Prospects for Constitutionalism in Post-Communist Countries (Law in Eastern Europe) (Law in Eastern Europe)

PROSPECTS FOR CONSTITUTIONALISM IN POST-COMMUNIST COUNTRIES LAW IN EASTERN EUROPE A series of publications issued by ...

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PROSPECTS FOR CONSTITUTIONALISM IN POST-COMMUNIST COUNTRIES

LAW IN EASTERN EUROPE A series of publications issued by the Institute of East European Law and Russian Studies Leiden University Faculty of Law General Editor W.B. SIMONS Volume 50

PROSPECTS FOR CONSTITUTIONALISM IN POST-COMMUNIST COUNTRIES

by Levent Gonenc Ankara University, Turkey

MARTINUS NIJHOFF PUBLISHERS THE HAGUE / LONDON / NEW YORK

A C.I.P. Catalogue record for this book is available from the Library of Congress.

ISBN 90-411-1836-5

Published by Kluwer Law International, P.O. Box 85889, 2508 CN The Hague, The Netherlands. Sold and distributed in North, Central and South America by Kluwer Law International, 101 Philip Drive, Norwell, MA 02061, U.S.A. [email protected] In all other countries, sold and distributed by Kluwer Law International, Distribution Centre, P.O. Box 322, 3300 AH Dordrecht, The Netherlands.

Printed on acid-free paper

All Rights Reserved © 2002 Kluwer Law International Kluwer Law International incorporates the publishing programme of Martinus Nijhoff Publishers. No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. Printed in the Netherlands.

VI

To my family and my wife...

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VII

CONTENTS List of Tables

xiii

Acknowledgements

xv

Introduction

1

Chapter 1. Conceptual Framework 1.1. Introduction A Legal Approach to Constitutions A Political Approach to Constitutions Comparative or Case Studies 1.2. Basic Definitions Political System, Regime, Constitution 1.3. Constitutional Stability and Change 1.4. Conclusions

3 4 5 7 8 13 16 24

Chapter 2. Political Culture 2.1. Introduction The Concept of Culture Criticism of the Civic-Culture Approach The Concept of Political Culture Religion and Economics as the Determinants of Political Culture Liberal Democratic Political Culture 2.2. Pre-Communist Political Culture and Constitutionalism Germanic and Slavic Tribal Kingdoms Medieval Constitutionalism in Europe Comparing European Medieval Constitutionalism with Constitutionalism in Russia and the Balkans 2.2.1. First Stage of the First Great Transformation of European Political Culture Renaissance and Reformation The Rise of the Nobility in Eastern Europe Autocracy in Muscovite Russia 2.2.2. Second Stage of the First Great Transformation of European Political Culture Constitutional Models in the Age of the Enlightenment and Their Application in Eastern Europe and Russia Enlightened Absolutism in Habsburg Lands and Russia The Polish Constitution of 1791 The Ages of Napoleon and Conservatism, and Their Impact on Eastern Europe

27 27 28 31 33 34 35 36 37 41 43 44 45 47 49 51 52 53 55

viii

Prospects for Constitutionalism in Post-Communist Countries

2.2.3. The Age of Nationalism The Revolution of 1830 The Revolution of 1848 The Romanian Constitution of 1866 The Bulgarian Constitution of 1879 2.2.4. The Impact of Liberal Constitutionalism in Russia The Russian Constitution of 1906 2.2.5. The Second Great Transformation of European Political Culture 2.2.6. Liberal Democratic Constitutionalism in the Inter-War Years 2.2.7. Conclusions 2.3. Communist Political Culture and Constitutionalism Communist Rejection of the Principle of Separation of Powers Communist Rejection of the Principle of the Rule of Law 2.4. Post-Communist Political Culture and Constitutionalism Popular Support for Democratic Norms and Principles and Conditions of Constitutional Changes within Regimes Post-Communist Political Culture and Post-Communist Constitutions 2.5. Conclusions

