to be given fair credit.25 I believe this is a wrong starting point, for one simple reason: the rule of the people is an essentially illiberal concept. The task of constitutional government is not to solve the predicaments of the surrender of private judgment and the state's monopoly of coercion by dismantling the distinction between rulers and ruled. To repeat, the ambition is much more modest: to prevent uncontrolled use of power, which can be done only by preventing the rule of human beings. A "government of laws and not of men" holds good for rulers and ruled alike. Since its introduction, democracy has or has not worked depending on its faithfulness to this self-constraint. We could even be tempted to state that democracy, understood as a political arrangement, is just another word for the system of limited government. But this would not be correct, for the simple reason that democracy, even if reduced to a political arrangement, is, to an important extent, about citizens and the role they play in politics. How should we understand that role? Historically speaking, democracy had to be introduced in order to prevent a crisis in the controlling function of the liberal government. This crisis of governability was itself the consequence of the more fundamental legitimacy problem. The struggles of those who were deprived of the right to vote made it clear that constitutional government could not survive if a huge proportion of the adult population was excluded from political life. The inclusion of the strata that used to be denied the right to vote was not guided by any doctrinaire consideration of the inherent value of democracy. The point of inclusion was rather to prevent those excluded from trying to overcome the state of exclusion by radically challenging the legitimacy basis of the given arrangement along the lines of demands for a "more genuine," or "more autonomous" political organization. Still, a historical sketch, even if it were much more serious, would not necessarily have the strength of a good argument. We need to recall that liberalism was born under the spell of the natural equality of all human beings, and that in consequence the idea of equality has been a powerful pillar of liberalism since its beginnings. Moreover, both the American and French revolutions were fought in the name of the people, a clarion cry that, framed as the concept of popular sovereignty, has remained one of the most powerful

25

See e.g., N. Bobbio, Which Socialism? Oxford: Cambridge University Press (1988) 90: "A political system is democratic where collective decisions, i.e. decisions which affect the whole of a community (no matter how small or large) are taken by all its members. Once this definition is accepted, the procedural rules...follow automatically as logical consequences."

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and universally accepted principles of modern and contemporary constitutions. Here I will leave aside the profound differences - and their consequences between the American and the French revolutionary understanding of popular sovereignty.26 I would simply like to claim that most contemporary constitutions stick to a poorly reflected concept of popular sovereignty that presents the people as the possessors of both the ultimate legitimizing capacity and the supreme authority.27 Such an image of the locus of authority is then supposed to be made operational through procedural mechanisms of political representation and the correspondent majority rule. The message, poorly protected against abuses, is clear: there is a body of persons constituting the populus. With the standard constitutional identification of popular sovereignty in place, this body is - contrary to the constitutional recourse to the rule of law, and most often contrary to what constitution-makers believe to have written down - symbolically presented as the ultimate judge, not only of what is right (legally allowed) and what is wrong (legally forbidden), but also of what is good and bad. This follows directly from defining the people as the ultimate, pre-legal source of all authority. Even at a very abstract, symbolic level, we can attribute to the people exclusive capacity to create, justify, and exercise authority only if we agree that the people precede the law.28 Understood in such a standard un-

26 See e.g., Arendt, especially chapters "Constitutio Libertatis" and "Novus Ordo Saeclorum." 27 Example gratia: "All state power derives from the people; they exercise this power by means of their legislative, executive and judicial bodies." (Art. 1 of the Czech Constitution). "The powers of the state in Finland are vested in the people, who are represented by the Parliament." (Sec. 2 of the Finnish Constitution). "National sovereignty belongs to the people, which shall exercise it through its representatives and by way of referendums." (Art. 3 of the French Constitution). "All state authority emanates from the people. It is being exercised by the people through elections and voting, and by specific organs of the legislature, the executive power, and the judiciary." (Art. 20/2 of the German Basic Law). 28 In both ideological and academic terms, it is here much easier to be Abbe Sieyes or Carl Schmitt than a liberal constitutionalist. See e.g., Schmitt, 61: "The constitution comes to life through an act of the people who are politically capable of action. The people as a political unity must be pre-given, if it is to be understood as the holder of the constituent power." In an effort to avoid the objection of factuality in constitution-making, Schmitt argues that the constitution - "the nation's political decision about the manner and the form of its political existence" - can be passed only by a people as a nation (ein Volk als Nation), that is, by a politically already existing and unified body. The constituent power, although strictly legally unbound, can accomplish its task only if it identifies itself with the people/nation as the ultimate source of all legal validity, i.e., as the real constituent power: "The constituent power can never be legally-constitutionally limited. The people, the nation, remains the original basis of all political processes, the source of all strength which expresses itself in always new ways, which brings to life always new organizational forms, but the political existence

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reflective manner, popular sovereignty leads to the perception of the people as a moral personality, collectively equipped with somewhat mystical qualities. Of course, possible objections to this reasoning immediately come to mind. In dealing with populus, we are dealing not with an ethically delineated collectivity, but rather with a group of individuals bound solely by legal ties: we are citizens, i.e., individuals who share equal legal status and who possess the same inalienable constitutional rights. Or, "the people" is just a name for those who are equal before the law. Consequently, our rule is simply a democratic rule within the pre-defined legal framework. Still, this is circular reasoning.29 If the people are a legally constituted category, but are nevertheless considered sovereign, then we would have to address the problem of the Urnorm, i.e., of the identification, foundation, and rational justification of that particular rule, or "act of creation," that transferred the empirical people into citizens.30 This is a serious problem, not only because it points to an irreducible moment of factuality in the constitution-making process, but primarily because it demonstrates that the question of citizenship is the question of a fundamental choice. To answer this problem, constitutionmakers first choose the identity basis of the political community by resorting to the symbolic notion of individuals "who come together to form a legal community of free and equal citizens."31 Liberal constitutionalism derives the communal identity from the legally mediated intersubjective recognition that individuals grant one another. The liberal community is then "the totality of persons who live together in a territory and are bound by the constitution, that is, by the decision of the founding fathers to order their life together legitimately by means of positive law."32 Still, it is almost obvious that such a liberal act of foundation, through which equality in rights becomes the constitutive feature of both individual and communal identities, is preceded by another choice, the one which chooses those empirical humans who will

29

30 31

32

of which can never be bound by a lasting formation." Schmitt, 79. Which does not mean that I would be ready to deny the high relevance of the distinction between "the normative people" and the "empirically observable set of human beings." For a reliable analysis of the need to observe this distinction in the context of the discussion of popular sovereignty, see A. Bragyova, Popular Sovereignty and Referendums, manuscript, on file with author, Budapest (2000). A. Arato, "Forms of Constitution Making and Theories of Democracy," Cardozo L. Rev. 1 (1995) 192-195. J. Habermas, "Struggles for Recognition in the Democratic Constitutional State," in Multiculturalism. Examining the Politics of Recognition, in Amy Gutmann (ed.), Princeton: Princeton University Press (1994) 107. Habermas, 126.

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be given the status of citizens. Before we say that ours is the polity of free and equal citizens, we need to say who does and who does not qualify to be a citizen.33 If we now couple this dual constitutional definition of the identity question (who are citizens, and what it means to be a citizen) with the principle of popular sovereignty, we get an image of the people as the constitution-maker. In this picture, constitution-making is - ideologically and symbolically at least an autonomous act of the sovereign populus. What is special here, is that in the constitution-making process the sovereign is supposed to chain itself. Constitution-making is thus assumed as an act of the "sovereign self-constraint,"34 and the constitution is supposed to be the self-created and selfimposed chain that is somehow capable of smoothly taming the symbolic message, so that it 1) retains its alleged legitimizing capacity, but that it nevertheless 2) cannot lead to a Jacobin-type outcome. Nothing more than the old Lockean contractualism can be observed here: people decide to refrain from enjoying their full freedom in order to preserve the essence of that freedom in face of the challenges imposed by living together. To preserve the essence of freedom demands preserving some reference to sovereignty, while creating at the same time procedurally and technically clear impediments to prevent both government and citizens from taking sovereignty seriously. This perception of "sovereign self-constraint" is a very weak defense against "constitutional populism." That popular sovereignty has been relatively successfully tamed in contemporary constitutional regimes is due more to the difficult victory of the liberal reflection over "genuine" democratic alternatives, than to the internal consistency of constitutionalism in this area. Actually, most liberal constitutions offer room for the consistent operationalization of the principle of popular sovereignty. Instead of at least clearly isolating the principle of popular sovereignty from the creation of government and from decisionmaking processes, the highest acts most often derive both political representation and majority rule from this principle - this I will call the constitutionalpopulist continuity strategy. Through such continuity, a "government of laws and not of men" seems to be defeated, on the constitutional paper at least, by a "government by consent." When it comes to political representation, the clearest example of this continuity is displayed by so-called parliamentary sovereignty, which is based

33 Sajo, 24-27. 34 I borrow this expression from Donald K. and W. Thompson, "Fundamentals of the Liberal Constitutionalist Tradition," in J. J. Hesse and N. Johnson (eds.), Constitutional Policy and Change in Europe, Oxford: Oxford University Press (1995) 25.

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on the dubious idea that the rule of the people should be approximated in the form of the rule by the people: parliament is the highest political body because it is closest to the people, i.e., because it is - having been created by citizens the most legitimate of all political bodies.35 It could be argued that this kind of arrangement comes dangerously close to decisionism, where parliament, upon the popular mandate, usurps the capacity to determine what the law is. This is in direct opposition to the concept of the rule of law, which rejects the idea that any majoritarian preference whatsoever can legitimately obtain the form of law. In an obvious effort to constrain rulers, the rule of law tells us "what the law ought to be."36 Of course, it could be countered that procedural restraints keep both the meaning of parliamentary sovereignty and the procedures for the creation of parliament within the frame of the rule of law. But the point is that the rule of law and the rule of the people are mutually exclusive principles. While the former points to the depersonalized, neutral, and accountable governing process in the name of the protection of liberty, the latter points to the relevance of the political "will of the people" in the name of democracy. Once parliament is singled out as the highest, most legitimate political body on the account of its being the embodiment of popular sovereignty, the idea of the rule of the people ceases to be a mere ideological foundation of politics. The rule of the people becomes institutionalized, while the rule of law is under threat of being reduced to a poorly defensible ideological statement.37 It is a euphemism to say that this creates a tension in which individual liberty becomes threatened by democracy. This problem is further accentuated by the uneasy status of majority rule. If the playground is delimited by popular sovereignty, it follows that majority rule is a "realistic" way of approximating the rule of the people at the decisionmaking stage. In a political condition marked by a legitimate pluralism of opinions and preferences, we agree that in cases of disagreement and whenever the need for authoritative coordination arises, our private judgement will be surrendered to our representatives, i.e., to procedurally elected officials who will make decisions in a procedurally pre-defined manner. Majority rule is

35 For a detailed critical analysis of the relation between constitutionalism and parliamentarism, see e.g., Sajo, 106 et passim. 36 F. A. Hayek, The Constitution of Liberty, Chicago: University of Chicago Press (1960) 103. 37 The case of the parliamentary constitution-making might be exemplary in this regard. See e.g., A. Arato, "The Constitution-Making Endgame in Hungary," East European Constitutional Review 4 (1996) 31-39; and "Between the Executive and the Constitutional Court: Parliamentary Constitution-Making in Hungary," in Civil Society, Revolution and Constitution, Budapest: Uj Mandatum Konyvkiado (1999).

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supposed to make the democratically identified majority voice heard, by answering the questions: "Under what conditions will the numerical majority of citizens in a modern state maintain some modest influence over the processes of political decision-making? How can the people act, as a people, to enforce their will, at least occasionally, upon their rulers?"38 And, we could say that majority rule is the core of democracy: "Democracy I shall understand as simple majority rule, based on the principle 'One person, one vote.'"39 This is a cliche, of course, but it is not wide of the mark, for it points to the essence of what can be found in almost all democratic constitutions: "In general, modern constitutions expressly recognize equal and universal voting rights as the basis of the political system and of the legitimate exercise of political power."40 With this, the continuity strategy (popular sovereignty - political representation - majority rule) is completed, and rulers have an extremely powerful tool in their hands. What ideologically started its life as the approximation of genuine popular rule, tends to end up as the rule of the genuine rulers. We can try to manage the despotic threat by pointing to the essence of constitutionalism, mechanisms of which are expected to prevent or delegitimize power holders who violate freedom and the principle of limited government. We can call to our aid Madison, de Tocqueville, and other writers who powerfully argued that majority rule has to recognize constraints imposed by more important values, mechanisms, and procedures, also defined by constitutional norms.41 Or, we can reiterate that majority rule cannot be defended as an approximation of the popular rule, for reasons that are both empirical and conceptual: a majority can be regarded only as a majority, and not possibly as an embodiment of the "whole;" further, the rule is on behalf of the constitutionally defined citizens as individual legal persons, and not of empirically observable human beings.42 Or, we can even try to soften the link between

38 39 40 41

42

Holmes, Passions, 8-9. J. Elster, "Introduction," in J. Elster and R. Slagstad (eds.), Constitutionalism and Democracy, Cambridge: Cambridge University Press (1988) 1. Sajo, 53. "When the people are translated into a majority criterion, what is being provided is only an 'operative definition.' That is to say that the people are divided into a majority and a minority by the decision-making process and in order to have decisions made. The fact nonetheless remains that the people consist, overall, of the majority plus the minority...Conversely, democracy conceived as a majority rule limited by minority rights corresponds to the people in full, that is, to the sum total of majority plus minority. It is precisely because the rule of the majority is restrained that all the people (all those who are entitled to vote) are always included in the demos." G. Sartori, The Theory of Democracy Revisited, Part One, Chatham, NJ: Chatham House (1987) 32-33. Bragyova, 2.

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popular sovereignty and majority rule, claiming that majority rule is not about substantive rulership at all, but is rather rule of the game, i.e., a procedural decision-making mechanism in democratically constituted political bodies.43 Still, this is not of decisive help, unless we try to re-conceptualize the meaning of the relationship between individuals and government in a democratic constitutional regime.

3

CONSTITUTIONAL DEMOCRACY, AND ONE PARTICULAR THREAT TO IT

Intuitively, we are prone to see democratic constitutionalism as an arrangement which protects the equal rights of all citizens, and which creates and guards room for the democratic participation of citizens in res publica. If democracy is a political arrangement, we need to make sense of it in the public space shall we say then that it means participation (as genuinely as possible) of equal citizens in public affairs of the community? And, even if we agree on this participatory reading of democracy, what is the meaning of participation? Should we understand it as the virtue that holds the exclusive capacity of making sense of our personal freedom (as proponents of republicanism and deliberative democracy would suggest)? Or should we interpret democracy as a safeguarding device, devoted essentially to the protection of citizens' negative liberties from those who are stronger and who, as rulers, are capable of doing us harm? Democracy can be safely and harmoniously associated with constitutionalism only if the latter option is taken seriously. To repeat: constitutionalism is essentially about the protection of individual freedom specified in the legal form of basic rights. In order for this fundamental task to be met, constitutionalism has to set and unambiguously limit the proper scope of the functions of government. Limited government cannot be achieved unless mechanisms of control of political authority are in place. There are two basic types of control mechanisms. Internal mechanisms are procedural and institutional arrangements of "checking power by power:" separation of powers, division of powers, checks and balances, and judicial review. Secondly, there should be external checks, consisting in control of government by citizens. And this is where - in this external control - the essence of constitutional democracy is to be sought. The meaning of democracy cannot consist in creating a sustainable arrangement that would approximate or in any feasible way do justice to

43

Sartori, 132.

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the ideal of the rule of the people. Democracy can properly be understood only as a limiting device: democracy should be instituted and promoted as the constitutional limit of governmental authority.44 Democracy is an arrangement that legitimizes that which needs legitimization, namely the relationship in which there are rulers and ruled. As it has already been argued, some kind of relationship between rulers and ruled has always existed, but the democratic relationship is supposed to be different, in that both the creation of government and the governmental process are put under the scrutiny of the ruled - this we can call the legitimization process. This justificatory relationship can take different forms, and it can be theoretically expressed in different ways: democratic self-rule, democratic participation, and democratic control refer to different perceptions of the meaning of democracy. In the previous section I was arguing that the idea of self-rule opens the door not only and not primarily to the despotic power of the majority, but most importantly, to the uncontrollable power of those who govern "in the name of the people." What remain then are choices of participation and control. The fact that participation fits the idea of "autonomous and authentic" selfrule does not necessarily lead to its disqualification. We only need to comprehend participation differently, so that it fits the control-based understanding of democracy. It can be maintained that "political participation has obviously proved to be an indispensable tool for protecting individuals against capricious, corrupt, and tyrannical government."45 To repeat, the purpose of the democratic arrangement is instrumental, i.e., democracy, in contrast to liberty, is not an absolute or fundamental value; plainly, democracy is an instrument of constitutionally-constrained liberty. Participating citizens should not be understood as politically active for the sake of their sovereign rule, but rather for the sake of the defense of values upon which constitutionalism is built. What does this mean? Here it might be helpful to re-visit the meaning of rights. "The political order treats citizens as equals in the political sphere, but this equality does not necessarily extend to other spheres of life. Here we find the limit to the implementation of the majority principle."46 Classical personal rights as negative rights draw the line between legitimate action of the state and the autonomous sphere of individual privacy. Individuals are equal here in two formal senses. They all possess an identical basket of rights; consequently, they are all equally protected against the abuse of state power.

44 45 46

Sajo, 54. Holmes, Passions, 28. U. Scheuner, Dai- Mehrhelt Prinzip in der Demokratie, Opladen: Westdeutscher Verlag (1973) 46.

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What they do behind the fence made by rights is their private matter. Liberal equality does not prevent us who are different from being unequal, i.e., from being who we are. This is all well known, of course: liberal constitutionalism does the most it can for individuals recognized as autonomous beings. Human beings who are different from one another can be made equal without violating their uniqueness, provided their relation to the principal threat of their liberty is formulated in a legally universal manner. Liberal constitutionalism allows individuals to be real human beings in the private sphere, provided they accept formal constraints (formulated as rights) of this authenticity, constraints that shape the realm of authenticity in a manner that is supposed to protect them from being harmed by those who are stronger (government), and from those who are equal (other individuals) alike. This latter feature indicates that through personal rights I am not only protected from those who might do me harm, but I am also prevented from doing harm to those who are - asrightsbearers equal to me. But things are different with political rights. These rights need to be understood as broader than personal rights in order to achieve the most important feature of the political process: to keep government within prescribed limits and to curb possible excesses of democracy. To state it in another fashion: citizens' political rights have to be considered broader than personal rights in order for citizens to be more efficiently protected and to have less capacity to rule. Before explaining what "broader political rights" means, I would like to emphasize that this characterization does not amount to the known distinction between negative and positive rights. Political rights, as rights of participation guided by the goal of effective control of government, are also negative rights. The purpose of these rights is not to realize the virtue of participation. Their purpose is rather to make room for participation, so that citizens are effectively enabled to communicate with the state in the public space, all with the principal goal of protecting personal rights. In other words, political rights and democracy, when properly understood, are instruments that defend individual liberty against the state. What, then, should this "broader" understanding of political rights signify? Let me turn very briefly to the issue of social rights. We know that social rights have been introduced to catalogues of rights following the claim that formal equality in the private sphere does not suffice if the substantive condition of human beings is such that it renders formal equality empty. And we know that this arrangement, aimed at promoting substantive equality as the necessary

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condition for making sense of formal equality, is not free of ambiguities, which in the end might threaten the very fundamentals of liberal constitutionalism.47 But the interplay between formal and substantive has a different meaning in the realm of political rights. Political rights do not work without special care, care that prevents the substantive inequality of citizens from violating their formal equality. The existing distribution of resources, which results in the possible economic and social inequality of citizens, must not shape their position and capacity to act in the public sphere. If we simply pretend that the substantive inequality of actors in the political realm does not exist, the consequence will be that those who are socially more powerful will become politically more influential, in terms of their capacity to politically articulate and aggregate their interests, in terms of their capacity to present their interests as more relevant than the interests of those who are weaker and, finally, in terms of their capacity to enter into direct communication with the government. Therefore, in order to enable political rights to function as guarantees of the equality of citizens in the public space, at least two additional constraining substantive demands should be constitutionally formulated: Government shall not favor the interests of any individual or group or organization on the ground of their strength or alleged special relevance in a particular case, for a particular area of societal life, or for the political community in general. Government shall not be allowed to claim the efficiency imperative as an independent criterion of justification for its actions. Such a statement might, from the constitutional perspective, look like a mere pleonasm or a superfluous addition to formal equality in political rights. But this is only seemingly so. In order to demonstrate that the problem is serious and that the proposed constraining devices deserve attention, I will briefly point to one specific threat to individual freedom that stems from the wrong perception of political rights and their role in contemporary societies. The power of political authority to make binding decisions is not simply the power to cut off deliberation on the contested issue by making a binding proclamation on what is the right and allowed behaviour in a particular case. It is equally important to observe that government in its decision-making capacity has the capacity to choose which issues, i.e., issues belonging to which realms and pertaining to which actors in the political arena, will be brought

47

See e.g., Saj6, 32-38. Of course, opposing views, those that speak in favour of social rights, prevail. Most interesting are probably those that firmly stay within liberal tradition, claiming that welfare rights are in accordance with liberally conceived freedom. See e.g., Holmes, Passions, 236 et passim.

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to the agenda. In negative terms, the decision-making capacity of government denotes the capacity to exclude as irrelevant both issues and actors. If the choice of what and who is relevant, i.e., what and who deserves governmental scrutiny and decision, is left to the government, subject only to the condition of formal equality of political actors and to procedures relying exclusively on such formal equality, government will, in the end, have the freedom (only poorly restrained) to choose the problems and actors it deems relevant. Citizens, on their part, will be divided into those who have effective access to the decision-making stage and those who do not. As a consequence, in the name of democracy and the rule of the people, we would get something that really would approximate the old cherished ideal of self-rule. Still, it would be a limping approximation: some people, groups, and organizations chosen by government would - upon invitation - really enter the governmental apparatus, thus breaking the dividing line between rulers and ruled. But those "some people" are likely to be of a special kind: politically-economically organized employers and employees, the arms industry, the tobacco industry, or mafia in some of the post-communist countries.48 This kind of "rule by the people" leads directly to the establishment of the "dual state." The "corporate state," made up of agents of economically powerful interests, on the one hand, and the state apparatus, on the other hand, would pass many important decisions, standing in the shadow of the "official" constitutional government. And formally equal citizens, equipped with political control mechanisms to observe the "official state," are left at the mercy of the invisible one. So, it could be argued that the so-called complexity of contemporary societies is one of the most threatening enemies of liberty and of the system of constitutional government as a whole. Here we need to see that the complexity story is probably more complex than its subject, i.e., we need to carefully distinguish empirical insights from normative preferences disguised as description. We know the line of argument: the ideal picture of liberal society presupposes the primacy of the individual perspective and the emancipation of civil society from the political realm. But liberal societies long ago became pluralistic,49 blurring, in consequence, the distinction between society and the state. The society of competing groups is becoming increasingly complex,

48

49

Of course, the "likely to" or "would" minimizers are not entirely appropriate here, for the above is the story of "economic democracy" or "corporatism." The post-communist picture is surely different, at least in being much more grim - see "Crime and Corruption after Communism," East European Constitutional Review Vol. 6. No. 4 (Fall 1997). For a classical interpretative account, see R. Dahl, A Preface to Democratic Theory, Chicago: University of Chicago Press (1956).

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interest lines are cross-cutting each other and government can neither pretend to be a mere Nightwatcher, nor can it manage interest pluralism if the old society-state distinction is preserved. The state becomes overloaded with too many, too distinct, and too complex demands standing in need of authoritative coordination. This is the set of issues that has long been known in theory as the governability problem. At this point the argument switches from description to a false description: government has to make a choice in order to preserve the necessary minimum of its working capacity. The efficiency requirement is presented here as a matter of survival. The state, confronted with urgent coordination and decision-making needs, cannot wait for interest pluralism aggregated in civil society to be translated into political choices. Efficiency demands that the state "enter" civil society, choose relevant societal actors, and bring them as societal actors to the political stage. In this way, actors, their interests, and preferences would be presented to the political stage in their "original form," thus making democracy allegedly more genuine. "We" do not simply sporadically vote, "we" are not simply in the position of critical observers - nor do we have to hide our true identity and true interests behind the legal masks of abstract citizens. Rather, "we" as genuine selves participate in deciding public matters in cooperation with government. Still, Niklas Luhmann has made a much better case here than the defenders of "economic democracy," and his inferences deserve to be mentioned as the most accurate insights into the complexity problem and its consequences for liberty and democracy. Luhmann does not pretend that in the pluralistic perspective constitutional government is in search of a new formula: he simply proclaims the death of the modern, Enlightenment-based paradigm, bringing generously to light the internal limits and logical consequences of the pluralismcomplexity-(non)governability line of thought. For Luhmann, contemporary complex society is a mosaic of self-referential sub-systems, which are all being reproduced following their own exclusive "circular constellations of power." Only the state, as the embodiment of the general societal system, has the capacity to see what is going on within its sub-systems. Politics cannot be conceptualized in terms of the distinction between power-holders and subjects anymore, but rather as the administration of the ever-growing societal complexity.50 Luhmann claims that what is at stake is not the meaning of our life

50

"Differentiation and delimitation exist, to the extent they are controllable at all, at the same time as acts of creation and as techniques of reduction of high levels of complexity. This is most probably the remaining option for evolutionary developed societies, societies which are structurally oriented toward high selectivity, i.e., toward producing more 'noes' than 'yeses.'" N. Luhmann, "Politische Verfassungen im Kontext des Gesellschaftsystems," part

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together, but rather the making of that life bearable in the face of its overcomplexity. Applied to the relationship between citizens and the state, the axiom reads: "Legitimation is always self-legitimation."51 When it comes to the meaning of the law, it should be known that we ascribe its validity to the principle of variation only. The fact that a norm can be changed in a procedurally correct way without any further limitation is the basis of all legal validity and stability. Positivation of the law means that any content whatsoever can obtain legal validity, provided it is made part of the legal system in accordance with existing procedures. The paradigmatic conclusion follows: "The positive law is valid on the basis of decision."52 The above described "empirical" analysis of the complexity of modern societies leads to the normative preference for the strong, legally unbound state at the direct expense of individual freedom. If political rights are opened up to become more than control instruments, if they are introduced to promote a "more genuine" democracy, a likely consequence is the one described by James Madison: the dictatorship of factions, or the uncontrollable particularism of the most powerful interests allied with government. The basic preconditions of the constitutional political process - transparency, accountability, the public character of government and of the decision-making process - are under direct threat, and the individual is again on the verge of facing the pre-modern condition of "fitting into the cosmos." But the character of "the cosmos" would be much more difficult to discern today.

51 52

2, Der Staat 2 (1973) 168. N. Luhmann, "Selbstlegitimation des Staates," in N. Achterberg and W. Krawietz (eds.), Legitimation des modernen Staates, Wiesbaden: Steiner (1981) 65. N. Luhmann, "Positives Recht und Ideologic," Archiv fur Rechts- und Sozial Philosophic 4 (1967) 535.

6

THE DEMOCRATIC LIMITS TO AUTHORITARIANISM IN DEMOCRACY (When the State Knows Better What is Good for the People)

Leszek Lech Garlicki 1

PRELIMINARY REMARKS

Every process of transformation is characterized by political, legal, and moral turmoil. When this ultimately results in a functioning economy and social peace, gradually consensus builds concerning the benefits of the new system and the lack of purpose in contesting it. When the costs of transformation, however, turn out to be greater than expected, and no prospect of prompt recovery from the crisis is in sight, disillusionment and discontent begin to prevail. Especially in our part of the world, initially the naive belief dominated that the overthrowing of the communist system of government would automatically, as it were, introduce our society to the family of the wealthy nations of the West. When it turns out, however, that ten years later the economic and social landscape of the given country is in no way similar to the United States of America, the easiest explanation points to treason and corruption on the part of the ruling class, which in turn provides fertile ground for a "strong" leader, who would establish order in the country. Such a feeling of frustration might easily exert an impact upon the functioning of the institutions of the state, as one of the first accomplishments of transformation has consisted of the establishment of broad-ranging political democracy. It is not necessary, therefore - as during the period of communism - to resort to underground activities in order to overthrow by force those in power. The same goal can be achieved equally well by utilizing the democratic procedures, but the end result might consist in bringing to power - legally and democratically - parties and politicians whose views of democracy and pluralism might be rather far from the standards of the beginning of the 21st century.

A. Sajo (ed.), Out of and into Authoritarian Law, p. 97-110 © 2002 Kluwer Law International. Printed in The Netherlands.

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These problems are not new, of course, and history provides many similar examples. Most contemporary democracies have had to overcome similar difficulties and usually political reason and state instinct have taken the upper hand. The experience of Central Europe provides a lesson, however, that the democratic procedures and the functioning of a "free market of ideas" may also lead to different results. After all, there have been known cases of democratic elections elevating criminal figures to power, and also, much more frequently, situations in which the disillusionment with the effects of applying democratic procedures has produced the social acceptance of a coup d'etat and the rule of "enlightened" dictators. This has led to the realization, especially after the experiences of World War II, of the necessity to adopt a cautious approach in looking at the way democratic procedures are applied. Hence the concept of "streitbare Demokratie" allowing for the determination by the state of certain limits, beyond which the functioning of democracy cannot extend. That is a very dangerous game, of course, as - especially according to our traditions - the state feels much more at ease in the role of the opponent of democracy, rather than in that of its protector. The development of the social system on the assumption that the state knows best what is good for the people cannot always lead to satisfactory results. The adopted solutions, therefore, are by their very nature based on compromise, promoting democratic procedures on the one hand (and the rule of the electorate that they imply), and on the other hand indicating certain limits and boundaries, beyond which that power should not reach. Three domains seem to be worthy of attention in the above context: the presidency, the political parties, and the popular referenda. A presentation of their arrangement in Poland in light of the legal regulations, political practices, and decisions of the courts provides a good illustration of the problem under discussion.

2

THE PRESIDENCY

2.1 The establishment of the institution of the president is a solution typical of post-communist democracies. Although both the role and the origins of the presidency in different countries are varied, it is often difficult to avoid the impression that the president occupies the position vacated by the former secretary-general of the Communist party. In Poland the origin of the presidency - as it was established in the spring of 1989 - has been of a specific nature. Not only and not so much did it constitute an element of democratic reconstruction of the state administration;

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it was also intended to provide a guarantee that the process of transformation would not go too far. One of the provisions of the "Round Table" was to maintain a certain balance between the existing old structures (especially the Communist Party) and the new forces, which were personified in "Solidarity." It was agreed, therefore, that the first parliamentary elections would be only "partly democratic," and that Solidarity would have a chance to win a majority only in the Senate, whereas the presidency would be entrusted to General Jaruzelski. The presidency was thereby regarded as an instrument for maintaining political equilibrium, and that was expressed in the definition of the presidential powers, especially with regards to Parliament and the government. Above all, the constitutional competencies of the president were unclear. Article 32, section 2 of the Constitution (as amended in April 1989) indicated that the "President safeguards compliance with the Constitution, protects the sovereignty and security of the state, the inviolability and indivisibility of its territory and the observance of international political and military alliances." Right from the outset, controversies took place concerning the interpretation of that provision. Some scholars claimed that the formula in question meant a mere declaration, indicating the most important values by which the president should be guided in performing his competencies. Others believed that the above formula gave expression to separate competencies of the president, that it provided grounds for deriving implied powers, and therefore substantially expanded the role of the president. In any case, this suggested that the president ought to have particularly visible input into the issues of security, defense, and foreign policy, and the person of General Jaruzelski underlined that suggestion. The government (the ministers) was appointed by the Sejm (the lower chamber of Parliament), but the exclusive right to present the candidate for the prime minister's office belonged to the president, and if within three months' time the government was not appointed, the president would be entitled to dissolve the Parliament. The dissolution of the Parliament would also be possible, if it "adopted a law or resolution that would prevent the president from exercising his constitutional prerogatives specified under Article 32, section 2," which was a formula lacking any precision and potentially very dangerous. The presidency as defined in such a manner could easily have been transformed into a constitutional or quasi-constitutional dictatorship, but it was a transitional solution, a price for the peaceful conduct of the process of transformation. 2.2 The anti-democratic potential of those regulations was never verified by the political realities. The dynamics of the political situation in Poland and

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in other countries of the region were changing so fast that no efforts whatsoever were made to stop the process of transformation. General Jaruzelski loyally accepted the formation of the government of Mazowiecki, and from the autumn of 1989 hardly made use of his constitutional competencies. In the autumn of 1990 he agreed to step down to open the way for the democratic election of the president. As we know, the presidency went to Lech Walesa, the charismatic leader of Solidarity, who obtained seventy-five percent of the votes in the second round of the election. He took the office that six months earlier had been shaped in essence as an instrument against him. This removed the risk of the presidency being exploited for a communist coup d'etat and a "return to the past," but it implied at the same time that the broadly conceived and legally imprecise competencies came into the hands of a politician who was powerful, popular, and not particularly attached to traditional parliamentary procedures. The rhetoric of Walesa during his electoral campaign, among other things the mentioning of "the axe" or "doing away with corruption to leave the swindlers with nothing but their socks," might have suggested that something along the lines of an elected dictatorship could emerge. As we know, nothing of the kind ever happened, and Walesa never undertook any actions that could have clearly led in that direction. Nevertheless, the potential scope of the powers that were at his disposal was enormous, and the definition of the presidency was utterly inadequate for the situation that had emerged after the disintegration of the Communist Party (and the fall of the Soviet Union). Without going into any details, it suffices to say that this was reflected by the adoption in the autumn of 1992 of the so-called "Small Constitution." It provided new shape, not encumbered by the compromises of the 1989 Round Table, to the positions of the Parliament, the president, and the government. The Small Constitution, however, was also the result of a political compromise, as the powerful role of the presidency was maintained, only differently described in legal terms. Article 28 (2) of the Small Constitution provided that "the President is to guard compliance with the Constitution, protect the sovereignty and security of the state, the inviolability and indivisibility of its territory and the observance of international treaties." That formula was almost identical with the previous one and therefore all the doubts and controversies concerning its interpretation continued to be valid. Further constitutional regulations also indicated clearly that the president was "exercising general leadership" with regards to the sphere of foreign relations (Art. 32 (1)) as well as the external and internal security of the state (Art. 34). This clearly pointed to the active role of the presidency in those areas, and therefore restricted the independence and political responsibility of the government. At the same time, the relations between the president

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and Parliament were ordered to a certain degree, as the Small Constitution referred to the German model of "rationalized parliamentarianism." The powers of the president to dissolve Parliament were substantially curbed, and in the process of government formation the Parliament could (although the process was complicated) force its will upon the president. The fears of a presidential dictatorship were not confirmed in practice, even though the role of the head of state was strengthened. In particular, the president managed to impose his concept of the so-called "presidential ministries" (Ministry of Defense, Ministry of the Interior, and Ministry of Foreign Affairs). He decided on the appointment of their leadership and significantly influenced their activities. Although numerous conflicts arose between the president and Parliament (especially after the electoral victory of the Left in 1993), the president never explicitly violated the Constitution. The problem was resolved only after the presidential elections of 1995, as the new president, Kwashniewski, had neither the intentions nor the possibility to expand the powers of the head of state. 2.3 Fears of a strong but legally imprecise formation of the presidency determined the course of the work on the new Constitution of Poland, which was conducted from the end of 1989. That work was accelerated after the formation of the left wing government, as they reckoned with the possibility of another electoral victory by Walesa in the presidential election of 1995. Thus, the strategy adopted was to significantly weaken the position and competencies of the president. And when in 1996/1997 it turned out that the Left won the presidency, but could lose the parliamentary polls, an attempt was made to reverse the previously adopted arrangements. But that was no longer feasible, and the Constitution of 2 April 1997 bestowed upon the president a more contained role, though in a manner that was not fully consistent. The principle of the popular election of the president was preserved, which continues to allow him to refer to his democratic legitimation and to oppose the will of the Parliament on the grounds that he represents the electorate. The tasks of the president continue to be described by the general formula (Art. 126 (2)): "The President safeguards compliance with the Constitution, protects the sovereignty and security of the state, the inviolability and indivisibility of its territory." This differs little from the previous regulations, but - as a novelty - section 3 was added: "The President performs his tasks within the scope and according to principles specified by the Constitution and the acts of Parliament." This brought the previously existing controversies concerning interpretation to their end, as it became clear that Article 126 (2) was only indicating the tasks (values) that the president was obliged to implement in

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performance of his competencies; the competencies in question must result from other specific provisions of the Constitution and acts of Parliament. Thus it is not possible to regard Article 126 (2) as a source of any implied powers of the president. The clauses on the conduct by the president of "general leadership" of defense, security, and foreign affairs disappeared from the new Constitution, as it was clearly indicated that the management of those matters belonged to the Council of Ministers. Thereby the concept of the "presidential ministries" also disappeared - there is no doubt that the Council of Ministers forms a uniform body, subject to the political leadership of the prime minister and the parliamentary majority. The competencies of the president to dissolve Parliament were reduced, and Parliament, as long as there exists a sufficiently stable majority within it, is able to independently determine the composition of the Council of Ministers and - through the prime minister - introduce changes within its ranks. The weakening of the position of the president was expressed by the corresponding increase of the competencies of the prime minister. The Constitution assigned him the role of the real leader of the government, which equipped him with authority similar to that in a chancellor-like system of government. Although the new Constitution did not exclude the possibility for the president - by claiming his legitimation by universal election - to oppose the program and options adopted by the Parliament, it did not provide the president with any significant legal instruments to apply to such a purpose. This has ruled out any possibility of forming a "legal dictatorship" by the president, as he currently has very few legal possibilities of enforcing his will upon the government or the Parliament. This change was in reaction to the fears that existed during the first half of the 90s, the result being that the presidency was reduced to modest dimensions. It seems, therefore, that under the present Constitution, the presidency would find it very difficult to become a source of power not subject to control, even if a president with strong support of the electorate would emerge. That conclusion is also confirmed by the practice developing so far, though due to the phenomenon of cohabitation of a left-wing president with a centerright parliamentary majority this period can hardly be regarded as typical. It cannot pass unnoticed, however, that with the lapse of time, the presidency of Kwashniewski is stabilizing and more boldly making use of the available constitutional instruments. This results, above all, from the internal problems of the ruling coalition and the political weakness of the prime minister. The actual picture of the presidency will be formed only after the election of 2000. If it is won by the president who is currently in office, it will be much easier

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for him to make use of his constitutional prerogatives; the more so as in 2001 parliamentary elections will take place. But that cannot lead to the return of Walesa's concept of a strong presidency, as the Constitution no longer allows that. Ten years of evolution of the Polish presidency demonstrates that it was developed with the powerful role of the head of state in mind, even one assuming the form of a constitutional dictatorship. But no serious attempts to implement that vision were ever made, even during the initial period of the presidency of Walesa, when he was backed by strong popular support. Nevertheless, the conclusion derived from those experiences resulted in such a reconstruction of the role and tasks of the president as to make it as difficult as possible to use the presidency as a channel for the introduction of authoritarianism.

3

POLITICAL PARTIES

3.1 Political parties are a significant instrument of parliamentary democracy, but they can also become an instrument for the liquidation of such democracy and the elevation to power of a popular leader. This problem has been even more difficult in the countries of our region, as a stabilized (if only historically) system of political parties was lacking, and as such a system needed to be developed quickly and from scratch. In this context, the question arose immediately as to the limits of the freedom to establish and operate political parties. On the one hand, this was linked with the necessity to liquidate the former Communist Party, or at least to eliminate its symbiosis with the state and its monopoly over the exercise of power. This was reflected in the process of "de-communization," which assumed very different forms in the various countries concerned. On the other hand, with regards to the "normal" political parties, this was reflected in the introduction of prohibitions against the formation and operation of parties with certain specific characteristics. The background behind such prohibitions consisted of both the "old" memories of European experiences and the fear of the resurrection of nazi ideas and racial hatred, and the "new" memories of the threats arising from the existence of a "party of the state," such as the Communist Party. 3.2 Already in December 1989 the Polish Constitution formulated the principle of political pluralism, indicating in Article 4, section 1, that the "political parties associate citizens of the Republic of Poland according to the principles of voluntary decision and equality, in order to exert influence by

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democratic methods upon the shaping of state policy." Thereby, the parties that did not demonstrate such characteristics did not have the right to exist, and the Constitutional Court was given the jurisdiction to rule on the incompatibility with the Constitution of the goals or activities of a political party. Two distinct procedures were foreseen: the first could be applied when entering a party in the court register (which was necessary in order to obtain the status of a legal person), and the second could apply to an already existing party. In practice, however, no such case ever occurred, and the very need for the existence of limits to the freedoms of political parties was not questioned. In the course of the work on the new Constitution it was even decided to give these limits a more complete expression. Article 11 stated, therefore, that Poland "assures the liberty of formation and activities of political parties. Political parties associate on the grounds of voluntary participation and equality of Polish citizens with the purpose of influencing the shaping of the policy of the state by democratic methods." Positive requirements concerning the political parties were formulated here: the association of Polish citizens, the principle of voluntary participation, and the exerting of influence by democratic means upon the shaping of the policy of the state. The Law on Political Parties of 1997, in turn, repeated the formula of Article 11 of the Constitution, and in addition (Art. 8) required the parties to "shape their structures and operating principles in compliance with the principles of democracy, and in particular through the assurance of the transparency of those structures, the appointment of the party executive bodies by way of elections, and the adoption of resolutions by majority vote." In that manner a certain level of minimum "internal party democracy" was defined, being regarded as a necessary condition for the party to maintain its democratic features. Negative requirements were formulated in Article 13 of the Constitution: "The existence of political parties and other organizations referring in their programs to totalitarian methods and practices of nazism, fascism and communism is prohibited, and concerns also those, the programs or activities of which assume or allow for racial and national hatred, the use of violent force in order to win power or influence the policy of the state, or foresee the secrecy of their structures or membership." On the one hand, therefore, it is prohibited to refer to certain ideologies (but only with regards to their totalitarian methods and practices) or to preach certain slogans (especially racial and national hatred); on the other hand, it is forbidden to create a party with a certain structure and principles of internal operation. Those requirements apply separately: if a party's program or internal activities violate any of the conditions, that party is in violation of the Constitution.

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The incompatibility of a political party with the Constitution is subject (as previously) to a ruling exclusively by the Constitutional Court. 3.3 I have already mentioned that in practice those regulations did not find any applications for a long time, though one could point out some parties and other organizations whose programs, and especially activities, could give rise to very serious doubts. Most importantly, it was a matter of organizations demonstrating or supporting racial and national hatred. In 1999 the Constitutional Court received the first case concerning a political party. But it was not related to the above-mentioned issues, as the challenge was limited to the violation of the requirement of a democratic party structure. The recently formed Christian Democracy of the Republic of Poland (ChDRP - closely attached to Walesa) introduced amendments to its articles of association providing that the chairmen of the regional party councils were to be appointed by the Chairman of the National Committee. The District Court that was to register those amendments was concerned that they violated the constitutional requirements of the law on political parties, and referred the matter to the Constitutional Court. The question of principle was whether Article 11 and Article 13 of the Constitution implied the requirement that the internal structure of a party meet certain democratic standards. In its ruling of 8 March 2000 (Pp 1/99), the Constitutional Court decided that the challenged provisions did not violate the Constitution. The judges indicated that according to Article 11 and Article 13 of the Constitution, one could neither overestimate nor treat too lightly the factor of internal organization. In the light of the Constitution, a political party, defined as a voluntary association...should constitute a dynamic unity of its internal and external structures and methods of activity. That unity should assure the citizens organized in political parties the possibility of organized and effective impact or participation in democratically exercised governance. This implies the existence of a link between the internal structures and methods of activity of political parties, and the fulfillment by those parties of their constitutional role and the democratic nature of their methods of influencing the policy of the state. Those links, however, are of a relative nature, and the subjection of the internal methods and structures of the functioning of political parties to their role and methods of shaping state policy does not have the nature of a necessary requirement. Undemocratic elements of internal organization need not always directly and substantially bear upon the fulfillment by a party of its role in the political system or upon the external methods of activity which it applies. Therefore, the liberty of shaping the internal structures and principles of the functioning of a party cannot be restricted, as long as it does not exclude the democratic nature of the methods by which a party intends to

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influence or actually influences the shaping of the policy of the state. The lack of internal-organizational democracy, however, must be taken into account when ruling on the consistency with the Constitution of the objectives or activities of political parties, if it prevents or even just restricts in a significant way the fulfillment by a party of its constitutional role, or if it directly turns into the assumed or implemented methods that it applies to shape the policy of the state. That implies the necessity to judge in relation always to a specific case, whereby such evaluations should cover the whole of program premises, statutory principles and practices applied by the given political party. Such assessments should, above all, take into account: [F]irst, whether, and if so, to what extent the structures and methods of internal organization prevent or restrict the influence of the party members upon the shaping of significant elements of its program, its statutes and policies; [S]econdly, whether, and if so, to what extent, the structures and internal organizational methods prevent or inhibit the party members from influencing the composition of the highest bodies of the party, especially those that represent it externally; [A]nd thirdly, whether and if so, to what extent, the structures and methods of internal organization prevent or inhibit the party members from exerting influence upon the possible activities of their representatives present in the legislature and other bodies of public administration. The only limitations of the freedom to organize the internal structures and methods of conducting party activities that are specified in absolute terms consist of the prohibitions contained in Article 13. Under such conditions, according to the opinion of the Constitutional Court, it must be concluded that the Constitution is in favor of observing far-going restraint with regards to the possibility and scope of interference by the public authorities, including the legislature, with the internal structures and principles of activity of the political parties. Based on the above premises, the Constitutional Court reviewed the statute of the ChDRP. It indicated that "the method of formation of the internal structures of that party diverges to a considerable extent from the principle of the election of all the organs of a party in favor of special creative prerogatives of the chairman of that party. That may give rise to doubts." It does not mean, however, that Article 11 and Article 13 of the Constitution have been violated in that way. The Court continued, It should be taken into account that the autonomy of the formation of the internal structures is derived from the liberty to form parties. External interference may be taken into account only when such a structure unequivocally and obviously diverges from the standards of a democratic state governed by the law and its

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corresponding value system. In this case the Constitutional Court has not found any such obvious and unequivocal incompatibility.

In general terms it may be concluded, therefore, that the Constitutional Court has developed a set of criteria according to which the internal structures of a party should be evaluated, but it did not find it necessary to apply them in order to disqualify the ChDRP.

4

REFERENDUM

4.1 Popular referenda may be regarded as the highest form of democracy, but situations have occurred many times in which they have been exploited for completely opposite ends, especially to reinforce the position of the head of state and to by-pass the Parliament. Also, the experiences of Poland have not been encouraging, as the referendum conducted in 1946 and intended to demonstrate the nation's support for the new authorities was doctored by the state security services. After 1989 the constitutional regulations had foreseen the possibility of conducting a referendum, but introduced three significant limitations. First, a referendum could take place only with the consent of Parliament, as it could be decreed only by the Sejm or the president with the approval of the Senate. Secondly, the subject of a referendum could only consist of some general issue, and could not be applied to any specific state decisions (i.e., one could not adopt laws by that method). Thirdly, for the result of a referendum to become binding, it required the participation of over half of the eligible voters, which, given the traditional passive behavior of a large part of the electorate, was difficult to achieve. This was additionally complicated by the Constitutional Court in its decision of 13 February 1996 (W 1/96), in which it distinguished between a "binding" and a "decisive" result of a referendum. The referendum procedure constructed in that manner was used only once, in 1996. It did not leave good memories, as it took place in an atmosphere of conflict between the president and the Parliament, the questions - concerning economic issues were formulated unclearly, and the low voter turnout gave the referendum the character of a non-binding consultation. If that referendum was regarded as an attempt at a form of direct communication between the president and the voters, over and "above the head" of the Parliament, it was a complete failure. More important was the significance, however, of the constitutional referendum, which was conducted in 1997 after the new Constitution was adopted by the Parliament. As is well known, the Constitution was approved, though

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by a modest majority of the votes. It was accompanied by a very controversial debate, in which the Constitution itself was the least discussed topic, and which instead focused on the political battle between the Left and Right. 4.2 One should consider the current constitutional regulation of the referendum against the background of those limited, but hardly encouraging, experiences. In principle, the regulation just repeats the previously existing models. A referendum may therefore be decreed only by the Sejm or by the president, but with the consent of the Senate. Therefore, the possibility of conducting a referendum without the approval of at least one chamber of Parliament is out of the question. The proposal to conduct a referendum may also be submitted by the Council of Ministers or a group of 500,000 voters, but the decision concerning its actual initiation is always reserved for Parliament. The subject of a referendum may consist of an "issue of particular significance for the state." It is not possible, therefore, to subject to a referendum any act or decision that belongs to the competencies of particular organs of the state (e.g., to adopt laws, ratify international treaties, etc.). The provisions of the law do not explain how to proceed when the questions of a referendum are formulated in a manner contradicting the Constitution; it seems, however, that in such a case it would be inadmissible to conduct the referendum, and its results would be invalid. The result of a referendum is binding only if more than half of those eligible to vote take part in it. Otherwise, the result is regarded as a consultation, and its results may be, but need not be, taken into account by the state authorities. There have been no serious attempts to initiate a referendum since 1997. It may be noted, however, that the discussed provisions of the Constitution have been constructed with the intention of discouraging a referendum. The above-indicated limitations make the procedure very difficult to apply, and the chances of obtaining a result leading to the adoption of a binding decision are very small. The tendency - typical, by the way, of the entire Constitution of 1997 - to reduce all the institutions and procedures that could weaken the predominant role of the Parliament is clearly visible. From the point of view of our deliberations it allows us to conclude that the Polish referendum would be very difficult to apply for anti-democratic and anti-parliamentary purposes. 4.3 The Constitution of 1997 recognizes two additional specific variations of a referendum. The first one concerns the "European referendum": the accession of Poland to the European Union will require the approval of both chambers of Parliament (by a majority of two-thirds of the votes) or approval by

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a referendum. The choice of the procedure belongs to the Sejm, so again there is no possibility to bypass the Parliament or enforce specific decisions upon it. This could enable supporters, however, to bypass the opposition in Parliament. If it turned out that in Parliament it would not be possible to achieve the required two-thirds majority, the parliamentary majority could propose the referendum in the hope of gaining the support of the nation. This is not riskfree, however, as a binding result of the referendum can emerge only if over one-half of the voters turn out at the polls. This could result in a stalemate situation, for if the active participation of the voters would be less than that, the issue could not be effectively resolved at all. The second case concerns the "constitutional referendum." Any changes in the Constitution must first be adopted by a resolution of the Parliament. Some changes, however, may subsequently be subjected to a referendum, if requested by the president, the Senate, or ninety-two deputies of the Sejm. In such a case, the referendum must be carried out, and its result is always binding, regardless of the voter turnout. The referendum should therefore be regarded as an additional factor reinforcing the rigidity of the Constitution; but as there can be no amendment of the Constitution that would not be initially adopted by the Parliament, it would be difficult to consider the "constitutional referendum" a substitute for legislative power.

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7 THE MAKING OF THE HUNGARIAN CONSTITUTION

Gabor Halmai

It was in the summer of 1989 at the National Roundtable talks between the Opposition Roundtable (EKA), the so-called Third Side, and representatives of the state party (the Hungarian Socialist Workers' Party, the MSZMP) that the concepts for the revision of the Stalin-inspired, Rakosist Constitution of 1949 began to take shape. Subsequently, the illegitimate Parliament only put the seal on the comprehensive amendment to the Constitution that came into force on October 23 of the same year - the anniversary of the 1956 revolution. This amendment - with lesser or greater alterations - is still the fundamental document of the "constitutional revolution."

1

THE 1989

"CONSTITUTIONALIZATION"

The immediate reason for the formation of the EKA was the fact that in March 1989 the regulatory principles of the new Constitution drawn up by the MSZMP were set before the Parliament. It was therefore feared that those previously in power would themselves frame the "new" constitutional order. At first it was only the prevention of this that the EKA wanted to achieve at the National Roundtable talks that began in mid-June: it regarded the establishment of the constitutional order as the task of the new Parliament that would assemble after the election. They, for instance, did not want to bring up the establishment of the institution of the presidency at all. Instead, they proposed, as a temporary arrangement, the authorization of the President of the Parliament with provisional presidential powers. Also, only three days before the end of the talks, the EKA agreed to the institutionalization of the Constitutional Court prior to the adoption of the new Constitution.

A. Sajo (ed.), Out of and into Authoritarian Law, p. 111-122 © 2002 Kluwer Law International. Printed in The Netherlands.

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The fact that the opposition abandoned the concept of constitutionalization by a new, democratically elected Parliament was due to various factors. One of these factors was that the opposition was not certain that the MSZMP would not win the election against its rivals (known so little among the voters), perhaps even with an absolute majority. And we have reasons to believe that even if the MSZMP had only won with a relative majority, the possibility of their forming a government could not have been precluded. Of course, the MSZMP was not sure of a victory either, and therefore they, too, had to consider the possibility of "advanced constitutionalization." They naturally agreed to it only in return for promises that would guarantee that they could maintain some of their positions. One such promise on the part of the opposition parties that finally signed the agreement was the direct election of the president prior to the parliamentary elections - a promise that held out prospects of a sure victory for Imre Pozsgay, one of the well-known leaders of the MSZMP. This was prevented by the success of the "four yes" referendum initiated by the SZDSZ (Alliance of Free Democrats) and the FIDESZ (Alliance of Young Democrats). Behind the division between those signing the agreement and those initiating the referendum was a consistent idea of political transition on the one side and probably a Pozsgay-An tall agreement on the other. Viktor Orban's words at the EKA session on September 15 refer to the former: "...if we yield now on this issue then the MSZMP will not yield on any of the other issues."1 The latter may be inferred from Peter Tolgyessy's publication on what Antall told him two weeks before the referendum: "I would be glad to see the SZDSZ win the referendum, for it would bail me out of the bargain with Pozsgay."2 Antall was obviously led by his fear of an MSZMP victory. This is why he wanted guarantees for having a share of the power, so that they would win even if they lost the first free democratic election.3 The referendum redeemed the MDF (Hungarian Democratic Forum) from its pact with the reform-communists, which made it possible for them to strike - after the free election another pact amending the Constitution, this one with the SZDSZ, the party that initiated the referendum. It is apparent that fear of losing the democratic election caused both the state party and the opposition to not trust the new Constitution to frame the

"A rendszervaltas forgatokonyve. Kerekasztal-targyalasok 1989-ben" [The Script of Democratic Transition. Round-table Talks in 1989] in A. Bozdki (ed.), Vol. 4, Budapest, Magveto (1999) 386. P. Tolgyessy, "Adalekok az atmenet regenyehez," [Addendum to the Novel of Transition] Magyar Nemzet, 22 May 1999. Bozoki, Vol. 1, 18.

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constitutional order of the political transition. So in October 1989 the constitutional amendment took the 1949 frame and filled it with new content, which can be regarded as constitutional even if here and there we are embarrassed to see the Rakosist-Kadarist carcass showing. This is manifested by the preamble itself, which is attached to the amended Constitution. It says that the revision was needed in order "to advance a peaceful political transition into a state founded on the rule of law - a state that realizes a multi-party system, parliamentary democracy, and a social market economy." Incidentally, the first debate in the I/I expert committee (which was to deal with the "timely issues of the amendment to the Constitution") developed in relation to the original preamble of the 1949 Constitution. This preamble, although it was somewhat recast in 1972, still originated from the development of Hungarian history and statehood following the second World War.4 The EKA proposed the annulment of this introduction. The experts of the MSZMP held that the preamble - as a part of the Constitution that is devoid of normative content - could not inhibit the political transition. But the EKA pointed out that the text, though not directly normative, could serve, for example, as a basis for interpretation in the hands of the Constitutional Court, and in this way could definitely hinder the democratic transition. As a compromise, the parties agreed that they would submit this question to the intermediate-level political conciliation board. In the end the original preamble listing the values of political socialism was left out of the amended version of the Constitution. Similar opinions were formed in relation to the form of government. The EKA proposed the denotation "republic." They argued that the expression "people's republic," introduced in the 1949 Constitution, had become associated with a historical period from which a democratic Hungary had to distance itself, even when denoting the form of government. The Third Side and the MSZMP, however, did not think that the democratic transition was endangered by their usage of the phrase "people's republic." So this question, too, was decided at a higher level, with, as we all know, "republic" as the winner. A debate developed among the negotiating parties about the constitutional declaration of the socialist character of the state. Here, too, the representatives of the MSZMP and the Third Side both held that if they kept the attribute, it would not affect the democratic character of the transition. On the other hand, the EKA took the view that the wording could adversely affect the parties not founded on a socialist basis. Instead of the restrictive attribute, "socialist," they

This part of my argument is based on the yet-unpublished official report of the committee. I am grateful to P. Szalay for presenting these documents to me.

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proposed the broader term "democratic state founded on the rule of law." Once again the parties expected the intermediate-level board to resolve the conflict. The result of the compromise was as follows: "The Hungarian Republic is an independent, democratic state founded on the rule of law - a state where the values of both civil democracy and democratic socialism can manifest themselves." This was a third-way solution with a legally and politically inexplicable message. In 1990 the opposition won the election, and when working on the amendment to the Constitution following the "pact," the first thing they did was to eliminate the second part of the compound sentence from the text. There was less debate about the phrasing of people's sovereignty. They agreed that the interpretation of people's sovereignty as restricted only to the working people should be replaced with a real concept of the sovereignty of the people, which would mean that this sovereignty is practiced by the people through their elected representatives or directly (for example, by way of a referendum or an initiative of the people). The "founding fathers" could scarcely have imagined what interpretations - even contradictory interpretations - by the Constitutional Court would result from the lack of the constitutional specification of priorities within this form of people's sovereignty. On the EKA's proposal, this concept was complemented by the prohibition of forceful acquisition and exclusive possession of power, and the right to disobey. In the course of the preparatory works for the amendment to the Constitution, the EKA put forward the suggestion that human rights as a fundamental value should be expressed through the alteration of the structure of the basic law. For, in accordance with the concept of human rights adopted in the amendment, these rights are not gifts left to the discretion of the state power, but, on the contrary, they are the very limits of this power. In the case of the rights "granted" by the state, it was acceptable to place the chapter on human rights after the one on state organs. But the basic rights that restrict state power should precede the chapters on state organs. In the end, however, the position taken by the MSZMP and the third negotiating party prevailed: they held that the alteration of the structure of the Constitution would have gone beyond what can be considered an amendment. But in accordance with the EKA's proposal, the new version of the Constitution states, among the general provisions, that the Hungarian Republic recognizes the inviolable and inalienable basic human rights, and it is the principal obligation of the state to respect and protect these rights. They also included in the reconstructed chapter on basic rights a number of rights that were not present in the previous version of the Constitution (freedom to do business and freedom of competition, freedom of movement and freedom to choose residence, the right to know and spread data of public interest, the right to petition, and the right to strike).

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In the course of the political conciliatory negotiations, a special working party (1/3) was set up to deal with questions concerning the elections. In the first month of the negotiations neither the MSZMP nor the representatives of the parties constituting the EKA wanted to come forward with their suggestions concerning the election system, so for the most part they only debated questions of the election procedure. (The social organizations constituting the Third Side did occasionally criticize the stonewalling tactics of the two other parties.) At the beginning of the negotiations the parties could only come to a consensus on one issue: they agreed that a unicameral Parliament of about 350 representatives was needed. At this point the MSZMP still proposed a system of about 300 constituencies. This would have been complemented by only 50 compensatory seats, which would have been distributed among the parties on the basis of the votes collected in the first round of the election, disregarding the votes of those with a seat. In this construction, which strangely reminds one of the former election system, each voter could only have cast one vote, and only for the candidates of the constituencies. The EKA argued that each voter should have two votes: one for an individual local candidate and a second one for a party list. Half of the parliamentary seats would be given to the individual candidates, the other half to the list candidates. Although the organizations of the third negotiating party accepted the institution of party lists, they - citing as a reason the fact that the Hungarian political structure was yet undeveloped - wanted to limit their proportion to one-third of all the seats. However, the concept of granting the national interest groups the right to nominate lay behind the tolerant attitude of the Third Side towards the system of electing candidates from a list. But neither the EKA nor the MSZMP accepted this concept. At a later phase of the negotiations the MSZMP agreed to the two-vote system, but at first this meant only a national list instead of the regional lists (lists set up in each county) in addition to the candidates of the constituencies. But the mandates from the constituencies still made up around eighty percent of all the parliamentary seats. In accordance with the negotiated agreement, an equal number of seats would have been decided in the individual constituencies and on the regional lists of the parties. This would have been supplemented by the mandates from the national lists adding up to about one-fifth of the total number of parliamentary seats. In the course of the parliamentary debates most of the illegitimate representatives supported a greater proportion of mandates from the individual constituencies, which "in the transitional period that lasts until the multi-party system has been firmly established" would better reflect local interests. This is how the ill-proportioned election system, which grants large bonuses to the winner, was established.

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Obviously, the negotiatory character of its origin explains, at least partly, why the old-yet-new Constitution largely follows the model of consensual parliamentary democracy that is native to continental Europe. This governmental system, which assumes the presence of more than two parties in the Parliament and coalition government, also meant the deliberate rejection of both the (partly or wholly) presidential system preferred by the MSZMP and still used in some of the postcommunist states, and the pure parliamentarianism of the Westminster two-party-shift system. A further characteristic of the system of decision-making developed in 1989-1990, different from that of Western Europe, and explainable, at least partly, by the legacy of four decades of totalitarian rule, is the fact that it is based not only on the consensus of the coalition parties, but at times requires them to involve the opposition as well, thereby considerably strengthening the checks against governmental power. The former is evident in the institution of two-thirds majority legislation, while the latter is exemplified by the constitutional legal status of the Constitutional Court and the ombudsman. In the 1989 original version the so-called "laws of constitutional force" required, practically in every question concerning state organs or basic rights, the support of two-thirds of the MPs, thereby necessitating the support of at least part of the opposition. This mechanism was somewhat mitigated by the 1990 "pact" between the largest ruling and opposition parties by significantly reducing the number of qualified majority laws. This development, as well as the introduction of the "constructive vote of no confidence" (in order to guarantee the government's stability), was counterbalanced by relinquishing to the SZDSZ (an opposition party) the right to nominate the "moderately weak" president. In 1989 the EKA was successful in achieving that the "moderately strong" presidency (tailored for Pozsgay), and with this a semi-presidential system, were not incorporated into the Constitution. But the presidency given to Arpad Goncz was undoubtedly stronger than what had served as a model for it: the figurehead president of Act No. I of 1946. The rather "neutral" presidential power means that the president cannot be classified as belonging either to the executive or the legislative branch of government, but instead plays a kind of balancing role between the two. The Hungarian Constitutional Court, with its especially great power (in comparison to its corresponding European institutions), as well as the specialized system of the ombudsman, were set up in 1989 in order to fulfill the principle of limiting governmental power. The parties of the EKA accepted the MSZMP's proposal to set up the Constitutional Court prior to the elections, which of course meant that it would be effective already in the transitional period. When they did so, they looked upon the Constitutional Court as the institution of the consensual democracy

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of continental Europe, its task being to balance the government. What the opposition wanted was not the institution intended by the MSZMP to help them preserve their power, but a court that would radically restrain the Parliament and the government. They wanted a court whose decisions could not be changed by the Parliament - as was intended in the original draft of the MSZMP - and whose proceedings could be initiated by any person. On that September weekend allotted for the drafting of the legislation, the MSZMP - or rather Geza Kilenyi, Deputy Minister of Justice, who was regarded as one of the MSZMP's candidates for the bench - tried hard to take popular initiative out of the text. Kilenyi also wanted to get the others to depart, for his sake, from the rule according to which those who occupied a top administrative position in the previous four years could not become Constitutional Court Judges.5 Upon the proposal of Laszlo Solyom,6 the opposition accepted the "Kilenyi passage" of the bill, presumably in exchange for concessions made by the state party. The MSZMP accepted that the President of the Constitutional Court would not be appointed by the Parliament (which would have been favourable to Kilenyi) but instead would be elected by the judges (a quite promising solution for Solyom). The balancing of governmental power was the reason for yet another decision of the parties: the introduction of the institution of the ombudsman into the Constitution. They did this without wanting to deal with the election of the intended ombudsmen: the ombudsmen designated for general matters and those designated for specific issues (the ombudsman for data protection, the ombudsman for the environment, the ombusdman for ethnic minorities.) The 1990 pact amending the Constitution was also the product of the consensual mechanism of decision-making that was introduced to the Hungarian political culture by the Roundtable talks. The preparations for the political transition were made in a consensual form, and the participants - obviously aware of the limits of their legitimacy - tried hard to model the new constitutional order on consensual democracy. It was for this reason that they strived to create as many balances against governmental power as possible. And it was also for this reason that on 30 August 1989, at the meeting of the intermediate-level conciliatory commission of the National Roundtable talks, Jozsef Antall argued, in opposition to the MSZMP, for the possibility of having a minister in the Parliament as an MP. "Through the principle of ministerial responsibility," he said, "...European parliamentary democracy actually con-

5 6

See Tolgyessy's report at the EKA meeting on 18 September 1989 in Bozoki, Vol. 4, 450. Bozoki, Vol. 4, 451.

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siders the government a function of legislation."7 Later, however, when they repealed the individual responsibility of the ministers and in the spring of 1990 introduced, as an import from Germany, the institution of the constructive vote of no confidence, they abandoned this principle.

2

CORRECTIONAL ENDEAVORS

To what extent does our constitutional democracy still have the consensual character devised for it more than ten years ago at the roundtable talks? While the 1990 pact itself showed perhaps the last institutional evidence of a consensus between the governing parties (or at least the largest of them) and the opposition parties (or at least one of them), the amendment to the Constitution adopted on the basis of the pact already restricted the mechanisms that limited governmental power and prompted the parties to consensus. The next steps were the 1991-1992 decisions of the Constitutional Court. These, through the interpretation of the 1989 Constitution, expressly diminished the authority of the president in favor of the government. On 30 August 1989, at the intermediate-level negotiations, Jozsef Antall was still arguing for a presidency with powers similar to those specified in Act No. 1 of 1946. He argued for a concept of the presidency in which "the President is the head of the executive power, and - in accordance with the Ministerial Government manifested in Act No. 3 of 1848 - he exercises his power through the government."8 At the session on 11 September 1989 it was again Antall who argued that the Commander in Chief of the military forces should be the President, and not the Prime Minister. "The Prime Minister," he said, "can...under no circumstances [fill this position], precisely because of Act No. 1 of 1946, which was based on Act No. 3 of 1848, since now we have a completely different concept of the institution of the Prime Minister, and therefore, if we vest him with this extraordinary power, it violates the principle of equality among the ministers. We think it is important to have the president fill the position of Commander in Chief, because...this is part of our constitutional order."9 But the 48/1991 (IX. 26.) AB decision of the Constitutional Court drafted by Laszlo Solyom, a former member of Antall's party and a prominent figure of the EKA, conveys a contrary view. This decision, which was based on the Antall govern-

7 8 9

Bozoki, Vol. 4, 34. Bozoki, Vol. 4, 20-21. Bozoki, Vol. 4, 312.

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ment's proposal interpreting the Constitution, tabled during the so-called media war,10 expressly declares that in parliamentary systems similar to the one in Hungary the President is not head of the executive branch, and, in accordance with the Constitution and the Home Defense Act, he has practically no substantial powers as Commander in Chief of the military force; those lie partly with the government and partly with the Minister of Defense. The constitutional order shaped in 1989-1990 incurred much criticism from the outset. The attacks as worded were, of course, aimed at the form of the Stalin-inspired Constitution, but the real target was always the parliamentary system based on the consensus of political forces. Towards the end of the first parliamentary term each party made it evident in its election program that they were for the adoption of a new Constitution. However, in doing so the parties were led by two different motives. For the most part they wanted to replace the Constitution with one that was, in its principles, basically the same as what we have today.11 They argued that although the Constitution was in accordance with the rule of law, it was, technically, inconsistent and deficient in its legitimacy. In 1994, however, the "new revolutionists," with their endeavors to rewrite the constitutional order agreed upon in 1989-1990, were not mandated by the voters to realize their plans. But the fact that the two new governing parties had more than two-thirds of the parliamentary seats revived the threat that the governing parties could monopolize the making of the Constitution. This danger, however, was warded off by the governing coalition itself (the coalition of the Hungarian Socialist Party [MSZP] and the SZDSZ) with their self-restraining gesture: they decided that the parliamentary committee set up to draft the Constitution could only adopt a resolution if it were supported by five out of the six parties, and in place of the proposed passages rejected by the committee, the provisions of the existing Constitution would be left to prevail. In principle this policy could have guaranteed the consensual drafting of a new, up-to-date basic law. But in the summer of 1996 the new draft of the Constitution did not

10 The dispute between the President and the Prime Minister about the nomination of the head of the only television station and that of the only radio station of the time. 11 Only the FKGP (Independent Freeholders' Party) and the KDNP (Christian Democratic Party) were for innovation, with the Constitutional Court pushed into the background. They wanted a presidential system (which, they argued, would be much cheaper for a small nation like Hungary) and a corporative second chamber. What lay behind the alterations they proposed was their belief that the present Constitution was "not Hungarian enough." This provides grounds for the rehabilitation of the "Holy Crown doctrine, as the foundation of the Hungarian law and order, the theoretical basis of our nationality." See Our Past, Present and Future: The Program of the Independent Freeholders' Party (1993) 12.

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get a two-thirds majority of the votes in the Parliament, because a part of the MSZP did not support it. The leftist wing of the government's stronger party prevented the approval of the draft because it did not include the declaration of the social character of the state and mechanisms for the reconciliation of interests. After the fiasco, during the fall of 1996, the committee worked out a new draft, which, as had been proposed by the MSZP, included the institution of reconciliation of interests and social partnership, a passage referring to the social character of the Hungarian Republic, and a couple of new social rights enforceable before a court. But this version had a couple of surprises in store for those who were in too great a hurry when judging party politics and alliances. The new draft included demands - for example, the protection of the rights of Hungarians living beyond the Hungarian border, or the suffrage of Hungarian citizens living abroad - that were apparently far from the thinking of both parties. In accordance with the Constitution, "the Hungarian Republic is a social state: it is committed to social values and it holds that it is the primary duty of the state to promote the economic and mental welfare of its citizens." The relative neutrality of the notion "social state" is indicated by the fact that in 1949 in the Basic Law of the Federal Republic of Germany it replaced "social rights," which was dropped as a consequence of the bad experiences with the Weimar Constitution. But the 1996 version of the Constitution not only declared the social character of the state; it also significantly broadened the sphere of social rights.12

12

The practice of the Constitutional Court prior to its decisions regarding the Bokros package [a package of legislation, drafted by Lajos Bokros, the Horn Government's Minister of Finance, that introduced highly restrictive economic measures - translator's note] refused to acknowledge social rights as enforceable before the Court, precisely on the grounds that in the preamble of the present Constitution the reference to a social market economy cannot be interpreted as the declaration of the Hungarian Republic as a social state, and, on the other hand, the constitutional text does not refer to the enforcability of these rights before the Court. As the President of the Constitutional Court stated in his concurring opinion commenting on a decision in 1990: "The Constitution does not in any form determine the measure of or criterion for social welfare; the determination and realization of these is the responsibility and obligation of the legislature and the Government" (Decision of the Constitutional Court, 31/1990 (XII. 18.) AB). Even in 1993 most members of the Court took the position that it did not infringe the right to social security if the increase in pensions did not keep up with the rate of inflation, because these entitlements were not based on the right of ownership (Decision of the Constitutional Court, 26/1993 (26/1993 (IV. 29.) AB). Two years later, when they declared relevant elements of the Bokros package unconstitutional, the very same Court unanimously made the decision that the constitutionality of the reduction or abolishment of social security entitlements must be judged in accordance with the criteria of protection of property (Decision of the Constitutional Court, 43/1995 (VI. 30.) AB).

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There were other promises in the new version that were impossible to fulfill. For example, it included the innovation that it is the duty of the Hungarian state to not only manifest its responsibility for Hungarians living beyond the Hungarian border, but also to "protect the rights of Hungarians who belong to the nation but live beyond the confines of the state." This can quite easily be interpreted as extending the jurisdiction of the Hungarian state over other states' citizens. But of course it was not worded carefully enough. For, indeed, what legal means are there for the Hungarian state to enable it to provide protection for Hungarians beyond the borders if they turn to it for help? The constitutional "wish" for the protection of the Hungarian language or sports as a national and universal value is a less dangerous declaration. The promise to grant suffrage to Hungarian citizens living abroad can be fulfilled, though it could bring up problems of equality before the court on the part of citizens living in Hungary, for they pay the rates and taxes of the country and, after all, when casting their votes in the elections they decide about their representatives, that is, about those who may shape their future life. It is true, though, that the amended version did not give ground to all kinds of populist ideas. It seems that the other five parties in the committee rejected the FKGP's propositions of this tendency. The other parties, contrary to the FKGP's efforts, would have lessened the importance of the referendum. The concept would not have fulfilled what the FKGP had wanted to achieve through the initiation of a referendum in 1995: the strengthening of presidential power. This means, then, that the 1996 version of the Constitution did not carry the danger of shifting the present parliamentary form of government in the direction of the presidential system so dangerous in our region. This version - although receiving a two-thirds majority of the votes at the plenary session - was only supported by four of the parties (the MSZP, the SZDSZ [which was thereby giving up some of its liberal principles], the FIDESZ, and the MDNP), while the FKGP, the MDF and the KDNP rejected it. Given this fact, there was less chance that the committee would adopt a Constitution based on similar principles. At this point the governing parties played their last card: they announced that if there continued to be no sign of a five-party consensus for the adoption of the new Constitution before the 1998 elections, then they would not consider the moratorium on amending the Constitution within the parliamentary term (which was laid down in the Parliamentary House Rules) as binding on them. Of course the opposition wanted to wait until the next elections, so the coalition carried out its threat and at the very end of 1997 - despite the protest of the opposition - inserted a provision for the establish-

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ment of courts of appeal.13 By doing so, the Horn Government departed from the 1989 ideal of consensual government. Of course in 1998, one of the first acts of the new coalition was to sabotage this amendment to the Constitution, though not by restoring the previous version of the text, for they did not have the two-thirds majority needed to do it.

13

The courts of appeal, if wedged between the county courts and the Supreme Court, would have meant a fourth level within the system of judicial organizations, would have acquired the supreme judicial forum of a court of appeal, and would have allowed them to make decisions concerning the unity of the law. In September 1999 the Government presented a bill in the Parliament in accordance with which in 2002 a single court of appeal (with Budapest as its residence) would start working.

P A R T II

INTO AUTHORITARIAN LAW

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8 THE INHERENT AUTHORITARIANISM IN DEMOCRATIC REGIMES Richard H. Pildes

1

INTRODUCTION

Authoritarianism is an inherent structural tendency of democratic regimes. Constitutional theory and constitutional courts would do well to recognize this fact. Although the United States is viewed as the democratic country that, over the longest period of time, has most avoided this tendency, that is not quite accurate. For most of the 20th century, an entire region of the country, the South, was a one-party political state. The Democratic Party had an unchallengeable, total monopoly on political power; there was no meaningful oppositional party, no likelihood that candidates from an opposing party would be able to challenge the existing exercise of political power, let alone be elected.1 Even today, a few states in the United States retain this character as one-party political systems.2 If democracy means accountability of public

For the classic description of the process by which electoral rules were redesigned to create this one-party monopoly, see J. M. Kousser, The Shaping of Southern Politics: Suffrage Restrictions and the Establishment of the One-Party South, 1880-1910, New Haven: Yale University Press (1974); this work builds on the earlier important work of V.O. Key, Southern Politics in State and Nation, New York: A.A. Knopf (1949). The state of Hawaii is for all practical purposes a one-party Democratic Party monopoly, as the U. S. Supreme Court recognized in Burdick v. Takushi, 504 U.S. 428, 442 (1992) (Kennedy, J., dissenting). Ironically, the Court there upheld a state law banning write-in voting; the Court accepted the state's justification that such a ban was an appropriate means of "avoiding the possibility of unrestrained factionalism."(5w/Y#c£, 439-40). One might have thought that in a one-party state, a little unrestrained factionalism would be another way of describing competitive democratic politics. Burdick is a classic example of the U. S. Supreme Court's failure to perceive how electoral laws are often used to entrench dominant parties in power and eliminate the sources that might put competitive pressure on them.

A. Sajo (ed.), Out of and into Authoritarian Law, p. 125-151 © 2002 Kluwer Law International. Printed in The Netherlands.

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officials to voters in elections that involve meaningful electoral competition, portions of the United States, for extended periods of time, have effectively been authoritarian regimes. Nor was the absence of electoral competition the result of "natural" democratic processes or a mere reflection of the "preferences" of voters for one-party rule. It resulted instead from a fundamental characteristic that all democratic regimes should be recognized to face: the tendency of the partisan forces that gain temporary democratic control to attempt to leverage that control into more enduring and effective political domination. In the South for much of this century, this authoritarian control of politics was accomplished through techniques like the gerrymandering of election districts; the use of state law to shift electoral control back and forth from local to statewide level for various offices as doing so furthered the interest of the dominant party; the manipulation of the electorate through devices like poll taxes as pre-conditions to voting; and numerous others.3 In other contexts, the techniques by which existing political powers will, predictably, seek to entrench themselves can include regulation of how campaigns are financed; what qualifications candidates and parties must have to be eligible to compete in electoral politics; how political institutions are designed; and other process-defining choices. The specific mechanisms vary from country to country, but the fundamental paradox is the same: democratic processes must be structured through law, but those in control of designing those laws are themselves self-interested political actors. To be sure, constitutions seek to remove some of these issues from day-to-day democratic politics. But constitutions can provide only the skeletal frameworks for democratic institutions. Inevitably, ongoing regulation and oversight of democratic processes through further legal adjustment will be required. And inevitably, to the extent legislative bodies are the primary vehicle for designing those adjustments, the tendency to manipulate the laws of democracy to insulate existing political officials and parties from meaningful electoral competition will manifest itself. The accretion of anti-competitive electoral laws is one of the processes by which democratic regimes can slowly transform into authoritarian ones. This essay seeks to identify this tendency as a fundamental, but largely neglected one, for constitutional analysis. Drawing on the American judicial experience, it also seeks to show how conventional frameworks of constitutional analysis - especially the discourse of individual "rights" - are badly organized to recognize and address this tendency. I will propose an alternative framework, one that suggests that constitutional law conceive of democratic politics less

3

These techniques are documented in Kousser.

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in terms of rights and more in terms of structures of competition characteristic of economic markets.4 Politics shares with all markets a vulnerability to anti-competitive behavior. In political markets, this takes the form of alteration of the rules of engagement to protect the established powers that be from the risk of successful challenge. This market analogy may be pushed one step further by viewing the elected officials of today as a managerial class, imperfectly accountable through periodic review by a diffuse body of equity holders denominated the electorate. Like the managerial class well known to the laws of corporate governance, these political managers readily identify their stewardship with the interests of the corporate body they lead. Like their corporate counterparts, they will act in the name of the corporate entity to protect against outside challenges to their authority. Again like their corporate counterparts, they will use procedural devices implemented in their incumbent capacity to attempt to lock up their control. Antitrust and private corporate law recognize these tendencies in private markets. At some point, robust and appropriate competition transmutes into monopolistic domination, as the recent Microsoft litigation illustrates. In free markets, the state stands apart from that competition and regulates its ground rules through antitrust and other laws. We need to begin to see politics in terms similar to markets: the organizations that compete in political markets - principally, political parties - will similarly seek to dominate and eliminate their competition. This is an inevitable tendency of the good electoral competition democracy seeks to encourage. But here, unlike private markets, there is no state that can stand above the competitive arena and ensure that the ground rules of robust and appropriate competition are maintained, for the state at any one moment in time is controlled by the very political and partisan forces that the state, in theory, is supposed to monitor and check. This, then, is a central task for constitutional analysis: how can constitutional law be structured to provide the equivalent of antitrust law to ensure that the ground rules of democratic politics remain robustly and appropriately competitive?

For a fuller elaboration of this theory, see R. H. Pildes, "A Theory of Political Competition," Va. L. Rev. 85 (1999) 1605; S. Issacharoff & R. H. Pildes, "Politics as Markets: Partisan Lockups of the Democratic Process," Stan. L. Rev. 50 (1998) 643. This is also one of the theoretical themes of the first casebook in the United States devoted to systematic study of the legal structures of democratic institutions. See S. Issacharoff, P. S. Karlan, and R. H. Pildes, The Law of Democracy: Legal Structure of the Political Process, Westbury, NY: Foundation Press (1998) 239.

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THE ALLURE OF ROMANTIC INDIVIDUALISM

To provide an appropriate framework for constitutional oversight of democracy, it is first necessary to clear away two recurring mistakes that currently characterize the typical judicial approach to these questions, at least in the United States. The first is a myth of romantic individualism that exercises a dangerous hold over discussion of politics, in both public discourse and judicial decisions. This is the illusion that the ideal politics is one in which unmediated individuals are the key agents of electoral politics, exercising control, making decisions, monitoring officials. The central fact of democratic politics in modern societies with universal suffrage and large territories is that individual participation can be meaningful only when mediated through organizational forms. The central organizational actors in politics are, of course, the political parties; but ideological groups, economic organizations, watchdog groups, and others also play an important role in well-functioning democratic regimes.5 Any constitutional law of democratic politics must begin by recognizing the organizational form of modem politics. Such a law must be designed with an understanding of organizational behavior, and the effects of legal rules on that behavior - particularly that of the central vehicles through which individual views are mobilized and given effective expression, the political parties. Several dangers flow from the judicial tendency to cast issues of democratic politics in terms of conventional "rights" adjudication. The one I will mention here is that decisions to uphold or reject claims of "right" frequently fail to appreciate the consequences of such rulings for the system of electoral politics overall. This can be true whether courts issue purportedly "liberal" decisions extending rights or "conservative" decisions rejecting such claims. Let me provide an example of the former: the United States Supreme Court held that constitutional principles of political equality require that representative institutions be composed of officials elected from election districts that have equal numbers of people.6 At the time of this decision, one technique by which existing officeholders entrenched themselves in power was through refusing to re-draw the boundaries of election districts as populations changed. By the time of the Court's decision, the disparities were truly shocking: some districts had 41 times the number of people as others, so that voters in the large districts had only 2.5% the power of voters in small districts. Existing legislators had

5 6

The centrality of organizations to modern politics is explored in D. R. Ortiz and S. Issacharoff, "Governing Through Intermediaries," Virginia L Rev. 85 (1999) 1627. Baker v. Carr, 369 U.S. 186 (1962); Reynolds v. Sims, 377 U.S. 533 (1964).

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no incentive to change this system because they were elected under it. This is precisely an example of the authoritarian tendency of democratic regimes when electoral practices are controlled by existing political powers: where these disparities existed, government was effectively in the hands of a minority of voters, not the majority. The Supreme Court was right to unfreeze this situation and restore competition by requiring that election districts be re-drawn on a regular basis and have equal numbers of people. But in reaching this result, the Court did not hold that the constitutional problem was that the districts had come to frustrate majoritarian democracy. Instead, the Court held that the districts violated the "right" of every voter to have his or her vote weighted exactly equally with every other voter.7 And this individualistic way of framing the constitutional approach came home to roost when the Court faced a very different context than the one it had initially confronted.8 A majority of voters in one state voted to design one chamber of the state legislature so that representation was by territorial subunits (counties) rather than by population. The reason for doing so was that voters in rural areas feared domination by the one large central city in the state; to ensure that these minorities were not swallowed up by the leviathan center city residents, voters throughout the state agreed to provide a degree of overrepresentation to these interests in the state senate. The lower house continued to be based on population equality. Unlike the initial context, this was not a system in which majoritarian. control of democracy was frustrated, with the state legislature in the hands of a small minority. Instead, this was a context in which the majority had agreed to cede some of its power to accommodate the minority; the majority had chosen an electoral system that it believed would be more generally perceived as legitimate and fair because credible protections had been built into representative institutions for minority voters. Far from being a perversion of democracy, this would seem to be an ideal form of democratic deliberation and choice. Yet the United States Supreme Court held that the majority did not have power to cede some degree of control to the minority in this way. The Court treated the "right" of political equality it had previously recognized as a completely abstracted, individualized right; this right was an individual right of every voter to equal treatment that could not be violated regardless of the

As the Court put it, "[t]o the extent that a citizen's right to vote is debased, he is that much less of a citizen...the weight of a citizen's vote cannot be made to depend on where he lives" (Reynolds, 567). The case is Lucas v. The Forty-Fourth General Assembly of the State of Colo., 311 U.S. 713 (1964) 567.

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context or the reasons for doing so. Thus, regardless of whether a majority was ceding power to a minority, and regardless of whether there might be justifiable reasons for departing from strict equality of numbers to construct a more representative legislative body, such options were unconstitutional because they would violate the "right" to political equality. Indeed, the Court cited precedents on freedom of religious conscience: just as no majority could vote to deny the individual right to free religious conscience, the Court held that no majority could design democratic institutions to deny the "right" to political equality.9 But when it comes to the design of democratic institutions, courts err to think in terms of intrinsic individual rights that stand against the majority's control. The familiar model of "rights as trumps" is misplaced here.10 The processes of electoral politics are designed not to realize conventional individual rights, but to achieve various common goods: to create a government that is responsive to the interests of its citizens; that can act effectively; that will be widely perceived as fair and legitimate; that will encourage political participation; that will represent the various interests of the community fairly. To the extent constitutional law conventionally invokes the language of rights, most of the rights of electoral politics should be seen as instrumental toward realizing the various goods that justify democratic elections in the first place. When courts oversee democratic politics, they should do by focusing on the structures of democracy at stake, not on abstracted, atomized, individual rights. Failing to do so in the context described led the United States Supreme Court to invalidate representative structures that were likely to be perceived as more representative and more legitimate than those that replaced them.

9

Citing the Court's decision upholding the right to refuse to be forced into saluting the American flag, Lucas v. Forty-Fourth General Assemebly of State of Colo., 377 U.S. 713 (1964) 756, the Court asserted that "[a] citizen's constitutional rights can hardly be infringed simply because a majority of the people choose that it be." That is certainly so when it comes to intrinsic rights of individual conscience; the question is whether it is the correct way to understand the rights in many cases involving the structure of democratic institutions. 10 This metaphor is famously associated with R. Dworkin, Taking Rights Seriously, Cambridge: Harvard University Press (1977). For fuller discussion of why conventional rights analysis fails to appreciate the distinct nature of rights at issue in cases involving the design of democratic institutions, see R. H. Pildes, "Two Conceptions of Rights in Cases Involving Political 'Rights'," Hous. L. Rev. 34 (1997) 323; P. S. Karlan, "The Rights to Vote: Some Pessimism About Formalism," Tex. L. Rev. 71 (1993) 1705; S. Issacharoff, "Polarized Voting And The Political Process: The Transformation of Voting Rights Jurisprudence," Mich. L. Rev. 50 (1992) 1833, 1856; R. Briffault, "Race and Representation After Miller v. Johnson" U. Chi. Legal F. 62 (1995) 23; R. H. Pildes, "Why Rights Are Not Trumps: Social Meanings, Expressive Harms, and Constitutionalism," J. Legal Stud. 27 (1998) 725.

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In sum, in cases involving democratic politics constitutional courts (at least, the United States Supreme Court) predictably assimilate these cases to the more conventional framework with which those courts are most familiar, that for classic individual rights adjudication. But when it comes to the structure of democratic institutions and electoral processes, very few cases involve matters of "intrinsic" individual rights. The central question is how the constitution requires that the structures of democratic institutions be designed, with what justifying aims; courts ought to be assessing whether particular electoral rules are consistent with these aims or tend to promote less competitive and hence more authoritarian politics. By conceiving of such cases as involving purely individual rights, courts fail to focus on the structural and systemic issues central to ensuring an appropriate democratic order. At times, this can lead courts to intervene too aggressively and use rights analysis to invalidate structures that in fact provide fairer and more representative institutions, as in the example above. At other times, this narrow focus on individual rights analysis can lead courts to be too deferential to existing practices by failing to appreciate the structural effects on the system of democratic politics as a whole from the particular law at issue. The first step in constructing anti-authoritarian constitutional doctrine to deal with the distinct issues in cases involving the structuring of democratic institutions, then, is for courts to recognize that it is the structural features of the electoral system, not the intrinsic rights of individuals, that such cases are best conceived as presenting. Rights-adjudication is a vehicle for bringing these structural issues to the constitutional courts, but the rights at stake are instrumental toward constructing appropriately democratic structures as a whole.

3

THE REIFICATION OF "STATE INTERESTS"

The conventional individual rights framework encourages courts towards a second recurring mistake in cases involving democratic politics. In the standard framework, courts assess the rights of individuals against the "state interests" offered in justification of the alleged infringement. But we now confront the second reason that this framework collapses and needs to be rethought for cases involving electoral politics. In such cases, "the state" cannot be viewed as a detached or non-partisan entity. The state is always a constellation of currently existing political and partisan forces; any state legislative regulation of democratic politics has emerged from a potentially self-interested process. Reviewing courts cannot approach such regulations with the ordinary presumption of

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constitutionality, then, but must instead start from a posture of potential skepticism. This poses considerable difficulty. On the one hand, the state must necessarily be inextricably involved in structuring the electoral and democratic processes. These processes are highly channeled and organized events; there can be no electoral processes without state law that reflects choices about how, and for what ends, to structure politics. The conditions under which voting will take place, the qualifications to appear on the ballot, the system through which individual votes will be aggregated, and a host of other decisions all entail state involvement and choice. The justifications offered for any of these decisions will appeal to relatively abstract values: the need for political stability; or for orderly elections; or for coherent structures of choice. But at the same time, it is precisely these same abstract values that will be appealed to when "the state" seeks to make democratic regimes more authoritarian through manipulation of the ground rules of democratic politics. Electoral regulations justified in the name of preserving "political stability" can just as easily be the vehicles through which partisan political actors seek to entrench their power. Historically, the language of "political stability," "orderly processes," and the like have been the masks behind which partisan political forces have hidden their efforts at stifling political competition. In the United States, we can identify a litany of such justifications from the case law: the need to prevent elections from becoming vehicles for "unrestrained factionalism;" the importance of preventing "party raiding;" the need to protect voters from "confusion;"11 discouraging "party splintering;" and the ever present threat states constantly see to "the stability of their political systems."12 Courts cannot dismiss these interests out of hand. Certainly, with the more fragile history of democratic regimes in parts of Europe, one can appreciate how difficult it is to achieve democratic institutions that are indeed stable,

11 12

For a summary of the American cases involving these justifications, see Issacharoff et al, The Law of Democracy, 239-57. This is the central rationale the U. S. Supreme Court recently, and in my view wrongly, accepted to justify state laws that ban minor parties from cross-endorsing major-party candidates, even when the candidates and parties all approve. In the U. S., such cross-endorsements are a crucial means to maintain the viability of minor parties, which must show a certain level of electoral support to maintain the automatic right to reappear on the ballot in election cycle after election cycle. The state laws banning such cross-endorsements appear to have been enacted early in the 20th century precisely for the purpose of diminishing minor-party pressures on major-party organizations. For the case, see Timmons v. Twin Cities Area New Party, 117 S. Ct. 1364 (1997); for the history of these laws, see P. H. Argersinger, "A Place on the Ballot: Fusion Politics and Antifusion Laws," Amer. Hist. Review 85 (1980) 287; for criticism of the decision, see Issacharoff et al, The Law of Democracy, 683-88.

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orderly, effective, and supported. But at the same time, courts need to recognize that good reasons can be become bad ones when manipulated for self-serving partisan ends. My experience from the American cases is that this is precisely what tends to happen: courts accept these justifications at face value with far too little skeptical examination. Courts fail to appreciate the tremendous incentives political parties face to design these laws for self-interested ends; courts therefore fail to see when these justifications actually hide electoral ground rules, the purpose and effect of which are to diminish partisan political competition and leave the dominant party in increasingly complete control. The short answer, then, as to what courts can do is not to reify the state in cases of politics, but to recognize that behind every state electoral regulation is the configuration of political forces that happened to hold power at the moment that law was enacted. Courts should approach these cases not with the usual presumption of constitutionality, but with a skeptical eye that does not cower in the face of state assertions that political stability is at stake, but instead requires the state genuinely to justify the law in question. This is not to provide a formula for how courts should sift through different electoral laws, but to encourage courts to recognize the structural tendencies of democratic systems to self-entrenchment. Once courts appreciate the danger potentially lurking behind these laws, they will more readily approach these cases with a mindset less intimidated by state appeals to momentous sounding interests of political stability and the like. In the next section, I will suggest a more general structure within which the analysis of laws of politics can be judicially assessed.

4

POLITICS AS MARKETS

What is to be done if courts move away from balancing individual "rights" against purported "state interests" in the conventional way when it comes to cases involving democratic politics? What would a judicial approach look like that abandoned the romantically individualistic view of democratic politics and placed political organizations, instead, at the center of judicial analysis? What values ought to inform a judicial approach less oriented toward the rhetoric and style of thought associated with analysis of the intrinsic rights of individuals and more toward the structural system of democratic politics as a whole?

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I want to suggest a mindset, or a loose framework for such an approach, given that a fully elaborated theory cannot be developed here. 3 The starting point is to view democratic politics more in terms of economic markets: a system of competition, largely between organizational entities, that is most likely to realize the ultimate ends that justify democracy through an appropriately competitive set of process-oriented ground rules. Even if this process approach is not sufficient to ensure all the values that justify democratic regimes, it is at least necessary. There is no one overarching value that justifies democratic government, but among the central aims are making policy responsive to the interests and judgments of citizens; respecting the equal sovereignty of citizenship by ensuring effective citizen voice and participation in government; and holding public officials accountable through regular, competitive electoral processes. In mass democracies, courts do best to focus on ensuring that these background rules of political competition between the organizations of politics remain robustly competitive. This means recognizing the inherent tendency of political organizations to seek to use the state to entrench their power; it therefore means penetrating abstract appeals to "state interests" to ensure that they do not mask these anti-competitive aims and effects. It also means recognizing that what is central in these cases is not rights conceived as the intrinsic liberties of individuals, but rights defined in such a way as to further the appropriate system of robust, partisan political competition through which the values of democracy must, of necessity, be realized today in mass democracies. In developing such a market-oriented approach toward the constitutional law of democratic politics, it is useful to turn to private-law scholarship on economic markets. The main reason is that private-law scholarship has been focused for some time on organizational behavior, organizational responses to legal rules, and organizational efforts to capture the economic system of regulation for self-interested reasons. Private-law scholarship is far more advanced than public-law scholarship on theorizing about how to structure the background conditions of organizational competition appropriately to benefit consumers. But because constitutional-law scholarship has been so focused on conventional issues of rights and equality in the post-WWII era, constitutional thought has matured less in thinking about organizational behavior and on the system of democratic politics as a whole. Two more specific lessons, at least, can be taken for public law from the more advanced study of private organizational behavior and its legal regulation.

13

For more details, the reader should consult the sources in note 10.

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First, as private-law scholarship has advanced in the United States over the last generation, it has come to argue that legal regulation is more effective when shifted from the previous era's attempt to impose and enforce first-order duties on corporate managers, such as duties of loyalty and fiduciary duties. To police these first-order duties when contrary conduct aligns with self-interest requires constant monitoring, oversight, and enforcement. Thus, private-law scholarship has changed its focus and attempted to align public and private incentives by ensuring that the background conditions within which corporate behavior takes place will occur under the appropriate, robust competitive conditions. Thus, corporate-law scholarship has emphasized the importance of effective "markets for corporate control" and the like. The theory behind this shift toward focusing on structural conditions, rather than first-order substantive legal commands, is the same as Madison's famous theory of how governmental structures ought to be designed: Organizations police each other - ambition counteracts ambition - more effectively than the law can directly police them. For public law as well as private law, if the background competitive conditions within which the central organizations of politics compete can be judicially maintained so that the private incentives of political parties align with behavior that furthers the proper aims of the democratic system as a whole, this is likely to be the most effective way courts can intervene to maintain the health of democratic political orders. Thus, rather than focusing directly on first-order concerns of rights and equality - while often missing the structural or organizational stakes involved - the law (and judicial oversight) might do better to ensure maintenance of the second-order conditions for effective, inter-organizational competition. Absent judicial oversight, we know from theory and experience that this will not occur; temporarily dominant political parties will seek to capture the law of politics toward self-serving ends. This is neither nefarious nor unpredictable; indeed, it is entirely to be expected. The question is whether judicial review can be a useful device for destabilizing such uses of electoral laws or preventing their rise. There is a second reason that constitutional thought can learn much from private law. Effective organizations are quite effective at finding subtle devices by which to preserve their competitive position. The techniques by which they do so are well documented in the private-law cases, in part because the American courts, at least, have been more vigilant in policing private anti-competitive behavior than such public behavior. Familiarity with the techniques by which private organizations pursue self-entrenchment can make courts more astute at ferreting out analogous behavior of public firms. For example, political parties can seek to raise barriers to entry for new parties by imposing regulatory conditions that are particularly difficult for new parties to meet. Or, the domin-

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ant parties can raise the cost of defecting from their organizations by raising the stakes involved in seeking to challenge them from outside the existing party structures. At times, one dominant party can devise rules that it knows will damage its principal competitor; at other times, several currently dominant parties can collude to pursue their own interest in maintaining the competitive status quo by making it difficult for new challengers outside the existing forces to arise. Political parties can use techniques that are the equivalent of what are called "lockups" in the corporate context; these are devices that effectively limit competition in the "market for corporate control" by favoring certain bidders and raising the costs to others.14 In the political context, the equivalent are rules that make it costly for party dissidents to leave the party and attempt to form other organizations or vote for an alternative candidate or party - as with "sore-loser" statutes, which prevent independent candidates from running in a general election if they had been registered members of an existing party within one year prior to the primary.15 The American cases are replete with examples of these techniques.16 Because of its first-past-the-post electoral structure, the United States has long

14

Lockups are a familiar concern in the law of corporate governance. Our use in the political sphere generally corresponds to anticipatory lockups by which incumbent management seeks to raise the costs to would-be rivals for corporate control. See generally M. Kahan and M. Klausner, "Lockups and the Market for Corporate Control," Stan. L. Rev. 48 (1996) 1539. As a general matter, American courts view corporate lockups with great skepticism. See Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., 506 A.2d 173 (Del. 1985). This has prompted some academic concern that anticipatory lockups should be treated differently than lockups attempted by bidders for management of a company, whereby the lockup provision might trigger higher competing bids: see L. E. Ribstein, "Takeover Defenses and the Corporate Contract," Geor. L J. 78 (1989) 71, and some argument that lockups should be subject only to the business judgment standard of review. See S. Fraidin & J. D. Hanson, "Toward Unlocking Lockups," Yale L J. 103 (1994) 1739. For present purposes, the key insight from the corporate literature is that there is an active market for managerial control, that there are well recognized devices for frustrating challenges from outside suitors, and that raising cost barriers is a critical feature of a lockup. 15 The U. S. Supreme Court upheld such restrictions, citing the need for "order, rather than chaos, to accompany the democratic processes." Storer v. Brown, 415 U.S. 724 (1974). The relevant state laws also barred independent candidates if they had voted in the immediately preceding primary; if these candidates were not disqualified for these reasons, they then had to collect a substantial number of signatures - in a 24-day period that ended 60 days before the general election, in other words, long before most voters would be focused on the race - and none of these signatures could be from a person who had voted in a party primary. This system is a classic example of the dominant parties' use of electoral laws to insulate themselves from effective independent competition. It is also a classic example of the U. S. Supreme Court's failure to approach these cases with a focus on limiting such anti-competitive political practices. 16 Numerous examples are offered in Issacharoff & Pildes, "Politics as Markets."

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had an essentially two-party system. In individual states with one dominant party, that party has often adopted rules-justified in public-regarding terms, of course, like avoiding the prospect of political instability - that in purpose and effect enshrine or accentuate that party's dominance. Even where two parties are actively competing, their shared interest in excluding nascent rivals sustains collusive laws that "artificially" reduce competition. Skepticism toward the self-serving managerial practices in the political domain is, in fact, even more warranted than in the corporate domain; if all else fails in the latter, the option of "exiting" to another firm always remains.17 No such exit strategy is available in a political system where competition is artificially frozen through electoral rules. Yet, paradoxically, the American courts have been more sensitive to self-interested organizational manipulation of competitive conditions in the private-market arena than in the public realm. To minimize the inherent authoritarian tendencies of democratic regimes, this focus needs to change. Two qualifications are required to this brief sketch of how constitutional courts might properly view democratic politics through analogy to private markets. First, private markets are, of course, justified by different aims than democratic elections; these differences must be taken into account in thinking about politics as the ideally structured competition between political organizations. Second, the approach I suggest here is more a suggestive one than an analytical theory of necessary and sufficient definitions for appropriate levels of political competition. It is meant to shift perspective, to enable us to notice problems we are less likely to see from other perspectives, and to consider less conventional solutions once we recognize these problems. We cannot apply the market analogy in a mindless fashion to analyzing democratic politics, but a shift toward this perspective seems to me helpful as way of recognizing the centrality of organizations to modern politics; of emphasizing that the best way of sustaining the values of democracy and avoiding creeping authoritarianism is often the more indirect strategy of ensuring appropriately competitive interorganizational conditions; and of making sure that conventional frameworks of individual "rights" balanced against competing "state interests" do not cause courts to fail to appreciate the authentic structural issues at stake in building the constitutional law of democratic politics.

17

On competing means of expressing dissent from organizational practices, the classic is A. O. Hirschman, Exit, Voice, and Loyalty: Responses to Declines in Firms, Organizations, and States, Cambridge: Harvard University Press (1970).