57 58 59 61 63 65 67 72 72 77 78 83 84 87 88 .. 97 101

Chapter 3. Constitution-Making 3.1. Introduction Constitution-Making 3.2. Transition to Democracy Revolution or Transition to Democracy Modes of Transition 3.3. Constitution-Making Elite Characteristics of Constitution-Making Constituent or National Assemblies Election of Constitution-Makers Constitution-Making Style Ratification of Constitutions Timing of Constitution-Making 3.4. Transition to Democracy and Constitution-Making in Eastern Europe 3.4.1. Poland The RTT and the Parliamentary Elections of 1989 The Parliamentary Elections of 1991 and the Adoption of the "Little Constitution" of 1992 The Parliamentary Elections of 1993 The Adoption of the Constitution of 1997 3.4.2. Hungary The Resurgence of Civil Society The RTT and the "September Pact" The Parliamentary Elections of 1990 and 1994 3.4.3. Czechoslovakia The Collapse of Communist Regime

103 103 105 105 107 1ll 1ll 113 113 115 118 120 122 125 128 129 131 132 134 134 135 136 138 138

Contents

ix

The RTT and the Parliamentary Elections of 1990 139 The Parliamentary Elections of 1992 and the Break-up of the Federation 141 3.4.4. Bulgaria 143 Transition through Reform 143 The RTT 144 The 1990 Elections to the Constituent Assembly 144 3.4.5. Romania 146 The Collapse of Communist Regime in Romania 147 The Parliamentary Election of 1990 148 The Adoption of the Constitution of 1991 149 3.4.6. Albania 150 The End of Communist Rule 150 The Parliamentary Elections of 1991 and the Adoption of a Provisional Constitution 151 The Referendum of 1994 152 3.5. Conclusions 153 3.6. Transition to Democracy and Constitution-Making in the Former USSR ... 155 3.6.1. USSR 157 3.6.2. The Russian Federation 159 3.6.3. Baltic Republics 164 Estonia 165 Lithuania 169 Latvia 171 3.6.4. Ukraine 173 3.6.5. Transcaucasia 178 Armenia 178 Azerbaijan 182 Georgia 185 3.6.6. Moldova 187 3.6.7. Belarus 190 3.6.8. Central Asia 192 Kazakhstan 193 Kyrgyzstan 198 Tajikistan 202 Turkmenistan 205 Uzbekistan 206 3.7. Conclusions 207

Chapter 4. Effectiveness 4.1. Introduction 4.2. Definition of Effectiveness Functions of Constitutions 4.3. Rights and Liberties in Post-Communist Constitutions Rights, Human Rights, Legal Rights and Constitutional Rights

209 210 211 215 216

x


Liberal and Socialist Conceptions of Human Rights 4.3.1. Civil Liberties An Example: The Right to Life Other Civil Liberties in Post-Communist Constitutions 4.3.2. Political Rights An Example: Freedom of Expression and Right to Information Other Political Rights in Post-Communist Constitutions 4.3.3. Conclusions 4.3.4. Social and Economic Rights 4.3.5. Protection of Rights and Liberties at the National Level Constitutional Review Structure and Authority of Constitutional Courts Constitutional Courts and Other State Agencies Ombudsman 4.3.6. The Gap Between the Constitution on Paper and Reality 4.3.7. International Mechanisms to Protect Individual Liberties 4.3.8. Constitutional Conditions of Effective Demo-Protection 4.4. Executive-Legislative Relations in Post-Communist Constitutions From Communist Constitutional Systems to Post-Communist Constitutional Systems Defining the Types of Liberal Democratic Constitutional Systems Defining Constitutional Powers of Presidents 4.4.1. Post-Communist Pure Presidential Systems: Azerbaijan, Georgia, Tajikistan and Uzbekistan Popular Election of the President Fixed Terms for Both the President and the Assembly The Accountability of the Cabinet to the President Legislative, Appointive and Emergency Powers of Presidents 4.4.2. Post-Communist President-Parliamentary Systems: Armenia, Belarus, Kazakhstan, Kyrgyzstan, Russia, Turkmenistan and Ukraine The Popular Election of the President Fixed Term for the President, No Fixed Term for the Assembly Accountability of the Cabinet Both to the President and the Assembly Legislative, Appointive and Emergency Powers of Presidents 4.4.3. Assessing the Presidential System 4.4.4. Post-Communist Premier-Presidential (Semi-Presidential) Systems: Poland, Romania, Lithuania and Moldova Popular Election of the President Fixed Term for the President, No Fixed Term for the Assembly Cabinet's Accountability to the Assembly Legislative, Appointive and Emergency Powers of Presidents 4.4.5. Assessing the Semi-Presidential System