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THE APPROACH APPLIED : COMPARATIVE CONSTITUTIONAL EXAMPLES

Cases involving democratic politics are increasingly arising before constitutional courts, both in newly formed constitutional systems, and in long-standing ones, such as the United States, where such cases are becoming a rapidly growing portion of the Court's workload. In some systems, courts already approach these cases in the more structural terms advocated here; whether that is because the constitutional text encourages such a focus, such as in texts that expressly recognize not just individual rights, but the structural role of organizations in politics (the political parties, most importantly), or because of a constitutional culture that is less rights-oriented from the start, is difficult to say. But this section begins with illustrations from the Czech and the German Constitutional Courts of the kind of structural approach to democratic-politics cases advocated here. These decisions contrast with the approach and attitude of the American Court to these cases, and in my view, adopt a better approach to constitutional oversight of democratic politics that more effectively resists the subtle transformation of democratic regimes into less competitive ones through self-interested partisan capture of the ground rules of electoral politics. These cases provide general examples of the kind of approach this article suggests.

5.1

The Czech Court: Thresholds of Exclusion and Minor Parties

A recent, law-of-politics decision from the Constitutional Court of the Czech Republic illustrates the approach suggested here. A minor political party challenged the constitutionality of a statutory five-percent clause, similar to those in most other European proportional-representation systems,18 which required a party to attain a threshold of five percent of the votes before it was entitled to representation in the Czech Parliament. The minor party argued that the statutory threshold violated the 1993 Constitution's right to vote; the right to stand for election; and right of direct election.19 Rather than approach these claims of "right" as abstract and intrinsic interests of individuals, the Constitutional Court first appropriately concluded that the political rights at stake were derivative of the "the purpose and function of elections in a democratic society." The Court then noted that, in theory, there were plausible justifications, based

18 19

Germany, for example, has a similar threshold of exclusion. PI. US 25/96-37, East European Case Reporter of Constitutional Law 5 (1998) 171. PL US 25/96-37, 159.

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on the need to establish effective governing majorities, for establishing an electoral threshold but also dangers that existing political actors would manipulate the threshold for normatively unacceptable reasons. To adjudicate between legitimately integrative thresholds and inappropriately anti-competitive and hence rights-violating ones, the Court reached two conclusions: (1) any limitation had to be conditional on the existence of actual grounds for concern about excessive fragmentation of the legislature, and (2) any increase beyond the five percent threshold once the first condition was met required "especially momentous reasons.,,20 In an impressively contextualized factual phase of its analysis, the Court found the first condition satisfied based on actual Czech elections and the degree of party splintering that had resulted. Based on the common European practice of a five percent threshold and the specific facts of Czech partisan politics, the Court further permitted the five percent threshold. The guiding legal principle was that any "limitation of the equality of the voting right is the minimum measure necessary to ensure such a degree of integration of political representation as is necessary for the legislative body to form a majority (or majorities) required" to form a government and adopt decisions.21 The decision is much in the spirit of the functional, antitrust approach to political rights that I sketched out above. For those who believe legal doctrine must be formulated in ways capable of generating determinate answers, such an approach is undoubtedly troubling. Such skeptics might ask is seven percent too high? Six percent? How would a court fix an optimal threshold? But how can a court strike down any threshold without such a single-right answer in mind? Yet notice how the Czech Court applied what is essentially the politicalcompetition approach to resolve tensions between legitimate needs for effective governance structures and potentially anti-competitive manipulations. First, the Court would not permit resort to abstract appeals alone about the need for stability and integration, but rather required some basis in the facts of Czech politics for the threshold (and suggested the doctrine could change if those facts changed). Second, having found good reason for some threshold, the Court in evaluating the specific threshold was not bereft of all guidance apart from that which would be provided by a "perfect competition" model specified in full; instead, the Court found a permissible floor of five percent based on those facts and a baseline provided by comparative examples of electoral thresholds in similar democracies. Third, the Court signaled powerfully that political actors

20 21

PL US 25/96-37, 170. PL US 25/96-37, 170.

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would have to prove exceptionally convincing reasons for raising that threshold. The doctrinal adoption of the political-competition approach itself might strongly discourage political manipulations of this threshold and thus obviate the need for further judicial oversight. And should more stringent thresholds be enacted, the Court has indicated the burdens of proof, the kinds of evidence, and the contextualized inquiries that it would employ. No more technically precise definition of "optimal competition" than this is needed - or, for this problem, would be desirable - for judicial oversight.

5.2

The German Court: "Oligarchical" Partisan Capture of Politics

Unlike the American Supreme Court, the German Constitutional Court has consistently recognized the tendencies of dominant parties to seek to lockup democratic politics. Like the American case law mentioned above, the German cases also confront justifications for anti-competitive practices dressed up in rhetorical appeals to "stability," "effective governance," the "avoidance of factionalism," and similar claims. Confronted with such claims, however, the German Court has rejected the deferential stance toward oversight of political competition that the American Court has adopted. Instead, the German Constitutional Court assumes precisely the opposite stance: "Parliament's discretion is severely limited when legislating on the right to elect representatives to legislative bodies: this [limitation] follows from the principles of formal voter equality and equal opportunity of parties."22 Some German justices have gone even further and begun to articulate a politics-as-markets theory similar to the one advanced here; they have warned that the Court must be especially vigilant against legislation that bolsters the "oligarchical" and "careerist" features of the established political parties, lest the representative character of the legislature be undermined.23 This perspective on the need for courts to preserve appropriate ground rules of political competition - as against the inevitable partisan efforts to capture those rules - has led the German Court to a more aggressive role in reviewing ballot access restrictions, safeguarding the rights of minor political parties, striking down campaign-finance provisions that entrench the dominant parties, and similar competition-enhancing interventions.

22 National Unity Election Case, 82 BVerfGE 322 (1990), translated in D. P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany, 2nd ed., Durham, NC: Duke University Press (1997) 188. 23 Kommers, 174 (quoting dissenting opinions of Justice Bockenforde).

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Before turning to the decisions, it is important to note that the German Court's approach is particularly significant in light of the experience of the Weimar period. That experience almost certainly makes German political and judicial culture more sensitive than American to the dangers of fringe parties, paralyzing factionalism, and political fragmentation. Germany has the highest threshold requirements for representation of political parties (five percent) of any Western European system of proportional representation,24 and its Basic Law directly bans political parties that "seek to impair or abolish the free democratic basic order or endanger the existence of the Federal Republic of Germany."25 The German Court itself has firmly acknowledged the legitimacy of election laws that seek to create an "effective" governing body and to avoid splintering of parties, "which would make it more difficult or even impossible to form a majority."26 Yet even so, the German Court has been extremely sensitive - far more so than the American Court, for example - to the danger of anti-competitive partisan manipulation of electoral structures. That the German Court has been more willing to penetrate the veil of abstract appeals to "political stability" than the American Court, and to recognize when such appeals are merely hiding partisan efforts at self-entrenchment against competitive political pressure, is thus all the more remarkable. 5.2.7

Representation of Minor Parties

Since 1949, Germany's electoral laws have legally mandated that a party must receive at least five percent of the vote to gain a seat in the national legis-

24

25 26

Thresholds between three to five percent are typical in party-list proportional representation systems, and France at some periods in time has also used a percent threshold. See A. Lijphart, Electoral Systems and Party Systems: A Study of Twenty-Seven Democracies, 1945-1990, Oxford: Oxford University Press (1994) 22 (Table 2.2 listing legally-mandated thresholds of exclusion for different countries). Lijphart observes that most PR countries do not have any legal threshold of exclusion (Lijphart, 12). The most widely known extreme lower end among major countries is probably Israel, which had only a one percent threshold until 1992, when it was raised to 1.5 percent [Douglas Amy, Real Choices, New Voices, New York: Columbia University Press (1993), 169-70], although the Netherlands for many years had a threshold of 0.67 percent (Lijphart, 22). Some recently formed democracies employ higher thresholds even than Germany; Poland has a seven percent requirement, while the Czech Republic uses a complicated formula in which a party must obtain five percent of the vote to get a seat, unless it is in coalition, in which case a coalition of two parties requires only seven percent; three parties, nine percent; four parties, eleven percent, and so on. See David Farrell, Comparing Electoral Systems, New York: Prentice Hall (1997) 70-71. Article 21 (2) of the German Basic Law, quoted in Kommers, 218. Kommers, 187.

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lature.27 By 1952, this same threshold of exclusion had been adopted at most other levels of government.28 Given the history of political instability and party proliferation from the Weimar period, the achievement of political stability was a major concern behind the drafting of the Basic Law or Constitution, and the drafting body discussed writing the five percent threshold into the Constitution. But the decision was made to leave the setting of electoral thresholds to the regular political process.29 The issue of electoral thresholds has led the German Court to a series of important decisions in which it has drawn judicial lines between permitting thresholds in the service of enhancing political stability while striking down ones that it perceives as excessively entrenching the existing distributions of political power. For example, one state - that is, one set of existing officeholders - sought to impose a seven percent threshold. But the Court found such a threshold unconstitutional, relying on the general equality clause as applied to political parties, and on the general presumption above, that a particularly compelling reason would be required to justify departing from the common practice of five percent. Unlike the American Supreme Court, the German Court did not allow a generalized concern for political stability to become an all-purpose justification for any and all regulations adopted by existing officeholders that diminished partisan competition. At the same time, the German Court did uphold the five percent threshold for national elections when it was challenged in the Bavarian Party case as itself violating principles of equality, direct elections, and the constitutional protections for political parties. The Court accepted the five percent threshold as a reasonable means of avoiding splintering the legislature into too many small groups, which would make it difficult to govern or form a majority.30 The line-drawing became even more interesting for the Court in the wake of German re-unification, but here too, the Court considered it necessary and appropriate to monitor the political regulation of elections. In the first elections after unification, East German leaders expressed concern that the five percent rule would preclude political reform groups in East Germany that had played

27 28 29

Kommers, 186. Kommers, 186. Some German commentators apparently take the position that the failure to write any electoral threshold into the Basic Law indicates a deliberative decision not to have any thresholds at all, a position the German Court has rejected. See D. Currie, The Constitution of the Federal Republic of Germany, Chicago: University of Chicago Press (1994) 109 n.39. 30 The cases in this paragraph and the following ones discussing the first national unity elections are discussed in Kommers, 186-87.

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a central role in re-unification from becoming effective political parties and gaming seats in the unified Bundestag. In response, the Bundestag enacted a "piggyback" arrangement that enabled parties or groups in East Germany to meet the five percent rule by forging alliances with larger parties in the West. But this plan favored some smaller parties over others, such as the old Communist Party, renamed but unlikely to find willing partners in the West. That party, together with other small parties in the West, petitioned the Court to invalidate this arrangement. The Court did so. It reasoned that the constitutional principle of equality in the electoral field required equal opportunities for parties and voter organizations to compete for political support, and that the legislature had to take different contextual circumstances into account in meeting its constitutional obligations. Examining the "special, unique" circumstances of the first post re-unification election, the Court concluded that the five percent rule had to be relaxed beyond what the legislature had already done with the "piggyback" provisions. The Court found that the three-month time span from unification to the elections would not give parties from the former East Germany much time to become active and compete effectively for votes; as a result, the five percent rule would have more severe consequences in the old East Germany, which would generate considerable inequality unless a one-time adjustment in election rules were made. The Court then suggested that it would be constitutional were the five percent rule to be applied separately in former East and West Germany, and were the rules for parties in East and West "piggybacking" made easier and more equal. The Bundestag amended the election law in accord with these judicial suggestions; in the ensuing elections, some East German groups did manage to achieve representation. The National Unity Election Case reveals just how seriously the German Court adheres to the pro-competition principle that "Parliament's discretion is severely limited when legislating on the right to elect representatives to legislative bodies."31 Even in the politically complex and charged setting of the first national elections in a united Germany, the Court recognized the dangers of dominant parties using election laws to stifle competition - whether intentionally or inadvertently. In summing up the German Court's jurisprudence on the law of politics, the leading American commentator has said: "The protection that the Federal Constitutional Court has extended to minor parties in the Federal Republic suggests that any tampering with electoral mechanisms to the significant disadvantage of such parties would be the subject of intensive

31

Kommers, 188.

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judicial scrutiny."32 This is in marked contrast to the American Supreme Court, which has allowed one-party monopoly or two-party self-perpetuation to cloak themselves successfully behind vague appeals to the need for political stability, electoral efficiency, and the avoidance of party splintering. 5.2.2

Ballot Access Restrictions

The German Court has struck down regulations of access to the ballot for new parties that the American Court has routinely upheld. Thus, in the Ballot Admission Case, the German Court found unconstitutional a requirement that the candidate of a party not already represented in the national or state legislatures collect 500 signatures from each electoral district (districts averaged 140,000 voters) to qualify to be on the national ballot, while existing parties needed only the approval of the relevant state party executive committee.33 In contrast, the American Court has upheld requirements that independent candidates present petitions signed by five percent of eligible voters.34 While it is true that smaller parties have a greater chance of electing candidates in Germany's PR system, it is also true that the dangers of party proliferation and independent candidates might be thought even greater in just such a system. The American system of first-past-the-post elections already provides powerful structural incentives for minimizing the number of effective parties; a fact borne out by the poor record of electoral success for third parties and their candidates (let alone for fourth and fifth parties). Nonetheless, in Germany, where PR already encourages multi-party competition, the German Court found even the 500-signature requirement for new parties to interfere with open and fair political competition.35 The German Court has been even more concerned when new political groups challenge restrictions on ballot access in local elections. For example, it held unconstitutional one state's requirement that a candidate nominated by local voters' groups secure a minimum number of signatures to appear on the ballot, while political parties did not face a similar obligation. Again adopting a more skeptical stance than American courts toward electoral regulations, the

32 Kommers, 192. 33 Ballot Admission Case, 3 BVerfGE 19,23-29 (1953), described in Currie, 108 and Kommers, 558 n.20. 34 See, e.g., Jenness v. Fortson, 403 U.S. 431 (1971). 35 The Court did uphold a separate provision of the same law that required roughly 18,000 signatures for a party that sought to field an entire slate of candidates throughout the country. Currie, 108 n.34.

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Court reasoned that "[i]n the field of election law the legislature enjoys only a narrow range of options. Differentiations in the field always require a particularly compelling justification."36 To reach this result, the German Court relied on the Constitution's general equality clause and on a provision essentially the same as the American Constitution's republican form of government clause.37 5.2.3

Campaign Finance Regulation and Minor Parties

No area of electoral practices in the U.S. is currently under greater scrutiny than campaign finance. At a doctrinal level, the regulation of campaign finance remains moored in the distinction between constitutionally-protected expenditures and regulateable campaign contributions.38 Nonetheless, the American Supreme Court has not found any aspects of the campaign-finance system to unconstitutionally disadvantage third parties.39 In contrast, the German Court has been extraordinarily attentive to the possible partisan manipulation of financing regulations by dominant parties. "In fact, the court's intervention in the field of party finance has few parallels in other areas of public policy; it has virtually dictated the rules and regulations governing the public funding of political parties."40 In one of its first and most striking (from an American perspective) forays into this area, the German Court in 1958 struck down provisions making donations to political parties tax deductible. The Court reasoned that because "the income tax rate increases with the size of taxable income,...the possibility of deducting donations to a political party from taxable income creates an incentive primarily for corporate taxpayers and those with high incomes to make donations....The challenged provisions, therefore, favor those parties whose programs and activities appeal to wealthy circles."41 Tax deductible party

36 37

38

39 40 41

Kommers, 558 n.20. By contrast, the U.S. Supreme Court has held that the enforcement of the constitutional guarantee of republican form of government clause is not judicially enforceable. See Luther v. Borden, 48 U.S. 1 (1849). This issue has been most directly addressed in the contest of challenges to referenda and initiatives as supplanting representative government. See Pacific States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118 (1912). This is the analytic divide inherited from Buckley v. Valeo, 424 U.S. 1, 19-21 (1976). That distinction continues to grip a highly divided Court. See Colorado Republican Federal Campaign Committee v. FEC, 116 S.Ct. 2309 (1996). See generally Issacharoff et al, The Law of Democracy, 616-65. Buckley, 96 (per curiam). Kommers, 210. Party Finance Case II, 8 BVerfGE 51 (1958), discussed in Kommers, 230.

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contributions were unconstitutional, therefore, because their effect was to favor certain parties over others, hence violating the constitutional principle of equality of opportunity for political parties. Slightly earlier, the Court for similar reasons also struck down other tax provisions that disallowed deductions for party contributions unless the party had actually succeeded in electing at least one representative to the national or a state parliament.42 In this line of cases, the Court suggested that in order to ensure effective competition and diminish special-interest influence, the government could provide public financing to parties. But even here, the Court was careful to stress that such financing could not increase existing de facto inequalities between parties.43 When the German government began public financing, the laws provided that only parties that had actually won seats were eligible for public funding. Parties that had actively campaigned but not reached this level of success then challenged these limitations; given the legitimate public policy of avoiding the splintering of party politics reflected in the Court's willingness to uphold the five percent threshold requirements, this challenge posed an interesting question. The Court might have simply invoked the general policy aim of "political stability" and upheld these limitations on minor party financing (in U.S. presidential campaigns, for example, third parties are able to receive public financing only after the election, and only after they receive at least five percent of the national vote and appear on the ballot in at least ten states). Instead, the German Court struck down these electoral thresholds as unconstitutional infringements on the rights of minor parties: "It is inconsistent with the principle of equal opportunity for [the legislature] to provide these funds only to parties already represented in parliament or to those which...win seats in parliament."44 At the same time, the Court recognized that public reimbursement would encourage new parties, and that the legislature could act against the formation of "splinter" parties, given the legitimate policy of the five percent threshold. Thus, the legislature could make reimbursement contingent upon a new party obtaining a certain percentage of votes - but this could not be five percent, because such a restriction "would practically prevent a new party from being seated in parliament" and "would double the effect of the five percent clause."45 When the Bundestag responded by imposing a 2.5 percent of the total vote threshold, the Court again struck this down on the ground that it was too high and violated general equality principles as well

42 43 44 45

Kommers, 203. Kommers, 203. Party Finance Case III, 20 BVerfGE 56 (1966), discussed in Kommers, 206. Kommers, 208.

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as constitutional provisions mandating universal and equal suffrage.46 The Court then specified, as a matter of constitutional law, that any party that captured 0.5 percent of the vote "manifests its seriousness as an election campaign competitor" and had to receive public funds if other parties were deemed eligible.47 Finally, in a separate case, the Court also held that, contrary to the existing electoral laws, independent candidates under certain circumstances also had to receive public financing.48 The German Court has been active in drawing the constitutional boundary between political parties, which ought to have certain autonomy from existing state arrangements, and the state - a difficult task in any legal system,49 but all the more so in one with public financing. Here the Court's theory justifying judicial involvement is not protection of the equal opportunity rights of all parties, but the construction of the appropriate structural relations between parties and the state. For many years, the Court struggled to implement a doctrine distinguishing between public funding to defray legitimate campaign costs, which it held constitutionally permissible, and public funding for the general support of parties, which it held impermissible. But eventually the Court abandoned that distinction as unworkable, and instead held that the total of state funding could not exceed the total amount the parties themselves raised. The Court argued that a line of this sort was constitutionally necessary to ensure that the parties remained tied to their voters and did not become too entrenched, solidifying their internal bureaucracies at state expense.50 The Court has also continued to examine tax deductions for party contributions very attentively, and has held tax deductions for corporate contributions to parties altogether unconstitutional, while enforcing its earlier decisions by striking down tax deductions for individuals (and couples) when the amounts involved become high enough to raise the equality-between-parties concern that has been a constant theme of the German Court's constitutional jurisprudence of politics. Political markets, like economic markets, always face the prospect of anticompetitive behavior. In some constitutional systems, particularly more recently adopted ones, independent commissions have been constitutionally established

46 Kommers, 210-11. 47 The most recent laws appear to establish a base payment for smaller parties that amounts to six percent of the total state funds given to parties as reimbursement for their campaign costs in a federal election should they receive two percent of the votes on the second ballot in Germany's two-ballot electoral system. Kommers, 214. 48 The Daniels Case, 41 BVerfGE 399 (1976), discussed in Kommers, 211. 49 For discussion of the American constitutional law struggle with these issues, see Issacharoff et al, The Law of Democracy, Chapter 4. 50 Kommers, 215.

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to oversee the ground rules of electoral competition. For example, the South African Constitution creates six constitutionally independent commissions, including an Electoral Commission, to "strengthen constitutional democracy."51 Whether these agencies will work appropriately is too early to know. But in many systems, including the American one, the Constitution does not create such agencies, and by default, the task of overseeing democratic politics has fallen to the courts. As with economic markets, some external institutions must be capable of providing vigilance against monopolistic and anti-competitive abuses. Because the primary anti-competitive threat to democratic politics emerges from the incumbent powers in the elected branches, some institution outside of normal politics is required to provide this vigilance. In many systems, that task of necessity falls to constitutional courts. The German constitutional case law reveals, in my view, a sophisticated appreciation of the fact that asserted "state interests" in political stability, the avoidance of faction, and the like, can often be partisan efforts to insulate dominant powers from the political competition new organizations provide. By focusing on the structural dimensions of democratic politics, the German Court has steered an appropriate line between an expansive "rights" orientation oblivious to its structural consequences, and an overly deferential acceptance of nearly all justifications for state regulation of electoral politics - the latter of which characterizes the American approach. Perhaps the German experience with the ways in which democratic regimes can, in fact, be transformed into authoritarian ones, accounts for this more attentive judicial role.

6

CONCLUSION

Like private firms that seek market power, the organizations central to democratic politics, particularly political parties, will similarly seek domination of political markets. There should be nothing surprising in this. But unlike private economic actors, political organizations are in a position, when they temporarily become legislative majorities, to leverage that power into more permanent forms through the erection of state laws regulating electoral politics. That the state will necessarily regulate electoral politics is an unavoidable fact; electoral politics requires a set of ground rules that the state, in one way or another,

51

See Constitution of the Republic of South Africa, Arts. 184-186, reprinted in G. H. Flanz, (ed.), The Constitutions of the Countries of the World, Dobbs Ferry, NY: Oceana Publications (1997) 27.

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must set. But democratic regimes slide into authoritarian ones in part through the manipulation of these ground rules to entrench existing powers against the competitive pressures they would otherwise face. The experience of the United States, where manipulation of electoral laws enabled one-party political monopoly for nearly a century in some regions, confirms this tendency. This dynamic suggests the need for external institutions capable of overseeing the design of democratic institutions. These institutions need not be constitutional courts; in some systems, alternative institutional possibilities have been created. But in many systems, including the United States, there are no other institutions well-positioned to play this role. The task of overseeing the structure of democratic institutions, then, has fallen to courts by default. This essay has argued that if courts are to be an important safeguard in resisting these inevitable tendencies, they should be guided by several principles. First, courts should not too blithely assimilate cases involving the law of politics to conventional cases that balance "individual rights" against "state interests." On the rights side, cases involving democratic politics rarely involve the intrinsic rights of individuals; instead, rights are the instruments through which the ideally structured system of democratic political competition is judicially overseen. Thus, courts in these cases must focus on the structural and systemic consequences for the system of democratic politics, rather than on abstract rights analysis alone. The German and Czech Constitutional Courts, in the examples cited, have done a better job of that than the United States Supreme Court. On the "state interests" side of these cases, courts must bring a skeptical eye and avoid the presumption of constitutionality precisely because "the state" in these cases is always an existing constellation of political and partisan actors with a direct political stake in the rules in question. In overseeing democratic politics, it would be helpful if courts began to see politics as a form of market competition, one in which the central players are now organizations, like political parties, rather than individual citizens, and in which organizations will compete with each other for political power. This competition will tend toward self-entrenchment and therefore authoritarianism. A central task for constitutional courts is to appreciate when this tendency is being realized. By viewing politics as a form of market competition, with the always present risk of anticompetitive behaviors, courts can seek to ensure that the ground rules of democratic politics and electoral processes remain appropriately competitive. This emphasis on maintaining the structural conditions of appropriate organizational competition is one important means by which constitutional courts can attempt to preserve their democratic regimes.

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9

POLICE POWER FOR A NEW CENTURY? CONSTITUTIONAL TRAPS AND CONSTITUTIONAL OPTIONS REGARDING SOME AUTHORITARIAN TRENDS IN POLICE LAW Susanne Baer

According to a dominant belief of our times, states are based on a contract among citizens in which they exchange some freedom for full-fledged security. This security has many aspects. For some, and in the wake of transitions from socialist to capitalist economies, it is of utmost importance that the fundamental contract enables and legitimizes the state as an entity distinct from society to secure the functioning of a market ultimately beneficial to all.1 For others, and of renowned existential interest to all citizens in globalized societies, the fundamental contract enables and legitimizes the state to safeguard the life and health of society's members, and in particular, to protect individuals from criminal acts. This freedom from violence, or, to put it in different terms, this right to individual safety, is a prerequisite of a functioning and stable democracy. I would rather call this prerequisite civility, or the existence of a meaningful, legally protected construction of citizenship.2 It includes the protection

On the difference of trends in transition, see Guillermo O'Donnell and Ph. C. Schmitter, Transitions from Authoritarian Rule: Tentative Conclusions about Uncertain Democracies, Baltimore: John Hopkins University Press (1986); on the debate between different philosophical foundations of liberalism/democray, see D. Dyzenhaus, "Hobbes and the Democratic Theory of Rule of Law," conference paper delivered at the 8th Annual Conference on "The Individual vs The State", Central European University, Budapest, May 19-21, 2000. For a wealth of literature, see the essays Citizenship after Liberalism, in K. Slawner and M. E. Denham, (eds.), New York: P. Lang (1998); and for the one nations concept J. N. Shklar, American Citizenship: The Quest for Inclusion, Cambridge, MA: Harvard University Press (1995) and K. L. Karst, Belonging to America: Equal Citizenship and the Constitution, New

A. Sajo (ed.), Out of and into Authoritarian Law, p. 151-167 © 2002 Kluwer Law International. Printed in The Netherlands.

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of individual rights, but also the fair distribution of the means to exercise them and the willingness to protect people from interference with them. Thus, it entails a strong notion of anti-hierarchical equality, which is based on a philosophical idea of recognition.3 Where citizenship is missing, where violence reigns, democracy is bound to fail, and authoritarianism will govern.

1

PRIVATE AND PUBLIC CRIME - BEYOND THE TRADITIONAL Focus

Democratic states have developed various means to protect themselves from such instability due to violence. In doing so, they traditionally focus on private actors. Therefore, government action against criminals - criminal law, police law, and laws of public safety and order - is a universal ingredient of democratic legal orders. However, this traditional focus on the prevention of private crime as a strategy to safeguard democracy is limited. Democracy is endangered not only by private acts, but also faces severe threats from public actors themselves. Corruption is but one example of criminal acts by public entities; the crimes range from pollution of the environment to warfare, from tapping communications systems to acts of physical violence committed by members of the police. These acts are part of state authoritarianism, and they are the focus of this paper. However, it has to be noted that such recent developments in public criminal activity, particularly in the area of police action, are also a reaction to developments in the private sphere. New trends in police law and police practice are part of a reaction to growing demands for safety, security, and a stronger state; they are a reaction to globalized crime, the growing intensity of violence in society, and growing awareness of the everyday nature of violent acts in the family or in social arenas struggling with racism. Germany provides a good example of all these trends. First, globalized crime - often referred to as "the mafia" and not free from racist underpinnings - is the key to motivating legis-

Haven: Yale University Press (1995); on possible aspects see Rights of Citizenship in R. Blackburn (ed.), London: Mansell (1993) and Beyond Equality and Difference: Citizenship, Feminist Politics and Female Subjectivity, in G. Bock and S. James (eds.), London: Routledge (1992); on the concurring notion of civil society see M. Krygier, "Post-Anti-Communist Thoughts on Civil Society and the Rule of Law," in this volume, chapter 13. On equality (based on the work of C. MacKinnon), see S. Baer, "Equality: The Jurisprudence of the German Constitutional Court," Colum. J. Eur. L. 5 (1999) 249; on recognition, see essays in A. Gutman (ed.), Multiculturalism: Examining the Politics of Recognition, Princeton: Princeton University Press (1994) and A. Honneth, Kampfum Anerkennung, Frankfurt am Main: Suhrkamp (1994).

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lators to write stricter police law. Second, reports on increasing violence by children and adolescents produce the image of a violence-ridden society, which gains its resonance from dramatic cases in U.S. high schools. Third, much civil society and government efforts have resulted in a government action plan to combat violence against women and in a draft law to intervene in cases of domestic violence. Fourth, frightening numbers of racist incidents all over Germany have resulted in a particularly intense debate over the limits of the "Rechtsstaat" since part of the racist ideology comes from legal political parties that strong German democrats hesitate to simply prohibit, yet feel bound by history to do so, especially in the case of the extreme right. On the whole, we are confronted with a double threat: private violence and public violence as part of a reaction to private acts.4 An adequate assessment of new developments in police law and practice has to take into account that there is a context of violence in society and a demand for the state, and the police in particular, to combat this violence and to reinstall authority. This demand has been labeled a right to public safety, a "Grundrecht auf Sicherheit"5

2

A NOTE ON THE POLICE AS AN ORGANIZATION

If we are to analyze police law, yet another factor has to be taken into account to assess the social realities of police practice. One attempt to conceptualize the factor of the institution itself has been developed by Dennis Galligan in his concept of administrative justice. It is a state guaranteed by a mixture of law, institutions, and internalized norms; it depends on the culture of organizations.6 This culture of the organization is of particular importance to the development of a democratic police force. Traditionally, the police force has been a quasi-military unit to combat crime. It has its own norms and values, based on strict hierarchies, a notion of masculinity, and a closed group identity.7 In

In a more detailed discussion, one might want to distinguish legal or regular police practice, e.g., arrests, and illegal or irregular practice, e.g., abuses of arrested people in jail. The focus here is on the regular acts. J. Isensee, Das Grundrecht auf Sicherheit: zu den Schutzpflichten des freiheitlichen Verfassungsstaates, Berlin: de Gruyter (1983). Administrative Justice in the New European Democracies, in D. J. Galligan et al., (eds.), Budapest: COLPI (1998) and D. J. Galligan, Due Process and Fair Procedures, Oxford: Clarendon Press (1996). R. Behr, Cop culture - derAlltag des Gewaltmonopols. Mannlichkeit, Handlungsmuster und Kultur in der Polizei, Opladen: Leske und Budrich (2000).

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many formally democratic states, the police force has a history of being the instrument of authoritarian governments to guarantee the following of orders. For example, the German police force in Weimar, or after 1945, or police personnel from the East German police forces absorbed by the unified German police, were not accustomed to working under strict legal supervision or to working for the people, in particular for minorities, instead of against them. Therefore, and for a long time already, the attempt to establish democratic ethics as a basis of police identity has been of seminal importance and is a continuing part of police training in Germany. The founding of professional schools for police training, which replace police training camps, are an example of this development. If we are to change societies, we will need the police; but we will not need just any kind of police. Adequate training, particularly of the forces to which we give much power, is one of the requirements of working democracies.

3

GERMAN DEVELOPMENTS IN POLICE LAW

Returning to the legal side of the police issue, I want to sketch the recent German developments in the law. Historically speaking, police law saw various policy changes within the last fifty years.8 After the fascist regime, West German law, influenced by American and Western European examples, made a point of decentralizing the police force, of separating the police from surveillance, military defense, and other observation units (Verfassungsschutz), and of putting all police activity under the regime of the rule of law, that is, under judicial review. From the student uprisings in 1968 to the left radical and terrorist activities in the 1970s and 1980s to the right wing violence in the 1990s and today, later policies in police law were directed against what was perceived as a threat to democracy. Be it violence from the Right or the Left, civil disobedience in protest against nuclear weapons or pollution of the environment, or rallying for all kinds of other reasons, the debate within a democracy, and outside of transitional periods, was always on how far to proceed against the internal enemy under the rule of law. Therefore, policy changes in police law are excellent examples of the potential transformations of democracies into authoritarian regimes.

The comprehensive treatise of German police law in German is E. Denninger and H. Lisken, Handbuch des Polizeirechts, 2nd ed., Munich: C.H. Beck (1998); A shorter treatise is V. Gotz, Allgemeines Polizei-und Ordnungsrecht, Gottingen: Vandenhoeck & Ruprecht (1995).

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In Germany within the last few years, a significant step has been taken towards developing police law for a new century. "New police law" with a "new dimension"9 has been part of legislative activity on the federal as well as the state level. To understand the most important trends, we may identify four areas of such developments. The changes occur in the areas of police methods, the grounds for police action, the moment in time in which police action may occur, and the secrecy or transparency of police activity. Let me illustrate this with some examples from German law.

3.1

Methods

Democratically controlled police forces may only act according to the law and based on powers attributed to them by the law. In an area in which the state is able to use its force in the most dramatic, personalized, direct, and violent way, this constitutional principle of the supremacy of law is of utmost importance.10 Thus, reforming police law is always first the responsibility of the legislature. In Germany, it is the legislatures of the Lander which act, since police law is one of the few remaining areas of reserved state powers in a federal system. As mentioned before, this is a decentralizing reaction to the fascist regime, and an attempt to safeguard police from being used as a political instrument by the federal government. Traditionally, German police law allowed the police to combat crime by certain standardized methods, such as arrest, questioning, or searches of a person or location.11 After the recent changes in police law and the law of criminal procedure - e.g. the "Strajprozessordnung", which governs repressive

9

See F. Roggan, Auf legalem Weg in einen Polizeistaat. Entwicklung des Rechts der inneren Sicherheit, Bonn, Pauhl-Rugenstein Verlag (1999), Mollers, Neue Zeitschriftfur Verwaltungsrecht, 19 (2000) 382, and the proclamation by Minister of the Interior O. Schily, Recht und Politik, 1 (1999) 1. 10 On the principle, see D. Currie, The Constitution of the Federal Republic of Germany, Chicago: University of Chicago Press (1994) 116 ff. 11 Police laws of the German Lander follow a model code drafted in cooperation with all Lander governments. This is a means to establish basic uniformity of laws in the Lander, which is a requirement of German federalism as well.

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police activities directed to prosecution under criminal law12 - the choice of means the police can use against crime has been significantly altered. The most drastic example is the growing acceptance of a rule that allows for the so-called "direct death shot" in certain cases.13 In criminal law, the provision that allows for self-defense14 and the provision that allows for defense of important goods were discussed as potential rationales to justify fatal shootings. The focus of the discussion is whether such rules may apply to state actors at all, since they do not act as citizens under a general rule of law, but instead act as civil servants under specific obligations derived from the principle of supremacy, thus under a much more rigid rule of law. Since traditional police law does not contain a provision giving police the authority to use deadly force, it may well be argued that it defines the deadly use of weapons as illegal per se.15 Now, arguments can be heard in favor of changing this perspective. Another example is the expansion of the "Platzverweis" or expulsion order, by which police forces are allowed to ban persons from public or private places for long periods of time if there is reason to believe that they will endanger public order there.16 This new device is used against so-called aggressive

12 Police personnel thus act in a potentially double capacity: as a force of prevention and imminent combat of dangers, and as a unit to prosecute crime under criminal law, directed by the state prosecutor's office. The latter activities are subject to the "Strafprozessordnung," §§ 94-136 (means to use when prosecuting a crime), and §§ 158-177 (procedure of the state prosecutor, who uses the police as a means to prosecute). In both cases, police activity is subject to judicial review, but before different courts. Genuine police law is adjudicated by administrative courts; criminal procedure law by general courts. 13 For the situation in Hungary, see Police Act of 1994, Art. 17, and analysis by I. Szikinger, "Losing Track of Democracy: Post Totalitarian Policing in Hungary," see Chapter 10. 14 Penal Code (Strafgesetzbuch), Article 32: Self-defense. (1) Whoever commits an act in self defense does not act unlawfully. (2) Self-defense is that defense which is required in order to prevent a present unlawful attack on oneself or on another. Article 34: Necessity as justification. Whoever commits an act in order to avert an imminent and otherwise unavoidable danger to the life, limb, liberty, honor, property or other legal interest of himself or of another does not act unlawfully if, taking into consideration all the conflicting interests, in particular the legal ones, and the degree of danger involved, the interest protected by him significantly outweighs the interest which he harms. This rule applies only if the act is an appropriate means to avert the danger. 15 Another example is the use of under-cover police agents. The legal limitation of this police strategy results from the illegality of the data gained and of the impossibility of either punishing less severely, (BGH, Juristen Zeitung, (2000) 363) or not punishing at all (Roxin, Juristen Zeitung, (2000) 369) the acts committed due to instigation by the agent. 16 The most explicit changes are to be made in the Police Code of Saxonia (Polizeigesetz Sachsen: BeschluB der Landesregierung vom 25.4.2000), but the code of Bavaria already establishes broader powers than most other German state laws.

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begging, which for some police authorities seemed to be indicated by the presence of homeless people in public places, a perception the courts had to correct. It is also used against the presence of drug dealers in prominent public locations, thus raising doubts about which goals and interests are protected by its use. However, the expulsion order is also used against perpetrators of domestic violence who threaten women and children on a daily basis at home, and can be seen as one of the very few means employed by the state to combat this alarming problem. As a whole, and from a liberal police law perspective, the expansion of the "Platzverweis" is thus an ambivalent phenomenon. Less ambivalent, it seems, are the already discussed new devices that enable the police to sanction "minor criminals" on the spot with so-called "Strafgelder" or penal fines.17 Another example of the expansion of police authority is the growing legitimization of data collection,18 a development that demands attention throughout this discussion. Because of information technology, police power is increasingly directed towards such collection of data, that is "preceptorial information activity,"19 based on a rationale of prevention rather than repression. Currently debated devices of data collection are video cameras at so-called dangerous places or places of specific public interest. Here, the danger to democracy, or the trend to an Orwellian reality of a surveillance state, is obvious. In addition, police law adapts to this institutional need by allowing the saving of data from emergency calls.20 Some argue that this is not a significant, let alone a constitutionally relevant, change.21 However, if people

17 18

Schily, 1, 4. See Gotz, Neue Zeitschrift fur Verwaltungsrecht, 13 (1994) 652. Much wiretapping is not regulated by parliamentary law, but by administrative norms, e.g., "Erlass zur Aufzeichnung von Telefongesprachen durch die Polizei," reprinted in Neue Zeitschrift fur Verwaltungsrecht, 19 (2000) 415. For the activities directed at political parties, see Michaelis, Neue Zeitschrift fur Verwaltungsrecht, 19 (2000) 399. In general, this area is governed by the right of informational self-determination, derived from Art. 1, sec. 1 and Art. 2, sec. 1 of the Federal Constitution, which guarantee the protection of dignity and the protection of individual selfdetermination. See on the issue D. P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany, 2nd ed., Durham, NC: Duke University Press (1997), 298 ff.; including the Microcensus case decided by the Constitutional Court in 1969, BVerfGE 27, 1; as well as the seminal Census Act Case, decided in 1983, BVerfGE 65, 1. 19 Di Fabio, Juristen Zeitung (1993) 689, 690. 20 This option shall be included in the police law of Saxonia; it is already part of police practice in various states. 21 For the discussion see Roggan, Norddeutsche Zeitschrift fur Offentliches Recht, (2000) 99, note 12; for the opposite opinion see "VerfG Greifswald (Mecklenburg-Vorpommern)," Neue Zeitschrift fur Verwaltungsrecht, 19 (2000) 429.

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know that the authorities systematically monitor their activities, they may retreat to passivity.22 Another change is related to the opposite - to citizens' activities. Under the misleading name of community policing, a diverse range of activities has been developed to build cooperation between private and state actors to combat crime more effectively.23 These include private security forces (an industry of growing dimensions in Germany today, which recently expanded into a privatized jail system) as well as cooperative efforts of citizens and civil servants, including the police, to combat sources and phenomena of crime in the area of domestic violence and racism. Only in the latter case is such policing activated from within civil society, governed by legal standards, and uses rather than misuses the resources of state power.

3.2

Grounds

What has been considered a more significant change in police law and authority is the modification of the grounds for police activity. To put it bluntly, new police law tends to allow authorities to act for no specific reason at all. Traditionally, police may only act to ban a danger imminent to a legally protected public interest. According to the new police law,24 some activities may be based solely on a general assumption that they target persons or locations known for criminal activity. The most prominent example of this is the "Schleierfahndung" or "Rasterfahndung" which is all activity not bound to a specific "Verdacht."25 Police may, according to such rules, monitor individuals within a certain area, either in person in an area close to the German national border, or in telecommunication activities in an area called the "open

22

This argument has also been used in the constitutional court decisions in MecklenburgVorpommeni, and Sachsen, see below. 23 For discussion and positive examples, see Baer, Staatswissenschaften und Staatspraxis, 9 (1998) 593. 24 Of particular relevance is the so-called G-10-Gesetz, a law that regulates observation activity control (which interferes with Art. 10 of the Constitution) by members of Parliament. The Federal Constitutional Court recently decided the matter, see BVerfGE 100,313. Police codes moving in a similar direction are those of Bayern and of Mecklenburg-Vorpommern, the latter of which was declared unconstitutional for lack of specificity and overbroad regulation. 25 Examples include § 29, sec. 2, s. 2, no. 5, Sicherheits- und Ordnungsgesetz MecklenburgVorpommern, § 47 Polizeigesetz Sachsen. For a discussion of the rationale behind such norms, see Mollers, 382; to justify the search of the Internet, see Schily, 1, 5.

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sky." From a liberal perspective, this expansion of police law may be the most troubling of all.

3.3

Time

Another development of police law significantly changes the time frame in which police activity may occur. Traditionally, police acted either repressively - under the supervision of and directed by the state prosecutor's office - after a crime occurred, or police acted preventively - in cases of imminent danger. The difficulties of defining imminence have been the subject of many discussions, and the trend to establish imminence earlier and earlier has long been noticed. It gave rise to an analysis that claimed that the safety state is turning into a prevention state,26 again a statement that can be read as a democracy becoming authoritarian. However, it seems like a significant development when such problems are no longer a question of legal interpretation, but turn into legislative norms. Recently, such norms have been passed at the federal and state levels. In particular, they allow the police to establish video surveillance at public places without any requirement of imminent danger. They also allow the police to collect data, particularly from telecommunication sources, without any knowledge of criminal activity in the sphere at all.27 Here, police activity is meant to occur long before a crime takes place.

3.4

Secrecy/Transparency

Finally, a significant development in police law has occurred in the area of secrecy, or transparency. Traditionally, police activity is public activity, which is a prerequisite for a citizen's legal protection against it. In Germany, the history of fascism with its secret police even led to a strict directive to separate public police from any secret state agency, which then had to be strictly controlled and limited to activity purely in the national interest. With the introduction of new information technology much police activity became secret, in particular the activities directed towards data collection and surveillance, but could be limited by constitutional requirements based on the right to

26 Denninger, "Der Praventions-Staat," Kritische Justiz (1988) 1. 27 G-10-Gesetz. In practice, the electronic vacuum cleaner the federal authorities use to clear data from the open sky has been proven inefficient.

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informational self-determination.28 Now, with recent changes in the law, secret government agencies are enabled to act like and for the police. Again, the Constitutional Court had to limit such an expansion of government action,29 yet the trend remains.

3.5

Summary

In sum, police law tends to allow for large scale government activities directed against private criminal acts, by expanding the law in the areas of methods, grounds, time, and transparency. In doing so, police law shows a tendency to become the law of a preventive, yet also of an authoritarian, state. Thus, we must analyze whether constitutional devices protect against the excesses of such activity, and whether constitutional law may save democracy from dangers from within.

4

THE CONSTITUTIONAL SITUATION

An analysis of the constitutional situation with regard to new trends in the expansion of police authority as a reaction to the new challenges of international and technologically sophisticated crime has to be made in two stages. In the first, we have to identify the constitutional traps that allow for such developments. I suggest that we deal with developments that are considered to occur within a system that adheres to the rule of law. Phenomena like police brutality or police racism and sexism are not part of this, but part of a move beyond and outside a democratic and legitimate legal order. In the second stage, we have to search for the constitutional limits of such legal, yet nevertheless legally questionable, developments. Such limits consist of basic human rights, but also of procedural safeguards and of interpretive standards for the judiciary derived from a specific understanding of the separation of powers.

28 BVerfGE 65, 1 (44) (Volkszahlung), excerpted in English in Kommers, 323-327. 29 BVerfGE 100,313 (G-10-Gesetz). For comments, see Paeffgen, Strajverteidiger, (1999) 668, Huber, Neue Zeitschrift fur Verwaltungsrecht, 19 (2000) 393.

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Constitutional Traps

To understand developments of authoritarian law within a democracy, one has to understand the traps within the constitutional system that allow for such developments. The most commonly known traps consist of limitations to basic civil rights; others can be identified by doctrines derived from a specific, etatistic understanding of the separation of powers, and another consists of the constitutional acceptance of a state of emergency, "Ausnahmezustand."30 4.1.1 State of Emergency If a constitutional system accepts a state of emergency, or a situation in which a president or chancellor may take the role of a "leader" and absorb formerly parliamentary competencies; if there is this doctrinal justification for significant changes in state authority, it can be seen as a constitutionally built-in trap that allows for a shift of democracy towards authoritarianism. The doctrine of the emergency state is known to be part of the work of Carl Schmitt, but it is also common to many other thinkers and nations. It is also known to have inspired harsh normative decisions as a reaction to terrorism in Germany in the 1970s and 1980s. Part of the more recent German police legislation of data collection and preventive action is based on such rationales as well. Today, they are conveniently coined "the threat of organized crime" or "the global challenges of trafficking" in weapons, women, or drugs. I suggest that the problem is not so much with the urgent need to act, but with separating the definition of such needs from individual rights. The more abstract the state of emergency is defined, the more likely it is to be abused in order to establish authoritarianism in disguise. 4.1.2 Limitations of Basic Rights Another trap within a constitution that allows for the occurrence of authoritarian state action is known as the doctrine of the limitations of basic civil rights. Such limitations can consist of either explicit limits of certain rights or they may appear as a lenient interpretation of the principle of proportionality, which serves as a general doctrine to limit individual freedom. An additional trap

30

See Lisken, Neue Zeitschrift fur Verwaltungsrecht, 17 (1998) 24.

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consists of accepting duties as limitations of rights.31 The more state intrusion such limitations allow for, the more authoritarian a legislative and executive branch may act. For example, if a constitution does not specify the maximum time period of state custody, and allows for the limitation of personal liberties based on general assumptions of the public good, the constitution may not be a sufficient device to stop the police from the extended use of custody measures, which, in practice, are the greatest danger for citizens confronted with police power, in which most violent abuses of state authority occur. As another example, if a constitution allows for too many exceptions to the right of privacy based on some consideration of a general good, it opens the door for hypersensitive authoritarian security activities. And finally, if certain police practices are not even considered relevant enough to establish a need to justify them under constitutional law, such a lenient use of the proportionality principle can be used to justify authoritarian developments.32 4.1.3

Separation of Powers

Still another constitutional trap that allows for authoritarianism is based on a traditional understanding of the separation of powers. This understanding focuses on the state as a self-interested and legitimate entity in need of specific areas of free action and decision-making. This understanding informs a doctrine that reserves specific spheres of unlimited and judicially uncontrolled powers for the executive branch (Kernbereich), and informs an administrative law doctrine that reserves specific considerations of decision-making for the executive branch alone (Ermessen and Beurteilungsspielraum), based on the idea that the judiciary in particular should not interfere with everyday administrative action and should not replace administrative or legislative considerations with its own. Such executive spheres are, constitutionally speaking, untouchable. Thus, they open a space for authoritarian executive attitudes.

31

This opens a discussion on the nature of citizenship. In Germany, there is a specific emphasis on citizen's duties that, in my opinion, allows for much authoritarian state behavior. In police law, duties amount to a right of the police to act against one's will; see (justifying this) Mollers, 382, 386. 32 For example, the practices of "Schleierfahndung" are seen by some as more or less inconvenient facts of life, but not as intrusions of rights.

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163

Constitutional Limits

With this brief look at the constitutional traps that allow for authoritarian developments, we can now turn to the constitutional devices that may limit such developments. Mirroring the described developments in police law regarding time, place, methods, and transparency, and further mirroring the range of constitutional traps, a multitude of strategies may be employed. I will only be able to name a few, and I will draw on two recent Constitutional Court decisions - by the Federal Constitutional Court and by the Constitutional Court of the German state of Mecklenburg-Vorpommern33 - that limited legislative trends towards more authoritarian police law and practice. The constitutional safeguards are a strict adherence to the core meaning of basic civil rights, a specific understanding of the separation of powers inspiring a strong interpretive standard of proportionality, a distinct acknowledgment of the limitations of civil rights, and a procedural emphasis on democratic devices extending beyond parliament into civil society. 4.2.1

The Core Meaning of Basic Civil Rights

It may well happen that constitutions cannot be used against legislative or administrative action because they are subject to change themselves. Then, a danger of authoritarianism is the result of constitution-making. At this moment, one may discuss the unconstitutionality of specific aspects of new constitutional law, and face difficult questions as to the powers of a "pouvoir constituante." In Germany, one may retreat to the constitutional doctrine of "Wesensgehalt" a German version of an original intent interpretation debated in U.S. constitutional law. According to this doctrine of "Wesensgehalt" which is explicitly located in Article 79 III of the Constitution, constitutional law may not be changed in a way that changes the core meaning and basic nature of the right in question. When the German Bundestag changed Art. 13, which protects a sphere of privacy in the home, to allow for data collection, wire tapping and observations called the "big ear attack," critics called upon this doctrine to remind

33

BVerfGE 100, 313 (G-10-Gesetz); VerfG Mecklenburg-Vorpommern, with comments in Neue Justiz (2000) 63; Deutsches Verwaltungsblatt (2000) 269; Thufingisches Verwaltungsblatt (2000) 41. In addition, the Saxonian court decided on the issue using similar arguments, see Landesverfassungsgericht Leipzig, LVerfGE 4, 303, also in Europaische Grundrechte-Zeitschrift (1996) 437. For a detailed analysis of the case, I am grateful to Johann Bizer.

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Parliament that it may not circumvent the meaning of the Constitution.34 Thus, it may be used to even stop a constitution-making process in order to save the Constitution. 4.2.2

Separation of Powers

If the doctrine of " l Wesensgehalf shall save democracy from authoritarianism, it has to be mobilized by someone and be adjudicated by a court.35 Thus, this safeguard only works on the basis of a specific understanding of the separation of powers. In particular, such an understanding will provide a better protection against authoritarianism the more it attributes power to the courts and the less it reserves uncontrolled powers to the government, the administration, and the legislative branch. Generally, this results in a strong interpretive standard of proportionality, which does not allow for the aforementioned argument that seemingly petty intrusions into personal liberties may be accepted without further control. A stronger standard of proportionality demands justifications of growing intensity the more intrusive the state action, and starts demanding this at the level of close to nothing.36 To be stopped by the police on a highway thirty kilometers from the national border for no reason has to be justified, which results in the requirement that the police document and demonstrate why such action was necessary at that specific time and place. In addition, this demands strict interpretive standards for any fact assessment required from state agents in practice. Thus, the intensity of court control over "Ermessen" and "Beurteilungsspielrdume" has to be significant.37 And finally, any law

34

Art. 13 of the Constitution has been changed in Article (4)-(6) against which liberal politicians filed a suit before the Constitutional Court based on the claim that the rights of Arts. 1(1) 20, 19 (2) were violated. Art. 13 (4), allows for acoustic and optical surveillance of private homes in cases of imminent danger to public safety, particularly a general danger or danger to life, and allows for the use of such data. Art. 13 (5) regulates technical devices to protect under-cover agents in private homes. Art. 13 (6) regulates the mechanisms of parliamentary control. On the changes, see Braun, Neue Zeitschrift fur Verwaltungsrecht 19 (2000) 375. Another example: the right to asylum and the changes in Art. 16. 35 I presuppose an institutional standing of the court strong enough to demand adherence to its judgments. 36 The proportionality test is more difficult to use than it appears. For example, the German Constitutional Court accepts every law as suitable (geignet) that can, in the abstract, lead to the intended result (BVerfGE 90, 145, 172). On the other hand, it used the proportionality test to state that it becomes more and more difficult to use data by the police the more important the right affected by it (BVerfGE 100, 313). 37 See on German jurisprudence, Rachor, in Denninger and Lisken, chapter F, n. 55 ff. and Trute, Die Verwaltung, 32 (1999) 73.

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that allows for authoritarianism by the state has to have a high level of certainty.38 In the area of police law, this understanding of the separation of powers, which amounts to strict court or other control, has distinct consequences in that it requires legal mechanisms that allow for such control. Therefore, secret practices of the police cannot per se be part of police law, since they can never be brought to court or other bodies of control if they never come to the attention of those affected. In the decision on new data collection laws for the German secret service, the END, the FCC stated that the personal right to informational self-determination demands procedures that bring police or secret service practice out into the open, and that offer alternative control mechanisms if this is impossible based on the nature of the case.39 4.2.3 Procedures Lastly, doctrines of control need mechanisms of control. The traditional emphasis on courts reaches its limits when confronted with either their diminished institutional standing, or when confronted with activities - like secret police investigations or police brutality in areas in which potential claimants are in a position structurally inhibiting them from the use of courts - that are never brought to the attention of a court system.40 Therefore, doctrines need not only procedural safeguards within a judicially oriented system. To activate constitutional limits to authoritarianism, some inherent limitations of the court system have to be compensated by additional flexible devices.41 They can be located in the sphere of parliament and in the sphere of civil society. In parliament, majoritarian decision-making poses the danger of authoritarianism: for example, of populist reactions to populist demands in the area of crime. Therefore, parliamentary decision-making needs to be structured in a way that allows for as little such activity as possible, and parliament needs adequate means to control the executive.42 Part of this structure is the right

38

39 40 41 42

In German constitutional law, a principle of certainty (Bestimmtheit) is derived from the rule of law. Awareness of the theoretical impossibility of ultimate certainty in law is a prerequisite to better lawmaking, rather than to nihilist farewells to regulation. In cases of data collection, Art. 10 of the Constitution may be the more specific right, see BVerfGE 100, 313, 356. The right that is potentially violated here is Art. 19 (4), which guarantees full legal protection against state activity; see BVerfGE 100, 313 (364 ff.). On this requirement, see BVerfGE 80, 1, 23 (30); 65, 1, 46; 67, 157 (185). For an overview of parliamentary means of control of secret service agencies, see Peitsch and Polzin, Neue Zeitschrift fur Verwaltungsrecht, 19 (2000) 387.

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of the opposition to sue the majority, the right to information on all government activity (which has to be extended to a right to call for fact-finding committees on state crimes), the right to access to information held by state authorities, and the right to adequate consideration time before new legislation is passed. In addition to parliament, actors of civil society are, today, absolutely essential ingredients of a functioning democracy. There may be very few situations that call for an activity like the Russell-Tribunal in the 1970s, when citizens publicly debated human rights violations committed in Germany. But there are many situations in which citizens need: a right to complain to official as well as to independent agencies, access to information (including access to the name of the state actor), and rights of free speech, free association, and demonstration. In civil society as well, all control mechanisms depend on knowledge. Therefore, strong informational rights are as important as supporting activities that work towards more transparent decision-making and state activity.43

5

PROCEDURAL JUSTICE

As Andras Sajo has pointed out, the techniques used to turn democracies into authoritarian systems are understudied.44 However, an analysis of police law may indicate some dangerous moments. One may look at them from the perspective of economic theory to understand the deficiencies in the working of the system.45 One may also look at them from a doctrinal perspective, the perspective of judges who have a role in controlling police authoritarianism. In Germany, the trend towards more authoritarian police law is, specifically, a trend towards more power for police agents, which cannot or will not be controlled by either courts or parliament. What we notice is a shift within the balance of powers with dangerous tendencies towards monopolizing significant amounts of force within the executive branch. What seems disturbing is the trend to legitimize state activity by abstract rationales of a war against crime, which results in less detailed and rational analysis of any intervention. In addition, it is far from clear whether the new means and strategies employed

43 44 45

On the idea of an information law see Kloepfer, Kommunikation & Recht, (1999) 241, an example of such activities are the transparency groups working against corruption in office. Remark at the conference on "The Individual vs. The State", Budapest 2000. See, for example, the fascinating analysis by R. A. Pildes, "A Theory of Political Competition," Va. L. Rev. 85 (1999) 1605.

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are effictive.46 However, neither the legislature nor the courts have left the game. For example, the Bundestag passed a new law to protect democratic institutions against violent attacks and disturbances by establishing an area of peace around the Reichstag, the seat of Parliament in Berlin.47 As another example, most German Lander revised their police laws to exclude a disturbance of an undefined "public order" as a legitimate reason for police intrusion into private rights.48 Thus, police law as an indicator of authoritarian developments is not moving in just one direction. It displays alarming features for those concerned with a liberal concept of democracy, but also exemplifies the complexity of regulating public and private practice in the area of crime, be it a private activity or public wrongdoing. As a result, efforts toward better regulation and toward the strengthening of active citizen participation in society remain crucial. Such efforts, then, are not only of a formally legal, or of a formally majority-rule democratic nature. There is more to a functioning democracy than that. One prerequisite named at the very beginning of this paper, which has to be repeatedly emphasized, and which is not created by police activity alone, is civility, a meaningful concept of citizenship as a socio-political option for all. In addition, procedures have to be filled with appropriate content if they are to be safeguards against undemocratic uses of a democratic device. Then, procedures can lead to civic participation,49 and procedural law becomes the creation of equal standing in public discourse. Philosophically speaking, this includes a vision of deliberative democracy, based on fair discourse, as developed in the works of Jurgen Habermas.50 Law has an important role to play in this arena,51 as have institutions, among which we find one to be as difficult as it is crucial: the police.

46 47

48

49

50 51

For example, the END stopped much of its data collection activity due to its ineffectiveness, Huber, 395. See also Mollers, 382, 383. Gesetz iiber befriedete Bezirke fur Verfassungsorgane des Bundes vom 11.8.1999, Bundesgesetzblatt I, 1999, 1818. For context and content, see Werner, Neue Zeitschrift fiir Verwaltungsrecht 19 (2000) 369. Bremen, Nordrhein-Westfalen, Saarland, Niedersachsen; for a more complex analysis of ambivalent developments in the area see Wachter, Neue Zeitschrift fiir Verwaltungsrecht, 16 (1997) 729 and Baer, Staatswissenschaften und Staatspraxis, 9 (1998) 593. Compare Promoting Participation: Law or Politics? in D. Campbell and N. Douglas Lewis (eds.), London: Cavendish (1999) and the work of I. M. Young on participation of minorities in the political process, in her Justice and the Politics of Difference, Princeton: Princeton University Press (1990). See also Deliberative Democracy, in J. Elster (ed.), Cambridge University Press (1998). See on this theme K. Hendley, Trying to Make Law Matter, Ann Arbor: University of Michigan Press (1996).

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10 LOSING TRACK OF DEMOCRACY: POST-TOTALITARIAN POLICING IN HUNGARY Istvdn Szikinger

1

INTRODUCTION

My thesis is that there is a development in Hungary pointing to the establishment of institutions belonging to a police state rather than to a state functioning according to the rule of law. The term "police state" is generally used to describe repressive systems. However, one has to emphasize that the expression is somewhat misleading, as in a police state not only the police themselves but the whole power structure tends to keep social currents and phenomena in strict order. A democratic state based on the rule of law is maintained and determined by society. In a police state, the political and administrative leadership wants to shape and control the population. This does not always mean repression. Providing people with services and even goods can well be part of the police state approach. The concepts of "police state" and "welfare state" certainly have something in common.1 At the same time, it is beyond doubt that the exposure of the individual and communities to public power prevails in a police state. This is the rule of men instead of the rule of law. Even if a police state is not understood as a system ruled by the police organization, law enforcement can contribute significantly to the destruction of constitutional values by substituting them with "emergency measures" deviating from the democratic ideal by referring to the extraordinary needs of the fight against crime.

1

P. Preu, Polizeibegriff.und Staatszwecklehre, Gottingen: Otto Schwartz (1983) 2-3.

A. Sajo (ed.), Out of and into Authoritarian Law, p. 169-185 © 2002 Kluwer Law International. Printed in The Netherlands.

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HISTORICAL BACKGROUND

The maintenance of order had been either a local government or military function before modern political statehood emerged in Hungary. The first attempts to create professional bureaucratic police agencies were connected to efforts made to achieve a democratic and independent political establishment. After centuries of fighting against various occupiers, the 1867 compromise between the Hungarian political leadership and the Austrian Empire opened the way for developing modern national institutions. The first state police force was organized in the capital based on Act No. 36 of 1872 on the Status of Budapest. More detailed regulation of the police structure and powers was laid down by Act No. 21 of 1881 on the Budapest State Police. The law reflected the general standards of the contemporary continent by putting police activities into a relatively solid legal framework. Thus, the development of the political system necessarily had an impact on the policing of the Hungarian capital. At the same time, some liberal politicians rightly criticized this piece of legislation for giving too much power to the executive police organization without providing for adequate accountability to the local government.2 The Budapest Police Act empowered law enforcement officers to arrest and detain offenders or suspects of criminal acts committed during street fighting or assemblies. Further grounds for arrest were: the continuation of a minor offense following a police warning, causing major scandal or disorder through a minor offense, resisting police authority, unsatisfactory identification, or returning to an area from which the person had been expelled. Certain groups of people could be arrested and detained even in the absence of the above conditions. Beggars, for example, could be arrested at any time. Vagrants, unemployed persons, or people known as a threat to public security could be arrested under suspicious circumstances at any time, but especially at night. Entertainers were liable to be arrested when committing any minor offense. In addition, police had the power to deprive persons of their liberty at night under suspicious circumstances if said persons possessed objects usually used for committing criminal offenses. Those arrested had to be immediately (in the case of night arrest, at the latest the next morning) interrogated and a decision had to be made about pretrial detainment or release. The use of

2

Karoly Eotvos, Az Orszdggyules Kepviselohdzdnak Naploja 1878-1881 [Records of the Lower House, 1878-1881], vol. 17, 286-288.

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weapons by police officers was permitted as a final resort to prevent an attack, to protect themselves, and to break resistance. The Hungarian National Gendarmerie was established, also in 1881, for rural law enforcement. This organization bore explicit militaristic features but did not have public administrative powers. The gendarmerie followed and enforced instructions issued by civilian organs of the state and local authorities. The constitutionality of its activities depended on the instructions of the directing authorities. Nevertheless, members of this public security force had to act even in the absence of civilian entities of public power, and that led to the establishment of rules of conduct in internal regulations. According to those regulations, officers of the gendarmerie had to take violators of any legal norm before the competent authority. Compared to policemen, they had broader powers to use weapons, including use when preventing the escape of criminals. Both police and the gendarmerie had the right to ask for military aid when their strength did not seem to be adequate to cope with situations threatening public order. Nationalization of the remaining city police organizations took place following World War I. By that time, the central government had lost its progressive, democratic character to a great degree. After the war, the post-war revolutions, and the fall of the Austro-Hungarian Monarchy, a right wing political course began under the leadership of Governor Miklos Horthy. The merger of city police forces (including the capital police) into a national structure was carried out on the basis of a government decree, No. 5047 of 1919, a norm of lower constitutional status than the 1881 Act on the Budapest State Police. Article 25 of the decree stated that, if necessary, the police had the power to take to the police station persons who disturbed the peace, disturbed public order, or endangered public security. Detailed regulation was referred to orders of the Minister of the Interior. This type of arrest and public security detention lost much of its significance because more severe measures, including internment, gave almost unlimited authority to the executive to deprive people of their liberty without any judicial or other control. In addition, the 1919 Decree also declared that the police had the general power to do anything not expressly forbidden by law in order to maintain public security. As personal freedom was not guaranteed by constitutional norms, these discretionary powers could be applied to arrest and detainment, too. In spite of the generally acknowledged and legally confirmed requirement of regulating police powers in acts of Parliament, no comprehensive law on the police was adopted between the two world wars. The Act on Police Use of Weapons was passed in 1932, but apart from the level of regulation, it achieved no progress in terms of constitutional standards. On the contrary, by authorizing police to disperse crowds "if neces-

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sary in the interests of public security" the way was opened to the possibility of arbitrary shootings at masses of people. Following World War II, some elements of democracy were restored, but the Communist Party, supported by the Soviet occupational army, gained more and more power until declaring the dictatorship of the proletariat in 1949. The gendarmerie was disbanded immediately after the war and declared responsible for assisting in the deportation of Jews and other persons. Thus, a centralized national police force took over all the duties of general law enforcement. No comprehensive legal regulation framed the activities of the police because the party leadership needed to use them as direct tools in implementing political decisions. A decree in 1955 provided for some rather vague provisions concerning police organization and activities. Another one regulated the use of weapons without restricting the powers laid down in the 1932 Act.3 In 1974 another decree was issued containing norms on state and public security, including those related to fire protection and border guard services. Thus, policing as a special issue was regulated on a lower level according to the logic of hierarchical legislation. A governmental decree replaced the 1955 Decree only slightly modifying its substantial, organizational, and procedural stipulations. Particular conditions of public security detention were not circumscribed in either of the regulations. The Governmental Decree No. 39 of 1974 for example, provided in Article 13 (4), that a police officer could arrest and detain persons who displayed behavior dangerous to society, violated parole, disturbed public order, behaved suspiciously, or committed any other infractions of the law. The aim of this kind of arrest was to register the personal data of the persons concerned, to request that they stop their behavior, or to apply other measures against them. Detailed regulations for public security detention should have been laid down in a decree of the Minister of the Interior. Judicial oversight of police activities in this field - as in general - remained excluded. A relative safeguard of personal liberty was the setting of the maximum limit of detainment at four hours. That meant that within four hours a decision had to be made about releasing the person concerned or taking him or her into custody under a specific legal provision. Such provisions were, as a rule, to be found in the Criminal Procedure Code but there were some other possibilities for deprivation of liberty as well. People could be kept in the police station up to twenty-four hours for purposes of identification, in order to protect their own interests (in cases of extreme drunkenness, or if they were a danger to themselves), or if they had escaped or attempted to escape from authorities.

Law-Decree No. 22 of 1963.

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The Ministerial Decree on Public Security Detention was not issued until 1985. By this time, however, governmental regulations broadened the powers of the police. First of all, the general detention time limit could be prolonged by an additional four hours if necessary. Thus, practically eight hours were at the disposal of the police to decide upon subsequent steps in the case of the person in custody. Issuance of Ministerial Decree No.l in 1985 undoubtedly represented a step forward in constitutional terms. Describing particular conditions for the deprivation of liberty for public security purposes, it established some preconditions for real control over police activities. Although definitions in the decree still contained vague terms, judicial oversight could have achieved some improvements in police accountability. However, courts remained excluded from exercising control over law enforcement measures. In 1990, the Minister of the Interior published the Service Regulations for the Police.4 This was, no doubt, a progressive undertaking, because many detailed provisions covering police activities became accessible to the public for the first time. The regulations actually incorporated all relevant norms of the legislation in force. At the same time, the decree was clearly unconstitutional, because all substantial rules covering police functions had to be enacted by Parliament, not by the Minister. Following the distinctions of the 1985 Decree, the regulations provided for separate legal grounds for criminal apprehension and for public security arrest. However, the immediate consequences were the same, as the decree required that apprehended persons as well as those arrested for public security reasons all had to be taken into public security detention. Thus, the first ground for public security detention was the previous apprehension of a person in connection with a criminal activity. In particular, persons had be to arrested if a warrant had been issued by a competent organ, if they had escaped from the custody of an authority, if they had been caught in the act of committing or attempting to commit a criminal offense, or if they had been hiding after committing an offense. Further grounds for arrest were reasonable suspicion of having committed a felony, possessing objects under suspicious circumstances that could be used for committing offenses, and finally, obstructing or resisting a police officer. If any of the grounds for arrest existed, there was no room for discretion for the police officer; apprehension was obligatory. In addition to these cases, there were other situations in which public security detention was mandatory. Failing to identify oneself, rowdy behavior, disappearance, being required to give a blood sample for an alcohol test, and

Ministerial Decree No. 1 of 1990.

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committing the minor offense of scandalous drunkenness also triggered application of the measure. Continuing the commission of a minor offense despite police warning, violation of probation rules, and begging in public places or by visiting houses were the three cases in which police had the choice to arrest or not. Before the collapse of the communist dictatorship, opposition political forces demanded the "blowing up" of the oppressive police apparatus. There was a broad consensus to democratize the police through rendering them accountable to elected bodies of local self-government. The first democratically formed Government following the free elections of 1990 revised, however, the earlier concepts of the parties on which the coalition was based. Transformations of the law enforcement structure were postponed indefinitely. Innovation within the police force was, in the beginning, limited to emphasizing the democratic environment of policing, and to making efforts toward a better acceptance and image of the service among the population. The issue of the democratization of the police was absorbed by the question of reforming the general state structure. As the head of the ministry unit responsible for policing, Laszlo Korinek, put it: "The police is only a part of this, and if the state itself is democratic, its police should be the same. It does not depend on what organizational principles determine the police being created."5 As a consequence, the police survived the change of the political system basically intact. After a general protest action against government policies by blocking major junctions and ports of entry, even cautious endeavors toward structural democratization of the police were dropped. Since then, the efficiency and strength of the police are on the agenda, instead of the democratic reorganization of the still overcentralized and militaristic national police force.

3

TRENDS IN LEGISLATION ON POLICING

A total revision of the Hungarian Constitution took place in 1989. In addition to enhancing guarantees for human rights, the Parliament adopted a new chapter of the basic law dealing with the armed forces and police. The new constitutional provisions prescribed regulations on police organization and activities to be codified by an act of Parliament requiring a qualified majority of votes. Article 40/A (2), provided that "the fundamental function of the police is to

5

Laszlo Korinek, "Modernization of Police," Rendeszeti Szemle 10, Special issue in English (1992) 3-14.

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safeguard public security and defend internal order." Public security is a set of values related to the defense of persons, property, and institutions of public authority. There are serious problems with the interpretation of internal order. Referral to that value and task had originally been an expression of the fact that in 1989 the police had to run intelligence agencies as well. The structure changed, but the provision remained. The Parliament passed a comprehensive Police Act in 1994. This piece of legislation repeats the constitutional wording, but in addition gives more detailed definitions. It defines the police as an armed policing agency performing duties in the fields of crime prevention, criminal law enforcement, state administration, and general law enforcement.6 The tasks of the Hungarian National Police Force are to protect public security and public order. It exercises the general powers of criminal investigation and acts as the authority for petty offenses, pursues the prevention and detection of criminal acts, and performs alien policing tasks and administrative duties related to the manufacturing, distribution, and use of certain hazardous instruments and materials. It also performs administrative and policing tasks related to traffic and the maintenance of order in public areas. It protects persons of particular importance to the interests of the Republic of Hungary, and safeguards designated facilities. In addition, it licenses and supervises the activities of bodyguards, guards, and private investigators. The police force performs the tasks referred to its authority in case of a state of emergency or martial law. Police also provide protection from acts directly threatening or violating the life or safety of body or property and provide information and assistance to those in need. For a long time the police have been treated as part of the state administration.7 The Constitutional Court has confirmed that the police are within the executive branch, and the Government has general powers to direct and oversee their activities.8 The responsible cabinet member for policing is the Minister of the Interior, who has the right to instruct the police without obstructing the exercise of their competencies. In the course of criminal investigation, the police are functionally subordinated to the State Prosecution Service, the members of which have strong powers to keep the proceedings under strict control. The reasons submitted by the Government for the 1994 Police Bill, however, denied

6 7

8

Section 3.1. L. Szamel, A rendeszet es a rendorseg jogi szabdlyozdsdnak elmeleti alapjai [Theoretical Foundations of the Legal Regulation of Policing and Police], Budapest: MTA Allamtudomanyi Kutatasok Programirodaja (1990). Decision of the Constitutional Court, 48/1991 (IX. 26.) AB.

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the state administrative character of policing outside the scope of special legislation referring certain activities to that sphere. The issue is important because the classification of different functions determines their procedural regulation. Administrative procedure is covered by an act providing for basic human rights guarantees.9 Excluding police work from the scope of state administration would result in depriving it of all the safeguards of the Administrative Procedure Act. Following some hesitation and contradictory decisions of various courts, the Supreme Court of Hungary ruled in the Law Unification Decision that police activities not expressly classified by legislation are part of the state administration; accordingly, procedural guarantees thereof apply. Classical constitutional principles have been undermined by the Police Act.10 Both the separation of powers and the priority of human rights over operational requirements of the state were weakened for the sake of perceived police effectiveness. Police retained the power to adjudicate in minor offense cases, which is clearly a function of the judiciary. Introducing the parliamentary debate, the Minister of the Interior explained the theoretical background of the bill. A principle was declared according to which "the degree of freedom guaranteed by a legal state belongs only to those having respect for the law." In other words, all kinds of perpetrators are deprived of their "degree of freedom in a rule-of-law state," that is, of their basic human rights. This approach, of course, runs counter to the general perception that basic rights and freedoms are an attribute of human existence. An additional problem is the definition of respective categories of people, with special regard to the presumption of innocence as a constitutional requirement. The introductory speech referred to above resolved the dilemma by stating that the police would proceed only against those infringing the law, while citizens complying with it would be left in peace. The powers of the police, according to the Police Act of 1994, are enormously broad and strong. Public security detention, for example, can be applied, among other grounds, based on pure (that is, not reasonable) suspicion, which is a clear contradiction of Article 5 of the European Convention on Human Rights. The maximum duration of this kind of custody can reach twelve hours. Police can make a bargain with criminals to avoid criminal liability in exchange for giving information on other cases. Criminal legislation also extended the powers of the police without counterbalancing the new powers with adequate human rights' guarantees. An amendment to the Criminal

9 10

Act No. 4 of 1957 on Administrative Procedure, as amended. Act No. 34 of 1994.

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Procedure Code introduced impunity for undercover police officers committing any criminal offence in the course of performing their tasks, except for intentional killing.11 According to this, even instigation of a crime by an officer acting in the capacity of an agent provocateur can be justified. The process of destroying constitutional guarantees against the arbitrary use of power continues. Parliament passed an anti-mafia package in 1999 as part of the governing coalition's efforts to strengthen the capacities to fight crime, especially organized crime. Besides amendments in the field of criminal law and procedure, a complex act was adopted containing administrative provisions aimed at enhancement of law enforcement activities. This piece of legislation was given the popular name "Mafia Law."12 One example of the constitutionally unacceptable provisions relates to the police powers to close any shop. Although it is the local authority manager who adopts the formal decision, without the proposal of the police she or he is unable to do so. Temporary closing can be ordered if criminal charges are brought against the manager or an employee for certain violations. Some offences trigger the same sanction even if allegedly committed by clients, provided that the manager did not take the necessary precautionary measures to prevent the violation. If the court or the competent authority, including the police, declares the commission of an administrative or criminal offence, the result will be the withdrawal of the store's license. The right to life is logically of paramount importance among the constitutional values of any democratic state. Although it is not expressly stated in all classical human rights documents, the general stipulation of the security of the person obviously embraces protection from arbitrary killing. More recent instruments, based on the terrible experience of wars and crimes against humanity, clearly require that respect for human life be an absolute priority in legislation of members of the international community. The International Covenant on Civil and Political Rights, to which Hungary has been a party since 1976, provides in Article 6(1) that "every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life." Similar provisions are included in other legal documents determining principles of national legislation. The Hungarian Constitution complies with these universal standards when stipulating in Article 54 (1): "In the Hungarian Republic every human being

11 12

Act No. 88 of 1998. Act No. 75 of 1999. The Constitutional Court in its Decision 1/1999. (II. 24.) AB declared several sections of the Mafia Law unconstitutional.

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has an inherent right to life and human dignity of which no one shall be arbitrarily deprived." The Constitutional Court ruled that the death penalty was not compatible with a legal system based on the outstanding importance of human life and dignity. The Court reasoned in its decision on the abolishment of capital punishment: "Legal norms on the deprivation of life and human dignity by the death penalty not only restrict the essential contents of fundamental rights to life and human dignity, but also permit the total and irreparable destruction of life and human dignity, irrespective of the right guaranteeing them. Therefore the unconstitutionality of the said regulations is declared by the Court and they are repealed."13 It was underlined in the reasoning that human life and dignity are inseparable, representing values prior to all other ones. They form together an integral, unrestrictable basic right that is the source and precondition of numerous other basic rights. One could expect far-reaching consequences by extension of the essential content argument to other pieces of legislation on the activities of state organs involving the possible use of lethal violence. Although the Court did not go into comprehensive analyses of the issue as it relates to problems outside the scope of the death penalty, it is clear that any "official killing" is contrary to the constitutional right to life and human dignity. It has to be pointed out that despite the existence of the death penalty in many of the states, the U.S. Supreme Court, performing the function of constitutional review, came to the conclusion that deadly force against an apparently unarmed, non-dangerous fleeing suspect may not be used unless necessary to prevent escape and unless the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.14 The Hungarian Constitution prohibits any limitation on the essential contents of human rights. Thus, by declaring the unconstitutionality of the death penalty because of the obvious destruction of the essential content of the right to life, the Court inevitably implied that all actions with similar possible consequences were to be avoided in the course of exercising public power within the framework of the Constitution. This seems to be a rather strict conclusion but, indeed, it is a very logical one. Concurring opinions of members and experts of the Constitutional Court also emphasize the superior, and therefore untouchable, value of human life

13 A haldlbiintetes megsziintetese Magyarorszdgon [The Abolition of Capital Punishment in Hungary], Miskolc: A Halalbuntetest Ellenzok Ligaja (1991) 110. 14 Tennessee v. Garner et al., 471 U.S. 1 (1964).

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and dignity. The most permissive view has been expressed by Professor Jozsef Foldvary, who stated in his expert opinion given to the Court on the death penalty: "There are, indeed, cases of violations of inherent rights that cannot be perceived as unconstitutional. However, these always relate to a collision with another inherent right and the conflicts must be limited to a rational and morally acceptable measure."15 Without questioning the approach of the Court as related to the death penalty, we must recognize that rights cannot be divided into an untouchable nucleus and a non-essential part. The Hungarian Constitutional Court, in order to avoid the trap of delineating a rigid borderline between the essential and non-essential content of rights, similar to its German counterpart, developed a doctrine relying not so much on a literal interpretation of the section cited as on a complex, comparative perspective. According to these standards of the Court, restrictions on basic rights will be regarded as constitutional only if they prove to be absolutely necessary in order to protect some other basic right or constitutional value, and only in a manner that is strictly appropriate and proportionate to the objective to be pursued by the restriction.16 Although Foldvary did not mention the police use of deadly force, one can assume his acceptance based on his argumentation. But even this "tolerant" perspective excludes shooting at fleeing detainees when no imminent danger to life or to another outstanding constitutional value is present. However, Article 54 of the 1994 Police Act empowers law enforcement officers to use firearms in order to prevent the escape of people under arrest for a criminal offense or in any detention ordered by a judicial decision, unless the person is a juvenile. Similarly, police have the right to resort to the use of a gun to apprehend, or to prevent the escape of, a perpetrator who intentionally killed someone. Needless to say, the danger of exercising these powers as a substitute to the death penalty is not negligible. It has to be emphasized again that these grounds for shooting do not presuppose any serious threat to life or other important values by the "target person." Separate provisions covering the use of weapons ensure protection of such values. Thus, a clear contradiction emerged to the above-described perspective on the superior importance of human life and dignity. There is no legal way to execute a person after having thoroughly investigated the case within a criminal procedure guaranteeing due process safeguards of the suspect's rights, yet a person can be killed by a police bullet without any deeper examination of the facts. It is also evident that the

15 16

Supra note 13, 74. See e.g., Decision of the Constitutional Court, 11/1992 (III.5.) AB.

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essential content of the right to life does not depend on the particular nature of the action resulting in the death of an individual. The Police Act of 1994 requires in Article 17 (1) that: "If means of coercion are applied in the course of a police action, causing an injury or taking a life shall be avoided if possible." In other words, killing a person can be justified on the grounds that it was necessary for successfully implementing a coercive measure. If an officer can prove that it was not possible to avoid a deadly result in order to achieve legally acceptable goals of the intervention, he will not be held responsible for the death. This provision applies to all police measures involving coercive means, not just to the use of firearms. To put it very simply: police efficiency is clearly preferred to human life. However, one should point out that the Constitutional Court itself contributed to a certain degree to loosening the principles laid down in former rulings. In one decision,17 the Court ruled that the military oath, containing reference to readiness to risk the soldier's life, was not unconstitutional. It reasoned that, as opposed to the death penalty, here the deprivation of life was not an unavoidable consequence of state activities, because the possibility exists to choose civilian service or unarmed military service instead of joining the traditional army. In addition to that, the obligation to risk one's life really only applies in emergency or war situations. In my opinion, these conclusions are questionable for the following reasons. First, there is a choice for individuals to avoid the death penalty as well. The most obvious way is, of course, by not committing any criminal act punishable by death. But even for perpetrators there are a number of ways to avoid the worst possibility by hiding, showing remorse, appealing the sentence, or submitting a request for pardon. On the other hand, the Court itself explained that in military operations not only the lives of Hungarian soldiers are at risk, but members of the enemy army can also be killed lawfully, even if the latter do not have the choices available to Hungarian citizens. Here the logic of the argumentation applied in the decision fails to justify unconditional killing of other people. The right to life is a human right, not only belonging to citizens of a given state. It is, of course, no comfort for those facing this kind of police treatment that law enforcement officers themselves do not enjoy the right to life. Article 11 (1) of the 1994 Police Act declares that a police officer shall perform his duties even by risking his life if necessary. Here again, legislation does not specify the circumstances under which giving up the right to life might be necessary; instead, it extends this duty to all activities required by the service.

17

Decision of the Constitutional Court, 46/1994 (X. 21.) AB.

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This conclusion is confirmed by the Service Relations of Armed Services Act of 1996,18 in which the same duty is imposed upon professional soldiers, fire brigade officers, and civil defense and national security officials. Referral to possible death in the course of service is by no means a symbolic expression of the danger involved in military and law enforcement functions. Indeed, "qualified" cases for military and border guard personnel require increased selfendangering behavior in certain situations. By describing particular instances in which one's life should be risked, the legislature made it clear that these provisions were to be taken and implemented very seriously. In sum, the constitutional value of human life has been gravely diminished by legislation in the field of law enforcement. Of course, if the most fundamental right is so easily set aside for the sake of doubtlessly less important interests of public power, like police efficiency, one will find even more violations of other basic rights under the pretext of maintaining order and ensuring public security.

4

CENTRALIZATION AND MILITARIZATION

Centralization has remained a main feature of law enforcement, based primarily on one national police organization. The National Headquarters is the focal point of the centralized force, with all the powers to direct and control the whole network. A national commissioner, appointed by the prime minister but reporting directly to the minister of the interior, is the chief of all police officers. His two deputies, called directors general, have the responsibility for the functioning of the two basic fields of police work, namely criminal investigation and public security (uniformed) policing. Direction is exercised as a rule - but not exclusively - through county headquarters, though some special units, like the Airport Police or Central Riot Police report directly to the National Headquarters. There are nineteen county police forces in Hungary as well as the Budapest force, which has the same status as the county police. Local police stations, usually serving several municipalities, represent the lowest level of the pyramid. Following the 1998 elections, policing was centralized within the Ministry of the Interior. The position of undersecretary for law enforcement has been abolished, which means that the minister (who happens to be the former national commissioner of police) or the administrative state

18

Act No. 43 of 1996

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secretary (a former police general) personally deal with matters requiring high level decisions. Hungary, like other communist regimes, made use of the militarization of the police in order to concentrate power instead of dividing it. Internal troops and forces with dual (military and policing) status, like the Border Guard, were important parts of the security complex. Their presence was a clear sign of the fear of domestic unrest to be oppressed by military operations. The clear distinction between police versus military tasks and competencies is one of the elementary preconditions of a constitutional democracy. Militarization of the police clearly contradicts the service role of the organization and is a clear sign of parting with the values of civil society.19 Militarism can be described as "the glorification of the tools and bureaucracies that perpetuate organized state violence."20 Empirical and comparative research fully confirm the conclusion that militarism is a principle and phenomenon not only antagonistic to the fundamental values of a democratic legal state, but, at the same time, a rather direct cause of police dysfunction, even in professional terms.21 As Schlichter explained: "The military is designed, organized and equipped to effect the rapid, violent and efficient destruction of the 'enemy,' whoever that may be. Military methods are not designed to handle the shades of grey that a police officer encounters on the beat, but are tailored to the stark black and white of a battlefield."22 It can be well documented that the democratic opposition, prior to the change in the political system, was fully aware of the nature of police militarization and its impact on civil society. An important principle of the 1989 comprehensive constitutional amendment in Hungary was enshrined in the provision to resolutely separate the police from the armed forces, strictly limiting the latter's involvement in the maintenance of public order. Some efforts were made to mitigate the most extreme manifestations and effects of

19

M.M. Pedraz, "Polgari rendorseg egy polgari tarsadalomban" [Civilian Police in a Civil Society], Belugyi Szemle 1 (1992) 105-108. 20 P.B. Kraska, "Enjoying Militarism: Political/Personal Dilemmas in Studying U.S. Police Paramilitary Units," Justice Quarterly 3 (1996) 407. 21 J.H. Skolnick and J. Fyfe, Above the Law - Police and the Excessive Use of Force, New York: The Free Press (1994) 113-133; P. Chevigny, "Changing Control of Police Violence in Rio de Janeiro and Sao Paulo, Brazil," in Policing Change, Changing Police - International Perspectives, in O. Marenin (ed.), New York-London: Garland Pub. Inc., (1996) 23-35. 22 K.A. Schlichter, "Locked and Loaded: Taking Aim at the Growing Use of the American Military in Civilian Law Enforcement Operations," Loyola of Los Angeles Law Rev. (1993) 1291-1333.

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militarized law enforcement. At least the ministry apparatus was turned into a civilian body, replacing the inherited structure dominated by generals and other high-ranking police officers.23 By 1993, however, the perspectives on the militarization of law enforcement had substantially changed, at least in Parliament. Referring to the war in the former Yugoslavia and to other tensions along the Hungarian frontiers, the legislators decided to reinforce the dual, that is, military and police character of the Border Guard Service. The 1994 Police Act conserved the army-like status quo of the National Police Force and its members by not introducing any substantial change into organizational principles or service relations. The 1996 Service Relations of Officers of Armed Services Act made it absolutely clear that the police and other law enforcement agencies (the prison service, fire brigades, customs and financial guards, civil defense, and national security agencies) are considered parts of the military-security complex. The act determines the rights and duties of all officers serving in organs structured within the military framework. The law uses the summary term "armed organs" for these agencies, even though fire brigades do not carry arms. The term "militarization" used here does not mean a disproportionate presence of soldiers in state activities, but rather the dominance of military methods in the work of agencies, including the police, that by nature are civilian institutions.24 Hungarian police officers are structured into the same rank-order used by the army. The uniforms are very similar, but the color is different (bluish-gray for police and brown for the army). The chain of command, the duties and rights of the officers, discipline, and all other conditions of performing duties were put into a uniform framework by the 1996 Service Relations of Officers of Armed Services Act. Police officers are soldiers in terms of criminal law. This means they are subject to special provisions of the criminal code in addition to the ordinary ones. Disobedience, for example, is a military offense even if the order is proven to be unlawful. The only justification for refusal to comply with orders is to avoid committing a criminal offense. According to a Western observer familiar with the Hungarian realities, "legislation in Hungary to align the service conditions...of the police, military, fire brigades and other armed services was a retrograde step that works against embedding the police in the civil administration. In considering the extent to which police

23

24

B. Horvath, "A civil Beliigyminiszterium a jovo rendorsegeert" [A Civilian Ministry of Interior for the Police of the Future], Belugyi Szemle 10 (1990) 3-9; P. Boross, "A Beliigyminiszterium feladatai - 1992" [The Tasks of the Ministry of Interior - 1992], Rendeszeti Szemle 1 (1992) 5-9. Supra note 21, 105-108.

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and military should have shared objectives in constitutional democracies, the doctrine of the separation of powers needs to be taken seriously."25 In a broader context, militarism can be seen as a result of a security doctrine that treats external and internal threats as essentially the same. William Stanley, in agreement with Jose Manuel Ugarte, rightly states that the failure to distinguish between the realm of national defense and internal security leads to a doctrine that places a priority on protecting the nation as a whole. Such an approach, widely used in Latin America, usually results in negating the importance of individual rights and in defining entire classes of people and currents of political opinion as threats to the security of the nation. A further logical step is to engage in a war against deviant behavior, thus necessarily treating groups of people as enemies.26 The legislative erosion of constitutional safeguards, accompanied by the unreasonable centralization and militarization of the police, necessarily leads to weakening the position of civil society for the sake of a strong, hardly controllable public power dominated by the executive branch. The arbitrary use of law enforcement power is a natural consequence of the developments discussed. This can be recognized even on an institutional level. Government Decree 16 of 1999 (II. 5.) can surely be considered an example of that. The document regulates service activities of the state police delivered on the basis of private contracts concluded by police management with anybody willing to pay for those services. This, in itself, is acceptable in a democratic constitutional state. The problem is, however, that according to Hungarian law, state police control the entire system of private security by using wide discretionary powers. Act No. 4 of 1998 on Personal and Property Protection Activities and Private Investigation Pursued by Enterprises in the Field of Private Security provides for clear police dominance over such companies. Police issue and withdraw licenses, oversee the actual business management, and can even impose heavy fines on those not complying with the provisions of the act. At the same time, the state police are a competitor to these companies on the security market. This is far from fair play. What is more, the act makes it clear that while providing private services, police officers may exercise all their public powers. Thus, all the extraordinary powers vested in the police service,

25

A. Wright, "Slippery Slopes? The Paramilitary Imperative in European Policing," in Police in Transition-A Survey on the Police Forces of Bulgaria, the Czech Republic, England and Wales, Germany, Hungary, Poland, Romania, Slovakia, Yugoslavia, in Hungarian Helsinki Committee (ed.), CD-ROM, Budapest: Hungarian Helsinki Committee (1998). 26 W. Stanley, "International Tutelage and Domestic Political Will: Building a New Civilian Police Force in El Salvador," see supra note 19, 37-38.

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justified by referral to the never-experienced menace of crime, can, and indeed are, converted into means to achieve an advantage in the market of property and personal protection.

5

CONCLUSIONS

In my opinion, under the described circumstances, the real causes and effects of the hard-line internal security policies can hardly be explained without considering the broader perspective of the struggle for power during the transitional period. As no evidence justifies curbing human rights for the sake of narrow policing interests, the growing control of state power over people can only be attributed to the "law-and-order" perspectives of the government. Because failing to achieve any improvement in the field of public security leads to increasing efforts without critical revision of principles, the demand for more oppressive means and methods will further widen the gap between public power and the citizenry. Thus, the democratic foundations of society will be increasingly endangered by an apparatus that is inevitably losing the feedback and support it vitally needs from the people it serves, while deterioration in terms of the effectiveness of police work will be obvious.27 This is the mechanism paving the road to a police state in its worst, most narrow meaning: an oppressive apparatus apt to forget the original goals of the functions and powers given to it. One of the deputies to the German Parliamentary Assembly preparing the Basic Law (Constitution) of the Federation of 1949 warned the founding fathers by recalling the words attributed to Benjamin Franklin: "A man who is ready to give up his freedom in exchange for security will lose both."28 The Hungarian development of legislation in the field of policing seems to confirm this perspective. Elaboration of a democratic, constitutional policing theory is needed to convince people that there is an alternative to traditional law enforcement. Nevertheless, the absence of such a comprehensive theoretical basis is by no means an excuse for violating the most elementary principles of constitutional democracy without due cause and without any perceivable success.

27 R. Kinsey, J. Lea, and J. Young, Losing the Fight Against Crime, Oxford: Basil Blackwell (1986). 28 F. Seebohm, Parlamentarischer Rat - Stenographischer Bericht, No. 3, (9 September 1948) 46.

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11 PUBLIC ADMINISTRATION AND THE TENDENCY TO AUTHORITARIANISM

Denis J. Galligan

1

INTRODUCTION

At first sight, a study of the system of public administration may not seem promising as a route to understanding, and possibly controlling, the authoritarian strands in modern democracies. Public administration might be seen as no more than an instrument for implementing the will of the democratic majority as represented in legislative enactments and government policy. In one long and enduring tradition, not only is public administration an instrument, but it is a neutral instrument, imbued with its own professional ethos and practices. Whatever the defects or excesses of the policies and laws it is charged with implementing, those same defects and excesses will reappear in the actions of administrators. Professional neutrality has its virtue, but it will do nothing to ameliorate the vices of democratic authoritarianism. At second sight, the position may even be worse, because the administrative system appears to contain within itself a tendency towards authoritarianism that, although driven by its own internal forces, at the same time is likely to aggravate any authoritarian elements already contained in the laws and policies it implements. Administrative bureaucracies are naturally governed by procedural rigidity and a disregard for individualized differences; efficiency and self-interest prevail over fairness, and secrecy militates against explanation and justification. If authoritarian means the exercise of authority in a manner that is unacceptable to those subject to it, because of certain kinds of defects within it, then administrative bureaucracies would seem to be presumptively authoritarian. The result may be that authoritarian elements present in the laws and policies of the day will be augmented in the hands of the administration responsible for their implementation.

A. Sajo (ed.), Out of and into Authoritarian Law, p. 187-202 © 2002 Kluwer Law International. Printed in The Netherlands.

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Contrary to first impressions, therefore, the study of public administration may turn out to be illuminating both to the understanding of authoritarianism in democratic systems and its control. The purpose of this essay is to examine some aspects of this issue along the following lines. To begin, I offer an outline of the notion of authoritarianism and its link to liberal values. Second, I then give an outline of the dynamics of administrative authorities with a view to identifying the authoritarian tendencies within them. Then, third, I consider how the values of administrative law are directed towards controlling and reducing those tendencies. This will include discussion of the idea that some of the principles of administrative law are themselves based on principles that offer a fuller and more dynamic concept of democracy than bare majority rule. This will be followed, finally, by a brief assessment of how selected countries of the region are approaching the matter and the extent of their success.

2

AUTHORITARIANISM AND ITS PLACE IN DEMOCRACY

The concept of authoritarianism, while clearly pejorative in its connotations, is not a term that is used with any precision; indeed, amongst political scientists and lawyers, it is not a term that is widely used at all. Where it is used, the term authoritarian describes a particular kind of political system that is in the same camp as totalitarianism, although not so extreme.1 It may be useful to begin, therefore, by pinpointing the mischief to which the concept of authoritarianism draws attention. What is it then that changes when the move is made from exercising authority, which suggests a legitimate activity, to being authoritarian, which does not? The vital element seems to be that the latter is in some way a corruption of authority. There is still authority for what is done, but it is defective, at least in the eyes of those subject to it. The context in which the term is properly used is the relationship between one wielding authority and another subject to it. Where those subject to the exercise of authority consent or raise no objection, the concept of authoritarianism would be out of place. However, it becomes apt when consent or acceptance is lost. Such loss is likely to be due to the manner in which authority is exercised; it may be high-handed, or may fail to take proper account of the position or circumstances of the person over whom authority is exerted, or may trespass on matters it should not. Defects of these kinds will undermine or

1

P. Brooker, Non-Democratic Regimes, New York: St. Martin's Press (2000).

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reduce the acceptance or consent of those affected, and so open the way for allegations of authoritarianism. The corruption of authority implicit in authoritarianism is contextual and relative. What is acceptable in one society or social context may be considered authoritarian in another. Accordingly, in order to give content and meaning to the concept of authoritarianism for present purposes, we must place it in the context of the legal and political values associated with western ideas of political morality as translated through ideas of constitutionalism. Where the actions of officials are in breach of constitutional values about how power should be exercised and people treated, those actions will be considered authoritarian.2 Constitutionalism requires that government be conducted according to a range of substantive and procedural constraints, some of which are concerned with the structural conditions under which power is exercised, others with the way individual persons are dealt with in its exercise. By placing certain matters beyond the will of government (and therefore the democratic majority), such as what one says or writes, or what religion one follows, or with whom one associates, constitutionalism seeks to stake out a set of substantive values, the interference with which would be considered unacceptable. Similarly, in imposing certain procedures in the use of power, constitutionalism is making the claim that, even though substantive laws and policies have the authority of the democratic process, their implementation should be constrained by notions of fairness, openness, and reason. The suggestion I am making here is that, in the liberal tradition permeating modern Europe, the corruption of authority associated with authoritarianism stems in the main from violation of the values that ought to govern the relationship between citizens and state. In the eyes of those affected, such violation reduces acceptability and encourages the charge of authoritarianism. The minister who refuses political asylum without properly investigating the applicant's claims of political oppression in his home country, may have authority to do so, but he acts in an authoritarian manner when he does. Similarly, the police chief who refuses a group permission to march through the center of town on the grounds of public order, when the steps needed to preserve public order could easily be taken without the ban, may have authority for what he does, though he acts in an authoritarian manner. Many other examples could be cited, but enough has been said to show that authoritarianism is a corruption of authority, that actions can be authoritarian to a greater or lesser degree, and

See the debate in Council on Foreign Affairs (May/June 1998), and further, R. A. Dahl, Democracy and Its Critics, New Haven: Yale University Press (1989).

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that in the western tradition we associate it with acting in a manner that undermines or neglects certain political values and, in doing so, detracts from the acceptability of the action. I do not suggest that authoritarianism is necessarily tied to illiberalism, nor that it may be linked to other kinds of defects; but in the western tradition, there is a close relationship. How then does authoritarianism relate to democracy? A democratic majority may be authoritarian if it passes laws or adopts policies that are oppressive of the minority. The specter of factions colluding to ride roughshod over smaller groups or individuals haunts the writings of the Federalists and features prominently in J. S. Mill's Representative Government, to name just two of many who have been concerned by it. A good part of constitutionalism is aimed at removing that specter: by checking and balancing government authority, by putting certain matters beyond the democratic majority, and by insisting on procedural constraints, some success has been achieved. It is worth exploring the matter a little further for our present purposes. In the first place, mere disagreement with the majority will, as expressed in laws and policies, is not a sound basis for claims of authoritarianism, especially if the majority will has been reached in accordance with agreed procedures. Either of those notions will become legitimate only if the majority transgresses some substantive or procedural constraint: for instance, requisitioning property without compensation or redesigning the education system without considering the interests or views of minorities. In other words, democracy based on the majority will does not necessarily lead to authoritarianism; it contains inherent risks, but they will become realities only if certain kinds of serious defects occur in the exertion of the majority will. Attempts to reduce those risks usually take one of two directions. One is to improve the quality of the democratic process itself, while the other is to place constraints on it. With regard to the first, democracy can be given a richer meaning than bare majority rule.3 Divided powers, carefully constructed voting processes, and checks and balances of various kinds can all contribute to a sense of democracy that makes tyranny by the majority harder to achieve. Moreover, the democratic principle need not rest solely on a voting procedure that is occasionally invoked. Democracy can be embedded in the day-to-day workings of social and political organizations in various ways that go well beyond occasional votes and the majority principle. The developing idea of deliberative democracy is one somewhat ambitious direction, while a general commitment

See the range of situations in Promoting Participation: Law or Politics?, in D. Campbell and N. D. Lewis (eds.), London: Cavendish (1999).

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to participatory procedures is a more modest, but potentially effective proposal. We shall see that democratic procedures can have an important role in government administration. The second strategy in guarding against the risks of authoritarianism is the familiar one of limiting the range of matters that are subject to the democratic will. Modern constitutions almost invariably contain clauses protecting some important interests against the laws and policies of the government and majority of the day. The traditional civil rights to life, liberty, and property are bound to be included, while many constitutions extend protection to privacy and against discrimination. These so-called negative rights may be supplemented in some cases by positive rights to certain kinds of welfare. Whatever the scope of protection, and it is not our present purpose to examine them in detail, their importance lies in signalling that they are in a sense prior to the democratic process and immune from interference by it. Now while these matters are normally dealt with in constitutions and backed by judicial enforcement, in some cases, like the United Kingdom, they are left to the self-discipline of the legislature itself. In those rare cases, the majority responds to political currents rather than legal boundaries in defining the proper scope of its own authority. Although these are the two directions that are usually taken in containing authoritarian elements in a democracy, there is, I suggest, a third that is different enough from the other two to warrant mention, and which is especially pertinent in the context of government bureaucracies. Western law has devised various principles governing the relationship between the citizen and the state that have special relevance to the actions of government and administration. These principles dictate how people should be treated in their dealings with the administration in its various guises. The principles are not usually included in constitutions but are found in the rules and practices of administrative law. They deal with matters such as the right to be heard, and to be treated in accordance with notions of fairness and due process; they draw on the principle of participation in a range of contexts; they require openness and transparency in the actions of the administration; they insist on a legal basis for the actions of administrative bodies and officials; and they impose restrictions on the exercise of discretion. These principles of administrative justice, which are explained more fully below, are the third and somewhat neglected strategy for countering the tendencies of government and administration towards authoritarianism.