218 222 223 227 233 234 242 244 245 248 250 252 254 259 261 264 267 269 269 270 276 280 281 282 284 287

291 293 294 297 300 305 308 309 310 312 314 316

Contents

xi

4.4.6. Post-Communist Parliamentary Systems: Albania, Czech Republic, Estonia, Latvia and Hungary 318 The Head of State (President) and the Chief Executive (Prime Minister) are Elected by the Assembly 318 The Cabinet Is Accountable to the Assembly 321 Fixed Term for the President, No Fixed Term for the Cabinet and the Assembly 321 Legislative, Appointive and Emergency Powers of Presidents 324 4.4.7. Post-Communist Parliamentary "with" President Systems: Bulgaria and Slovakia 327 4.4.8. Assessing the Parliamentary System 329 4.4.9. Republic or Monarchy 331 4.4.10. Constitutional Conditions of Effective Demo-Power 333 4.5. Legislature 340 4.6. The Referendum 347 4.7. Functions of Constitutions in Multi-National Political Systems 353 Legal Solutions to Ethno-National Problems 355 Political Solutions to Ethno-National Problems 357 Federalism in Russia 358 4.8. Conclusions 363

Chapter 5. Constitutional Change and Consolidation of Democracy 5.1. Causes of Constitutional Change Forms of Constitutional Change Processes of Constitutional Change Actors of Constitutional Change 5.2. Constitutional Change and Consolidation of Democracy Defining Consolidation of Democracy Conclusions

365 370 371 374 377 377 380

Bibliography

383

Index

419

About the Author

437


XIII

LIST OF TABLES Table 1. Ratification of Post-Communist Constitutions

119

Table 2. Post-Communist Referendums on the Adoption of Constitutions

119

Table 3. The Composition of Post-Communist Constitutional Courts .. 225 Table 4. Upholding Civil Liberties and Political Rights, Central and Eastern Europe

262

Table 5. Upholding Civil Liberties and Political Rights, Former Soviet Union

263

Table 6. A Typology of Parliamentary and Presidential Forms of Democracy in Eastern Europe and the Former USSR

273

Table7. Composition of Parliaments in Eastern Europe

342

Table 8. Composition of Parliaments in the Former USSR

343


XV

ACKNOWLEDGEMENTS This book is based on my Ph.D. research which I made at the Institute of East European Law and Russian Studies in Leiden. First of all, I would like to thank Prof. F. J. M. Feldbrugge and his wife for all their help and support during my stay in Holland. I would also like to thank Prof. Herman van Gunsteren for his guidance and inspiration, and Prof. William B. Simons, Prof. Peter Mair, Dr. Ger P. van den Berg and Dr. Hans Oversloot for their valuable comments on my work. I should also mention the Staff of the Institute of East European Law and Russian Studies who helped me a lot to find related material during my research. Warm thanks go to Ruben Verheul for providing indinspensable aid in the process of the manuscript's publication. I am grateful to Prof. Ergun Ozbudun, Prof. Tuncer Karamustafaoglu, Prof. Oya Arasli, Assc. Prof. Erdal Onar, Assc. Prof. Merih Oden for all their help and encouragement. Lastly, this study could not have been made without the support of my family and my wife...