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AUTHORITARIANISM IN GOVERNMENT ADMINISTRATION

Turning now to government administration, I shall begin with the general hypothesis that government administration has inherent tendencies to authoritarianism.4 These tendencies flow, I suggest, from a combination of factors, including the premises on which administration proceeds, the position of administrative bodies in the governmental process, their tendency towards autonomy and independence, and their historical legacy. These ideas can perhaps be captured in two notions: first, the basic logic of administrative bodies is towards efficiency, effectiveness, and more recently, good management, rather than towards respect for rights and persons; second, administrative bodies have a tendency towards autonomy and independence from the surrounding environment, which allows and encourages the growth within them of internal normative systems that are likely to be antipathetic to respect for rights and persons. Each of these ideas needs to be unravelled to bring out their implications for authoritarianism. The first I shall refer to as the administrative rationality thesis, the second as the administrative autonomy thesis. The administrative rationality thesis draws on the idea that administrative bodies are created and developed in order to perform certain tasks where the measures of success are efficiency, effectiveness, and good management. According to Weber's analysis, bureaucracies reach their high point when they operate in a formally rational manner, achieving optimum efficiency through the formulation and application of detailed rules. This notion of routine administration, as I have described it elsewhere, is an ideal type, and although the reality of public administration falls far short, the efficient realization of stated policies is clearly recognizable as the basis on which administrative actions are explained and often justified.5 We know that in practice, of course, administration is more complex and uneven, with extraneous and distorting factors entering in; we know that administrative officials have their own ends and purposes, and that low levels of achievement are not uncommon. Nevertheless, the premise of efficient administration in implementing the policies of government remains the dominant paradigm. It is particularly interesting that, after long being threatened by ideas of professionalism and expertise, the notion of administrative efficiency, now couched in the language of good management and business principles, has

4

5

See the essays in A New Handbook of Political Science in Robert E. Goodin and H. Klingemann (eds.), Oxford: Oxford University Press (1996), especially the section "Public Policy and Administration." D. J. Galligan, Due Process and Fair Procedures, Oxford: Clarendon Press (1996).

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returned with a vengeance. In several countries of Europe and the Commonwealth, administrative government has been transformed in order to advance and facilitate the political urge for a new form of managerialism based on efficiency. Britain may have gone further than other European countries in transforming the departments of state into more than a hundred agencies, which are then expected to function according to business principles and to achieve unheard of levels of efficiency.6 This transformation has been helped by attempting to drive a large wedge between the policy-making part of government, which falls to the executive, and the implementation of policy, a matter for the administration. Without here elaborating on these trends, the point for our present purposes is how they bear on the inherent authoritarian tendencies of administrative bodies. The answer is that the logic of efficiency is quite different from the discourse of rights and respect for persons. The former is concerned with achieving stated objectives, such as distributing welfare, prosecuting suspects, maintaining order in prisons, granting licences, or collecting child-support from recalcitrant fathers, in the most economical and cost effective manner possible. Keeping prisoners locked in their cells for most of the day is likely to be highly effective in terms of prison order and low in cost. Human factors do not necessarily enter into consideration. The alternative discourse is based on the idea that respect for persons and their rights is always relevant and must feature in decisions to act in one way rather than another. The provision of a stimulating and educational environment for prisoners may produce the same or even higher levels of order within the prison, but the costs of doing so would be much greater than confinement to cells. This example brings out the different kinds of logic that govern, and my suggestion is that the logic of efficiency is inclined to exclude the discourse of rights. The tension between the two is brought into even sharper relief where the very logic of efficiency may seem necessarily to include the discourse of rights. The distribution of benefits is likely in many contexts, such as social welfare, to be based around rights, so that the two different rationales coincide. However, even here there is a risk that the administrative body will convert the rights discourse into a logic of efficiency that may in effect severely undermine or at least distort rights. The hard-pressed agency may have targets to meet - so many claimants to deal with, so much money to distribute - that the meeting of those targets overrides the full and proper consideration of each

P. Greer, Transforming Central Government: The Next Steps Initiative, Buckingham: Open University Press (1994).

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case. In the very nature of bureaucratic administration, the logic of efficiency is more powerful than that of rights. The autonomy thesis is that administrative bodies tend to become relatively closed on themselves and separate from their external environment. This dual process encourages the formation of a distinct internal organization and normative system with its own assumptions and rationales, while at the same time restricting external influences and making it difficult for external control and supervision. This idea of institutional autonomy is familiar in systems theory and has a clear resonance with the modern concept of autopoiesis. The autonomy thesis is well demonstrated in empirical studies of institutions, and nowhere more revealingly than in studies of the police forces and closed environments, such as police stations and mental health institutions. Any reasonably coherent organization, especially if buttressed by an institutional base, tends to develop its own internal normative structure governing the way that it should carry out its functions. The extent to which this occurs depends on several factors, such as the nature of the tasks being performed, the degree of internal unity and coherence, the possession of special or expert knowledge, the kinds of powers conferred, and so on. Studies have shown that police forces develop particularly strong internal normative systems, partly because of the nature of policing, and partly because the society allows them a high level of discretion in how they carry out their tasks.7 The role of discretion is noteworthy, since the grant of wide discretion to an administrative body is itself a signal that it has autonomy in determining how best to discharge its functions. That signal in turn is likely to encourage the formation of a tight internal normative regime. As the internal dynamics of an organization develop and govern its effective functioning, external control and supervision becomes more difficult to achieve. This may be expressed in the image of competing normative systems, the internal and the external. The more developed the internal norms are, the harder it is for external norms to penetrate and dominate. At the same time, the failure of the external norms to offer resistance to the internal is likely to have the effect of strengthening the internal. Although the tendency to autonomy is not necessarily conducive to authoritarianism, in practice it is likely to be. The informal normative structure of an administrative body is shaped by a combination of social and economic factors, which in turn influence views as to the nature and purpose of the body

7

P. Manning, Police Work: The Social Organization of Policing, Cambridge, Mass.: MIT Press (1977).

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and how best to achieve them. The police see their main purpose as the detection of crime, and create a set of norms and practices around it. It has been shown that the main strategy for achieving a good success rate is to induce suspects to confess; accordingly, the investigation process is centered around obtaining confessions, a goal that naturally collides with protection of the suspect. Welfare agencies allocating housing to homeless persons may not appear to have the same inherent conflict, but even there the tendency is to replace or at least modify the principle of allocation according to need with the officials' own ideas about who is deserving.8 This then opens the way for a set of normative standards as to who is deserving and who is not, where the criteria is not provided by the external environment, but must be created according to the internal attitudes of officials and in response to internal pressures within the bureaucracy. What I am suggesting is that the more autonomous administrative bureaucracies are, the more scope there is for them to develop internal norms and practices that respond to various influences and pressures that largely override, or give only marginal efficacy to, concerns for those subject to their authority. The critics of discretionary powers in the hands of officials have long been vocal, but their attacks are usually based on the arbitrary and subjective actions of individual officials, whether policemen, welfare officers, or licensing authorities. A more convincing approach is to recognize that the problem of discretion is not the idiosyncratic official, but that discretion allows and even encourages the formation of an internal normative system in the absence of guidance from the outside as to what the norms should be. The very concept of discretion, moreover, is a signal from the outside that such internal norms are literally the administrative body's choice, with which there will be no interference. The significance of the autonomy thesis is perhaps most clear in the context of discretion: for on the one hand it is an express delegation to the authority to devise a normative system for dealing with the matter at issue, while on the other hand limiting the scope for external guidance in doing so. My suggestion is that discretion is just the clearest case of the autonomy thesis, and that what is clear and overt there is hidden and covert elsewhere. To sum up, the autonomy thesis has two parts: administrative bodies tend to develop a closed, internal, normative system, and the norms of this system tend towards authoritarianism.

8

I. Loveland, Housing Homeless Persons, Oxford: Clarendon Press (1995).

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CONTAINING AUTHORITARIANISM: THE PROMISE OF ADMINISTRATIVE JUSTICE

The concept of administrative justice may be seen as a direct response to the tendency of administrative agencies towards authoritarianism. Administrative justice is based on the idea that groups and individuals, in their dealings with government bodies, should be treated according to certain principles and values. These include notions, for example, that an authority has no power to act coercively against a person unless there is express legal authority to do so; that in any such action or decision, a person's circumstances should properly be taken into account; that fair procedures, including the right to be heard, should be followed; and that actions and decisions should be open, reasonable, and supported by good reasons. These principles are expressed in more detail and refinement in administrative law codes and practices, as can be seen in the law of any of the leading European countries: France, Germany, and Britain for instance, where courts and to a lesser extent legislatures have over a long history translated these basic principles into detailed legal rules. Sometimes they are expressed in codes, as in the tradition of Central Europe, while in France and Britain they have evolved in the courts incrementally. Administrative justice has a dual character, one part of which is concerned to ensure that substantive legal entitlements are granted by administrative agencies: for instance, to be granted a licence to carry on a trade, business, or profession, or to receive a specific benefit, such as a state subsidy to foster business. The idea here is that in highly regulated societies, daily social and economic life depends heavily on administrative'bodies conferring benefits or imposing burdens. The first limb of administrative justice is that such powers, and the relationships between citizens and the state thereby created, should be governed by reasonably clear and settled standards, which should be accurately applied. The second part of administrative justice is more ephemeral, but equally vital. While recognizing the importance of the accurate application of substantive legal standards, the second part concentrates on the process by which that is done, and is especially pertinent where the power is conferred in discretionary terms. It requires that the application process be permeated by a concern to treat with respect anyone subject to it, which means, in effect, according to mediating principles of the kind noted above. The person's position should be properly considered, he should be involved in the process through various participatory procedures, the process should be open and transparent, the criteria for decisions should be specified with reasonable particularity, and

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adequate reasons should be given for them.9 Whether each of these notions could be justified as conducive to accurate implementation of the governing legal standards, or whether they derive from independent sources, is the subject of a debate that need not detain us here. What is important for our present purposes is that the principles of administrative justice are generated by a recognition that a special relationship exists between the state and its citizens, and that in its expression in administrative contexts, those principles should be respected. Respect for the principles helps to counter the tendencies within those contexts towards authoritarianism. Another aspect of this sense of administrative justice as process can be seen in attempts to reproduce notions of participatory democracy within the administrative system itself. The standard representation of democratic ideas is found in the basic idea that a person affected by a decision should be able to participate in it by knowing what it is about and being able to put forth his case. The participatory idea can then be extended to other administrative processes that are more policy based and where a range of interests are affected. This area is rather undeveloped in European administrative law, compared with some other western countries where notice and comment procedures in administrative policy-making are well established. It is also important that this regeneration of democratic practices within administration can have strong elements of discussion, negotiation, and compromise in a manner that is reminiscent of notions of deliberative democracy.10 The realization of administrative justice depends on its principles becoming part of the internal normative systems of administrative bodies. That has several stages: first, the enactment by legislatures, with the help of the courts, of codes and laws that express the principles; and second, the creation of suitable institutions for implementation, including courts, ombudsman, inspectorates, select committees, and special commissions of various kinds. While the development of authoritative laws and the creation of institutions are essential steps, their success in changing the internal normative structure of administrative bodies is not guaranteed. The hardest part is to gain acceptance of the principles of administrative justice within those bodies; that is, for the principles to become part of the internal normative structure. The problem can be put in terms of competing norms; the norms of administrative justice are external and compete with norms that are generated internally. The assimilation of the external norms

9 10

See Galligan, Due Process and Fair Procedures. On deliberative democracy, see Deliberative Democracy in J. Elster (ed.), Cambridge: Cambridge University Press (1998).

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and their replacement of incompatible internal norms is difficult to achieve, and is a process about which we have limited knowledge. And yet that process is the key to countering the authoritarian tendencies within administrative bureaucracies. It may be helpful to distinguish the role of external institutions, such as courts and ombudsman, together with the processes that trigger them into action, from processes internal to administrative bodies. The very enactment of laws by legislatures, or the statement of principles by courts, or the investigation and recommendations of an ombudsman, have some effect on administrative bodies, but we do not know how significant it is, and indeed have reason to think that it fairly small. Debate has raged for years over whether great constitutional decisions like Brown v. Board of Education, 347 US 483 (1954) or Mapp v. Ohio 367 US 643 (1961) had any real impact on the governmental bodies to which they were directed.11 Judicial review of administrative action has had a great resurgence in Western Europe, and while it is rightly regarded as essential, there is reason to doubt that it has more than marginal impact on the way administrative bodies operate.12 This leads us to the very heart of the debate about whether law matters, and in particular whether it can change social practice in any enduring and systematic way. We need not become entangled in that debate, beyond noting that clearly laws and their implementing institutions matter, but that in order to make them matter, processes and mechanisms suitable to different social environments and institutions have to be devised. In considering that issue, we must examine the internal normative structure of each body. This raises questions such as: how are internal norms generated, what interests do they serve, and how can they be reformulated or replaced with other, external norms. There is some evidence to suggest that internal analysis, and the formation of internal quality controls, can be effective in bringing about change. Studies of the police show that carefully constructed procedures, involving regular and systematic record-keeping, division of responsibilities amongst officers in dealing with a suspect, recording of interviews, and cross-checking of one officer by another, when taken together, can gradually raise the level of compliance with external standards for the protection of suspects. Other areas of administrative activity lend themselves to other types of internal processes and mechanisms directed at improving the level of compliance with external standards. There is no master plan for all administrative bodies, nor is there a simple

11 12

See D. L. Horowitz, The Courts and Social Policy, Washington: Brookings Institution (1977). See further discussion: How Does Law Matter?, in B. Garth and A. Sarat (eds.), Evanston, IL: Northwestern University Press (1998).

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solution. Each kind of authority has its own context and its own internal dynamics; these have to be patiently analyzed and suitable processes created. If reasonable levels of success can be achieved in regulating the police station, which must be one of the most intractable social environments, then there is reason for optimism in other contexts.

5

THE RESPONSE TO AUTHORITARIANISM IN ADMINISTRATION IN THE REGION

Any attempt to generalize about the progress of administrative reform and the development of a culture of administrative justice in the region of Central and Eastern Europe is fraught with danger. Each country has its own history and culture and its own administrative and legal traditions, so that the nature and rate of change vary enormously. Each responds not only to outside pressures but also has to resolve internal problems. While recognizing the great diversity of the region, it nevertheless may be possible to make a few observations about the issues for administrative justice. One of the common factors that cuts across boundaries is the inheritance of systems of public administration that were primarily instruments for implementing the policies of the party. How effective they were in that role is hard to judge and varies across the region. What is fairly certain is that administrative bodies were highly bureaucratic in their organization and operation, and probably reflected the administrative rationality thesis and the autonomy thesis to a high degree, since there is no reason to think that public administration in deeply authoritarian political systems is immune from those tendencies. It may be that the political elite is able to maintain tighter control over the bureaucracies than in a democratic system, but it is hard to find evidence for this point. The suggestion might be made, moreover, that capitalist societies also contain within them currents of authoritarianism that have come to the fore in recent years, and which strengthen the tendency towards authoritarianism within government bureaucracies. I shall not pursue this theme here. What is even more certain is that the systems of public administration in the region were not imbued with a culture of respect for persons and rights. Public administration during the pre-democratic period simply proceeded on different premises. That is not to say that all concern for persons and rights was absent; there clearly were elements, although there is little evidence of

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just how they worked in practice.13 The administrative procedure codes of Central European countries contained extensive provisions for the protection of individuals in their encounters with the administration, including a sharp delineation of powers, rights to basic due process and to participation in administrative processes, rights to reasons, and rights to appeal and complain to higher authorities. Indeed, some of these codes, first enacted from the 1950s, continue, with important amendments but structurally intact, to govern the citizen-state relationship. The Hungarian code is a good example: first enacted in 1957, its basic structure has been retained, subject to important but not fundamental changes, and is considered to be entirely suitable for a democratic, rightsrespecting society. That example is repeated in other countries. Of course, legal codes can be read in different ways depending on the current climate, and the same code can serve different social functions, but it is worthwhile noting that in some countries of the region, with respect to some matters, the legal transition has been developmental rather than revolutionary.14 In general, however, the system of public administration and administrative law bequeathed to the modern democracies of the region was authoritarian, with only marginal concern for rights. Since the beginning of the democratic period, extensive changes have occurred across the region, but with great variation as to character and pace. Most significantly, all countries, to my knowledge, have developed a system of judicial review of administrative action, a practice that is fundamental to rights-protection and that was largely missing before. However, not all countries have created suitable courts to practice judicial review, with the result that good laws remain unimplemented. Indeed, this raises a more general concern about the gap between passing good laws and creating viable institutions to implement them. Law-making is relatively easy, and this is one commodity that is not in short supply. Not all countries are as productive as the Federal Yugoslavian Republic of Macedonia, which over a very short period of time enacted twelve major laws concerning the regulation of the administration and the protection of citizens. All are admirable laws with all the right ideas, but the prospect of viable

13

14

My information here is drawn from a number of research projects conducted in the region and discussed in Administrative Justice in the New European Democracies, in D. J. Galligan et al, (eds.), Budapest: COLPI (1998); D. J. Galligan and D. Smilov, Administrative Law in Central and Eastern Europe 1996-1998, Budapest: Central European University Press (1999); and D. J. Galligan, Administrative Procedures and the Supervision of the Administration in Hungary, Poland, Bulgaria, Estonia, and Albania, Paris: OECD (1997). See further K. Renner, The Institutions of Private Law and Their Social Function, London: Routledge & K. Paul (1949). The transition provides good examples of Renner's thesis.

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institutions being created to implement them seems fairly remote. Laws on the books are not laws in action, and the region is littered with laws on the books. Even taking the first step of getting the right laws in place is not always straightforward, and many odd gaps can still be found. Few countries outside Central Europe have adopted administrative procedure codes, which, despite their apparent concern with technical procedures, are foundational statements of the principles of administrative justice. In legal terms, the enactment of administrative procedure codes is a fundamental first step that many countries still have to take. If the enactment of good laws is the first step, the creation of suitable institutions for implementing them is the second, and more difficult, step. Again the record is uneven. While some countries have worked systematically to develop sound and effective institutions, others have found this more difficult. The creation of courts capable of exercising review of administration is a good example, especially where a tradition of review is lacking and the legitimacy of the courts is low. Partly because of that suspicion and partly because of misleading guidance from the West, some countries have apparently concluded that courts can be dispensed with and that some ombudsman device can perform many functions, including the judicial, and solve all problems. Such an approach is misconceived from the start, and is often compounded by raising expectations of the capacity of the ombudsman, for instance, which will soon lead to disappointment and disenchantment. I have seen letters of complaint stacked to the ceiling in ombudsman's offices across the region where there are no resources to answer them, let alone conduct an investigation. That is another story that I cannot consider here, except to note that institution-building is a complex and difficult matter, and that in many parts of the region the process has hardly begun. Even with good laws and sound institutions there is no guarantee that they will penetrate the inner workings of administrative bodies, particularly where the tradition has been strongly authoritarian. Here we return to the basic dilemma posed above: how can external norms compete with and prevail over entrenched internal norms? Again there is no simple answer; it is a matter of understanding those internal environments, charting the forces at work within them, and then with imagination and purpose devising mechanisms and procedures for implanting the principles of administrative justice. There is no shortcut, but there can be well designed approaches based on careful study of the particular administrative body and its history and culture, followed by purposive reform. The principles of administrative justice do not take root over night, but must be cultivated over generations.

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CONCLUSION

The object of this discussion has been to raise some of the issues that confront attempts to reform public administration and administrative law, with special reference to the region. My somewhat tentative claim is that administrative bodies have inherent tendencies towards authoritarianism and illiberalism. I offer some reasons for that claim, and then explore the role that principles of administrative justice may have in reducing those tendencies. I suggest that the internal adoption of those principles by administrative bodies is a difficult and problematical process that should be approached at several levels: passing good laws, creating sound institutions, and tackling the problem of competition between the external normative standards of administrative justice and the internal norms of each administrative body. The situation in the countries of the region is then briefly considered, and some of the problems particular to the region are identified. My concluding remark is that the study of these issues, of how to reduce the levels of authoritarianism in favor of greater respect for persons and rights, opens up many interesting and important avenues for further study and research.

12 ON POST-FASCISM: HOW CITIZENSHIP IS BECOMING AN EXCLUSIVE PRIVILEGE

G.M. Tamds The phenomenon that I shall call post-fascism is not unique to Central Europe. Far from it. To be sure, Germany, Austria, and Hungary are important, for historical reasons obvious to all; familiar phrases repeated here have different echoes. Our vigilance in this part of the world is perhaps more needed than anywhere else, since innocence, in historical terms, cannot be presumed.1 Still, post-fascism is a cluster of policies, practices, routines, and ideologies that can be observed everywhere in the contemporary world: that have little or nothing to do, except in Central Europe, with the legacy of Nazism; that are not totalitarian; that are not at all revolutionary; and that are not based on violent mass movements and irrationalist, voluntaristic philosophies, nor are they toying, even in jest, with anti-capitalism.

1

WHY CALL THIS CLUSTER OF PHENOMENA FASCISM, HOWEVER POST-?

Post-fascism finds its niche easily in the new world of global capitalism without upsetting the dominant political forms of electoral democracy and representative

l

A few interesting articles in English concerning recent developments: H. Ritter, "From Hapsburg to Hitler to Haider," German Studies Review 22 (May 1999) 269-284; J. Muller, "From National Identity to National Interest: The Rise and Fall of Germany's New Right," German Politics, 8 (December 1999) 1-20; M. Minkenberg, "The Renewal of the Radical Right," Government and Opposition 35 (Spring 2000) 170-188; J. Heilbrunn, "A Disdain for the Past: Jorg Haider's Austria," World Policy Journal 28 (Spring 2000) 71-78; I. Wallerstein, "Albatros of Racism," London Review of Books (May 18, 2000) 11-14; R. Baubock, "Austria: Jorg Haider's Grasp for Power," Dissent (Spring 2000) 23-26.

A. Sajo (ed.), Out of and into Authoritarian Law, p. 203-219 © 2002 Kluwer Law International. Printed in The Netherlands.

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government. It does what I consider to be central to all varieties of fascism, including the post-totalitarian version. Sans Fiihrer, sans one-party rule, sans SA or SS, post-fascism reverses the Enlightenment tendency to assimilate citizenship to the human condition. Before the Enlightenment, citizenship was a privilege, an elevated status limited by descent, class, race, creed, gender, political participation, morals, profession, patronage, and administrative fiat, not to speak of age and education. Active membership in the political community was a station to yearn for, civis Romanus sum the enunciation of a certain nobility. Policies extending citizenship may have been generous or stingy, but the rule was that the rank of citizen was conferred by the lawfully constituted authority, according to expediency. Christianity, like some Stoics, sought to transcend this kind of limited citizenship by considering it second-rate or inessential when compared to a virtual community of the saved. Freedom from sin was superior to the freedom of the city. During the long, medieval obsolescence of the civic, the claim for an active membership in the political community was superseded by the exigencies of just governance, and civic excellence was abbreviated to martial virtue. Once citizenship was equated with human dignity, its extension to all classes, professions, both sexes, all races, creeds, and locations was only a matter of time. Universal franchise, the national service, and state education for all had to follow. Moreover, once all human beings were supposed to be able to accede to the high rank of a citizen, national solidarity within the newly egalitarian political community demanded the relief of the estate of Man, a dignified material existence for all, and the eradication of the remnants of personal servitude. The state, putatively representing everybody, was prevailed upon to grant not only a modicum of wealth for most people, but also a minimum of leisure, once the exclusive temporal fief of gentlemen only, in order to enable us all to play and enjoy the benefits of culture. For the liberal social-democrat, and other assorted progressive heirs of the Enlightenment, then, progress meant universal citizenship - that is, a virtual equality of political condition, a virtually equal say for all in the common affairs of any given community - together with a social condition and a model of rationality that could make it possible. For some, socialism seemed to be the straightforward continuation and enlargement of the Enlightenment project; for some, like Karl Marx, the completion of the project required a revolution (doing away with the appropriation of surplus value and an end to the social

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division of labor). But for all of them it appeared fairly obvious that the merger of the human and the political condition was, simply, moral necessity.2 The savage nineteenth-century condemnations of bourgeois society - the common basis, for a time, of the culturally avant-garde and politically radical stemmed from the conviction that the process, as it was, was fraudulent, and that individual liberty was not all it was cracked up to be, but not from the view, represented only by a few solitary figures, that the endeavor was worthless. It was not only Nietzsche and Dostoevsky who feared that increasing equality might transform everybody above and under the middle classes into bourgeois philistines. Progressive revolutionaries, too, wanted a New Man and a New Woman, bereft of the inner demons of repression and domination: a civic community that was at the same time the human community needed a new morality grounded in respect for the hitherto excluded. This adventure ended in the debacle of 1914. Fascism offered the most determined response to the collapse of the Enlightenment, especially of democratic socialism and progressive social reform. Fascism, on the whole, was not conservative, even if it was counter-revolutionary: it did not re-establish hereditary aristocracy or the monarchy, despite some romantic-reactionary verbiage. But it was able to undo the key regulative (or liminal) notion of modern society, that of universal citizenship. By then, governments were thought to represent and protect everybody. National or state borders defined the difference between friend and foe; foreigners could be foes, fellow citizens could not. Pace Carl Schmitt, the legal theorist of fascism and the political theologian of the Third Reich, the sovereign could not simply decide by fiat who would be friend and who would be foe. But Schmitt was right on one fundamental point: the idea of universal citizenship contains an inherent contradiction in that the dominant institution of modern society, the nation-state, is both a universalistic and a parochial (since territorial) institution. Liberal nationalism, unlike ethnicism and fascism, is limited - if you wish, tempered - universalism. Fascism put an end to this shilly-shallying: the sovereign was judge of who does and does not belong to the civic community, and citizenship became a function of his (or its) trenchant decree. The hostility to universal citizenship is, I submit, the main characteristic of fascism. And the rejection of even a tempered universalism is what we now see repeated under democratic circumstances (I do not even say under demo-

See G.M. Tamas, "Ethnarchy and Ethno-Anarchism," Social Research 63 (Spring 1996)147190 and "The Two-Hundred Years War," Boston Review (Summer 1999) 31-36.

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cratic disguise). Post-totalitarian fascism is thriving under the capacious carapace of global capitalism, and we should tell it like it is. There is logic in the nazi declaration that communists, Jews, homosexuals, and the mentally ill are non-citizens and, therefore, non-human. (The famous ideologist of the Iron Guard, the suave essayist E.M. Cioran, pointed out, at the time that if some persons are non-human but aspire to humanity [i.e. Jews] the contradiction might be sublated and resolved by their violent death, preferably, according to the celebrated and still-fashionable aesthete, by their own hand.) These categories of people, as the Nazis saw them, represented types crucial to the Enlightenment project of inclusion. Communists meant the rebellious "lower type," the masses brought in, leaderless and rudderless, by rootless universalism, and then rising up against the natural hierarchy; Jews, a community that survived the Christian middle ages without political power of its own, led by an essentially non-coercive authority, the people of the Book, by definition not a people of war; homosexuals, by their inability or unwillingness to procreate, bequeath, and continue, a living refutation of the alleged link between nature and history; the mentally ill, listening to voices unheard by the rest of us - in other words, people whose recognition needs a moral effort and is not immediately ("naturally") given, who can fit in only by enacting an equality of the unequal. The perilous differentiation between citizen and non-citizen is not, of course, a fascist invention. As Michael Mann points out in a pathbreaking study,3 the classical expression "We the People" did not include black slaves and "red Indians" (Native Americans), and the ethnic, regional, class, and denominational definitions of "the people" have led to genocide both "out there" (in settler colonies) and within nation states (see the Armenian massacre perpetrated by modernizing Turkish nationalists) under democratic, semi-democratic, or authoritarian (but not "totalitarian") governments. If sovereignty is vested in the people, the territorial or demographic definition of what and who the people are becomes decisive. Moreover, the withdrawal of legitimacy from state socialist (communist) and revolutionary nationalist ("Third World") regimes with their mock-Enlightenment definitions of nationhood left only racial, ethnic, and confessional (or denominational) bases for a legitimate claim or title for "state-formation" (as in Yugoslavia, Czecho-Slovakia, the ex-Soviet Union, Ethiopia-Eritrea, Sudan, etc.)

M. Mann, "The Dark Side of Democracy: The Modern Tradition of Ethnic and Political Cleansing," New Left Review 235 (May/June 1999) 18-45.

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Everywhere, then from Lithuania to California, immigrant and even autochthonous minorities have become the enemy and are expected to put up with the diminution and suspension of their civic and human rights. The propensity of the European Union to weaken the nation-state and strengthen regionalism (which, by extension, might prop up the power of the center at Brussels and Strasbourg) manages to ethnicize rivalry and territorial inequality (see Northern vs. Southern Italy, Catalonia vs. Andalusia, English South East vs. Scotland, Fleming vs. Walloon Belgium, Brittany vs. Normandy). Class conflict too, is being ethnicized and racialized, between the established and secure working class and lower middle class of the metropolis and the new immigrant of the periphery, also construed as a problem of security and crime.4 Hungarian and Serbian ethnicists pretend that the nation is wherever persons of Hungarian or Serbian origin happen to live, regardless of their citizenship, with the corollary that citizens of their nation-state who are ethnically, racially, denominationally, or culturally "alien" do not really belong to the nation. The growing de-politicization of the concept of a nation (the shift to a cultural definition) leads to the acceptance of discrimination as "natural." This is the discourse the right intones quite openly in the parliaments and street rallies in Central and Eastern Europe, in Asia, and, increasingly, in "the West." It cannot be denied that attacks against egalitarian welfare systems and affirmative action techniques everywhere have a dark racial undertone, accompanied by racist police brutality and vigilantism in many places. The link, once regarded as necessary and logical, between citizenship, equality, and territory may disappear in what the theorist of the Third Way, the formerly Marxissant sociologist Anthony Giddens, calls a society of responsible risk-takers. The most profound attempt to analyze the phenomenon of political exclusion is Georges Bataille's "The Psychological Structure of Fascism,"5 which draws

See M. Neocleous, "Against Security," Radical Philosophy, 100 (March/April 2000) 7-15; idem, Fascism, Buckingham: Open University Press (1997). The evolution from I'etat social to I'etat penal has been repeatedly highlighted by Pierre Bourdieu. G. Bataille, "The Psychological Structure of Fascism," trans. C. R. Lovitt, in A. Stoekl (ed.), Vision of Excess, Minneapolis: University of Minnesota Press (1993) 137-160. Concerning the problem of masses and violence, see E. Balibar, Spinoza and Politics, trans. P. Snowdon, London: Verso (1998) 105,115-116; also: G. Deleuze, Spinoza: Practical Philosophy, trans. R. Hurley, San Francisco: City Lights (1988). An interesting liberal critique of Bataille's theory of fascism can be found in S. Rubin Suleiman's "Bataille on the Street," in Carolyn Bailey Gill (ed.), Bataille: Writing the Sacred, London: Routledge (1995) 26-45. Bataille's critique has to be understood within the context of the anti-Stalinist, revolutionary ultra-left. Two volumes of correspondence whirling around Bataille, Souvarine, S. Weil, and the mysterious Laure (Colette Peignot) have recently been published: Laure: Une rupture, 1934, in A. Roche and J. Peignot (eds.), Paris: Editions des Cendres (1999); and G. Bataille, L'Apprenti sorcier,

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on the author's distinction between homogeneity and heterogeneity. To simplify, homogeneous society is the society of work, exchange, usefulness, sexual repression, fairness, tranquility, procreation; what is heterogeneous: includes everything resulting from unproductive expenditure (sacred things themselves form part of this whole). This consists of everything rejected by homogeneous society as waste or as superior transcendent values. Included are the waste products of the human body and certain analogous matter (trash, vermin, etc.); the parts of the body; persons, words, or acts having a suggestive erotic value; the various unconscious processes such as dreams and neuroses; he numerous later elements or social forms that homogeneous society is powerless to assimilate (mobs, the warrior, aristocratic and impoverished classes, different types of violent individuals or at least those who refuse the rule - madmen, leaders, poets, etc.); ... violence, excess, delirium, madness, characterize heterogeneous elements ... compared to everyday life, heterogeneous existence can be represented as something other, as incommensurate, by charging these words with the positive value they have in affective experience.6

Sovereign power, according to Bataille (and to Carl Schmitt7), is quintessentially heterogeneous in its pre-modern sacral versions (kings ruling by Divine Right). This heterogeneity is hidden in capitalist democracy, where the sovereign is supposed to rule through an impersonal legal order that applies equally to all. Fascist dictatorship is in business to uncover or unmask it. This explains the link of fascist dictatorship to the impoverished, disorderly, lumpen mob. And this is exactly, I should add, what gets lost in post-fascism. The recreation of sacral sovereignty by fascism is, however, a fake. It is homogeneity masquerading as heterogeneity. What is left in the homogeneous sphere in the middle is the pure bourgeois without the citoyen, Julien Sorel finally and definitely robbed of his Napoleon, Lucien Leuwen deprived of his Danton.

in M. Galletti (ed.), Paris: Editions de la Difference (1999). As to another radical critique of fascism in the 1930s, see K. Polanyi, "The Essence of Fascism," in J. Lewis, K. Polanyi and D. K. Kitchin (eds.), Christianity and Social Revolution, London: Gollancz (1935). Bataille, "Psychological Structure," 142. See the two intriguing drafts to the essay on fascism: "Get aspect religieux manifeste..." and "En affet la vie humaine..." in G. Bataille, Oeuvres completes, vol. 2, Paris: Gallimard (1970) 161-164. See also: A. Negri's theory of constituent power and constituted power in his Insurgencies, trans. M. Boscagli, Minneapolis: Minnesota University Press (1999) 1-128, 212-229. On the parallel between Bataille and C. Schmitt, see M. Jay, "The Reassertion of Sovereignty in a Time of Crisis: Carl Schmitt and Georges Bataille," in Force Fields, New York: Routledge (1993) 49-60; Bataille's essay on "Sovereignty," The Accursed Share, vols. 2 and 3, trans. R. Hurley, New York: Zone Books (1933).

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Fascism, having put an end to the bourgeois realization of Enlightenment (i.e., to egalitarian capitalist democracy), transforms the social exclusion of the unproductive (from hermits and vatic poets to unemployable paupers and indomitable rebels) into their natural exclusion (i.e., extra-legal arrest, hunger, and death). Bataille's work comes out of the French objectivist sociological tradition, from Durkeim, Mauss, and Halbwachs through Kojeve to Paul Veyne, wherein political repression and exclusion are not interpreted in moralistic and psychological, but in anthropological terms - as a matter of establishing identity. Bataille's revolutionary critique of the exclusion of the "heterogeneous" - the "useless," people who are not "responsible risk-takers" - is based on an understanding of society, sexuality, and religion, a combination of Durkheim and Marx, if you wish, that might offer an alternative of our contemporary, on the whole Kantian, resistance to post-fascism. Our moralistic criticism, however justified, customarily precludes the comprehension of the lure of the phenomenon, and leads to a simplistic contempt for barbaric, benighted racists, rabblerousers, and demagogues, and a rather undemocratic ignorance of peoples, fears, and desires. An alternative line of argument, suggested by this tradition, begins by observing that the breakdown of egalitarian welfare states frequently means a shift in the focus of solidarity, fraternity, and pity. If there is no virtually equal citizenship, the realization of which should have been the aim of honest, liberal democrats and democratic socialists, the passion of generosity will remain dissatisfied. A feeling of fellowship toward kith and kin has always been one of the most potent motives for altruism. Altruism of this kind, when bereft of a civic, egalitarian focus, will find intuitive criteria offered by the dominant discourse to establish what and whom it will desire to serve. If civic politics cannot do it, racial feeling or feelings of cultural proximity certainly will. Identity is usually outlined by affection and received threats. He who will define those successfully wins. Nobody is better at describing this identity panic than Bataille.8 The half-mad pornographer and ultra-left extremist, as Bataille is still regarded in petto, cannot be well received by self-respecting social theorists, I believe, but curiously his theory is borne out by the acknowledged standard work on the Nazi regime, written by the greatest legal hawk of the German trade union movement, happily rediscovered today as the first-rate mind that

See J. Piel, "Betaille and the World," in L. A. Boldt-Irons (ed.), On Bataille: Critical Essays, Albany: SUNY Press (1995) 95-106.

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he was.9 In contradistinction to fanciful theories of totalitarianism, the great Ernst Fraenkel, summing up his painstaking survey of Nazi legislation and jurisprudence, writes that: [i]n present day Germany [he is writing in 1937-39], many people find the arbitrary rule of the Third Reich unbearable. These same people acknowledge, however that the idea of "community," as there understood, is something truly great. Those who take up this ambivalent attitude toward National-Socialism suffer from two principal misconceptions: The present German ideology of Gemeinschaft (community) is nothing but a mask hiding the still existing capitalistic structure of society. The ideological mask (the community) equally hides the Prerogative State [Fraenkel distinguishes the "normal," so-called Normative State providing chiefly for civil law and the quasi-totalitarian Party State subordinated to the Fuhrerprinzip] operating by arbitrary measures. The replacement of the Rechtsstaat (Legal State) by the Dual State is but a symptom. The root of evil lies at the exact point where the uncritical opponents of National-Socialism discover grounds for admiration, namely in the community ideology and in the militant capitalism which this very notion of the Gemeinschaft is supposed to hide. It is indeed for the maintenance of capitalism in Germany that the authoritatian Dual State is necessary.10

The autonomy of the Normative State ("homogeneous society") was maintained in Nazi Germany in a limited area, mostly where the protection of private property was concerned (property of so-called Aryans, of course); the Prerogative State held sway in more narrowly political matters, the privileges of the party, the military and the paramilitary, culture, ideology, and propaganda, The "dual state" was a consequence of the Schmittian decision of the new sovereign as to what was law, and what was not. But there was no rule by decree in the sphere reserved to capitalism proper, the economy. It is not true, therefore, that the whole system of Nazi or fascist governance was wholly arbitrary. The macabre meeting of the Normative and the Prerogative is illustrated by the fact that the German Imperial Railways billed the SS for the horrible transports to Auschwitz at special holiday discount rates, customary for package tours. But they billed them!

9

10

E. Fraenkel, The Dual State [1941], trans. E. A. Shils, E. Lowenstein, and K. Knorr, New York: Octagon (1969). See also: D. Schoenbaum, Hitler's Social Revolution, Garden City: Anchor Double-Day (1967) 113-151. Fraenkel, The Dual State, 153.

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People within the jurisdiction of the Normative State (Bataille's homogeneous society) enjoyed the usual protection of law, however harsh it tended to be. Special rules, however, applied to those in the purview of the Prerogative State (heterogeneous society) - both the Nazi Party leaders, officials, and militant activists, above the law, and the persecuted minorities, under or outside it. Before fascism, friend and citizen, foe and alien, were coincidental notions; no government thought systematically to declare war on the inhabitants of the land, who were members (even if unequal members) of the nation: civil war was equated with the absence of legally constituted, effective government. Civil war from the top, launched in peacetime, or at least under definitely nonrevolutionary circumstances, turns sovereignty against the suzerain of the subject. The main weapon in this methodical civil war, where the state as such is one of the warring parties, is the continuous redefinition of citizenship by the Prerogative State. And since, thanks to Enlightenment, citizenship (membership in the political community), nationality, and humanity had been synthetically merged, being expelled from citizenship meant, quite literally, exclusion from humanity. Hence civic death was necessarily followed by natural death, that is, violent death, or death tout court. Fascist or Nazi genocide was not preceded by legal condemnation (not even in the stunted and fraudulent shape of the so-called administrative verdicts of Cheka "tribunals"): it was the "naturalization" of a moral judgment that deemed some types of human condition inferior. And since there was no protection outside citizenship, lack of citizenship had become the cause of the cessation of the necessary precondition of the human condition - life.

2

CUTTING THE Civic AND HUMAN COMMUNITY IN Two: THIS is FASCISM

This is why the expression, albeit bewildering, must be revived, because the fundamental conceptual technique of civic, hence human, scission has been revived, this time not by a deliberate counter-revolutionary movement, but by certain developments that were, probably, not willed by anyone and that are crying out for a name. The name is post-fascism. The phenomenon itself came into being at a confluence of various political processes. Let me list them.

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Decline of Critical Culture

After the 1989 collapse of the Soviet bloc, contemporary society underwent fundamental change. Bourgeois society, liberal democracy, democratic capitalism - name it what you will - has always been a controversial affair; unlike previous regimes, it developed an adversary culture, and was permanently confronted by strong competitors on the right (the alliance of the throne and the altar) and the left (revolutionary socialism). Both have become obsolete, and this has created a serious crisis within the culture of late modernism.11 The mere idea of radical change (utopia and critique) has been dropped from the rhetorical vocabulary, and the political horizon is now filled by what is there, by what is given, which is capitalism. In the prevalent social imagination, the whole human cosmos is a "homogeneous society" - a society of useful, wealth-producing, procreating, stable, irreligious, but at the same timejouissant, free individuals. Citizenship is increasingly defined, apolitically, in terms of interests that are not contrasted with the common good, but united within it through understanding, interpretation, communication, and voluntary accord based on shared presumptions. In this picture, obligation and coercion, the differentia specified of politics (and in permanent need of moral justification), are conspicuously absent. "Civil society" - a nebula of voluntary groupings where coercion and domination, by necessity, do not play any important role - is said to have cannibalized politics and the state. A dangerous result of this conception might be that the continued underpinning of law by coercion and domination, while criticized in toto, is not watched carefully enough - since, if it cannot be justified at all, no justification, thus no moral control, will be sought. The myth, according to which the core of late-modern capitalism is "civil society," blurs the conceptual boundaries of citizenship, which is seen more and more as a matter of policy, not politics. Before 1989, you could take it for granted that the political culture of liberal-democratic-constitutional capitalism was a critical culture, more often than not in conflict with the system that, sometimes with bad grace and reluctantly, sustained it. Apologetic culture was for ancient empires and antiliberal dictatorships. Highbrow despair is now rampant. But without a sometimes only implicit Utopia as a prop, despair, does not seem to work. What

See G. M. Tamas, "Democracy's Triumph, Philosophy's Peril," Journal of Democracy, 11 (January 2000) 103-110. On alarming alternatives to politics as we know it, see J. Ranciere, La Mesentente, Paris: Galilee (1995) 95-131.

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is the point of theoretical anti-capitalism, if political anti-capitalism cannot be taken seriously? Also, there is an unexpected consequence of this absence of a critical culture tied to an oppositional politics. As one of the greatest and most level-headed masters of twentieth-century political sociology, Seymour Martin Lipset, has noted, fascism is the extremism of the center. Fascism had very little to do with passeiste feudal, aristocratic, monarchist ideas, was on the whole anti-clerical, opposed communism and socialist revolution, and - like the liberals whose electorate it had inherited - hated big business, trade unions, and the social welfare state. Lipset had classically shown that extremisms of the left and right were by no means exclusive: some petty bourgeois attitudes suspecting big business and big government could be, and were, prolonged into an extremism that proved lethal. Right-wing and center extremisms were combined in Hungarian, Austrian, Croatian, Slovak para-fascism (I have borrowed this term from Roger Griffin) of a pseudo-Christian, clericalist, royalist coloring, but extremism of the center does and did exist, proved by Lipset also through continuities in electoral geography. Today there is nothing of any importance on the political horizon but the bourgeois center, therefore its extremism is the most likely to reappear. (Jorg Haider and his Freedom Party are the best example of this. Parts of his discourse are libertarian/neoliberal, his ideal is the propertied little man, he strongly favors a shareholding and home-owning petty bourgeois "democracy," and he is quite free of romantic-reactionary nationalism as distinct from parochial selfishness and racism.) What is now considered "right-wing" in the United States would have been considered insurrectionary and suppressed by armed force in any traditional regime of the right as individualistic, decentralizing, and opposed to the monopoly of coercive power by the government, the foundation of each and every conservative creed. Conservatives are le parti de I'ordre, and loathe militias and plebian cults.

2.2

Decaying States

The end of colonial empires in the 1960s and the end of Stalinist ("state socialist," "state capitalist," "bureaucratic collectivist") systems in the 1990s has triggered a process never encountered since the Mongolian invasions in the thirteenth century: a comprehensive and apparently irreversible collapse of established statehood as such. While the bien-pensant Western press daily bemoans perceived threats of dictatorship in far-away places, it usually ignores the reality behind the tough talk of powerless leaders, namely that nobody is

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prepared to obey them. The old, creaking, and unpopular nation-state - the only institution to date that had been able to grant civil rights, a modicum of social assistance, and some protection from the exactions of privateer gangs and rapacious, irresponsible business elites - ceased to exist or never even emerged in the majority of the poorest areas of the world. In most parts of subSaharan Africa and of the former Soviet Union not only the refugees, but the whole population could be considered stateless. The way back, after decades of demented industrialization (see the horrific story of the hydroelectric plants everywhere in the Third World and the former Eastern bloc), to a subsistence economy and "natural" barter exchanges in the midst of environmental devastation, where banditry seems to have become the only efficient method of social organization, leads exactly nowhere. People in Africa and ex-Soviet Eurasia are dying not by a surfeit of the state, but by the absence of it. Traditionally, liberation struggles of any sort have been directed against entrenched privilege. Equality came at the expense of ruling groups: secularism reduced the power of the Princes of the Church, social legislation dented the profits of the "moneyed interest," universal franchise abolished the traditional political class of landed aristocracy and the noblesse de robe, the triumph of commercial pop culture smashed the ideological prerogatives of the progressive intelligentsia, horizontal mobility and suburban sprawl ended the rule of party politics on the local level, contraception and consumerist hedonism dissolved patriarchal rule in the family - something lost, something gained. Every step toward greater freedom curtailed somebody's privileges (quite apart from the pain of change). It was conceivable to imagine the liberation of outlawed and downtrodden lower classes through economic, political, and moral crusades: there was, crudely speaking, somebody to take ill-gotten gains from. And those gains could be redistributed to more meritorious sections of the population, offering in exchange greater social concord, political tranquility, and safety to unpopular, privileged elites, thereby reducing class animosity. But let us not forget though that the social-democratic bargain has been struck as a result of centuries of conflict and painful renunciations by the traditional ruling strata. Such a liberation struggle, violent or peaceful, is not possible for the new wretched of the earth. Nobody exploits them. There is no extra profit and surplus value to be appropriated. There is no social power to be monopolized. There is no culture to be dominated. The poor people of the new stateless societies - from the "homogeneous" viewpoint - are totally superfluous. There are not exploited, but neglected. There is no overtaxation, since there are no revenues. Privileges cannot be redistributed toward a greater equality since there are no privileges, except the temporary ones to be had, occasionally, at gunpoint.

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Famished populations have no way out from their barely human condition but to leave. The so-called center, far from exploiting this periphery of the periphery, is merely trying to keep out the foreign and usually colored destitutes (the phenomenon is euphemistically called "demographic pressure") and set up awesome barriers at the frontiers of rich countries, while our international financial bureaucracy counsels further deregulation, liberalization, less state and less government to nations that do not have any, and are perishing in consequence. "Humanitarian wars" are fought in order to prevent masses of refugees from flowing in and cluttering up the Western welfare systems that are in decomposition anyway. Citizenship in a functional nation-state is the one safe meal ticket in the contemporary world. But such citizenship is now a privilege of the very few. The Enlightenment assimilation of citizenship to the necessary and "natural" political condition of all human beings has been reversed. Citizenship was once upon a time a privilege within nations. It is now a privilege to most persons in some nations. Citizenship is today the very exceptional privilege of the inhabitants of flourishing capitalist nation-states, while the majority of the world's population cannot even begin to aspire to the civic condition, and has also lost the relative security of pre-state (tribe, kinship) protection. The scission of citizenship and sub-political humanity is now complete, the work of Enlightenment irretrievably lost. Post-fascism does not need to put non-citizens into freight trains to take them into death; instead, it need only prevent the new non-citizens from boarding any trains that might take them into the happy world of overflowing rubbish bins that could feed them. Postfascist movements everywhere, but especially in Europe, are anti-immigration movements, grounded in the "homogeneous" world-view of productive usefulness. They are not simply protecting racial and class privileges within the nation-state (although they are doing that, too) but protecting universal citizenship within the rich nation-state against the virtual-universal citizenship of all human beings, regardless of geography, language, race, denomination, and habits. The current notion of "human rights" might defend people from the lawlessness of tyrants, but it is no defense against the lawlessness of no rule.

2.3

Varieties of Post-Fascism

It is frequently forgotten that contemporary global capitalism is a second edition. In the pre-1914 capitalism of no currency controls (the gold standard, etc.) and free trade, a world without visas and work permits, when companies were supplying military stuff to the armies of the enemy in wartime without

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as much as a squeak from governments or the press, the free circulation of capital and labor was more or less assured (it was, perhaps, a less equal, but a freer world). In comparison, the thing called "globalization" is a rather modest undertaking, a gradual and timorous destruction of etatiste and dirigiste, welfarist nation-states built on the egalitarian bargain of old-style social democracy whose constituency (construed as the backbone of modern nations), the rust-belt working class, is disintegrating. Globalization has liberated capital flows. Speculative capital goes wherever investments appear as "rational," usually places where wages are low and where there are no militant trade unions or ecological movements. But unlike in the nineteenth century, labor is not granted the same freedoms. Spiritus flat ubi vult, capital flies wherever it wants, but the free circulation of labor is impeded by ever more rigid nation regulations. The flow is all one-way; capital can improve its position, but labor - especially low-quality, low-intensity labor in the poor countries of the periphery - cannot. Deregulation for capital, stringent regulation for labor. If the workforce is stuck at the periphery, it will have to put up with sweatshops. Attempts to fight for higher salaries and better working conditions are met not with violence, strikebreakers, or military coups, but by quiet capital flight and disapproval from international finance and its international or national bureaucracies, which will have the ability to decide who is deserving of aid or debt relief. To quote Albert O. Hirschman, voice (that is, protest) is impossible, nay, pointless. Only exit, exodus, remains, and it is the job of post-fascism to prevent that. Under these conditions, it is only logical that the New New Left has reappropriated the language of human rights instead of class struggle. If you glance at Die Tageszeitung, II Manifesto, Rouge, or Socialist Worker, you will see that they are mostly talking about asylum-seekers, immigrants (legal or illegal, les sans-papiers), squatters, the homeless, Gypsies, and the like. It is a tactic forced upon them by the disintegration of universal citizenship, by unimpeded global capital flows by the impact of new technologies on workers and consumers, and by the slow death of the global sub-proletariat. Also, they have to face the revival of class politics in a new guise by the proponents of "the third way" a la Tony Blair. The neo-liberal state has rescinded its obligations to "heterogeneous," non-productive populations and groups. Neo-Victorian, pedagogic ideas of "workfare," which declare unemployment implicitly sinful; the equation of welfare claimants with "enemies of the people;" the replacement of social assistance with tax credits whereby people beneath the category of taxpayers are not deemed worthy of aid; income support made conditional on family and housing practices believed proper by "competent authorities;" the increasing racialization, ethnicization, and sexualization of the underclass; the

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replacement of social solidarity with ethnic or racial solidarity; the overt acknowledgment of second-class citizenship; the tacit recognition of the role of police as a racial defense force; the replacement of the idea of emancipation with the idea of privileges (like the membership in the European Union, the OECD, or the WTO) arbitrarily dispensed to the deserving poor; and the transformation of rational arguments against EU enlargement into racist/ethnicist rabble-rousing - all this is part of the post-fascist strategy of the scission of the civic-cum-human community, of a renewed granting or denial of citizenship along race, class, denominational, cultural, ethnic lines. The re-duplication of the underclass - a global underclass abroad and the "heterogeneous," wild ne'er-do-wells at home, with the interests of one set of underclass ("domestic") presented as inimical to the other ("foreign") - gives post-fascism its missing populist dimension. There is no harsher enemy of the immigrant - "guest worker" or asylum-seeker - than the obsolescent lumpenproletariat, publicly represented by the hard-core, right-wing extremist soccer hooligan. "Lager Louts" may not know that lager does not only mean a kind of cheap continental beer, but also a concentration camp. But the unconscious pun is, if not symbolic, metaphorical. We are, then, faced with a new kind of extremism of the center. This new extremism, which I call post-fascism, does not threaten, unlike its predecessor, liberal and democratic rule within the core constituency of "homogeneous society." Within the community cut in two, freedom, security, prosperity are on the whole undisturbed, at least within the productive and procreative majority that in some rich countries encompasses nearly all white citizens. "Heterogeneous," usually racially alien, minorities are not persecuted, only neglected and marginalized, forced to live a life wholly foreign to the way of life of the majority (which, of course, can sometimes be qualitatively better than the flat workaholism, consumerism, and health obsessions of the majority). Drugs, once supposed to widen and raise consciousness, are now uneasily pacifying the enforced idleness of those society is unwilling to help and to recognize as fellow humans. The "Dionysiac" subculture of the sub-proletariat further exaggerates the bifurcation of society. Political participation of the have-nots is out of the question, without any need for the restriction of franchise. Apart from the incipient and feeble ("new new") left-wing radicalism, as isolated as anarcho-syndicalism was in the second half of the nineteenth century, nobody seeks to represent them. The conceptual tools once offered by democratic and libertarian socialism are missing; and libertarians are nowadays militant bourgeois extremists of the center, ultra-capitalist cyberpunks hostile to any idea of solidarity beyond the fluxus of the global marketplace.

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Post-fascism does not need stormtroopers and dictators. It is perfectly compatible with an anti-Enlightenment liberal democracy that rehabilitates citizenship as a grant from the sovereign instead of a universal human right. I confess I am giving it a rude name here to attract attention to its glaring injustice. Post-fascism is historically continuous with its horrific predecessor only in patches. Certainly, Central and East European anti-Semitism has not changed much, but it is hardly central. Since post-fascism is only rarely a movement, rather simply a state of affairs, managed as often as not by so-called center-left governments, it is hard to identify intuitively. Post-fascists do not speak usually of total obedience and racial purity, but of the information superhighway. Everybody knows the instinctive fury people experience when faced with a closed door. Now tens of millions of hungry human beings are rattling the doorknob. The rich countries are thinking up more sophisticated padlocks, while their anger at the invaders outside is growing, too. Some of the anger leads to the revival of the Nazi and fascist Gedankengut ("treasure-trove of ideas"), and this will trigger righteous revulsion. But post-fascism is not confined to the former Axis powers and their willing ex-clients, however revolting and horrifying this specific sub-variant may be. East European Gypsies (Roma and Sintj, to give their politically correct names) are persecuted both by the constabulary and by the populace, and are trying to flee to the "free West." The Western reaction is to introduce visa restrictions against the countries in question in order to prevent massive refugee influx, and solemn summons to East European countries to respect human rights. Domestic racism is supplanted by global liberalism, both grounded on a political power that is rapidly becoming racialized. Multiculturalist responses are desperate avowals of impotence: an acceptance of the ethnicization of the civic sphere, but with a humanistic and benevolent twist. These avowals are concessions of defeat, attempts to humanize the inhuman. The field had been chosen by post-fascism, and liberals are trying to fight it on its own favorite terrain, ethnicity. This is an enormously disadvantageous position. Without new ways of addressing the problem of global capitalism, the battle will surely be lost. But the new Dual State is alive and well. A Normative State for the core populations of the capitalist center, and a Prerogative State of arbitrary decrees concerning non-citizens for the rest. Unlike in classical, totalitarian fascism, the Prerogative State is only dimly visible for the subjects of the Normative State: the essential human and civic community with those kept out and kept down is morally invisible. The radical critique pretending that liberty within the Normative State is an illusion is erroneous, though understandable. The

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denial of citizenship based not on exploitation, oppression, and straightforward discrimination among the denizens of "homogeneous society," but on mere exclusion and distance, is difficult to grasp, because the mental habits of liberation struggle for a more just redistribution of goods and power are not applicable. The problem is not that the Normative State is becoming more authoritarian. The problem is that it belongs only to a few.

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13 THE QUALITY OF CIVILITY: POST-ANTI-COMMUNIST THOUGHTS ON CIVIL SOCIETY AND THE RULE OF LAW Martin Krygier

"What we dreamed of was civil society. What we got were NGOs." Ferenc Miszlivetz

1

POST-ANTI-COMMUNISM

By the twilight of European communism, civil society and the rule of law had come to draw flocks of devotees, whose fondness for and understanding of what these things were was a product of understanding and antipathy for what they were not. And that was communism. It had long been obvious that, as a matter of principle as well as practice, communism rejected the rule of law, and indeed was incompatible with it. Among others, the dissidents who opposed communism, increasingly vocally from the 1970s, made that point. They also, more novelly and with increasing resonance, stressed the absence of civil society. Many observers sympathized with their predicament and were impressed by their testimony and analysis. In large part the appeal was political and moral,

This article was written while I was Visiting Scholar, Law and Society Center, University of California, Berkeley. Part of it was given to Sanford Kadish's GALA seminar at Boalt Hall, and an early version of the whole to the Institute for Legal Studies and the Center for Russia, East Europe, and Central Asia, University of Wisconsin, Madison. I am grateful to participants on all thre.e occasions for helpful discussion and criticism.

A. Sajo (ed.), Out of and into Authoritarian Law, p. 221-256 © 2002 Kluwer Law International. Printed in The Netherlands.

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but there was intellectual justification as well. For experience of the absence of something valuable, more especially its active denial, can often stimulate more penetrating and passionate insight into its value than is available to people who have never known life without it.2 However it might be idealized by those deprived of it; at least it is not, cannot be, taken for granted. If it is an important value, knowing so is also important. Dissidents spoke of what they valued but did not have, and what they loathed but seemed fated to endure. Though this seemed quite fanciful at the time, sympathizers hoped they might one day get a chance to have what they valued and shed what they loathed, without even having to pack their bags. To widespread acclaim and universal surprise, that opportunity seemed to have arrived in 1989, when communism became post. Post-communism began with an aura of confidence about goals, if less about the means or odds of attaining them. The development of civil society and the rule of law were taken to be prominent among these goals. There began a series of unpredicted and unprecedented social experiments, on which there were no experts. For as it has turned out, post-communism involves much more than what we now absurdly tend to think of, as though it was easy, as the "mere" overthrowing of communism. That was a necessary and precious step (as it turned out, many steps, only some of which have been completed), but it was not enough. It is an important question of both social policy and theory, of relevance to our own societies as much as to post-communist ones, as to what else might be required. As the last decade has revealed, however, it is a question, which an expertise born of opposition to communism is insufficient to answer. For not everything worthwhile is best known to those deprived of it. Those who have experienced totalitarian and authoritarian government know some indispensable things: particularly, how precious certain elsewhere unremarkedupon achievements are. But many seem to forget these things pretty quickly, or in new circumstances reject them, and even if they do not they have no special insight - beyond what must be avoided and why - into what they depend upon, how they can be achieved, how their bare existence might be enhanced, or how to move them from pale and insubstantial shadow to flourishing substance.

A. Podgorecki makes a similar point about the insights to be gained from the experience of "crippled rights" in his "Human Rights Revolution," in A Sociological Theory of Law, Milan: A. Guiffre (1991) 102-03.

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Until 1989 and in the context of communism, civil society and the rule of law were in large part anti-communist slogans. That, I should confess, is one reason that I found them so attractive. The aversion to communism that spawned them, and that I shared, was, I believe, fully justified: intellectually, politically, and morally.3 Still, in a Europe without communism, it is hard to deny that anti-communism has less salience than it once had. Moreover, some things that have happened since communism's demise have revealed at least the insufficiency (I hesitate to confess to more) of much that I once thought, and that those whom I did (and still do) admire also thought. And so I recommend post-anti-communism, a position neither elegant nor comfortable but, I believe, apt. Anti but also post, and so post-anti. The relationship between post and anti is not zero-sum. A post-anti-communist is in a very different situation from that of a post-communist. Though there are many shameful ways of being anti-communist, that fact of itself is no ground for shame. And though there are decent people who were communists, that - except among the dead or very old - is rarely something to be proud of. So a post-anti-communist has a somewhat Hegelian relationship to his past: it is now, or should be, aufgehoben, transcended but not denied. Still less, liquidated. One can learn something from anti as well as from post. What follows is an attempt to add to certain truths about civil society and the rule of law, as understood by anti-communists, some reflections prompted by the post-communist experience. I begin with civil society, which is the more complex and contentious of the two ideals. I then discuss the rule of law. Above all, I will be stressing two things: the importance of taking into account normative, qualitative aspects of both these concepts, and their close connections with each other.

2

CIVIL SOCIETY

In 1989, after over a century of relative neglect, "civil society" seemed a concept whose time had come. Though it had a long and cosmopolitan history, it only re-emerged from obscurity when it was revived by dissidents in authoritarian states, especially communist states. Their efforts captured the attention and admiration of many, and their slogan began echoing around the world in

3

For discussion of these and related matters, see the debate in my "Marxism and the Rule of Law: Reflections after the Collapse of Communism," Law and Social Inquiry 15 Fall (1990) 633-730.

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the 1980s. All the more so, when "civil society" moved from being a symbol of the apparently powerless to that of epochal victors in a triumph of "civil society against the state."4 If Stalin had still been around to ask how many divisions civil society (not to mention the Pope) had, the sober factual answer would have seemed to be: many more than you. The truth was more complicated even then, of course, and, as Samuel Goldwyn might observe, we have passed over a lot of water since then. Today many see in civil society merely an outdated, misguided and irrelevant cliche, perhaps once of tactical use in the struggle against communism, but of little relevance to the construction of post-communism, to thinking constructively about it, or indeed to clear thought about much else.5 Moreover, and only apparently paradoxically, this loss of favor has occurred much more dramatically in the formerly communist East, where the modern calls for civil society began, than in the still capitalist West,6 where for a long time nothing much had been made of it, yet now it is all the rage. Today in the western democracies, which allegedly had it but had not much noticed it, one hears far more about it than in the "transitional" East, where no one had it, some wanted it, and now many do not want to think about it. In the West, indeed, it is as hard today to find anyone against it, as not so long ago it was to find anyone who spoke for, or even about it. As Dominique Colas has remarked in his illuminating recovery of the idea, today "[djevoid of context, no longer linked to a particular period or a precise doctrine, gushing out of everyone's mouth at once, 'civil society'...has become a label for all sorts of goods, and in certain cases even a mark for intellectual emptiness.... '[C]ivil society' allows people to speak without knowing what they are saying, which in turn helps them to avoid arguing with each other."7 In fact, the term has become so promiscuous that one is entitled to wonder whether any virtue it possesses is more easy than deep. Yet I would resist that conclusion. Many of the concepts that matter to us in political science and political morality, among them "democracy," "equality," and "freedom," are

See The Reemergence of Civil Society in Eastern Europe and the Soviet Union, in Z. Rau (ed.), Boulder: Westview Press (1991) and V. Tismaneanu, Reinventing Politics: Eastern Europe from Stalin to Havel, New York: The Free Press (1992). See K. Kumar, "Civil Society: An Inquiry into the Usefulness of an Historical Term," British Journal of Sociology 44 (1993) 375-95. And not only in the West. See J. Keane, Civil Society: Old Images, New Visions, Cambridge: Polity Press (1998) chapter 3. D. Colas, Civil Society and Fanaticism: Conjoined Histories, (trans. A. Jacobs), Stanford: Stanford University Press (1997) 39-40.

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equally promiscuous. That might testify as much to their attractiveness as to the looseness of their demands. And so it is with civil society. To be sure, any term which has become so popular among so many people is likely to be doing a lot of different jobs, but some of these are important jobs. If, then, we will never be able to reveal what civil society essentially is, and even if whoever appropriates the term is doing something with it, we might yet understand why it has been considered so important and what thinking about it enables us to understand. For those who revived the concept were speaking of important things, and important things can be gained by thinking about it today, though these might be in part different things. What this discussion will develop is a particular, and I imagine controversial, interpretation of civil society and some of its conditions, not a definition; an interpretation which needs to be argued for, not stipulated. What follows is some of that argument.

2.1

Negative Conceptions

A central feature of anti-communist understandings of civil society and the rule of law is their negative character. Anti-communism itself, of course, is a position defined by what it is against rather than what it is, or is for. It might include a multitude of virtues and sins, but the term only mentions what it excludes. By doing so, it puts the excluded at the center of its concerns, and what it values tends to be whatever the excluded is not. That was how a number of the things on which anti-communists agreed were arrived at, and while incomplete, it is not an inappropriate way to proceed. For if it is important to identify the conditions in which something valuable might thrive, it is also important to understand - and seek to avoid - what is inimical to it and might well destroy it. That is what "threat experts,"8 such as Hobbes, are for, and it is an honorable, if sometimes lonely profession. Dissidents were not in a position to tell us much about thriving, since they had so little acquaintance with it, but they had privileged insights into pathologies and threats. Anti-communist conceptions of civil society and the rule of law took their cues, and in large part their meaning, from the distance of these phenomena from abhorred characteristics of the communist state. For that state was built

I take the phrase from a teaeher of mine, the remarkable Czech (then Australian) psychologist, philosopher, and anti-communist polemicist, Frank Knopfelmacher. Accused by an opponent of being a "threat expert," KnGpfelmacher took a liking for the phrase, and came happily to adopt the accusation.

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on the systematic exclusion of precisely these things. Dissidents knew this and made it central to their conceptions. The specific observation of dissidents in communist states, which fueled their renewed interest in the old idea of civil society, was that they lacked something found in what they used to describe as the "normal" societies of the West: social relations that had their own agendas and rhythms, relations that were not pulverized or distorted by a state that knew no bounds. In civil societies, people went about much of their business in activities and associations which they, not the state, chose and which they, not the state, directed. There was no need to ask for permission. They rose and fell at the initiative of their members, not as a result of political command. That seemed an extraordinary possibility among those to whom it was deliberately and systematically denied, however prosaic it might appear to those who have never known it to be questioned. For communist societies were special in this regard. This was not merely the hyperbole of opposition. It was so. To an extent unmatched in any other form of socio-political order, communist societies were penetrated, overseen, and dominated by the party-state. By the 1970s, dissidents in East-Central Europe had despaired of wresting or modifying state power, and turned their attention elsewhere: to reviving the independent activities of members of their societies by encouraging people to engage with each other without asking permission, "as if they lived in a free and civil society. I have elsewhere written at length about the character of state penetration of communist societies, and about dissident responses in terms of civil society. I will try not to repeat that discussion here, but will merely add one distinction that was not emphasized there.9 It has to do with the implicit positive message of a civil society strategy. For what has generally been taken to be a common ideology of civil society is more so in its negative than positive dimension. Activities in aid of civil society under communism harbored two different instances or moments that might be used to generate separate models or conceptions of the concept: one a dispersed and the other an aggregative conception. Political activists are rarely concerned with conceptual precision, and this distinction is blurred in most dissident discussions. But its implications are significant.

For my earlier discussion, see particularly "Virtuous Circles: Antipodean Reflections on Power, Institutions and Civil Society," East European Politics and Societies (1996-97) 36-88. The distinction was brought out in discussion of my paper, "The Character of Civil Society" at the Berkeley seminar referred to in note 1 above. I am grateful to the participants in that seminar, particularly P. Selznick and M. Dan-Cohen, whose comments have influenced this version of the argument.

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Both conceptions stood in opposition to the overwhelming presence of the communist state, for what concerned dissidents most about civil society was its independence from that state. In aid of that they advocated associations among people that were horizontal, not vertical; self-chosen, not imposed or even authorized by the state. These were ambitions of all who advocated civil society. They all shared in common the insistence that the constituents of civil society must be sought outside state control. However, as model or proto-civil societies, they differed in one other important element. One model might be a society of a plurality and variety of groupings -jazz clubs, choral societies, "flying universities" - independent of state control. The other was of "society" as an organic, solidary unit, distinct from the state. The first, dispersed, model emerged in Poland from the mid-1970s, particularly when intellectuals around the Committee for Workers' Defense (KOR) began to make and advocate horizontal links between members of different classes, interests, and social orientations for mutual support (e.g., funds for families of political prisoners), but with no state-oriented, political goal ostensibly in view (other than the "mere" but crucial fact that organizing anything without state permission was of itself a profoundly political act). It was the only version for most of the time in most other communist countries where the term was used. The aggregative conception only came to prevail in Poland with the birth of Solidarnosc in 1980, and had no exemplars anywhere else until about a second before the end of communism. But it was this aggregative conception that has been registered most in popular memory. The distinction was rarely remarked upon and was not treated as one of principle. For the issue that united all discussion of civil society was independence from the state. Until the wildfire growth of the Solidarnosc trade union, unheralded in Poland and unparalleled anywhere else, few imagined that a whole society might coalesce as part of a single movement against the state. But while the distinction was not then considered important, it is important. Though the dispersed version came first, it was largely eclipsed in public consciousness by the version represented by Solidarnosc, and for that reason, as well as for reasons of exposition, I will take them in reverse order.

2.2

A Solidary Society: "Us" Versus "Them"

That extraordinary movement, Solidarity, emphasized the centrality of the distinction between state and society, with both treated holistically, monolithically. Society was an aggregated actor as was the state, "us" against "them."

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The achievements of the movement, which I have discussed in earlier work, were grand. The Solidarity experience undoubtedly showed the potential significance of society - the political, social, and moral significance - even in polities dominated by the state. That was the most important feature of resistance at a time when the state seemed both unreformable and irremovable. It demonstrated with unprecedented drama, passion, and eloquence the incompatibility between despotism and independent social activity. Something had to give. And so in 1989 despotism did. But while this could plausibly (though not completely accurately, even in Poland, and less elsewhere) be portrayed as a triumph of "society against the state," it was not obviously a triumph of civil society. For such a society did not yet exist. Solidarity had sought an organic unity of "us" against a demonized (and at times demonic) "them." The very name of the movement suggests as much. Though the leaders of Solidarity spoke constantly of the development of civil society, they were more Spartan than modern, more ethical (often religious) than civic, in their conception of it. The movement sparked and came to embody a sense of national and social unity unparalleled in any communist country, indeed virtually anywhere, outside of wartime. It mobilized and united vast numbers of Poles who had little else in common than a national Church, a traditional, organic, national ideology, a common social and political predicament, and a common enemy. The consequences of this movement were profound, but not especially civil. To fight for society may well be more attractive than to argue within society, but it is quite a different idea. It is different in two crucial respects. First of all, society was conceived of as a united body, which is unlikely to be a long-standing prospect and threatens central constituents of civil society as traditionally understood: civil liberty, pluralism, and tolerance. Secondly, it was conceived of as not just a body, but a movement focused on common goals, goals that depend on having a common opponent. As a result, while it might have been a prerequisite for the achievement of civil society in the circumstances of communist Poland, as a model of such a society, which it was so often taken to be, it was seriously lacking. Moreover, when "they" collapsed, so did "we," and it became time to think afresh about both. With victory rapidly came disintegration, the dissolution of solidarity, and another lesson about civil society. As Poland went on to discover but the solidary ethos of Solidarity was not the place to learn, a civil society in "normal" circumstances is not just a society independent of the state, but a "society of societies" (also distinct from the state). It comprises multitudes of independent and semi-independent actors and associations, with their own

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various ends, going about their individual or freely chosen cooperative affairs, able to choose to associate and participate (or not) in an independent public realm. A central feature of such a society is the existence of a plurality of different, often competing, often self-chosen, intermediate associations and social institutions,10 with different interests, aims, and membership. For a civil society is a plural society, not a monolith. Indeed the very idea of one integrated whole society, thinking the same thoughts, valuing the same things, is a distinctly uncivil idea, heroic and inspiring as it more than once has turned out to be. One implication of this is that those who complain about the death or dramatic decline of civil society in Poland after the collapse of communism11 might well be talking of circumstances that make possible (though far from necessary) its birth. What preceded it was a remarkable communal movement, not a civil society, nor even a model for one. What occurs today is often much less attractive, heroic, and sustaining, but it might promise something ultimately more capable of civility than its predecessor. As I will argue, that promise will not be redeemed without more, but it is certainly not doomed by the demise of Solidarity.

2.3

Dispersed Civil Society: "Do not burn down their committees. Start your own."

It might seem, therefore, that what preceded Solidarity was a better model for civil society. Though this was not its theme, the conception of civil society as a society-of-societies is closer to the earlier pre-Solidarity ventures, in Poland and elsewhere, than to the experience of Solidarity. The dispersed understanding, which preceded the solidary one, motivated the early dissidents, if only because anything else was unimaginable until it occurred. This understanding of civil society is similar to that of Tocqueville and before him, though without the term, Montesquieu, in emphasizing the importance of a multiplicity of groups that are independent of state power and that intermediate between the state and private and intimate groups. These have even more significance in the context of communism than they did for Tocqueville, since the ambitions and penetration of the communist state were so much more pervasive than any

10 11

See R. Rose, Distrust as an Obstacle to Civil Society, Glasgow: Centre for the Study of Public Policy, University of Strathclyde (1994). See M. Bernhard, "Civil Society after the First Transition: Dilemmas of Post-Communist Democratization in Poland and Beyond," Communist and Post-Communist Studies 29 (1996) 309-30.

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other, and what Polish sociologist Stefan Nowak called the "social vacuum" between primary groups and the state was so large.12 But the general idea is similar. A society is civil to the extent that it contains numerous self-chosen forms of association, and it is those groups, rather than the society as a whole, that are properly identified as the civil elements in society. In the most popular and influential recent writing on civil society, these themes are often repeated. The point, made in a multitude of ways,13 though rarely so simply, is that non-governmental, social connections matter. Apart from top-down, vertical links between governments and citizens, contemporary partisans of civil society draw attention to, and advocate, horizontal links among citizens themselves and bottom-up connections from citizens to governments. They point to the salutary consequences of joining; of voluntary associations; of informal institutions; of cooperation, trust, and "social capital;" of activities that develop from society rather than trickle down from governments. Indeed, this understanding of civil society is so prevalent that many who speak of it have in mind only how much that goes on is - or should be - in the hands of the "non-governmental sector." Some lay stress on what governments cannot do, some on what citizens in cooperation can. Either way, attention is directed to social networks and socially generated initiatives, most commonly by contrast to projects initiated by government. This dispersed conception of civil society is ancestor to all those contemporary activities that focus on NGOs as indicia of civil society and that spawn organizations devoted to funding such bodies, among other places, in the postcommunist world. Western funding agencies in post-communist societies are particularly drawn to such groups in their ambition to generate and sustain civil society. For making clear what is lost when horizontal links among citizens are suppressed, then, we have to thank anti-communist dissidents. But such links can exist and exhibit many dreadful qualities and we do not learn much from

12

S. Nowak, "Values and Attitudes of the Polish People," Scientific American 245 (1981) 23, 29. See also B. Synak, "The Polish Society: From Homogeneity to Diversity," in PostCommunist Poland: From Totalitarianism to Democracy?, in J. Coenen-Huther and B. Synak (eds.), Commack, NY: Nova Science (1993) 3-4. 13 One of the most influential of these ways is derived from the advocacy of "civic association" in R. Putnam, Making Democracy Work: Civic Traditions in Modem Italy, Princeton: Princeton University Press (1993) and the sprawling literature devoted to it. It is not immediately obvious, but it is at the very least a sign of the times, that such a specialized tome should engender the extraordinary resonance it has. The worldly success of the term "social capital," promoted by Putnam but derived from others, including Bourdieu, Loury, and Coleman, is also a matter of some wonder.

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anti-communist civil society talk that will inoculate us against such qualities. For contexts have changed irrevocably. In particular, proponents of civil society today are not fighting a monopolistic "other," and there is no reason to believe that a linear decrease in governmental power, once totalitarian excess has been left behind, or a quantitative increase in the number of groups, once there are enough for people to be able to choose with whom they wish to associate, has any positive relationship to the quality of a civil society.

2.4

Qualitative States

The existence of social groupings separate from the state is undeniably preferable to their totalitarian suppression, and it is a condition for a society to be civil. It is necessary both to allow scope and freedom for individual choice and to curb, by dispersal, the resources and power available to would-be despots and other uncivil powers. But it is not obvious that groups independent from the state will necessarily have all the charms claimed for them, or that support based on independence from the state is even the best-targeted approach to supporting civil society. A society abounding with NGOs might well be one with feuding mafia groups or warlords and their clients fighting with each other. Within the plurality of groups, individuals might be trapped with no exit short of treason, no mode of recognition of or by outsiders except as enemies. This can even happen when the groups are not mafiosi or warlords but altogether respectable, with honorable names like Montague and Capulet. The result might be a large "civil society sector" but not much civility. If the claim is that the proliferation of such groups of itself has salutary effects, it has to be made out. It does not follow from their mere existence. In this context, the observation someone made in response to Putnam's famous article, "Bowling Alone,"14 that Timothy McVeigh, the Oklahoma bomber, belonged to a bowling league, is not a refutation of his complex and nuanced claims about the specific qualities of "civic associations," but nor is it irrelevant. To claim otherwise is to make a theoretical claim, and a controversial one, that must be supported (as he has done). It is not a simple empirical inference from the number of groups, or number of people joining groups, in a society. That is all the more clear in the light of Sheri Berman's researches

14

R. Putnam, "Bowling Alone," Journal of Democracy 6 (1995) 65-78. Putnam's new book, also called Bowling Alone, New York: Simon & Schuster (2000), has appeared too late to be considered here.

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into Weimar Germany, which reveal widespread associational life that, she argues, far from encouraging democracy "served to fragment rather than unite German society"15 and were hospitable breeding and recruiting grounds for Nazism. This raises an important theoretical issue: the importance of attending to qualitative states. A long time ago, Philip Selznick pointed to the uneasiness of social scientists with normative conceptions of social phenomena, conceptions that allow us to make qualitative distinctions between different levels and degrees of elaboration or achievement: more, less; better, worse; superior, inferior; higher, lower. He had in mind "culture," but equally "friendship, citizenship, law, education, science." He argued for explicitly normative understandings of such phenomena. These, to be sure, should include definitions that did not rule out rudimentary or debased examples by fiat, but they should also develop theories that could illuminate higher, more elaborated forms.16 More recently he spoke of the difficulty that modern social scientists have in dealing with and making distinctions between qualitative states of affairs.17 Perhaps, then, like a pack of Marlboros, this paper should come with a warning attached. For it is concerned with emphasizing qualitative states, which matter and differ. A civil society, on the view advanced here, is not just any society, not what one finds wherever one finds society, but a particular kind of society. Dissidents were absolutely right that a civil society depends on the possibility and reality of social links independent of state power. They have, in other words, established a threshold condition for civil society, and many other good things. But there are two mistakes commonly made about thresholds, or what Selznick calls "minimum conditions of survival," and Selznick has warned us against both. One is to ignore them. It is no accident that our attention was drawn to the threshold conditions of civil society by those who experienced its lack. Many more privileged observers would otherwise have never known their luck! But the other mistake is to overgeneralize the bearing of these conditions. Once they are satisfied, they typically do not tell us how the phenomenon, whose basic conditions of survival have been secured, might thrive, or even what it is for it to thrive. The conditions necessary for civil society to exist are not

15 16 17

Sh. Herman, "Civil Society and the Collapse of the Weimar Republic," World Politics 49 (1997) 402. See G. Jaeger and Ph. Selznick, "A Normative Theory of Culture," American Sociological Review 29 (October 1964) 653-69. Ph. Selznick, "Integrating Moral and Social Theory," seminar given to the Social and Political Theory Group, Research School of Social Sciences, Australian National University, December 1997.

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the same as those in which it might flourish; phenomena will not flourish unless they exist, of course, but many exist without flourishing at all. There is more at stake here than language. Like most social practices, "civil society" or "democracy" can exist in "rudimentary," but also in "elaborated" states,18 and all the way in between. The mistake is to collapse the distinction, either by reading out the rudimentary as not true examples of the genre or by applying a positivistic definition apt only to the rudimentary as if they grasped what was important to the richer, more elaborated state. Many common accounts of civil society (as of democracy) simply speak of them as though they were one-dimensional matters of joining or voting. Yet like many of the rest of us, there are social scientists who, in their unguarded moments, think civil society and democracy are very good things. This combination of flat, purportedly value-free characterizations of civil society or democracy, with fondness for one or the other makes them easy prey to debunking. Thus Berman amply shows that what passes for civil society in prevalent definitions - the existence of associations which many join - is compatible with highly uncivil consequences, and similarly Zakaria observes that many societies where votes are counted are nasty, "illiberal democracies." Were proponents of civil society and democracy more prepared to explore qualitative differences and their conditions, they might be less vulnerable to these timely and justified rebukes. However, this would require a more complex and nuanced appreciation of civil society and democracy, open to variation and elaboration, than is common. For the societies that Berman sees abounding under Weimar may have been many but they were not civil, and the "democracies" that Zakaria finds in so many miserable forms and places are debased orders with few of the conditions in which deliberation or thoughtful participation might be said to flourish. Zakaria, however, counting the number of places where votes are counted, actually says that"[democracy is flourishing; constitutional liberalism is not."19 Yet to say democracy is flourishing is to say it is doing well, not that there are many "democracies," but that is the opposite of what Zakaria wants to say. But he is trapped by his purely mechanical definition and quantitative language from seeing much that is central to democracy. Similarly, Berman is quite justified in turning the understanding of civil society held by many of its contemporary proponents against them. But something has

18 19

Again, I draw on Selznick for these terms and this distinction. F. Zakaria, "The Rise of Illiberal Democracy," Foreign Affairs, Vol. 76, No. 6 (November/ December 1997) 22-43.

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been lost when the growth of Nazi-producing groups is taken as evidence of "[t]he vigor of German civil society."20 What is most lacking from the conceptions of civil society I have been discussing is serious attention to the texture or quality - as distinct from the existence - of relations among its members. Anti-communist dissidents had some of these matters in mind, more than social scientists, when they recommended that people live "as if in a free country, live "in truth" and, in the Polish case, conduct a "self-limiting revolution." These were and remain admirable qualities, but their advocacy was tailored to particular situations that bear some, but only some, parallels to the moral quandaries of life in a free and civil society. More generally, it is curious how little work the adjective "civil," which might speak to such matters, is given to do in current ways of talking about "civil society." Recent converts to the cause of civil society rarely make much reference to the adjective in their chosen phrase, or they simply infer that it will follow from the existence of a plurality of independent groups. Like their anti-communist forebears, they have been so struck by the newfound "significance of the social" that "civil society" works simply to point to what is not of the state but of society, in the holistic version, or at least to those parts of the society which operate apart from the state - the so-called "third sector," "NGOs," "non-profits." Except by excluding the state, the adjective does no work. Like an appendix or fifth wheel, it is hard to know what it is there for. Yet the adjective matters, too. It specifies the crucial and distinctive qualitative component, the character, of a particular sort of society. A civil society is not just a society independent of government, or one inhabited by independent elements. It is a society of a particular kind, or so I understand and recommend it to be. A civil society flourishes with the existence of social relationships of certain kinds, not merely when there exists an independent space in which such relationships or independent associations and organizations, whatever their character, might (or might not) occur. There are many different sorts of society, and many different types of relationships within any particular society. Only some are civil and perhaps only some should be, for there are relationships for which civility is not enough: love, for example. So civil society cannot be the limit or whole of one's social ideals, merely a crucial element. Moreover, the qualitative distinction made here is one of degree. Societies are not simply civil or uncivil in character, but more or less, both as a whole and in different domains. And since civility

20

Berman, supra note 15, 424.

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is not all one wants in a society, so it is not necessarily the case that the more the better. Still, though many societies exist with less, a good deal of civility is necessary for a modem society to flourish. Distinctness from the state is a prerequisite for a civil society, then, but without more it will not guarantee such a society. None of this is intended as criticism of anti-communist dissidents, who dealt with a specific and overwhelming problem - how to recover the possibility of social links among citizens, independent of the strangling and corrupting domination of the communist state. In that context, disentangling society from the tentacles of that monopolistic state was a pre-eminent concern. But that time has passed, and in circumstances where the quality of relations between citizens is a major and at times tragic concern, particularly, but not only in the region, there are some limits on the lessons to be learned from anti-communist understandings of civil society. All the more so when this "quality-free" understanding of civil society is doggedly applied by people carrying money, in the hope of building democracy or civil society in the post-communist region, where problems have moved on somewhat and "obvious" solutions are often inappropriate;21 or where it is replicated in societies that have never labored under all-consuming communist states. Kathryn Hendley once characterized the judicial process under Gorbachev as in many ways mirroring "industrial production within the Leninist administrative-command economy, in which the primary concern was not the quality of the output but meeting the quantitative targets established by the plan."22 It would be a pity if this analogy came to characterize activity in aid of civil society after communism. And it is here at the level of qualitative achievement that I believe postcommunism reminds us of the importance, the variable success, and the difficulty of generating civility. For the post-communist world witnesses relationships among citizens both more civil than one might have predicted, as in the fraught but not deadly relations between Hungarians, Slovaks, Romanians, and so on; and much worse than anyone imagined, as between Russians and Chechens or between Croats, Bosnians, Serbs, and Albanians.

21 For a fascinating account of unintended, counterproductive (and indeed counterintuitive) consequences of Western funding for NGOs in Kazakhstan in the ambition to build civil society there, see P. J. Luong and E. Weinthal, "The NGO Paradox: Democratic Goals and Non-Democratic Outcomes in Kazakhstan," Europe-Asia Studies 51 (November 1999). Luong and Weinthal conclude that "[i]n sum, the case of environmental NGOs in Kazakhstan seems to indicate that the international role is undermining rather than building a healthy or vibrant civil society" (1280). It is a sobering thought. 22 K. Hendley, Trying to Making Law Matter, Ann Arbor: University of Michigan Press (1996) 113.

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In many parts of the region, civility is not only hard to find, but hard to articulate as a virtue. It is worth doing so; worth clarifying the character of civility and arguing a case for it. More generally, it is worth thinking sociologically and normatively about what Hobbes called "manners." I have in mind, as did Hobbes, not what he distinguished as "Small Moralls" "how one man should salute another, or how a man should wash his mouth, or pick his teeth before company," but rather "those qualities of man-kind, that concern their living together in Peace and Unity."23 But of course words are not enough. The complex, variable, and multiple engagements among the members of a civil society need to be secured, facilitated and lubricated in order to prosper. Civility is a shorthand for engagements of a certain character, and I speak of that character in the next section. Among its sources are public institutions of certain sorts, which do certain sorts of things. These institutional sources are the subjects of the following two sections.

3

CIVILITY24

The dominance and pervasiveness of the state under communism was not merely a political phenomenon. It was social as well, and profoundly so. It molded relations among both intimates and strangers, making the former more closed to the world and the latter routinely low on cooperativeness, reliability, and trust. What I have called "the classic communist model of social relationships to the state: a close combination of dependency with distrust" stemmed directly from the pervasiveness of the state itself and the never-quite-known but known-to-be-great number of those who served it. The result was that "most people distrusted most people; presumptively anybody they did not know well. And for good reason." As a consequence, there developed the much-noted disconnection between "the often intense morality and trust among family and intimates, and the amorality and distrust which characterized dealings in the world...[there was] no space for a normatively stabilized and regulated civil society. Trust was intense but attenuated. Its boundaries were sharp."25 This cannot be a happy solution when a society is at all large and heterogeneous. For then the space is full of non-intimates, and one has to decide what

23 Leviathan, first published 1651, in C.B. Macpherson (ed.), New York: Pelican Books (1968) 160. I owe the reference to a student, S. McCann. 24 Parts of this section draw on my Between Fear and Hope: Hybrid Thoughts on Public Values, Sydney: ABC Books (1997) chapter 3. 25 Krygier, supra note 9, 70-71.

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to do with them. One can, of course, try to kill them or drive them away. That might be called the Milosevic-Tudjman contribution to political morality and social relationships, though it did not begin or end with them; in my part of the world, it recently thrived in East Timor. And it has been, of course, a commonly recurrent pattern in many places and times. If those options are unavailable, one can always be rude, hostile, suspicious, and uncooperative. In many societies that is a reasonable option, even the only reasonable option, since in these societies there are few reasons to cooperate with strangers, many good reasons to be suspicious of anyone one does not know well, and no good reason not to be. This option was widely practiced under despotically, if not fruitfully, powerful communist states. Where the state is too weak, on the other hand, this too generates distrust of others, and a market develops for entrepreneurs of violence and protection. That market is serviced by the original Mafia in southern Italy, and what are derivatively and appropriately called mafias in post-communist Russia. Similar markets are booming, though they are the only ones that are, among the warlords who roam and terrorize much of the former Yugoslavia. As Michael Ignatieff observed in the warzone of Vukovar: "Every man goes armed. No one ventures beyond the village. No one trusts anyone they have not known all their lives."26 And, tragically but wisely, many people distrust people they have known all their lives. Another social option altogether, somewhat rare, is for non-intimates to be civil to each other. No one will do this if the costs are prohibitive, or the benefits illusory. A civil society is one that contrives to keep down the costs and spread the benefits, so that it is reasonable to be nice, or at least civil. There is a Romanian expression which bureaucratic climbers everywhere will understand: "kiss the hand you cannot bite." It is common to find inferiors in organizations conforming to this maxim when cultivating their superiors. A corollary might be "bite the hand you need not kiss" and that is the way bureaucrats often treat their subordinates. Often the same people behave in conformity with both maxims, depending on whether they are looking up or down. But there are other things one can do with hands than kiss or bite. One alternative is to shake them, gently. That is a civil alternative. Of course, civility is not one particular thing but a character that we ascribe to many different things. Its sources and elements are complex and mysterious, but hints of its existence are easier to spot. Practices and behaviors are civil when they are

26

M. Ignatieff, Blood and Belonging: Journeys into the New Nationalism, New York: Farrar, Strauss and Giroux (1995) 48.

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safer than they might be; less harsh than they might be; less hot than they might be. In civil societies, routine non-predatory social relations can occur among non-intimates that neither depend upon love or deep connection nor - as is common in uncivil conditions - are fractured by their absence and replaced by suspicion, hostility, hatred, or simple fear. Cool, civil connections are not the only ones that occur nor should they be, but in the public realm the possibility of such connections is key. People have familial, ethnic, religious, and linguistic attachments that often matter to them greatly and that differ; but they do not kill for them. Nor is it a realistic expectation that they might. In a civil society, relationships of a particular texture and temperature can flourish, and since not all relationships in any society can have such texture and temperature not all relationships can be civil. Civil relationships are not especially close and they are not hot like love and hatred. They are cool, tepid, or lukewarm, or at least they can survive at such temperatures, though they do not necessarily shrivel with warmth. Civil relationships are not intimate, but nor are they hostile. They are the character of relationships among members of healthy voluntary associations; not of close families, on the one hand; nor of opposed troops, on the other. They are ones in which the opposite of my friend is not my enemy but, say, my acquaintance or colleague or neighbor. I can do business with him, and I do not necessarily betray anyone by doing so. In politics, too, even opponents inhabit a common, or at least overlapping, moral universe: competitors within some common frames of reference, however unspoken and superficially denied, not mortal foes. In civil polities, power is disciplined by institutions, among them law. This does not necessarily weaken power, as we shall see. On the contrary it can strengthen it, while at the same time it channels, restrains, and disciplines the ways in which it can be exercised. Law, too, is a significant ingredient in the psychological economy of individuals' lives. It can effectively communicate public signs of bounds within which politicians and people might with some confidence be expected to act. When they do not, this is this the stuff of scandal, not normal operating procedures. Elections matter in civil polities, many people are concerned, but no one is especially scared. No one is killed or even worries about being killed, whatever the result. A Prime Minister in one such society (my own, I confess) publicly described his opponents as "vermin" but they did not worry for a second about being exterminated; nor, when he lost an election to them, did he.

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Civility is not one of those ideals that quickens the pulse, but then, nor should it be. It might, however, steady it. Some of our most fulfilling relationships must be on the way out, if all we can say is that they are civil. Romeo and Juliet's feelings for each other, for example, are not adequately described as civil, though they were not uncivil either. Civility is simply not enough for love. It is not to die for. A healthy society supplements and enriches it in all sorts of ways. But a civil platform is a secure place to stand. It is infinitely preferable to its historically conjoined "other" - fanaticism27 - as it is to routine hatred, suspicion, hostility, and vengefulness. And that, it appears, is what the Montagues and Capulets felt for each other. The terrible predicament with which Shakespeare's profound meditation on incivility28 is concerned is that, in Verona, love and hatred were the only available alternatives. Civility was nowhere to be seen. And that is a problem not only in Verona. Romeo and Juliet could, without doubt, have benefited from a bit of civility, even though that was not what they were after. For in a civil Verona, Montagues could mix peacefully and productively with Capulets, without ceasing to be what they were or demanding that others all become like them. They could even fall in love and live happily ever after. And they could still both be Veronese. They might even come to produce hordes of happy hybrids: Montague-Capulet-Veronese. Or they might not: their choice. It has become common to exhort the virtues of community over the pallid, self-interested connections allegedly endorsed by individualistic liberalism. There is a lot to be said for this communitarian correction. But Verona did not lack the deep bonds of community; on the contrary, those bonds were all too deep and, as it turned out, tragically inescapable. No, what was missing was something apparently thinner yet crucial: conditions enabling smooth, routine, secure relationships between members of different communities, or, for that matter, no communities at all. Communal attachments have many attractions, and a life devoid of any is likely to be arid and lonely. However, dense communities commonly also have characteristic vices. First of all, as our lovers found to their cost, they often exact a terrible price for non-conformity. They also can make controversy difficult to deal with, and might even make it dangerous. One might even say

27 See D. Colas, Civil Society and Fanaticism, Stanford: Stanford University Press (1997). 28 I was led to think about Romeo and Juliet in this connection by J. Waldron's brilliant essay, "When Justice Replaces Affection: The Need for Rights," in Liberal Rights, Cambridge: Cambridge University Press (1993) 370-91. Waldron does not mention civility or civil society at all, and in truth he has more to say about their conditions than their character, but some of these conditions, particularly legal ones, are well identified by him.

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that one of the deep choices that confront modern societies is between civil society with the tolerant pluralism characteristic of such a society and any of a range of communitarian attachments - nationalist, religious, and ethnic - that tend to threaten it. Some sorts of community - certain levels of common morality, understandings, cooperation, attachments, ethos, and maybe also ethnos - may well be necessary for civil society or any society, but many sorts are hostile to it. One should think closely and with some care about what sorts of community are civil and what are not. The enduring question in all large societies today, prominent among them post-communist societies, is: what to do about difference? In civil societies differences are tolerated, different organizations and institutions develop to cater for them, participation in certain institutions is compatible with participation in certain others. In uncivil ones, the idea that citizens should at once belong to a common society and at the same time maintain a variety of different loyalties, affections, interests, associations, and organizations, is unavailable or under constant, often dangerous threat. Intolerant community, whether based on primordial, premodern, ethnic, ethnocentric, national, linguistic, or religious loyalties, is incompatible with civil society. Such loyalties lead to bonds and cleavages very different from civil ones. They tend to be intense, particularistic, exclusive, and immoderate. They represent "not only different interests but, often...different 'metaphysical universes.'"29 Such groups are not the only ones to surface after the collapse of communism, nor have they triumphed everywhere they have surfaced. However, they are important and they are not civil. In some countries in post-communist Europe - perhaps least in Poland and most in ex-Yugoslavia - they threaten the possibility not merely of civil society, but of any society at all. Civil society is very different from all of this. A civil society does not outlaw conflicts or differences. Indeed it presupposes their existence. Some say it thrives on them. But it civilizes them. Societies differ in this regard, and these differences matter. Of course, these might have seemed rather effete considerations to subjects of despotic power, for whom the imposition of that power, rather than how to get on with their neighbors, seemed the most serious immediate problem. Yet, as post-communism reminds us, the end of despotism is pretty clearly not the end of human suffering, nor is it the same as the birth of civility. Civility is revealed in the way one deals with others, even - perhaps especially - others very different from oneself. Moreover, as the experience of many post-communist societies

29

A. B. Seligman, The Idea of Civil Society, New York: The Free Press (1992) 165.

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has come to attest, and as John Hall remarks, "living with difference is as important to the notion of civil society as is the control of despotism."30 It is plausible that civil society is not a prescription for every society at all times. However, there is more to recommend it to many societies at many times, and particularly in modern times. Civil societies maximize the chances of non-predatory relationships among strangers, and there is a lot to be said for that. A large and complex society, full of strangers or at least non-intimates, is a terrible place to be if the alternatives to intimacy are hostility, suspicion, and distrust. And so civility is a negative virtue of a very precious sort. But it is more than that. For civil societies can do far more than neutralize the environment. If we move beyond what is necessary for a society to survive to what might make it thrive, civil association is central. When civil societies are vital and active they will be full of chosen engagements among people, associations, clubs, and partnerships. People will band together to take initiatives, to hold governments accountable, to constitute something more robust, articulated, and energetic than the "sack of potatoes" that Marx once derided. Not every such association need be civil, as we have seen. Where they are, however, studies such as Putnam's now famous book31 do suggest, at least in some circumstances, the character and importance of strong and healthy voluntary social associations and the contribution they might make both to social health and to government performance. More generally, not only is civility better than incivility when non-intimates meet, but it is immensely productive. For it affords a particular and salutary way of dealing with a predicament in which all members of modern and large societies find themselves. That predicament has been stated most succinctly by Adam Smith: "In civilised society he [man] stands at all times in need of the co-operation and assistance of great multitudes, while his whole life is scarce sufficient to gain the friendship of a few persons."32 We live in a world where many people we meet cannot be our friends. It is a better world when they are not therefore automatically our enemies. That in turn depends upon a delicate and complex combination of attitudes and institutions to sustain them. The attitudes are, on the one hand, a sense of some sort of common belonging combined with - at a minimum - tolerance

30 31 32

J.A. Hall, "In Search of Civil Society," in J. Hall (ed.), Civil Society: Theory, History, Comparison, Cambridge: Polity Press (1995) 15. Putnam, Making Democracy Work. A. Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, vol. 1., Indianapolis: Liberty Classics (1981) 26.

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of differences; on the other, a particular sort of trust between citizens, which I will call "civil trust." A central condition for "cooperation and assistance of great multitudes," much discussed these days, is trust. Families and friends learn whom they trust and whom they do not over long and direct periods of exposure to each other. But great multitudes do not have the same opportunities. Their cooperation depends on the possibility of trust among people who do not and cannot know each other intimately but still must make judgments, however abstract, about the extent to which they can rely on each other. What that depends upon, and what it engenders, are major subjects of academic research today, among psychologists, social theorists, economists, and political philosophers. Among social scientists, indeed, "trust" is as modish a rediscovery as civil society. So much so, that I have started to distrust some of the current enthusiasm for trust. For here too, important qualitative distinctions are typically ignored. Trust has become the vogue, not this type or that. Yet it is important to distinguish more clearly than is common between different sorts of trust. The kinds of trust that might tie together, say, members of the clan of Capulets or Montagues, respectively and in opposition to each other, are not the same as those required in a modern civil society, where individuals can pursue their self-chosen purposes in cooperation, but not necessarily in unity, with fellowcitizens - and where outsiders are yet not horribly outside. As a going concern, civil society depends upon an extraordinarily complex meshing of the activities of strangers, or at least non-intimates, who coexist in routine cooperation and interaction. This certainly depends upon trust,33 but that is not enough to say. Some kinds of trust are found in any form of human association. Some are of particular relevance to relationships among intimates; others to relationships among strangers. Some forms coexist more easily than others. For many societies are decidedly not civil, even though in most societies, someone trusts someone. In some, trust among intimates tapers gently into the cooler trust of acquaintances or even strangers. In others, there are sharp boundaries to the former, and the latter is in short supply. Some are more conducive to civil society; some less. Indeed, all societies depend upon trust, but many forms of trust are quite inimical to civility, indeed, as inimical as many forms of distrust. What is distinctive of modern civil societies is civil trust, a particular and historically very rare kind of trust among non-intimates.

33

See Putnam, Making Democracy Work; F. Fukuyama, Trust, New York: Basic Books (1995); B. A. Misztal, Trust in Modern Societies, Cambridge: Polity Press (1996). My discussion of trust follows what I have written in "The Sources of Civil Society: Part 1," Quadrant (October 1996) 12-23.

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Civil trust does not require love, nor even necessarily friendship, but it does require the ability, routinely and undramatically, to make presumptions of confidence and reliability about people one does not know well. In a civil society, it is reasonable to trust people who one reasonably believes will behave civilly. This is rarely everyone, but if it is no one the society is in very bad shape. Indeed if it is really no one, there is no society. That was Hobbes's point. And if it is just those who are part of your real or extended family or ethnic group, where there is more than one family or group, there is a divided society. That, in Romeo and Juliet, was Shakespeare's point. One consequence of distinguishing between the character of a civil society in good shape and its rudimentary elements is that one will not be fooled by a pun to imagine that the only source of civility must be the existence and proliferation of "civil associations." The assumption that social joining is of itself good can and has led many people to believe that the key to healthy civil societies is an increase in the number of joiners and the number of associations they might join. And indeed, as we have seen, a threshold of independent groups is necessary for a civil society. Yet above some such threshold, which of course cannot be specified precisely, there is no a priori reason to believe that the expansion of joining or things joinable will do anything for the quality of association. Beyond such a threshold, it does not follow without more, for example, that society is less civil where joining is low,34 or that it is more so where it is high.35 More important, an eye to such qualitative issues might quickly lead one beyond the mere fact of associating to sources of its character. Moreover, there is no reason to believe that such sources need come primarily from within the associations themselves. Indeed one might hazard the possibility that some of the most important sources of good character within associations lie outside them, indeed outside the NGO sphere itself. It is only obsession with non-governmental sources of civility that makes it seem paradoxical to suggest that they might lie precisely in the sphere of government. A society cannot just ask people, and it certainly cannot order them, to trust and deal civilly with each other. Well, it can ask and it can order, but it is unlikely to be successful. People need reasons to trust others, and on a macroscale, where we do not know all the others, those reasons are generated by the large frameworks of social life. Civil trust is conditional, and in a large and complex society the conditions are themselves many and complex. They

34

35

Contrast M. M. Howard, "Free Not To Participate: The Weakness of Civil Society in PostCommunist Europe," Centre for the Study of Public Policy: Studies of Public Policy 325 (2000). Berman, supra note 15.

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include social traditions, mores, "habits of the heart." They also have to do with the level and distribution of wealth and poverty, urbanity in every sense, education, and, crucially, with the nature and quality of public institutions such as, to use the pairing that was once mandatory for communist jurists, state and law. It is to those that I now turn.

4

CIVIL SOCIETY AND THE STATE

Civility and civil trust, wherever they are widespread, are not merely accidents of individual psychology. They depend significantly upon the existence and adequacy of supporting and sustaining frameworks, central among them political and legal institutions, of some sorts and not others and behaving in some ways and not others. Indeed, there is no reason to imagine that civility flows solely or even primarily from conditions internal to "civil societies," in the Tocquevillean sense, themselves. The important conditions may well be external to such groupings. Indeed, they might even flow, as I believe they do, from the activities of that loathed enemy of many anti-communists: the state. However counter-intuitive to many proponents of civil society, the frameworks of civil societies, when they are in good shape, depend upon a well-functioning state, that is, a state that is in good shape. More counter-intuitive still, the state must be strong. Moderated, disciplined, limited, channeled in the exercise of its power, not necessarily big,36 but strong. This is so, notwithstanding that the dissident rhetoric of "anti-political politics" sought relentlessly to pit "civil society against the state," for reasons that are obvious but were in part misguided. All the more so in the versions that came to be supported by those western libertarians drawn to the Thoreauian nonsense that "that government is best which governs least" and to his extension - truly nonsense on stilts - that "that government is best which governs not at all." The counterpart response occurs when, with more justification, writers insist on the preeminent importance of political institutionalization in response to what they take to be exaggerated faith in civil society.37 Whatever the source, the transformation of legitimate distinctions and differences of emphasis into false dichotomies is unfortunate.

36 37

See C. Offe, "Civil Society and Social Order: Demarcating and Combining Market, State and Community," Archives europeennes de sociologie XLI (2000) 84. Berman, supra note 15.

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For in this counterposition of state and civil society there is a deep truth and a deep falsehood. The truth is that civil society only exists when there is room for clear distinctions between state and civil society. As Leszek Kolakowski has argued,38 it is precisely the annihilation of this distinction that defines totalitarianism. The contrast on which Solidarity insisted - between a society independent of the state, and one which is chewed and swallowed up by it was absolutely central to the anti-communist revival of "civil society," and lightly so. More generally, the distinction between civil society and the state was crucial not only to anti-communist dissidents but also to civil society discourse at least since the eighteenth century. It is a crucial role of the rule of law to make such distinctions and insist upon them. But this distinction can be understood in two very different ways: on the one hand, as one between hostile forces; on the other hand, as one between parts of an organism - bone and muscle, for example. When a civil society is weak and/or the state is seeking to crush it, the distinction is of the first sort; when the civil society is in good shape, and the state provides indispensable infrastructure for it, the second sense applies. For very obvious reasons, Solidarity told us far more about the first sense than the second. Their belief, that civil society and the state are naturally pitted against each other in a zero-sum encounter that one side can win only at the other's expense, was eminently understandable and largely (though as the Round Table talks suggested, not wholly) justified in their circumstances, but not everywhere and not ideally. And it tells us little in general about states and civil societies. For just as societies are of many kinds, so are states. And these differences are not unrelated. In fact, the common dichotomy between civil society and the state is seriously and dangerously misleading when translated from the anti-communist struggle against despotism to the post-communist attempt to build a flourishing civil society in a liberal-democratic state. Far from being "against" the state or thriving in a "minimal" state, a civil society in good shape is entwined with state, law, and democracy in mutually reinforcing "virtuous circles"39 - or so it is in happy circumstances and so ideally it ought to be. For the crucial questions about states, yet again, are not primarily quantitative - is the state big or small - but qualitative: is it good and is what it does good? Civil

38 L. Kolakowski, "Hope and Hopelessness," Survey 17 (1971). 39 See Krygier, supra note 9. See also Colas on "the Hegelian revolution, the nonconflictual distinction between civil society and the state," in Colas, 264ff.

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societies only thrive under good states. And to do good, good states have a lot to do. I have written about this at length elsewhere.40 Put briefly, the upshot, here as at most stages of my argument, is that in place of the in principle antipolitical and anti-state bias of many civil society activists, its partisans should again focus on qualitative questions: what kinds of governmental activities, undertaken in what kinds of ways, by what kinds of states, are helpful, indeed essential, for civility to be widespread as the character of social practices? What sorts of competencies is it important to encourage among officials of state, not merely what are the ways in which these officials might be constrained? These are not easy questions to answer, but they are important because we know that some sorts of governments and activities can be indispensable and others ruinous for social civility and thus civil society. A start in this direction has been made by Michael Mann, with his distinction between despotic power - "the range of actions which the elite is empowered to undertake without routine, institutionalized negotiations with civil society" - and what he calls infrastructural power - "the capacity of the state to actually penetrate society, and to implement logistically political decisions throughout the realm."41 For the release and development of social and economic energies, as well as for political decency and social civility, it is infrastructural power that is crucial. Despotic states - as Mann, Hall,42 and more recently, Weiss and Hobson43 have argued - combine arbitrariness and lack of political or legal limits with chronic incapacity to mobilize social energies and make use of social potential. As Hall puts it, they sit like capstones atop the societies they dominate; they do not penetrate organically and effectively into the social structure. They dominate from above, but do little to contribute from within.44

40 41

42 43 44

Krygier, supra note 9 and 24, chapter 5. M. Mann, "The Autonomous Power of the State: Its Origins, Mechanisms and Resources," in State, War and Capitalism, Oxford: Blackwell (1988) 32. See also his Sources of Social Power, Vol. 1, Cambridge: Cambridge University Press (1986) 477. Here, and more crisply, Mann contrasts "power over civil society, that is, despotism" and "the power to coordinate civil society, that is, infrastructural power." J. Hall, Powers and Liberties: The Causes and Consequences of the Rise of the West, Oxford: Blackwell (1985). L. Weiss and J. M. Hobson, States and Economic Development, Cambridge: Polity Press (1995). For an earlier discussion and application of this distinction to the analysis of differing legal traditions, see A. Czarnota and M. Krygier, "Revolutions and the Continuity of European Law," in Z. Bankowski (ed.), Revolutions in Law and Legal Thought, Aberdeen: Aberdeen University Press (1991) 90-112.

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The connection between despotic strength and social weakness is not accidental. Though despots can repress effectively for a time and mobilize for limited specialized purposes such as war, they have proved very weak in their capacity to penetrate, mobilize, and facilitate energetic and resilient social forces. On the contrary, they typically seek to block them, and they stunt their development. In other terms, despotically strong states go along with weak and uncivil societies. And this is centrally because of the chronic arbitrariness of their exercise of power. These states are predatory and their societies are prey. They are not productive, and neither are their societies. On the other hand, as Weiss and Hobson put it, "strong states are not only those which are able to control the population within their boundaries and thus extract the necessary material and human resources. They are also those which rely least on arbitrary and unstable forms of control such as terror or physical force."45 They provide predictable, reliable frameworks of laws and trustworthy undertakings. They cooperate with major social forces in ways on which both sides can rely. They can penetrate the society without fraud and force, and extract resources from it without coercion. Rather than exercise power over society, strong but limited states exercise it through society.46 The infrastructural role of states, whatever it might involve in detail in different circumstances, is indispensable for the existence of strong modern societies. Strong societies, in turn, can provide the economic base for strong states. So, power restrained is power, in crucial infrastructural senses, strengthened. And states that are strong in these ways are necessary for widespread civility. They are also, of course and not coincidentally, altogether nicer to live with. This regard for the positive significance of states, and for the positive point of constraints on power, needs to be brought to bear in the post-communist design and appraisal of public institutions, for its opposite - the strictly negative attitude to state power - certainly has been by its anti-communist forebears. Just as many people distrust states in general, so people involved in institutional design often seek to implement that distrust through legal and constitutional means. The danger of this approach is that it will thwart whatever good the state can do, and whatever good cannot be done without an effective state. For to the extent that state power can be harnessed to valuable ends, we will want not only to limit the ability of the state to do harm but maximize its ability to do good. Our institutions will have to be looked at not just from the perspective of reducing our fears, but also from that of securing our hopes.

45 46

Weiss and Hobson, 3. Supra note 45, 168.

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This, I imagine, is only the beginning of the sorts of qualitative distinctions that might bear on our subject. The general point remains, as Blandine Kriegel has eloquently insisted,47 that "the state" is a remarkably heterogeneous category. States differ and so do their consequences, some of which anti- and postcommunists are very familiar with, others of which they only hope for. The lesson learned by anti-communists is that despotic states can destroy civility. They do that by invading civil society, behaving arbitrarily and uncontrollably, destroying trust, fomenting hostilities, sowing suspicion, fear, and so on. So, one way governments can encourage civil society is by practicing the Hippocratic virtue of not doing harm. On the other hand, and only apparently paradoxically, we can learn from post-communism that civility cannot thrive if people discover the state is too weak, incompetent, or broke to safeguard them, to help them in difficulties, or to secure and enforce their rights, even if it wanted to. That, as Stephen Holmes has more than once stressed,48 is the Russian situation today. In a situation of chronic state weakness, we are left with our trust in each other, which without state underpinning might be a crazy option among people who often have to deal with strangers and do not know each other very well. Or, for that matter, know each other only too well. More positively, and in the region at best at a rudimentary level, governments can create conditions for the development of civility by creating trust in the fairness, effectiveness, and competence of government institutions and actors. People, it appears, trust governments even if they do not get what they want, so long as they feel they have been fairly treated. So much so that, as Tom Tyler puts it, "fair procedures can act as a cushion of support when authorities are delivering unfavorable outcomes."49 That is good for government, and, if the government is good, it is good for society too. Taken together, modern societies in which public institutions do the jobs that only they can do, and do them well, have something precious: some of the conditions of civility.

47 48 49

B. Kriegel, The State and the Rule of Law, (trans. M. A. LePain and J. C. Cohen), Princeton: Princeton University Press (1995). See, for example, S. Holmes, "What Russia Teaches Us Now: How Weak States Threaten Freedom," American Prospect 33 (July-August 1997). T. Tyler, Why People Obey the Law? New Haven: Yale University Press (1990) 107.

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249

THE RULE OF LAW

A central aspect of this is the rule of law. Civil society depends upon it. Despots who often despise their subjects, and seek to destroy the possibility of civil society, also typically despise the rule of law. They prefer either, as Lenin was candid in explaining, "rule that is unrestricted by any laws,"50 or law that is, as purely as it can be made, the instrument of their will. Dissidents under communism understood this and in opposition to it demanded the rule of law. However, like civil society, the rule of law seemed to them a simpler and more easily identifiable and transportable commodity than it has turned out to be. Unfortunately, it is not simple at all. The rule of law is quite obviously a normative, qualitative concept. No number of laws will of themselves add up to the rule of law. So again, I would want to insist on taking the qualities inherent in this concept particularly seriously. For we can recognize differences between societies in which law does and does not count substantially as a constraint on power and a source of social guidance, and some of the virtues (and vices) associated with that form of constraint and guidance, somewhat better than we can pinpoint or generalize its sources. Where the rule of law has substance, law is not merely power's often blunt instrument. It acts to constrain, channel, and inform the exercise of power, particularly state power, and is a source of citizens' ability to protect and advance their interests, if necessary, against that very power, but also, and crucially, in co-operation with each other. It provides citizens with intersubjective cues about the rights and responsibilities of other citizens, about whom they may know little else. These are invaluable cues (and clues) to have. At a bare minimum, the point of the rule of law - and its great contribution to social and political life - is relatively simple: all actors should be constrained by, and people should be able to rely on, the law when they act. Ideally, that requires51 that there be no privileged groups or institutions exempt from the scope of the law; that in general the law be of a particular character, such that

50 V. I. Lenin, "The Proletarian Revolution and the Renegade Kautsky," Selected Works, vol. II, 2, Moscow: Foreign Language Pub. House (1951) 41. See Lenin, "The Immediate Tasks of the Soviet Government," Selected Works, vol. II, 1, 478: "But dictatorship is a big word, and big words should not be thrown about carelessly. Dictatorship is iron rule, government that is revolutionarily bold, swift and ruthless in suppressing the exploiters as well as hooligans. But our government is excessively mild, very often it resembles jelly more than iron." 51 I expand on these claims in the entry "rule of law," International Encyclopedia of the Social and Behavioral Sciences, in N. J. Smelser and P. B. Baltes (eds.), New York: Elsevier Science (2001).

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"people will be able to be guided by it;"52 that institutions apply the law according to plausible legally grounded interpretations of its public terms; and that rule of law expectations and values pervade social expectations, to a considerable extent. The contrasts that matter most here, of course, are not with perfect achievement on any of these criteria, still less all, but adequate achievement, by comparison with available or feasible alternatives. There is more to it than this, but there is at least this much: you have a good measure of the rule of law when the law in general does not take you by surprise or keep you guessing; when it is accessible to you, as is the thought that you might use it; when legal institutions are relatively independent of other significant social actors but not of legal doctrine; when the powerful forces in society, including the government, are required to act, and come in significant measure to think, within the law; when the limits of what we imagine our options to be are set in significant part by the law and where these limits are widely taken seriously; and when the law has integrity and it matters what the law allows and what it forbids. Where the rule of law is strong, legal and constitutional channeling both empowers states by increasing their credibility, legitimacy, and effectiveness, and gives citizens rights against each other and against the state. In doing so, the rule of law makes possible something else that is impossible without it: civil society itself, as a durable, routine state of affairs. Legal institutions and legal rights are central to an established civil society in order for it to be able to moderate - stably, routinely, and effectively - the powers of government and the powers of each other and to mediate between government and citizens and between citizens themselves. The rule of law is not only important for securing the infrastructural strength of states. It is also crucial for social strength. It is so causally and as a matter of what Weber, following Goethe, called "elective affinity." Causally, for it offers at least two qualitative contributions to the character of social relations that can be said to be civil. One such contribution is to lessen the reasons for fear that we have in dealing with others, especially powerful others. One central point of generations of thought about the rule of law, and particularly of anticommunist thought about it, is opposition to arbitrary rule and despotic license. That goal is both salutary and close to universally so. Where power is routinely and reliably constrained by law, and where law counts as an integral frame and constituent of what is doable and what is thinkable in the society, then

52

J. Raz, "The Rule of Law and its Virtue," in The Authority of Law, Oxford: Clarendon Press (1979) 213.

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important conditions of civility - in particular a lessening of fear of arbitrary power - have been attained. Secondly, at the horizontal level of relations among citizens, the rule of law enables and facilitates confident interaction and coordination among nonintimates, which are central conditions of a modern civil society in good shape. In response to the predicament of members of a "civilised" society that Adam Smith identified,53 the rule of law can provide crucial information and security, "a basis for legitimate expectations,"54 without which the "cooperation and assistance of great multitudes" will necessarily be a more chancy affair. It enables fellow citizens to know a good deal about each other, though many of them are strangers; to coordinate their actions with them; and to feel some security and predictability in their dealings with them. For though it does not make everything predictable, it ties down much that would otherwise be up for grabs. It establishes fixed and knowable points in the landscape, on the basis of which the strangers who routinely interact in modern societies can do so with some security, autonomy, and ability to choose. And so it provides a foundation and scaffolding for the building of "civil" relations between state and citizens and among citizens themselves. They can begin to rely upon, rather than merely fear, the state and law. Apart from causal relationships, there is, I would suggest, a real affinity between rule of law and civil society. Causal links are sometimes hard to trace, but a polity in which the rule of law has a deep hold is one in which restraint is, to that extent, a cultural norm. So too respect, since if a state is required to act within publicly announced bounds of power it is, again to that extent, bound to one of the necessary conditions of treating its citizens with respect.55 And restraint and respect are norms of civility as well. So civil society and the rule of law go well together. Where law achieves these results, and of course this too will be a matter of varying degrees, we have an example of a legal order deeply "imbricated," to use E.P. Thompson's word,56 in civil society, something that was already noted by Hegel when he classed legal institutions as elements of civil society itself. And yet law is nothing if not preeminently an arm of state power. Repressive, arbitrary, purely instrumental law is a predominantly state-centered matter, but the rule of law is something quite else. It is, ideally and to differing extents in practice, not just a wall separating one from the other, not merely a club

53 54 55 56

See Smith, supra note 32. J. Rawls, A Theory of Justice, Cambridge, Mass.: Harvard University Press (1971), 238. See Raz, supra note 52. 210-32. E.P. Thompson, Whigs and Hunters, Harmonsworth: Penguin (1977) 261.

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wielded by one against the other, but more like a bridge between state and society, with pylons firmly planted on both sides of the divide and input moving in both directions. Or so it is when the rule of law is a living presence in society, part of the cultural understandings of everyday life, part of the frame which bounds what is doable and even thinkable. I am conscious that this is an idealization of virtually any legal order, but it is one approached more closely by some than by others. As with civil society, anti-communist dissidents partly understood and partly misunderstood what they were missing. They certainly recognized the absence of the rule of law from their own societies, and many understood its importance. On the other hand, in their determination to make "no more experiments" they at times underestimated what might be required to introduce it. Timothy Garton Ash faithfully captures a common theme of the time: In politics they are all saying: There is no "socialist democracy," there is only democracy. And by democracy they mean multi-party, parliamentary democracy as practiced in contemporary Western, Northern, and Southern Europe. They are all saying: There is no "socialist legality," there is only legality. And by that they mean the rule of law, guaranteed by the constitutionally anchored independence of the judiciary.57

This taste for democracy and legality "without adjectives," as dissidents used to put it, can be readily appreciated. They had more than enough experience of distasteful adjectives being forced upon fine nouns to glorify ghastly parodies. They were rightly allergic to such substance-canceling qualifiers. But, to the extent that saying, "there is only legality" might suggest that there exists one obvious incarnation of legality that merely needs to be adopted by eager imitators, then the taste for legality unqualified is misleading. The trouble is that we have no recipes to produce such results. We can more easily recognize the rule of law where it is well established, and state the values that it serves, than we can specify its necessary elements with any combination of generality and precision. What might go to accomplishing (or thwarting) it will vary with time, place, history, and tradition. Since the ideal of the rule of law is important, we should - here as with civil society - keep that ideal clearly in view, but we should avoid identifying it with, still less reducing it to, particular incarnations or institutional arrangements. For these may well turn out to be neither necessary nor sufficient for the rule of law.

57

T. G. Ash, "Eastern Europe: The Year of Truth," New York Review of Books, (15 February 1990)21.

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They might not be necessary, since the rule of law is a broad church with, if I can mix metaphors, more than one entrance. A.V. Dicey's58 enormously influential diatribe, claiming the rule of law exclusively for English legal institutions, suggests otherwise, but that is well characterized by Judith Shklar as an "unfortunate outburst of Anglo-Saxon parochialism." Out of it the rule of law emerges, as Shklar also observes, "both trivialized as the particular patrimony of one and only one national order, and formalized, by the insistence that only one set of inherited procedures and court practices could sustain it."59 As an ideal of some degree of generality, longevity, and abstraction, the rule of law is not tied to any one national experience or set of institutions. Rule of law regimes have often embodied different judgments about how to implement rule of law ideals, and have been realized within different legal and other histories and traditions that have influenced the particular shapes of the institutions that emerge. Institutional varieties and possibilities are too rich, and local traditions often too dense and particular, for it to be fruitful to identify the rule of law with just those particular institutions and arrangements that seem to work at home. Moreover, even within one society problems change, and so do the solutions most appropriate to solve them. These differences are not automatically fatal, since the rule of law is not a recipe for detailed institutional design. It is rather a value, or interconnected cluster of values, that might inform such design, and that might be - and has been - pursued in a variety of ways. It is, and again I follow Selznick, a "flexible standard," approached at different times and places in different ways.60 To follow Dicey would be misleading, in two ways at once. It would make attaining the rule of law seem simpler than it can be, just a matter of copying arrangements found elsewhere. But that has been tried, and rarely produced the results hoped for. That does not mean, however, that institutional learning is impossible. It is not and it occurs. Some arrangements have been found to work well in many contexts; others less so or only in some contexts. It is, therefore, appropriate to ponder the relationship between particular, realized, institutional forms and rule of law ideals. Success does not, however, depend upon faithful mimicry (for even if whole institutional complexes could be duplicated, it is another job to graft them), and it often thrives on innovation,

58

A. V. Dicey, An Introduction to the Study of the Law of the Constitution, 10th ed., London: Macmillan (1961). 59 J. Shklar, "Political Theory and the Rule of Law," in Stanley Hoffman (ed.), Political Thought and Political Thinkers, Chicago: University of Chicago Press (1998) 26. 60 Ph. Selznick, "Legal Cultures and the Rule of Law," in M. Krygier and A. Czarnota (eds.), The Rule of Law after Communism, Aldershot: Dartmoutn/Ashgate (1999) 23.

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even misinterpretation. Institutional arrangements of complexity and depth have often been emulated and lived healthy second lives, even though in their full socio-legal significance they cannot simply be copied. If the rule of law depended upon the ability to faithfully copy some master plan, then we would have even fewer examples of it than we do. But there are examples where the rule of law is recognizable, though in many institutional features they differ greatly from each other. In any event, to focus simply on the particular ways of institutionalizing the rule of law would be to elevate means over ends, as we so often unfortunately do, or to simply identify the two at the expense of the former, which we also do. It would also be to deny the significance of attending and adjusting to historical particulars in the attempt to realize ideals. Moreover, copying institutions, even if it could be done, would not be sufficient for the rule of law. Many who have tried to export or import such arrangements have found that they often do not travel well, and they behave very differently where they land than where they took off. This has often caused surprise, though it should not have, because, just as a healthy civil society cannot be sought merely within associations themselves, so the rule of law is not just a legal problem. For many of the most important questions about it have not to do with particular legal institutions at all, but are questions of politics and sociology. Moreover, they are questions to which we have few certain answers. For example, apart from rules and institutions, the rule of law depends, among many other things, upon socialization into the values of the rule of law, at least of the professionals who have to administer it, and assumptions more or less widespread in the society that laws both should and do count. Such assumptions are commonly revealed in the degree of willingness to use laws "on the books" to protect and advance one's interests, in demand for law as much as in supply, as well as in levels of unreflective but routine law-abidingness in a society. These crucial aspects of legal culture and practice are variable among and within societies - with particularly high variance in civil societies but we know little about how to tap them and turn them on in ways that might advance the rule of law.61 In particular, we have few tips on how to generate them in circumstances where they have never existed before or even where they might have but do not exist now.

61

See, for example, K. Hendley, "Rewriting the Rules of the Game in Russia: The Neglected Issue of the Demand for Law," East European Constitutional Review 8 (Fall 1999): 89-95, and the comments on this article by A. Aslund, A. Sajo and K. Pistor.

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To "adopt" the rule of law we need to "adapt it" in the light of close attention to the ideals we take it to serve, together with a good deal of local knowledge. Moreover, we need to do so over and over again, since a commitment to the rule of law is commitment to a governing ideal, not to a specific set of injunctions. This ideal is to be realized in history and not outside of it. But history makes its own demands. Even when we know the meaning of legality we must still work out the relation between general principles and the changing structure of society. New circumstances do not necessarily alter principles, but they may and do require that new rules of law be formulated and old ones changed. In a system governed by a master ideal, many specific norms, for a time part of that system, may be expendable. The test is whether they contribute to the realization of the ideal.62 This suggests a research agenda, not a conclusion, but perhaps it is still the time for the former rather than for the latter. Both civil society, at least on the interpretation advanced here, and the rule of law, on every interpretation known to me, are systems "governed by a master ideal:" the former civility, the latter reduction of arbitrary exercise of power. My contention has been that we would do well to clarify and keep in mind why these things matter to us, if they do, and what about them matters. In the light of that clarification, we can then approach the awesome practical problem of how they might be realized in particular places at particular times. Unfortunately, it has been common to approach such matters the other way around. Anti-communist dissidents knew well some of the reasons why civil society and the rule of law are valuable, but they knew little, for example, about how to generate either. Nor do we. But even learning what we do not know can have some use. One thing we do not know is how to generate a "rule of law state" where lawlessness is chronic, whether in the sense that law is chronically violated or that it is simply chronically irrelevant to what really goes on in a society. This is a theme of Kathryn Hendley's work,63 for example, concerned as it is with what goes to making law "matter" in a society.64 What might be done to make law matter is a question to which she has many more and better answers than I, but I would not bet my life or money on her answers, let alone on my own. I share with her, however, the belief that making law matter is something which, indeed, matters a great deal. One reason is that a

62 Ph. Selznick, "Sociology and Natural Law," Natural Law Forum (1961) 103. 63 See Hendley, Trying to Make Law Matter. 64 Supra note 63.

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truly civil society is impossible without it. That confession of ignorance and faith might be an unfortunate place to finish, but on the other hand, it might be a useful place to start.

14 THE UNMAKING OF HUNGARIAN CONSTITUTIONALISM? Gdbor Halmai

Almost fifty years after the Rakosist Constitution, ten years after the amendment to the Constitution adopted as the result of the political transition, and almost two years after the third democratic parliamentary elections, there is precious little chance of replacing the present constitution (which is undoubtedly lacking in legitimacy but is still, in its content, a liberal Constitution of a state founded on the rule of law) with a new one that would be fully legitimate and could - as many say - once and for all conclude the period of political transition. Although the new proposal for the Constitution adopted by the Parliament still exists, and there is even a draft Constitution drawn up on the basis of this proposal, it is not very probable that the present governing parties will identify themselves with it. Due to its socialist elements, they will probably always reject this draft, even if in many respects their policies follow its precepts. In 1998 the once liberal FIDESZ won the elections with its right-center program and formed a coalition with right-wing parties. It seems that the Orban Government would be happy to limit the constitutional institutions designed to insure that the exercise of governmental power is based on the principle of consensus. First of all, it wants to limit the legitimate means by which the Parliament can exercise control over the government. However, in order to enforce a proposal aimed at such limitations, they would need to make amendments to the Constitution, for which they do not have the necessary two-thirds majority of the votes. Therefore the "adjustment" of the constitutional order, having been framed with the active contribution of the present governing parties, is done by way of setting aside the constitutional regulations. Viktor Orban, the FlDESZ-MPP's (Alliance of Young Democrats - Hungarian Civil Party) Prime Minister-designate, made it clear akeady in his electoral campaign that their victory would mean more than a change of government,

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though less than (another?) political transition. Yet no one would have expected that with the tenth anniversary of the third Hungarian Republic approaching disputes concerning the very foundations of the constitutional order would flare up. And no one would have expected that these disputes would be generated by the party that was the most radical among those contributing to the political transition: the strongest party of the present coalition. By now it has become not only boring but also useless to call upon the once "young democrats" to account for the radical liberalism they manifested in opposition to the state party ten years ago. Experience shows that the "where" in politics (whether one is in power or in opposition) can greatly determine one's attitude. The transfiguration of parties is hardly surprising in a democracy as young as ours. However, it is quite a remarkable development that the present possessors of power have, in fact, started to revise the 1989-1990 "constitutional revolution" without having informed the citizens (voters) about this in advance. This revision started already before the first session of Parliament in June 1998, by the governing parties departing from the tradition that the proportions of the parliamentary committee members and functionaries correspond to that of the parliamentary seats, about which the parties are supposed to come to an understanding in advance ("outside the Parliamentary House Rules"). The principle that keeps the customary law of the Parliament alive is that "when in power, it is not worth behaving in a way that you would criticize when in opposition." The dictate of the three-week system of parliamentary sessions, which was later declared unconstitutional by the Constitutional Court, also belongs here. Previously the one-week system of parliamentary sessions was "decreed" by unanimous decisions of the House Committee. The fact that the governing parties did not seek to reach a preliminary consensus about decisions requiring an amendment to the Constitution is also a sign of their negligence of the unwritten laws. The year 1999 produced a phenomenon totally unknown to parliamentary democracies: obstructive tactics on the part of the governing parties. These were as follows: most of the interpellations came from the governing parties (these were often addressed to the former government), there were delays in setting up a committee for the investigation of the alleged surveillance of certain politicians, and they prevented the setting up of committees of investigation (initiated by the opposition) and paralyzed the extraordinary sessions. Even more alarming, the governing parties violated or overtly eluded the two-thirds majority regulations of the Constitution (the former was done when they adopted the "anti-organized crime" legislative package, and the latter when they pushed through the Act on Tax Police). But it is equally objectionable that they ignored the provisions of the Media Law that prescribe the constitution

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of the media boards. Also, the steering committee, with the representatives of the governing parties constituting its majority, took no account of the clear-cut decision of the Constitutional Court on the minimum number of representatives in a parliamentary faction. Instead of putting the judicial sentence into effect or - as a constitutional solution - initiating the necessary amendment, it simply stepped over it. Again, it was the diminishing of the institutions of consensual government that motivated the Hungarian Government's recent proposal for an amendment to the Constitution that would radically further reduce the number of laws requiring a two-thirds majority (agreed on in 1989 and already reduced in 1990). This proposed amendment adds to the list of simple majority laws, among other things, basic rights like the freedom of the press and the electronic media, data protection, and the transparency of information of public interest. But since the governing parties do not have the two-thirds majority needed for the revision of the Constitution, by replacing the two-thirds majority laws with simple majority laws they have already begun to follow an unconstitutional practice (as we already know from the decision of the Constitutional Court on the "anti-organized crime" package of laws). FIDESZ politicians have several times voiced their prophecy/wish that in the future the Hungarian political system coalesce into a shift system of the two big parties - the FIDESZ-MPP and the MSZP. As we know, one of the models of this system is the pure parliamentarianism of Great Britain, where a single party is able to win the absolute majority of the votes and can therefore form a government. It is an interesting, but also a comforting, fact that this kind of modification of our constitutional order has so far been proposed by only one politician. Bela Pokol - as the chairman of the Parliamentary Committee on Constitutional Matters - has proposed the adoption of pure parliamentarianism, and with this the minimization of the presidential powers, the powers of the Constitutional Court, and the constitutional powers of the ombudsmen. But what is Pokol really saying? Basically, he argues that the parliamentary government as developed in 1989 is an extreme form of the dismembering of central power.1 In his opinion, it was possible for the abortive consensual democracy to be established in Hungary because the founding fathers and later the Constitutional Court popularized the principle of the division of power in its stricter, American form. But, as he says, it is British parliamentarianism that can most clearly fulfill the principle of strong governmental power - and

1

B. Pokol, "1989 - tiz ev utan" [1989 - Ten Years After], Napi Magyarorszdg, 22 May 1999.

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through this, for example, the replacement of the political elite. In his view, there are various factors that contribute to the reduction of governmental power: the Constitutional Court vested with its extraordinary power, the two-thirds majority laws, the election system with its institution of list mandates, the vigorous powers of the ombudsmen, the complete separation of the administrative judicial powers from the Ministry of Justice (thereby reducing the number of judicial means available to the government), and the "keeping of the prosecutorial hierarchy separate" from the government. When the Parliament debated the proposal for the subordination of the institution of prosecution to the government, Pokol described British, and with it European, parliamentarianism as a form of government that is based on the principle of the unity of power. What is wrong with this theory? First of all, the fact that it is based on a total misunderstanding of British parliamentarianism. It forgets that the seemingly omnipotent British Parliament - and with it the governmental majority that seems secure between the election - is limited by unwritten laws, rational consideration solidified into tradition, good manners, and last but not least, jurisdiction practiced in the spirit of common law. By no means can it be said about the continental governmental systems, which served as models for Hungary in 1989-1990, that there the principle of the division of power only exists as "a softened form of the division of spheres of authority." There are many constitutional institutions that limit the power of the majority government: the bicameral Parliament, the separation of the constituent and legislative powers, the Constitutional Court, the incorporation of unalterable so-called perpetual clauses into the Constitution (see Italy, France, Germany, Portugal), provisions prohibiting the parliamentary limitation of the substantial meaning of basic rights (Germany), statutes and decisions prescribing the need for a qualified majority of votes, certain rights of the president, provisions insuring the autonomy of local governments, etc. The Western European scheme for the division of power is of course not identical to the system of separation of powers functioning in the United States. It is characteristic of the latter that the legislature cannot dismiss the president, and the president - with his extensive power - cannot dissolve the legislative body either. But the lack of this institutional separation of power does not mean the lack of the division of power, and by no means can it be interpreted as the prevalence of the Leninist principle of the unity of power that served as the foundation of the socialist political system. In Pokol's view, it is necessary to eliminate the balances in Hungary because they "cut back" democracy, which was only justifiable in the first few years after the break with the Soviet Empire. This concept of democracy does

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not acknowledge the importance of the safeguards against the tyranny of the majority: constitutionalism and the rule of law. It means that Pokol's concept does not permit any checks or balances against supreme power. This was only known in the constitutions of the former "existing socialism," for those presented the legislative organs as exercisers of all the rights derived from the sovereignty of the people. But in Pokol's view, the institutional controls limiting governmental power and built into the constitutional system only advance the "solidifying" of the existing social hierarchy. Regardless of this seemingly innocent theoretical concept, the steadfastly enforced governmental practice involves great dangers. It is not the governing parties' wish to modify the existing constitutional system that is dangerous. Nor is it dangerous that after a short time a party changes its position for the voters will make judgments on the basis of deeds and results anyway. It is also natural if they carry out lesser and/or greater reforms of the Constitution. The real danger exists when the governing party (coalition) tries to do all these things by ignoring the Constitution, the laws in force, and the constitutional legal customs. The adoption of the Westminster model here in the Duna-Tisza region is unthinkable not only because of our different constitutional development, but also because - as it appears from the present Government's endeavors - it is not yet infused in the blood of the possessors of power that it is bad manners to violate constitutional regulations and principles, or, for that matter, established customs. If we want to prevent this, it seems that we will need, for quite some time, institutional guarantees. These include the president with his balancing powers, such as his ability to send statutes back to the Parliament, to refer statutes to the Constitutional Court, or in extreme, carefully circumscribed cases, to even dissolve Parliament. These powers are very different even from those of a half-presidential system like the one in France. Among the soft balances is the constitutionally guaranteed possibility that the ombudsmen can call the attention of those responsible to the "constitutional disorderliness" they observe in the course of their investigations (e.g., as to whether civil rights are respected). The powers of the Constitutional Court, which are significant even when compared to their counterparts elsewhere in Europe, constitute a much greater limitation of governmental power. But the past ten years of political transition have shown that, when legislating, all three of the coalition governments so far had tended to occasionally disregard the provisions of the Constitution. It is true, though, that the Constitutional Court judges sometimes assume the role of making the Constitution, which is not allotted to them. Consider their recent decision with regard to referendums, where they based their argumentation on

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their interpretation of the Constitution: representational democracy takes precedence over direct democracy.2 Back in 1997 the Court came to a decision that was just the opposite.3 It is true, however, that the present interpretation conforms to a 1993 decision.4 A new, detailed Constitution would of course lessen, if not preclude, the freedom of the Constitutional Court in making the Constitution. Despite the fact that the adoption of a new Constitution seemed hopeless, in September 1999 the Government made plans for the formal renewal of the old-yet-new Constitution. In accordance with the bill drafted by the Minister of Justice, the Parliament would have - with a symbolic gesture and without the alteration of the statutory provisions themselves - renumbered Act No. 20 of 1949 as Act No. 1 of 2000.5 Considering the fact that the opposition did not support the idea (which would have needed a two-thirds majority), the Government finally did not present the bill in Parliament. The title of Act No. 20 of 1949 undoubtedly contradicts the content of the Constitution, which is based on the rule of law. The question is whether the title of Act No. 1 of 2000 would have meant a contradiction of another kind with regard to its content, most of which dates from 1989. Would it not have been better to pretend that there was going to be a completely new Constitution - the one promised in the preamble of the 1989 Constitution? This promise of the preamble would have been revoked by the new one they planned, without any promises being fulfilled. The proposed new preamble of the Constitution would have built into the fundamental legal document something that had no normative content. But at the same time this preamble could have become subject to the interpreting activity of the Constitutional Court, as has happened to the "social market economy" phrase of the present preamble. And it is unpredictable what constitutional meaning the Court would have attached to the Holy Crown - as the honored symbol of Hungarian statehood - in relation to the institutional system of the republic. In accordance with the proposal, if Chapter 12 on basic rights had been placed in front of the chapters on state organization, it would have modernized the Constitution even in its structure. As we have seen, this replacement was rejected by the "founding fathers" because they held that this alteration would

2 3 4 5

Decision of the Constitutional Court, 25/1999 (VII. 7.) AB. Decision of the Constitutional Court, 52/1997 (X. 14.) AB. Decision of the Constitutional Court, 2/1993 (I. 22.) AB. A draft by the Minister of Justice (No. 38.835/1999) presented to the Government "On the Constitution of the Hungarian Republic."

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have gone beyond what is considered to be an amendment. As a kind of compromise, certain provisions on basic rights, which are not really subjective rights but rather duties of the state, were included in Chapter 1. Now, of course, with the simple replacement of Chapter 12, the constructional principle applied in 1989 would have disappeared. But the real question regarding the intended but miscarried "new" Constitution was this: what would have happened if the Hungarian Republic had gotten a new Constitution - one that was new not only in its form but also in its content? The proposal on Act No. 1 of 2000 was contradictory, for on the one hand it said that the renumbering of chapters did not mean that the constitutionmaking process had come to an end, but on the other hand it held out the prospect of further "improvements." The latter makes it appear as if by the act of renumbering, the present Government had wanted to "get done with" the composition of a new Constitution. Concurrently with the proposal on the "new" Constitution, the Minister of Justice drafted a bill on the remembrance of the foundation of the state and on the Holy Crown.6 Since this does not require the support of a two-thirds majority, the Government did not repeal this proposal. So at the session on 21 December 1999, the Parliament adopted the proposal, which was "christened" Act No. 1 of 2000. Of course the enactment of the remembrance of the foundation of our state cannot be criticized if we look only at the content of the act. But it is not easy to ignore the memories of the Rakosist "legislation" of the fifties: the enactment of the remembrance of Stalin, for instance. So the present legislation evokes the socialist practice that found statutory regulation suitable for not only the legal establishment of norms, but also for the commemoration of historical events. This act of Parliament prescribes that a Holy Crown Board has to be set up, with the president, the Prime Minister, the Speaker of the House, the President of the Constitutional Court, and the President of the Hungarian Academy of Sciences as its members, which is disputable

A draft by the Minister of Justice (No. 38.562/1999) presented to the Government "On the remembrance of the foundation of the state by St. Stephen and on the Holy Crown." Proposals for the constitutional rehabilitation of the doctrine of the Holy Crown first appeared in the programs of the FKGP and the MDF prior to the 1994 elections, and then in the drafts of the same parties prepared in the course of the making of the Constitution that began in 1995 and later ended in failure. The roots of the doctrine go back to the "ancient rights of man" of St. Stephen's time, that is, to the time when the king was made to acknowledge the privileges of nobility. There were endeavours to render the crown (embodying the supreme power of the state) independent of the king already in the 13th century. From the 14th century on the crown meant the power of the estates as well. Still, the realization of the idea infers a monarchical form of government.

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not only on "aesthetic" grounds but also in terms of constitutionality. It is difficult to understand why the holders of the highest public offices of a republic should be given the duty to "protect and save" the symbol (which was indeed exposed to many dangers over the past centuries) of a monarchy. We can only hope that the potential creators of the Constitution do not want to - even if they could - give up the constitutional order that presupposes the consensus of political forces. After all, this system was, for the most part, fought for and won by them and since then, despite its many deficiencies, has basically stood the test. The preservation of these values is more important than the replacement of the patched-up basic law with a new one (even if, in its title, the current one recalls bad memories), especially if the makers of the new document are led by "revolutionary" or "restorative" motives. In 1996, with the restoration and the second revolution having concentrated their forces, Andras Arato could not help lamenting the alternative to a Constitution that is "rationalized, re-legitimated," but materially identical with the past ten years' political transition and can put an end to the transitional period.7 Arato is undoubtedly right when he says that the unfinished Constitution of the political transition includes a built-in conflict between the Constitutional Court and the Parliament, and between the rule of the law and democracy. This, he says, in the long run makes it possible for any political force that - as a consequence of the faulty election system - gets hold of two-thirds of the parliamentary seats to establish a "constitutional autocracy."8 This "constitutional autocracy" has to be avoided even if this means that we have to tolerate the fa9ade of our fifty-year-old Constitution. For it is more important that ten years ago we accomplished its full revision, which, for the first time in Hungarian history, has created a state that is indeed based on the rule of law. This system has to be protected against efforts like those made to revive the Holy Crown doctrine or eliminate the consensual exercise of power, both of which are hardly compatible with the liberal institution of the rule of law.

7 8

A. Arat6, "Alkotmanyozasi vegjatek" [The End Game of Constitution-Making], Beszelo 12 (1996). Arato, Civil tdrsadalom, forradalom es alkotmdny, [Civil Society, Revolution and Constitution] Budapest: Uj Mandatum (1999) 10.

15 THE REPUBLIC OF BELARUS: THE ROAD FROM THE PAST TO THE PAST Alexander Vashkevich* The Republic of Belarus on the threshold of the new millennium is a unique phenomenon for a country that is located in the heart of Europe and has a history that goes back to ancient times. Belarus is not a member of the Council of Europe, and its Parliament is not elected but appointed. The term of the president's office is probably the longest in the world: seven years and four months. The average monthly earnings in the country are less than 50 us dollars; the old-age pension is about 20 US dollars. Fundamental human rights and freedoms are systematically violated. However, now as six years ago, a considerable part of the Belarusian electorate (35 to 40 percent) supports the President's policies. How did this situation come about, and what prerequisites made it possible?

1

INTRODUCTION

1.1

History

With the exception of a brief period at the end of World War I, Belarus, landlocked between Russia and Poland, had never enjoyed autonomous statehood. When it gained independence it was difficult for the new state to revive myths, legends, and symbols that could have served as factors promoting the emergence of a national identity and as instruments for mobilizing the

The author would like to thank Jeremy McBride from the Birmingham University for his help in preparing this article for publication.

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people to construct and defend their state. A further deficit - the national language being the cardinal element in the specific identity and culture of any country - was that the Belarusian language, after a brief renaissance in the twenties, had been largely displaced by the Russian language. Thus, the Soviet national census of 1989 showed that about twenty percent of ethnic Belarusians considered Russian to be their native language and, according to a sociological survey conducted in 1997, only ten percent of the population now use Belarusian in everyday life.2 This is the lowest level of "language loyalty" among the republics of the former USSR. Visiting Belarusian State University in 1962, Nikita Khrushchev made the mysterious pronouncement: "Belarusians will be the first to reach communism." Khrushchev singled out Belarusians for one reason - none of those he met spoke Belarusian. It seemed to him that he saw people who had "overcome" their national identity.3 During World War II, in the Soviet Union's common struggle against the Nazi invaders, a specifically Soviet identity eventually evolved in Belarus. As a "partisan republic," the country made a highly significant contribution to the victory over Nazi Germany. Yet the perception of a large section of the population was that the Belarusian people contributed not as a nation in their own right, but rather as an integral part of the USSR. From then on, Belarus was considered the most highly "sovietized" republic of the USSR in terms of mentality and self-awareness.4

1.2

Economy

Belarus used to be a kind of shop window demonstrating the success and advantages of socialism in the USSR. The most up-to-date production facilities were placed in Belarus. The equipment imported from the industrial countries was sent to Belarus. Thirty percent of computing devices and twelve percent of radio equipment of the Soviet Union was manufactured in Belarus. The leading automobile factories were located in Belarus. All this industry was created after the war, within the life of practically one generation, and it was supposed to prove the idea of the "rapid development

2 3 4

Belorusskaya Delovaya Gazeta, 19 January 1997. A. Lukashuk, "Yesterday as Tomorrow: Why It Works in Belarus," East European Constitutional Review 1 (Summer 1998) 53-54. H. Timmermann, "Belarus: Eine Diktatur im Herzen Europas?" Berichte des Bundesinstituts fur ostwissenschaftliche und Internationale Studien 10 (1997) 39.

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of the national remote areas under socialism." Many factories on the territory of Belarus (mostly those connected with the military production complex) functioned according to the so-called "union subordination." They reported directly to the authorities in Moscow and their employees received higher salaries, as well as other benefits and bonuses. Another distinguishing feature of Belarusian industry was the fact that it was more closely connected to the economy of the USSR than were the industries of the other republics. By the end of the eighties, about eighty percent of raw materials and energy resources were supplied from other areas of the USSR, and about eighty percent of products manufactured in Belarus were taken out of the republic. Belarus was a kind of assembly shop of the USSR. The level of agricultural production, especially in the Grodno and Brest regions, was one of the highest in the USSR. The per capita meat and dairy production almost reached European standards. Russians and Ukrainians visited Minsk, Grodno or Brest as they visited Moscow - in order to buy dairy or meat foodstuffs. Thus, the living standard of Belarusians was one of the highest in the USSR. Reforms and democratization were introduced to Belarus from Moscow as a result of Gorbachev's "perestroika." However, society opposed the changes. The majority of the population thought that the transformation of the socialism to which they had become accustomed was forced on them by the activities of certain political forces ("democrats," Gorbachev, "nationalists"). Against the background of the collapsing living standard, people developed a psychological rejection of the process of economic, social, and political renewal.

2

THE 1994 PRESIDENTIAL ELECTIONS

According to the sociological surveys conducted on the eve of the first presidential elections in 1994, about fifty percent of the population of the Republic of Belarus had anti-market, anti-reform, egalitarian views. The Novak Laboratory reported that the population considered the most important tasks for the future president to be the following: 1 Fighting corruption and the mafia 2 Fighting inflation and price increases 3 Establishing order Support for business and entrepreneurship was in twelfth place; guarantees for freedom of speech and the press were in sixteenth place.

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Therefore, in 1994, Belarusians voted for the candidate who promised to restore the efficiency of the old system. Nostalgic conservatism (longing for the Soviet past) became the dominating factor of the public consciousness, because Belarus was the "oldest" country in the CIS; one-fifth of the Belarusian citizens were retired and a considerable part of them were former military officers from all over the USSR who had enjoyed the privilege of choosing their residency after their resignation. This kind of electorate comprised one-third of all voters in the 1994 presidential elections. After the "nomenclatura" establishment led by Prime Minister Kebich virtually ruined the country's economy through mismanagement, and the weak national democratic camp proved unable to come up with any convincing alternative, Lukashenko's hour came. In July 1994, after a furious presidential campaign, full of demagogic populist arguments, he inflicted a devastating defeat on his rival, Kebich, who had started out as the odds-on favorite. One of Lukashenko's recipes for success was without doubt his ability to convince people that he was "one of them" and that he, of all the politicians, was the best able to understand the concerns and wishes of the people. Lukashenko (born 1954) appeared to be flesh of people's flesh, a man among men, and a people's president. He looked, thought, and talked like an average person, appealing to emotions, not logic. He created an image of himself as the people's defender, the first Belarusian president who was sincerely [!] dedicated to shaming the "criminals" who had torn down the USSR, the "lousy flea" entrepreneurs (or "profiteers" - using the Soviet terminology), the hostile West, etc. Lukashenko incited the people against politicians and discredited political institutions (for instance, in 1995, he urged people not to go to the parliamentary elections [sic] saying that there was no use in all those deputies), and portrayed himself as the chosen one, a defender elected not by parties, but by people. Lukashenko is adept at addressing quite accurately the mentality and mood of large sections of the population with his messages. His standard topics are the battle against the "nomenclatura," which he denounces as incompetent and corrupt; depicting himself as the father of the nation who takes his child Belarus - by the hand and shows the right way; implementation of an authoritarian regime that builds up security services in order to impose law and order with an iron will and iron hand; adherence to an etatist-like "market socialism" that narrowly restricts privatization and competition; and gradual re-integration and eventual re-unification with Russia. Lukashenko plays on the desire of Belarusians for a union or even a united state with Russia; this desire is not only a longing for the Soviet past, but is also a wish to materialize the myth

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of the Soviet past, to turn the totalitarian state dogmas that have become part of the Soviet consciousness into the reality of the post-totalitarian world.

3

THE CONSTITUTIONAL COUP OF 1996

Having, as Lukashenko said himself, "tsarist powers" in accordance with the 1994 Constitution, he nevertheless could not feel safe from the threat of losing his authority. The framework of the Constitution was too tight for him, for it demanded that the president's acts conform to the laws adopted by the Supreme Council. Since the Constitutional Court found most of Lukashenko's decrees contradicting the Constitution, the threat of impeachment arose. In order to establish the regime of his personal power, Lukashenko used the institution of referendum in the way many dictators did before him. It is necessary to say that this institution was first introduced as early as in 1977, in Article 5 of the Constitution of the USSR, and in 1978, in the Constitution of Belarus. These articles, as well as other standards of the socialist constitutions had been "sleepers" until it became necessary to hold a referendum on the issue of the preservation of the Soviet Union in 1991. Then the laws on referendum were hastily developed. In the late eighties and early nineties employing the institutions of direct democracy seemed only natural, so the regulations on referendum passed smoothly into the text of the 1994 Constitution. Lukashenko held the first of his referendums in May 1995 and won an impressive victory. Eighty-three percent of voters agreed that Russian should enjoy "equal status" with Belarusian as a state language (in fact, after decades of severe russification, Russian is much more widely used than Belarusian); 82 percent voted for "closer economic integration" with Russia; 75 percent voted for the return of the communist-era state flag and state emblem; and 77 percent approved the right of the president to dissolve Parliament if it violated the Constitution. In November 1996, the amended Constitution was approved by means of another referendum. The amended Constitution gave the president unlimited authority, eliminated the separation of powers, and prolonged the term of the president's office from July 1999 to November 2001. Gross violations of legislation were committed during the referendum. On 4 November 1996, the Constitutional Court of the Republic of Belarus held that amendments to the Constitution could not be introduced by a referendum. Despite the fact that the decision was final and not subject to appeal, Lukashenko simply disregarded it.

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Voters could not have known what they were voting for. No text of the final version of the draft Constitution proposed by the President was available until November 12, i.e., three days after pre-referendum voting had begun. The draft Constitution proposed by the Supreme Soviet, which was to serve as an alternative to the draft of the President, was published first on November 21, thirteen days after voting had started. Legally elected opposition members of local election committees were dismissed and replaced with those loyal to the President. The ballots were printed by the presidential administration, not by the Central Election Commission, and the Commission was never informed how many had been printed. Lukashenko illegally dismissed the Chairman of the Commission, Viktor Gonchar. The voting process was utterly disorganized. Some twenty-five percent of all the votes were cast in advance of the announced voting period. By law, only those individuals able to prove that they would be outside Belarus on the day of the referendum should have been allowed to vote in advance. The Government, however, encouraged all people to participate in advance voting. Local administrations and enterprises put pressure on individuals to use the advance voting option to vote for the President's draft Constitution. Numerous irregularities were reported both in the advance-voting procedure and in the actual election of November 24. Ballot boxes were not sealed and ballots were not always put into the boxes, the voting hours were not observed, no identification was required from voters, multiple voting was commonplace, voter lists were incomplete, members of election committees "assisted" voters in voting "correctly," propaganda material for the presidential Constitution was distributed at polling stations and was even placed in polling booths, and at many stations the booths themselves were missing and thus no secret voting was possible. Moreover, the testimony of numerous individuals added weight to suspicions that the voting results had been manipulated. The same ballot boxes were used both during advance voting and in the November 24 poll, without the boxes having been emptied between the events, making it impossible to check their contents. Furthermore, unused ballots were cancelled after the election without having been counted. Observers and members of the political opposition were in many cases denied access to polling stations and were given no information, for instance,

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about the number of ballots allocated for the specific polling stations or the results of the referendum and elections.5

4

THE AMENDED CONSTITUTION AND LEGAL STATUS OF THE BRANCHES OF POWER

4.1

The Status of the President in Accordance with the Amended Constitution

4.1.1 The Status of the President The 1996 amended Constitution embodied Lukashenko's dream of an ideal government structure. This ideal structure can be depicted as a mighty tree symbolizing the "trunk" of the presidential power with three "independent" branches, which of course depend on the trunk that feeds them. Article 79 of the amended Constitution defines the legal status of the president in the following way: The President of the Republic of Belarus shall be the Head of State and the guarantor of the Constitution of the Republic of Belarus and the rights and liberties of man and citizen. The President shall personify the unity of the nation, the implementation of the main guidelines of domestic and foreign policy, and shall represent the State in relations with other states and international organizations. The President shall provide the protection of the sovereignty of the Republic of Belarus and its national security and territorial integrity, shall ensure its political and economic stability, and the continuity and interaction of bodies of state power, and shall intermediate among the bodies of state power. The President shall enjoy immunity, and his honor and dignity shall be protected by the law. Whereas the functions of the head of the state and the executive power used to be exercised by the president, now the executive power is nominally con-

5

The International Helsinki Federation Report, Vienna: International Helsinki Federation Report (1998).

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trolled by the government, which is headed by the prime minister (see the next section). 4.1.2 The Powers of the President The power of the president is in practice unlimited. He appoints and dismisses representatives of all branches of power, including the government, all judges, the procurator general, the head of the State Control Committee, the chairperson and members of the Board of the National Bank, the chairperson and the majority of members of the Central Commission on Election and National Referenda, heads of local executive and administrative bodies and "other officials whose offices are determined by the law." He is the head of the Security Council of the Republic of Belarus and commander in chief of the armed forces. He has the authority to call national referenda and to declare them obligatory or consultative, to call regular and extraordinary elections of both chambers of Parliament as well as of local representative bodies, and to dissolve the Parliament. Moreover, the extensive list of his powers can be supplemented and expanded by means of adopting a law (Art. 84 of the amended Constitution). 4.1.3 Premature Termination of the Powers of the President The amended Constitution has considerably complicated the procedure to prematurely terminate the powers of the president. A group of no less than seventy deputies used to be entitled to initiate the impeachment process (Parliament consisted of two hundred and sixty members). If the Constitutional Court ruled that the president had violated the Constitution, the president could be removed from office by a majority of no less than two-thirds of the elected deputies of the Supreme Council. Now Article 88 of the amended Constitution provides for two grounds to prematurely terminate the president's powers: The President of the Republic of Belarus may be prematurely removed from office where he is persistently incapable of discharging his duties because of the state of his health. The issue of removing the President shall be taken by a resolution of the House of Representatives adopted by a majority of no less than two-thirds of the elected deputies as determined by the Constitution and a majority of no less than two-thirds of the full composition as determined by the Constitution of the Council of the Republic on the basis of the findings of an ad hoc Commission formed by the Chambers of the Parliament.

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The President may be removed from office for acts of state treason and other grave crimes. The decision to file a charge against the President shall be supported by a majority of the whole House of Representatives on behalf of no less than one-third of the number of deputies. The Council of the Republic shall exercise the investigation of the charge. The President shall be deemed to be removed from office if the decision is adopted by no less than two-thirds of the full composition of the Council of the Republic, and no less than two-thirds of the full House of Representatives. The failure of the Council of the Republic and House of Representatives to make a decision to remove the President from office within a month of the initiation of the process shall make the motion invalid. The motion to remove the President from office may not be initiated in accordance with the provision of the Constitution in the course of hearings on the premature termination of the powers of Parliament. Where the President is removed in connection with the commission of a crime, the Supreme Court shall examine the case on the merits of the charge.

The implementation of such a complicated procedure within a period of one month, as it is stipulated by the amended Constitution, is virtually impossible. 4.1.4 Acts of the President The president is entitled to issue three kinds of acts: 1 Edicts 2 Decrees 3 Instructions In accordance with Article 85 of the amended Constitution, all of them have binding force on the territory of the Republic of Belarus. Granting to the president the right to issue edicts having the strength of law was a radical change introduced by the amended 1996 Constitution that led to the complete destruction of the system of separation of powers. That norm reflected the actual practice that took shape in 1994-1995 when Lukashenko used his decrees in order to suspend a number of laws or change their contents. The president's edicts that have the force of law are divided into two categories. The first is regulated by Article 101 (1) and (2) of the amended Constitution. In accordance with these regulations, on the proposal of the president, the House of Representatives and Council of the Republic may adopt a law supported by a majority of the full composition of both chambers delegating to him the legislative powers to issue edicts that have the force of law. The latter shall determine the subject of the issue and the term of the powers of the president to issue such edicts.

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There shall be no delegation of powers to the president to issue edicts that provide alteration and addenda to the Constitution and its interpretation; alteration and addenda of policy laws; the approval of the national budget and an account of its implementation; alterations with regard to the election of the president and Parliament; or limitation of constitutional rights and liberties of the citizens. The law on delegating powers to the president shall not permit him alteration of the said law, nor shall it permit him to adopt regulations that are retroactive. No such edicts have been adopted within the four years that the amended Constitution has been in effect. The second category of edicts that have the force of law is regulated by Article 101 (3) of the amended Constitution, which reads, In case of specific necessity and urgency, the President may personally initiate or, at the proposal of the Government, may issue temporary edicts that have the force of law. If such edicts are issued on the initiative of the Government, they shall be signed by the Prime Minister. Temporary edicts shall be submitted for further approval within three days of their adoption to the House of Representatives, and then to the Council of the Republic. These edicts shall be valid if they are not rejected by a majority of no less than two-thirds of votes of the full composition of both chambers. The chambers may regulate through legislation issues that have emerged due to decrees that have been abolished.

Despite the fact that the Constitution directly indicates that "specific necessity and urgency" is necessary in order to issue temporary edicts, none of over seventy edicts issued by Lukashenko contained reasons that justified the necessity of their issuance. It is only natural that during three and a half years Parliament has never tried to collect the votes necessary in order to reject temporary edicts. Sometimes six to nine months pass before it begins to discuss them. The usual decision in such cases is "to take into account." In defiance of the Constitution, these edicts restrict the fundamental rights and freedoms of citizens.6

6

For instance, see "The Control Over the Bar," below.

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The Status of Parliament in Accordance with the Amended Constitution

4.2.1 Structure and Term In accordance with the provisions of Article 143 of the amended Constitution, the president issued a decree on 27 November 1996 that confirmed the list of members of the lower chamber of the new Parliament - the House of Representatives.7 The list was composed of those former deputies of the Supreme Council of the Republic of Belarus who confirmed in writing their complete loyalty and support for the amended Constitution. A new era in the development of Belarusian parliamentarianism began. In exchange for a one-chamber Supreme Council consisting of 260 deputies, a two-chamber Parliament was established. The House of Representatives consists of 110 deputies who are elected according to a majority system of two successive ballots. In accordance with the idea of the founders of the amended Constitution, the Council of the Republic should serve as the chamber of territorial representation. It comprises sixty-four members, of whom the president appoints eight, and the deputies of regional and Minsk city councils (eight by each council) elect the rest, i.e., they are elected by indirect vote. While under the 1994 Constitution the term of Parliament was five years and it kept its powers until the first session of the Supreme Council of the new convocation, now, in accordance with Article 93 of the amended Constitution, the term of Parliament is four years and can be prolonged by legislation only in case of war. (The term of office of the president is five years, but it is over only "from the moment the newly elected president takes the oath.") The establishment of a two-chamber Parliament has considerably decreased the efficiency of the representative branch, for it takes more time and effort to pass draft laws and various decisions. Furthermore, Article 95 of the amended Constitution strictly regulates the terms and duration of the Chambers' sessions: the first session begins on September 2 and cannot last longer than eighty days; the second session begins on April 2 and cannot last longer than ninety days (Art. 28 of the French Constitution is reproduced here almost word for word). Thus, Parliament can work a maximum of 170 days, i.e., less than six months per year. It has to be admitted that special sessions are allowed "in case of absolute necessity," but they are to be convoked by the decrees of the president, i.e., only with the president's consent.

7

Zyazda, 29 November 1996.

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Moreover, a session of a chamber is considered competent if no less than two-thirds of all the deputies of the House of Representatives or members of the Council of the Republic are present. Taking into consideration the fact that some deputies are usually away on temporary duty or just ill, it is obvious that any session of Parliament can be disrupted if necessary by ordering the president's supporters not to show up. The weakness of Parliament is emphasized by the right of the president to dissolve the House of Representatives on a number of grounds listed in Article 94 of the amended Constitution: a) If no confidence is expressed to the government b) If a non-confidence vote is expressed to the government c) If the House fails twice to give its consent for the appointment of the prime minister In case of systematic or gross violation of the Constitution (in accordance with the ruling of the Constitutional Court), the powers of the House of Representatives, as well as those of the Council of the Republic may be prematurely terminated. Moreover, in accordance with Article 93 of the amended Constitution, with the termination of the powers of the House of Representatives or the Council of the Republic, the president is entitled to terminate the powers of the other chamber as well. 4.2.2 Powers of Parliament The amended Constitution substantially reduced the powers of Parliament. This can be shown by examining the way the Belarusian Parliament exercises the powers that are characteristic of higher representative bodies all over the world. 4.2.2.1 Adopting the Constitution and Laws The right to adopt and amend the Constitution, which Parliament had enjoyed before, was substantially limited by the amended Constitution. In order to amend the basic sections of the Constitution devoted to the principles of the constitutional system, the legal status of an individual, the higher bodies of the government, or the procedure for amending the Constitution, it is necessary to hold a referendum, which can be initiated only with the president's consent (Art. 140 of the Constitution). In accordance with Article 35 of the law On Plebiscite (Referendum), the president also determines the legal force of the decision taken by a referendum.8

8

Vedomosti Natsionalnogo Sobraniya Respubliki Belarus, 1999, No. 30, art. 437.

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In accordance with Article 99 of the amended Constitution, the right of legislative initiative belongs to the following: 1 2 3 4 5

The president The deputies of the House of Representatives The Council of the Republic The Government Citizens who are eligible to vote, in a number of no less than 50,000

As for the people's initiative, the law determining the procedure for its implementation has not been developed yet. It makes the respective norm of the Constitution lifeless (as was the law on the procedure of appeal against unlawful actions of officials that was provided by the 1977 Constitution of the USSR and developed eleven years after the Constitution was adopted). The right of the deputies' initiative is completely blocked by Article 99 (2) of the Constitution: "Draft laws, the adoption of which may reduce state resources or increase expenditures, may be introduced in the House of Representatives only with the consent of the president or on his assignment by the Government." Any draft law will always involve expenditures at least of the paper on which it is printed - therefore, no laws can be adopted without the president's consent. On 4 March 1998, the president issued Decree No. 99, On Some Issues of Drafting Activities in the Republic of Belarus.9 In accordance with paragraph 2 of the decree, laws must be adopted only in cases "when relations cannot be regulated by other normative and legal acts."10 In accordance with paragraph 3 of the decree, a draft law introduced to the House of Representatives must have the following documents enclosed: a conclusion of the president's National Center for Legislative Activities; the president's consent to the introduction of the draft law in cases when the adoption of the draft law may reduce state resources, create or increase expenditures; and a document confirming that a copy of the draft law and the enclosed documents has been sent to the president. A draft law introduced without such documents may be discussed in accordance with the decision of the president. Paragraph 7 of the decree contains an instruction to the House of Representatives to inform the president of the Republic of Belarus on a monthly basis about any draft laws introduced to the National Assembly of the Republic of Belarus for discussion and about the course of their discussion and to send

9 10

Zvyazda, 5 March 1998. Zvyazda, 5 March 1999,

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a draft law to the president of the Republic of Belarus for information no less than ten days before the adoption of this draft law as a whole. If by any chance a norm is adopted and the president does not agree to it, the president can use his veto. Theoretically, a qualified majority (two-thirds) of all members of both of the chambers can override it. In practice, during the four-year work of the new Parliament there has not been a single example of an overridden veto, though the veto has been used dozens of times. Moreover, a law that is sent to the president within the last two weeks of the session of Parliament in order to be signed "shall not be deemed to have been signed and shall be invalid if it fails to be returned to Parliament due to the end of the session."11 In order for the picture to be complete, it is also necessary to mention the special privileges of the president regarding the process of the adoption of laws. The president is entitled: a) to declare a draft law urgent, and in this case both of the chambers must consider the draft law within ten days; b) to demand that decisions are voted in general for the whole draft law or for the part of it that was forwarded by the president or government, preserving only those amendments that were forwarded or accepted by the president or government.12 A law declared urgent is considered to be confirmed by the upper chamber if it is not discussed within ten days. During the session of Parliament, the president, his representatives, the prime minister and members of the government have the right to "address the sessions out of turn as many times as they deem it necessary."13 On 23 January 1999, an event occurred that had hardly ever happened in world parliamentary practice. On that day, a law was passed entitled On Amnesty for Some Categories of Persons Who Committed Crimes, which consisted of twenty-seven articles.14 The last paragraph of Article 27 was printed in bold face and read that the amnesty did not include those persons who had committed an acquisitive crime and did not recover losses in full (which was at variance with the content of the law). The note read that "the present paragraph was included by the president of the Republic of Belarus at the moment of signing the law." That created a precedent of introducing amendments into the language of a

11 Constitution of 12 Constitution of 13 Constitution of 14 Respublika, 23

the Republic of Belarus, Art. 100. the Republic of Belarus, Art. 99. the Republic of Belarus, Art. 103. January 1999.

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law that was confirmed by Parliament and sent to the president in order to be signed. Parliament did not object, and some months later the amendments in question were introduced into the law by means of the parliamentary procedure. 4.2.2.2 The Controlling Functions of Parliament The controlling functions of Parliament were substantially reduced in comparison to the legislation that had been in force before. The very term "control" as applied to the activities of the chambers and their standing commissions vanished from the Constitution, which out of all controlling functions of the deputies mentions only the right of inquiry to the prime minister, members of the government, and the heads of state bodies that were formed or elected by Parliament, and the right to ask the members of the government questions once a month.15 While under the 1994 Constitution the Supreme Council established a Control Chamber in order to monitor the implementation of the national budget and the use of public property; now similar functions are performed by the State Control Committee established by the president. 4.2.2.3 The Financial Powers of Parliament The House of Representatives nominally adopts laws confirming the budget and the report on its implementation, as well as imposes taxes and duties. However, the president employs his authority in order to impose new taxes and change the laws that regulate taxation. Thus, on 23 April 1999 he issued an edict On Imposing a Tax on the Profits Derived from Lottery Activities16 and on 13 July 1999 an edict On Imposing a Unified Tax for All Agriculture Manufacturers.17 The country's budget is amended not even by edicts but by decrees, which are not discussed by the House of Representatives. Thus, on 16 September 1999 he issued a decree On Adjusting the Parameters of the Budget of the Republic of Belarus for the Year of 1999.18 Besides, the citizens who participated in the 1996 referendum "did not agree" that all the branches of power must be financed only from the state budget. Therefore, "legally" there exist special presidential funds, the details of which are classified information. Thus, the Belarusian Parliament is a body that completely depends on the president, does not possess considerable supervisory powers, and is called upon

15 16 17 18

Constitution of the Republic of Belarus, Art. 103. The National Register of the Legal Acts of the Republic of Belarus, 1999, No. 33, No. 1/289. The National Register of the Legal Acts of the Republic of Belarus, 1999, No. 54, No. 1/481. The National Register of the Legal Acts of the Republic of Belarus, 1999, No. 72, No. 1/650.

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only to nominally confirm legislation that is drafted in the heart of the presidential administration. As was written by one of the American experts who analyzed the draft of the amended Constitution, the government structure of Belarus is "a framework more akin to a Caesar-like or Tsarist government than to a republican government."19

4.3

The Status of the Government in Accordance with the Amended Constitution

Despite the fact that, in accordance with the amended Constitution, the government had its powers extended and now nominally heads the executive branch of the country, in practice, it is not an independent player on the political scene but is completely dependent on the President and the President's Administration. In accordance with Article 106 of the amended Constitution, the government reports to the president, and it is responsible to Parliament. The Prime Minister is appointed by the president and confirmed by the lower chamber of Parliament. If the House of Representatives rejects the candidate twice, the president is entitled to appoint the acting prime minister on his own, dissolve the House of Representatives, and call new elections. The president is also entitled to call for the resignation of the government on his own initiative and to appoint and dismiss any member of the government. Addressing the National Assembly with his annual message on 11 April 2000, Lukashenko said that his message is "an instruction that must be implemented on every level of power and administration." He made it clear that the Government does not have the right to make any independent decisions, but instead must fulfill the policy developed by the president.

4.4

The Status of the Judiciary in Accordance with the Amended Constitution

4.4.1 Courts of General Jurisdiction .. .Analyzing the situation, we saw that in almost fifty percent of cases courts used to rule in favor of offenders. Therefore, I have introduced respective accounts of

19 Analysis of the Draft Constitution of the Republic of Belarus with Alterations and Amendments, Washington, D.C. (1996).

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all structures. I am regularly given reports on smuggling prevented on the territory of our state and on some decisions on this or that case, these or those goods - a court takes consignments of goods. As soon as we took control of the situation, rulings in favor of offenders went down from fifty percent to between ten and fifteen percent. We have been carefully watching the rulings judges made when the tax agency went to court. We will make the final analysis, and if there are unsatisfactory rulings (ones not in favor of the state) we will take respective measures according to the legislation. How is it possible that many of the judges of the capital did not appear in the media or labor collectives last year? I seriously warn the Minister of Justice and the heads of courts about their personal responsibility for the state of affairs in this area.20

The implementation of the amended Constitution in November 1996 became a breaking point in the development of the Belarusian judiciary. It changed the procedure for forming the superior courts. While the 1994 Constitution provided for the parliamentary election of the judges of the Constitutional Court, the Supreme Court, and the Supreme Economic Court, now half of the judges of the Constitutional Court and all the judges of the Supreme Court and the Supreme Economic Court are appointed and dismissed by the president. Judges of all the other courts, as well as chairpersons and deputy chairpersons of district, city, regional, high and economic courts are appointed and dismissed by presidential decrees. He also determines the numerical strength of all courts, as well as the personnel of the presidiums of district courts, the Minsk City Court, the Supreme Court, and other courts. The purge of the top judiciary echelon began on November 27 and lasted several months on the basis of Article 146 of the amended Constitution, which read, "Within two months from the day this Constitution is put in force, the president, Parliament, and government shall form the bodies indicated in it in accordance with the procedure established by this Constitution." The administration of the president started preparing documents in order to "re-confirm" judges, many of whom had been elected for life. (In accordance with the law On the Judicial System and the Status of Judges in the Republic of Belarus, judges are appointed and fulfill their duties without time limit with the exception of those who are appointed judges for the first time and eligible for re-appointment after a five-year term of office.)

20 From the speech of Lukashenko on 5 December 1997. The First Congress of Judges of the Republic of Belarus: Documents and Materials, Minsk (1998) 20-22, 38, 41.

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Some judges resigned without waiting for the president's decision. Others were advised to do the same. The majority went through the humiliating process of weary waiting ("Will I be appointed or not?") and were "re-appointed" to their offices. Another powerful instrument that the president employs in order to exert influence upon judges is financial support. The salaries of Belarusian judges never exceeded 100-150 US dollars, in great contrast even to the income of their more fortunate Russian colleagues, to say nothing of the salaries of the Lithuanian or Polish judges. That is why they appreciated the judicial system regulation that guaranteed free housing to those judges who were in need of housing or improvement in their housing conditions. On 9 September 1997, the president issued an edict that was simply titled On Some Measures of Regulating the Material and Social Support for the State Employees and Persons Ranked with Them.21 In accordance with the edict, judges and officers of the public prosecutor's office who were in need of improved housing were provided with an official dwelling. Under the housing legislation, an official dwelling has a special status and is granted to citizens in accordance with the nature of their job. It is important to note that according to the Housing Code of the Republic of Belarus, "employees who terminate their labor relations with the organizations that provided them with dwelling...are subject to eviction from the dwelling together with the other tenants without providing them with another dwelling."22 The most interesting thing about that was that once again, despite the constitutional prohibition, the regulation on providing official dwellings had retroactive effect! Judges who resided in dwellings that they had obtained several years earlier and had not privatized found themselves in jeopardy of losing their homes in case of dismissal from office. As of the end of 1999, 146 judges were in need of improved housing. The Administrative Department of the president provides housing for the judges of high courts; the local governing bodies provide for all other judges. The practice that had been considered routine during the years of the communist regime was restored in Belarus: before being appointed judge, the candidate must go through the process of the so-called "approval" by the chief of the local "presidential vertical." If for any reason he or she does not suit the local authorities, he or she is not proposed as a candidate for an office. As it was in the Soviet times, no normative or legal act stipulates such a

21 22

Collection of Edicts, Decrees of the President and the Resolutions of the Government of the Republic of Belarus, 1997, No. 25, art. 842. Vedomosti Natsionalnogo Sobraniya Respubliki Belarus, 1999, No. 15, art. 318.

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procedure. The confirmation of the Security Council of the Republic of Belarus - an agency which selects the staff of and supervises all the power structures and special services - is also necessary. As for the decision of the commission established to determine the judges' qualifications, it is considered a recommendation, and is not obligatory. Dismissing a judge is the president's exclusive prerogative. That is why, answering a journalist's question about Lukashenko's relations with the judiciary, the president said, "Things are simpler here because according to the Constitution it is presidential. Yes, the independence of courts is declared, but judges are appointed and dismissed by the president. Therefore, it is easier for the president to implement his policy through the judiciary."23 Note that the president also determines the qualification classes of judges (these classes determine the salary scale). Every month, the heads of justice departments, together with chairpersons of courts, distribute bonuses in the amount of fifty percent of a judge's salary. Thus, the executive branch determines a considerable part of a judge's income. Another sign of the Soviet epoch is back - the so-called "telephone law." Y. Sushkov, Leninsky District Judge of the City of Bobruisk, who is seeking political asylum in Germany, told about the practice of tampering with judges when local governing bodies were interested in decisions in certain cases.24 Interestingly, the offices of those judges who hear administrative offense cases are sometimes located directly in the police stations to where those detained during opposition rallies are taken. The president's Decree No. 32 of 18 January 1999 is also evidence of the "independence" of judges. According to it, the chairpersons of the Supreme Court and the Constitutional Court, as well as their deputies, must annually undergo a thorough medical checkup in the health clinics of the Administrative Department of the president. The president determines the term of a checkup, and those who fail to do it on time...are brought to disciplinary responsibility.25 Thus, strict dependence of judges and courts on the president and the local presidential "vertical" has been established in the country. The judicial branch has lost a considerable part of its independence. Ignoring the provisions of the Constitution and legislation, the courts have become obedient executors of the directives of the executive branch. Total control over the judiciary is an important factor that allows the regime to keep its power and repress its political opponents.

23 24 25

Sovetskaya Belorussiya, 12 July 1996. Narodnaya Volya, 2 February 1999. The National Register of the Legal Acts of the Republic of Belarus, 1999, No. 1/41.

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4.4.2 The Status of the Constitutional Court after the 1996 Referendum The activity of the Constitutional Court, which by November 1996 ruled unconstitutional almost twenty of the president's acts, irritated him beyond all measure. Besides, in accordance with the 1994 Constitution, all the members of the Constitutional Court were elected by Parliament, while the Court itself was built into the mechanism of the impeachment process. In accordance with Article 104 of the Constitution, the issue of the dismissal of the president could be brought up by a motion of no less than seventy Supreme Council deputies in case the president violated the Constitution. The decision of whether the president violated the Constitution had to be made by the Constitutional Court, and, in accordance with Article 6 of the law On the Constitutional Court, the examination of that issue could not be dismissed on the initiative of the Court. From the moment such a decision was taken, the president would not be able to perform his duties until the Supreme Council made a final decision on the impeachment. In order to make the decision, at least two-thirds of the elected Supreme Council deputies had to vote for it. That is why the amendments introduced as a result of the referendum regarding the legal status of the Court were aimed at limiting the activity and independence of the Court, at placing it in strict dependency on the executive branch, and at eliminating any possibility of initiating an impeachment process. The amended Constitution, as well as the new version of the law On the Constitutional Court adopted on the basis of the amended Constitution, changed the status of the Court and its members in a drastic way. A whole chapter on the legal status of the Constitutional Court disappeared from the Constitution. In exchange for eight articles, the adapted Constitution had only one article, which was placed at the end of chapter 6, "Court." (It is interesting that in the official edition of the Constitution, Section IV is called "The president, Legislature, Government, and court," where all the words begin with capital letters except for "court.") While previously all of the members of the Court were elected by Parliament, now, in accordance with Article 116 (3) of the Constitution of the Republic of Belarus, six judges are appointed by the president, and six judges are elected by the upper chamber of Parliament (the Council of the Republic). Despite the explicit constitutional requirement to elect six judges, in practice no elections were held. No alternative candidates were proposed and discussed during the session at which the judges were confirmed. The following detail is curious: the Regulations on the Council of the Republic (which have not been published officially) contain a provision in accordance with which candidates for Constitutional Court judges can be proposed for discussion by the upper

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chamber of Parliament only by the chairperson of the Constitutional Court (who is appointed by the president). In other words, there is no possibility of appointing judges who are for some reason undesirable to the president. The upper age limit for the Court members was increased to seventy years, and they, as a rule, should have an academic degree in the area of law (Art. 116 of the Constitution). The Constitution does not indicate who must make the decision to appoint a person who does not have such a degree to be a judge. The amended Constitution and the law On the Constitutional Court decreased the guarantees of the independence of judges. Now, the powers of judges can be suspended and they can be arrested or brought to criminal responsibility with the consent of the president. The president is entitled to dismiss at any time the chairperson of the Constitutional Court or any judge (including those not appointed by the president) in cases provided for by Article 18 of the law On the Constitutional Court. The financial guarantees of the independence of the judiciary also decreased. The salaries of the judges of the Constitutional Court were equated not to the salary of the Vice-Speaker, as it had been before, but to the salaries of the judges of the courts of general jurisdiction. The list of those who are entitled to initiate the examination of a case by the Constitutional Court was changed so that those who were the most active in 1994-1996 were excluded. The Constitutional Court was deprived of its right to instigate proceedings on its own initiative. Now the following have the right to initiate an examination: the president, both of the chambers of Parliament, the Supreme Court and the Supreme Economic Court (appointed by the president), and the Council of Ministers of the Republic of Belarus (the prime minister is appointed by the president and approved by the upper chamber of Parliament, the other members of the government are appointed by the president). The practice of the Court during 1997-2000 showed that the only real initiator was the president. The provision allowing the Constitutional Court to rule that the president violated the Constitution disappeared from the Constitution. Instead, there appeared a provision about the necessity to produce on the motion of the president a ruling regarding "the presence of the facts of systematic or gross violation of the Constitution by the chambers of Parliament." In accordance with Article 94 of the Constitution, such a ruling can lead to the premature termination of the powers of the respective chamber by the president's decision. The Constitution no longer contains a provision ensuring that the rulings of the Constitutional Court are final and not subject to appeal, nor does it contain a norm in accordance with which any direct or indirect influence upon

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the Constitutional Court or its members that is related to its constitutional oversight activities is not allowed and entails liability under the law. Thus, the amendments introduced after the 1996 referendum regarding constitutional oversight limit the guarantees of the independence of judges and make the Constitutional Court and its members dependent upon the will of one person. The role of the Constitutional Court in the legal system of the state has considerably decreased. Despite the cases of overt infringement of the amended Constitution contained in the president's acts, none of them was abolished or even examined by the Constitutional Court during more than three years of its activities under the new conditions. The same can be said about the decisions of the Parliament created by Lukashenko. The Court examined only one of them. Taking into consideration the present status of the Court, as well as the fact that all the supreme bodies of the state have been formed either by Lukashenko himself or in co-operation with him, it is possible to agree with the opinion of the Belarusian scientists and journalists: the Constitutional Court has actually been converted into a decorative body disguising the lack of real separation of powers and the lack of checks and balances in the state mechanism of the Republic of Belarus.

5

THE REGULATION OF ALL OF THE AREAS OF LIFE AND ESTABLISHMENT OF TOTAL CONTROL

5.1

The Ideology Who controls the past controls the future, who controls the present controls the past.26

Belarusian society is impregnated with total ideological control. The first to come under tough pressure was Belarusian historical science, which had experienced genuine renaissance in the early nineties. The Belarusian government under President Lukashenko attempted to reinstate the Soviet-era history textbooks and prevent a new book written by alternative historians from reaching classrooms or lecture halls. The obvious aim of this exercise was to promote an ideology that stresses the unity of Belarusian and Russian peoples.

26

G. Orwell, 1984.

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In 1995, the Government created a Commission for the Preparation of New Humanities and Social Sciences Textbooks under the Council of Ministers. The Commission's purported goal was to examine and authorize new publications for use in schools and higher education institutions. In practice, however, the Commission performs the role of censor, filtering out politically sensitive historical texts. On 26 March 1999, the State Committee of the Republic of Belarus for the Press and the Ministry of Education issued a joint decree that ordered all publishers to publish educational, scientific, and popular scientific literature in the humanities for schools and higher education institutions only with the permission of the Ministry of Education. Those publishers who ignore the prohibition will be deprived of their publishing licenses. Thus, censorship was actually revived. Since coming to power in 1994, Lukashenko has assumed direct control of the institutional levers of Belarusian state universities. Under the law, university presidents who were elected by the democratic vote of university academic councils in 1991-1994 are now appointed, and they, as well as the President of the National Academy of Science, are subject to dismissal by the decision of Lukashenko. Another area subject to overall control by the state is the mass media. The Belarusian Constitution forbade the monopolization of the media by the state, public associations, or individual citizens, and banned censorship. In practice, however, the state maintains a monopoly on the media and intervenes in its work. The Constitution provides for the equal status of all forms of property and enterprises. In practice, however, the nongovernmental press was definitely subject to economic discrimination. For instance, there was a wide gap in the price lists of printing facilities for the governmental press, on the one hand, and the independent press on the other. Discriminative prices on both subscription and retail trade were established. For nongovernmental mass media, the prices were several times higher than for the state controlled periodicals, which were also regularly subsidized from the budget and presidential funds. Besides, state run enterprises, institutions, and military units are obliged to subscribe to state controlled periodicals. The actual ratio of the governmental nationwide mass media to the independent is approximately ten to one. The only nationwide television and radio channels are the monopoly of the state. Moreover, the state sought to control private radio stations by encouraging them to air entertainment and commercial programs. A forceful propaganda apparatus is brainwashing the public into accepting the official line.

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The freedom of the press has also been restricted. The current law On the Press enumerates six reasons to reject the registration of a periodical. Article 48 states that any form of impediment by individuals, officials, state authorities, and organizations to the lawful work of founders and editorial boards through interfering with their work or abusing the professional independence of editorial boards entails disciplinary, administrative, criminal, and other punishment in accordance with Belarusian legislation.

However, there are no reports of persecution for massive violations of this provision. Article 34 of the Constitution provides for the right to receive, keep, and spread comprehensive, factual, and prompt information about the actions of the state authorities and public associations affecting the political, economic, and cultural life of the country, and about international affairs and environmental issues. However, this right was restricted in practice. The law On the Press, amended again in late 1999, provided for even more stringent registration policies and extrajudicial closure of mass media. The state employed various means to financially ruin the independent press. The amendment to art. 49 of the law On the Press imposed huge fines ranging from one hundred to one thousand times the minimal monthly wage for any violations of the law. To take measures against the press, courts only needed a proposition from the registration authority or a prosecutor. The procedures to close down the media were simplified to the utmost. The Soviet mythology is thoroughly cultivated in the country: the state symbols of the Byelorussian SSR (the state emblem and banner) have been reanimated, the October Revolution Anniversary has regained the status of a state holiday, the Independence Day of Belarus (July 27) was moved to the date of the liberation of Minsk from the Nazi occupation (July 4). All of the official state holidays are celebrated on a grand pro-Soviet scale. At the same time, any attempts at organizing mass processions on the days of historical events (the establishment of the Belarusian People's Republic, the anniversary of the Chernobyl catastrophe) are strictly suppressed by the authorities.

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Finance and Business You don't have to be afraid; I'm afraid myself.27

The economic power in Belarus is also completely concentrated in the hands of the president. The degree of concentration of economic decision-making exceeds the Soviet standards. In fact, about fifty persons closely connected with the president are in charge of up to eighty percent of all the capital of the country. The official budget of Belarus is only one of four sources of financing. The second - exceeding the state budget - is the president's fund. The third is off-budget funds. The fourth is the accounts of those companies (with state and mixed capital) that receive certain privileges from the state in carrying out their activities.28 The non-budgetary sources are not subject to public control. The control over the state budget by Parliament is merely nominal due to the strictly limited powers of this body.29 The character of interaction between governmental power and business is especially representative of the problem. The private economic activity that spontaneously emerged on the crest of the "perestroika" wave was eventually taken under state control. Thus, in 1995, the Ministry of Entrepreneurship and Investments was established in the country. It was supposed to regulate private economic activity and - most importantly - create a social group of business people loyal to the president with the help of various privileges and preferences. Since 1995, the procedure for registering businesses has changed more than once and every time the changes have been increasingly restrictive. For instance, the amount of authorized capital necessary in order to set up a limited liability company nowadays is probably the highest in Europe. Over one hundred kinds of economic activities have to be specially licensed. The Regulations on the State Registration and Liquidation (Termination of Activities) of Businesses, confirmed by Presidential Edict No. 11 of 16 March 1999,30 contains dozens of grounds for the rejection of a business' registration or its liquidation. In most cases this decision is made not by a court, but by the registration agency. Such an administrative approach appeared to be ineffective, and this led to more decisive methods for regulating business. Presidential Edict No. 39, On Some Issues of Remuneration of Labor of Employees whose Employers are Commercial Organizations and Individual

27 28 29 30

From the speech of Lukashenko at a television press conference on publishing Edict No. 40. Y. Romanchuk, "Subsidarchs," Belorusskaya Gazeta, 23 August 1999. See "The Powers of Parliament," above. The National Register of the Legal Acts of the Republic of Belarus, 1999, No. 23, No. 1/41.

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Entrepreneurs,31 orders such employers to use the state wage rates defining the minimal wages for their businesses. This means that businesses must use the state wage rates, ignoring the results of collective bargaining. In accordance with Presidential Edict No. 40, On Some Measures of the Reparation of Damages Caused to the State, in order to ensure the reparation of damages caused to the state, by decision of the President, the property to which the individuals who caused damages to the state or to which the legal entities set up by these individuals had a proprietary right shall be transferred to the Republic of Belarus. The property (its monetary equivalent) may be returned to its previous owners in cases of: complete reparation of damages caused to the state, or a court decision acquitting the person of the charges of causing damages to the state.32

The edict shows that the president has concentrated in his hands the powers of all three branches by assuming the right to determine a person's guilt or innocence in causing damages to the state without waiting for a court decision. Moreover, in accordance with the text of the edict, the value of the property subject to requisitioning does not depend on the amount of damages. In case the person is found innocent, the monetary equivalent of his or her property may be returned without compensation for inflation or emotional distress. The edict has already been applied in practice.33 Thus, Edict No. 40 demonstrates the disregard for fundamental constitutional principles: lawfulness; separation of powers into legislative, executive, and judicial branches; security of property; equality under the law; presumption of innocence; and the supremacy of law (Arts. 2, 6, 7, 8, 13, 21, 26, 44, 59, 60 of the Constitution of the Republic of Belarus).

5.3

Control over Employees

The last social group that remained "unregulated" for a comparatively long time was the group of politically indifferent citizens who worked at major and average state enterprises. Establishing the office of a deputy head in charge of educational work (similar to the Communist Party secretary in charge of ideological work during the Soviet times) eliminated this "inadvertence." These

31 32 33

The National Register of the Legal Acts of the Republic of Belarus, 1999, No. 77, No. 1/702. The National Register of the Legal Acts of the Republic of Belarus, 1999, No. 91, No. 1/795. A. Korzun, "Apropriation a la Lukashenko," Narodnaya Volya, 12 January 2000.

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deputy heads are supposed to interpret the policy of the president during weekly political information meetings and take representatives of labor collectives to demonstrations in support of the state policy, but their main task is to ensure the necessary results of various referendums and elections. The labor collectives were actually subjected to the state structures by Presidential Edict No. 29 of 26 July 1999, On Additional Measures of the Improvement of Labor Relations and Enforcement of Labor Discipline.34 It granted employers the right to conclude contracts with all employees, regardless of the kind of work and position, for a term of no less than one year. If an employee refuses to conclude the contract, his labor contract is terminated. It means that now an employer can conclude a contract for a term of one year and, when it expires, completely legally dismiss a politically unreliable employee without giving any reasons. Thus, any discontent on the part of employees is suppressed, as well as the activities of independent trade unions. In other words, the President's edict has actually established a system of bondage in which employees are dependent on employers who are, in their turn, appointed by the President's Administration.

5.4

Control over the Bar

Even in Soviet times, attorneys were considered more independent from the authorities than were representatives of other juridical professions. In 1990, the Union of Attorneys was created in Belarus, and in six years it united practically all attorneys of the country. Its governing body - the Council - became the representative body of the union's self-government. The superior body of the Union of Attorneys was its Congress, which adopted the rules of professional ethics in 1994. The Union of Attorneys coordinated the activities of its members and private lawyers, organized their professional training, and published various manuals. Its representatives participated in developing criminal code and criminal procedure code, as well as the law On the Bar, which was adopted in 1993.35 Following the initiative of lawyers, the 1994 Constitution ensured the right of any person to legal aid in order to exercise and protect his or her rights and freedoms, including the right to counsel and representation by a lawyer or any other person at any time in court, and in front of other state bodies, local

34 35

The National Register of the Legal Acts of the Republic of Belarus, 1999, No. 58, No. 1/512. Vedomosti Verkhovnogo Soveta Respubliki Belarus, 1993, No. 10, art. 242.

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governing bodies, enterprises, institutions, organizations, NGOs, and in relations with officials and citizens. Any opposition to providing legal aid was prohibited (Art. 62). Interestingly, this article was transferred to the amended Constitution without any changes. The law On the Bar was also in force. However, legal practice was radically changed by the President's edict On Some Measures Toward the Improvement of the Practice of Lawyers and Notaries in the Republic of Belarus.36 Following are the basic changes: The edict determined that from 1 July 1997, only members of the regional and Minsk City bars could engage in legal practice. That meant a ban on private legal practice. Previously, the legislation allowed private legal practice on the condition of becoming a member of a group of lawyers, and also allowed the formation of other private legal organizations (firms, bureaus, offices, or individual practices) (Art. 13). About 300 of 1,400 Belarusian lawyers were not members of the bar.37 The licensing requirements for private practice were changed. In accordance with Article 1.1 of the edict, licenses are issued only after passing a qualification examination given by a commission that is formed by the Ministry of Justice and includes the representatives of state bodies, lawyers, and other specialists in the legal area. (Previously, members of the commission were lawyers, and there used to be only one representative of the Ministry of Justice; now the commission is headed by the deputy minister of justice and includes judges, representatives of state control agencies, the President's Administration, and security services). It is curious that licenses to practice law or to carry out private notarial activities are issued for a term of five years. In order to extend the license after the five-year term, a lawyer must pass a so-called "certification" at the bar to which he or she "belongs" and then apply to the Ministry of Justice. The Ministry of Justice examines the application, taking into consideration "the lawyer's observance of the legislation on legal practice." Despite the constitutional prohibition of retroactive legislation (with the exception of cases when a law abolishes punishment or makes it less severe), Article 3 of the edict contained a provision that annulled all licenses to practice law that had been issued to persons who at the moment of obtaining the license or passing the qualification examination were state employees (the law On the Bar did not contain such restrictions). This

36 37

Collection of Edicts, Decrees of the President and the Resolutions of the Government of the Republic of Belarus, 1997, No. 14, Art. 485. Femida-Nova, 14-20 June 1997.

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provision was aimed against political opponents of Lukashenko, including M. Grib, the former Speaker of Parliament. Interestingly, after Grib fulfilled that condition and passed the qualification examination for the second time, he did not obtain his license anyway. The Minister of Justice did not sign it on the excuse that Grib had participated in a demonstration in support of the 1994 Constitution and was brought to administrative responsibility for that activity.38 Licenses were also not issued to some other lawyers who had previously defended the opponents of the regime in court. The order issued by the Minister of Justice with reference to the provisions of the edict introduced amendments to the Regulations on the Qualification Commission in Charge of the Issues of Bar Practice in the Republic of Belarus. It is enough to cite as an example only two articles from that document: Article 2: The Commission gives a qualification exam and makes a decision on the possibility to issue a license to practice law, on the annulment, suspension, prolongation, renewal, and issuing a duplicate of the license. The Minister of Justice of the Republic of Belarus takes the final decision on the issues related to the Qualification Commission. Article 30: The annulment of a license is carried out by the Minister of Justice of the Republic of Belarus on the proposal of the Presidium of the Bar or following the personal initiative of the Minister in cases of a breach of the bar by-laws, professional ethics of lawyers, the law On the Bar, or other normative acts.39

Is it any wonder that it is increasingly difficult to find those willing to represent opposition figures as defendants in criminal and administrative cases?

5.5

Control over NGOs

In order to establish and maintain control over political parties and NGOs, a number of methods and techniques are employed. First of all, the requirements stipulated by laws and subordinate legislation concerning the registration of parties, trade unions, and NGOs are continuously tightened. For instance, in accordance with the law On Political Parties, no less than five hundred founders were necessary in order to register a party, but Presidential Edict No. 2 of 26 January 1999 established the requirement of one thousand founders; moreover, that requirement also applied to those

38 Narodnaya Volya, 12 July 1997, 9 August 1997. 39 Respublica 243 (1998).

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parties which had been registered before. Instead of the initial minimum of ten founders for an NGO, a new minimum of fifty persons was established; moreover, they have to include residents of Minsk and no less than four regions (out of six) of Belarus. During the last five years, there were two so-called "re-registrations" of political parties and NGOs. An NGO's re-registration could be rejected, for instance, if "within one year before the re-registration, the registering body or other state agencies reprimanded it in writing for the infringement of its charter or the legislation in force." The registering body for political parties and NGOs is the Ministry of Justice; for local NGOs, the local justice departments. Besides, in accordance with Edict No. 2, a special commission for registration (re-registration) of all NGOs was established. This commission is headed by the deputy prime minister of the Republic of Belarus and includes the deputy minister of internal affairs, a representative of the Security Council, the minister of justice, and other top officials. The commission examines the documents of an organization and instructs the Ministry of Justice about which organizations it should register, and which applications it should reject. Formally, the rejection issued by the Ministry of Justice may be appealed in the Supreme Court (and there are such precedents), but in practice, no NGO has ever been able to win such a case. Second, the President's Administration initiates the establishment of the so-called GONGOs, pseudo-independent NGOs that are often financed from the state budget. These organizations are supposed to play the role of the sole representatives of the interests of various groups of the population - the youth, students, entrepreneurs, war veterans, etc. However, these organizations implement the state policy towards such groups rather than represent their interests. For instance, youth organizations of the opposition parties, such as the Molodoi Front (Young Front) and the Maladaya Gramada (Young Union) are persecuted, and at the same time the BPSM, Belorusskyi Patrioticheskyi Soyuz Molodezhy (Belarusian Patriotic Union of Youth), is created on the initiative of Lukashenko. The establishment of the BPSM marked a bold attempt by the president to politically indoctrinate current and future generations of young people into the ranks of his supporters and to actively oppose opposition party youth groups. The BPSM is a state-founded organization that vigorously supports the president and his policies. Officially formed in May 1997, the organization currently boasts some 200,000 members across the country and has official representatives in every region and in almost every state university and school. A BPSM member now sits alongside the admission examination committee in each state university and is able to exert considerable influence on the entrance exam

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committee's decision. BPSM membership is optional, but students in state universities are strongly encouraged to join by the university administrators. Members, who range in age from 14 to 35, are offered a variety of benefits, such as discounts at selected stores, free tickets to discos and - allegedly fast-track entry into state jobs. The scale of state financial support for the organization underscores its political role as a pillar of the regime. In 1998, the BPSM boasted an annual budget from state coffers of approximately one million US dollars, an enormous sum for a country where the average monthly income is about fifty dollars.40 It is necessary to note that the majority system established by the Electoral Code of the Republic of Belarus does not promote the growth of the popularity of political parties that have few members. The independent media has repeatedly reported that the KGB is carrying out a large-scale secret service recruitment campaign among the members of political parties and NGOs and employs a wide range of techniques in order to corrupt and discredit the organizations that oppose the regime.41

5.6

Control over Special Services My fate as a politician is closely related to the KGB.... The officers of special services are the core of Belarusian society.... [T]he KGB is the foundation of strong presidential power.42

Lukashenko has more than once expressed his liking and nostalgia for the governmental system that developed in the USSR, regretted its demolition, and since the first days of his rule tried to restore its most essential elements. Therefore, the role of special services, which lost their influence during the years of late "perestroika," has considerably increased in Belarus. As previously, they are a powerful support for the regime; its essential vitality factor. The KGB (the Committee for State Security), which was the only such agency among the fifteen former Soviet republics to keep its original name, occupies a special place in the structure of Belarusian special services. The

40 41 42

"Republic of Belarus. Violations of Academic Freedom," Human Rights Watch \ 111 (1999) 2124. A. Gruzdilovich, "Secret Plan Against Opposition?" Naviny, 19 March 1999; S. Anisko, "Rolan and Jean Didn't Appear," Belorusskaya Delovaya Gazeta, 19 November 1998. From the speech of Lukashenko at the grand session to commemorate the 79th anniversary of the All-Russian Extraordinary Commission, Belorusskaya Delovaya Gazeta, 23 December 1996.

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80th anniversary of the KGB and the 120th anniversary of F. Dzerzhinski were officially celebrated by the state in 1997. V. Matskevich, the Chairperson of the KGB, declared that "the Belarusian KGB officers will act according to the following motto: Live and work like Dzerzhinski."43 Since 1994, the financing of the special services has drastically increased. While the expenditure on the special services in 1994 was 0.44% of the state budget, in 1995 it was 0.7%; in 1996,0.8%; in 1999, almost 0.9%. The absolute expenditure on the special services in 1998 was more than twice the expenditure on all of the judicial bodies, and nine times more than the Parliament maintenance cost.44 The staff policy implemented by Lukashenko also proves the special status of the KGB. KGB officers hold many top governmental offices. Thus, the minister of foreign affairs is U. Latypov - a career soldier and KGB colonel. V. Gerasimovich, his first deputy, before his appointment to the Ministry of Foreign Affairs worked as the head of the KGB Foreign Intelligence Service. The ambassadors to Iran and Israel are former Deputy Head of the City KGB and the former Chairperson of the KGB, respectively. This list could be continued. The functions of the Belarusian special services are much more extensive than they are in democratic countries. As it was during the Soviet times, the KGB is simultaneously a special service, a law-enforcement agency, and a governmental body. It not only carries out intelligence and counter-intelligence activities, but also combats crime and performs functions that are more exotic. For instance, during a meeting with the President of the Republic of Belarus on 19 January 2000, the Chairperson of the KGB "informed him on the situation in the currency and financial areas, as well as in the area of fuel supplies to the Republic of Belarus." The president in his turn "ordered the KGB to liven up its efforts to protect the consumer market."45 After the 1996 referendum, the authorities stopped concealing the fact that the struggle against political opponents was one of the most important activities of the special services. As the Chairperson of the KGB declared in December 1996, the KGB officers "must not let the opposition implement its structures and destabilize the situation in the country."46 Within the KGB structure, the Constitutional Order Protection Department was restored. During Soviet times, it was called the "Hostile Ideological Sabotage Combat Department" (Fifth

43 V. Karbalevich, "The President's Support," Naviny, 28 August 1998. 44 Vedomosti Natsionalnogo Sobraniya Respubliki Belarus, 1998, No. 1, art. 2; Zvyazda, 30 January 1999. 45 Sovetskaya Belorussiya, 28 August 1998. 46 Belorusskaya Delovaya Gazeta, 23 December 1996.

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Department). The so-called "official warning against the inadmissibility of unlawful actions," which had been abolished as far back as 1986, began to be used again.47 Besides the KGB, there are many other special services in the country. One of the most privileged in its status and financial support is the SBP (the President's Security Service). While in 1991 there were only eight officers working in the KGB department responsible for the security of the top officials of th country,48 by 1997 there were three hundred officers in the SBP.49 After the sudden death of V. Karpenko, the Vice-Speaker of the Supreme Council, and the mysterious disappearances of Y. Zakharenko, the former minister of internal affairs, and V. Gonchar, the former vice-premier (all of whom openly fought against the regime and could have run for the presidency), the independent press reported the presence in the country of top secret special units that can fulfill the shadiest instructions of the country's leadership, including the physical elimination of political opponents.50 It is necessary to emphasize the fact that while before November 1996 Parliament had some formal supervisory functions regarding the special services (for instance, it confirmed the chairperson of the KGB), now they are supervised solely by the president.

6

CONCLUSION

Thus, a strict authoritarian regime has become firmly established in Belarus. In order to become a totalitarian one, it lacks only one thing: money. Needless to say, it would not be able to survive without the help of its eastern "big brother" (according to data made public by the U.S. Congress, in 1996-1997 alone Russian subsidies to Belarus totaled between 1.5 and 2 billion US dollars). Yet, the main reason why an "elected dictatorship" established itself in Belarus but could not do so, for instance, in Poland,51 is rooted in people's minds and hearts. The use of quickly revived fear as one of the main controlling factors shows that this propensity has been genetically encoded over generations. It is no secret that about one-third of the population of Belarus perished during the years of World War n. Not as well known, however, is that one-half

47 48 49 50 51

S. Karpekova, "Will There Appear Lists of Suspects in Belarus?" Izvestiya, 17 April 1998. Belorusskaya Delovaya Gazeta, 9 May 1996. O. Tarasevich, "Who Guards Lukashenko?" Svobodniye Novosti Plus, 17-24 January 1997. Belorusskaya Gazeta, 17 May 1999. See L. Garlicki in Chapter 6.

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of the country's population died during the war against Russia in 1654-1667. Due to its geopolitical situation, Belarus has hundreds of times been merely a territory occupied by stronger neighbors from the East or the West. This has helped to create the tolerance of Belarusians and their habit of humble coexistence with any regime and any authorities. Of course, when the 1994 Constitution was being adopted, it would have been possible to find a more comprehensive wording for the details of the referendum procedure. For instance, a clause entitling the Constitutional Court to define whether a referendum was constitutional or not could have been added, as the author proposed as early as 1990. But in a society where the Constitution is only a "dirty scrap of paper" (V. Ulyanov-Lenin), it is virtually impossible to create a magical wording that could prevent the country from slipping into authoritarianism - it simply would not be observed, as happened with the decision of the Constitutional Court of 4 November 1996.