1

INTRODUCTION The last decade of the 20th century saw radical changes in Eastern Europe and the former USSR.1 Most of these countries made a transition from totalitarianism or authoritarianism to democracy and from central planning to a market economy. Adding to the latter, a number of national entities gained their independence after the disintegration of the federative states of the USSR, Yugoslavia and Czechoslovakia. Many recent studies have focused on these double, in some cases triple transitions, and scholars from different fields analyzed the so-called "1989 Revolution" from different perspectives. Lawyers and political scientists have been interested particularly in constitutional developments accompanying these multi-dimensional transitions. As a result, past and present aspects of constitutionalism in Eastern Europe and the former USSR have been extensively studied in recent years. Nevertheless, rather less scholarly attention has been paid to the future of post-communist constitutions and prospects for constitutionalism in these countries.2 Given the theoretical and practical difficulties besetting the topic, this scholarly vacuum is not surprising. At the practical level, since the finetuning of new constitutions—or even in some countries constitution-making—is still continuing, one may argue that studying the future of newly-born, even unborn documents is mere speculation. At the level of theory, the variety of factors shaping the changes in post-communist countries and the peculiar characteristics of resulting constitutional documents create several problems in employing an appropriate method as well as in choosing a suitable approach. None of these theoretical and practical difficulties, however, can justify disregarding such an important topic.

1.

2.

We mean by East European countries: Poland, Hungary, the Czech Republic, Slovakia (East Central Europe); Albania, Bulgaria, Romania (the Balkans); and we mean by the former USSR: the Russian Federation; Ukraine; Belarus; Moldova; Estonia, Latvia, Lithuania (the Baltics); Armenia, Azerbaijan, Georgia (Transcaucasia); Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, Uzbekistan (Central Asia). We exclude the former Yugoslavia from this study because at the time of writing there were still some uncertainties about the constitutional structure of the successor states. Although some of them already promulgated their new constitutions and made progress in consolidating their constitutional governments, we believe that little could be gained by studying only certain countries in the region. Thus we leave this topic to future studies which would cover all the former Yugoslav republics in a comparative perspective. For one of the few studies on this topic, see Istvan Pogany, "Constitution-Making or Constitutional Transformation in Post-Communist Societies", 44 Political Studies 1996, 568-591.

2


The main questions we shall be dealing with throughout this study can be formulated as follows: Will liberal democratic constitutionalism take root in these countries? Will new constitutions in Eastern Europe and the former USSR perish or survive? Apart from these, this study also aims at contributing, even though partially, to the construction of a general constitutional theory by studying the causes and dynamics of constitutional change in general.3 This topic is highly important for modern constitutional studies at least for two reasons. First, the global rise of democracy at the end of the 20th century increases the hopes for the prospects for democracy.4 Although today the bulk of the countries in the world are ruled by non-democratic regimes, the number of democracies may increase in the next millennium. The constitutional problems of future democracies will most likely be similar to those of post-communist countries. Accordingly, those scholars interested in constitutions may now find an opportunity to get acquainted with such problems within the context of post-communism. Second, constitutional change is not only on the East European, but also on the West European constitutional agenda.5 The purpose of this study is not to introduce a general theory about constitutional in/stability, but studying post-communist constitutions will help us to understand the causes and dynamics of constitutional change from a broader perspective.

3.

4.

5.

Jan-Erik Lane noted that today one could hardly speak of a general constitutional theory. For this argument and an attempt to analyze current constitutional theories deriving from jurisprudence, political science and economics, see Jan-Erik Lane, Constitutions and Political Theory, Manchester University Press, Manchester 1996. The recent swelling of democracy, also known as the third wave of democratization, started with the Portuguese Revolution of Carnations in 1974 and continued with the collapse of authoritarian regimes in Greece and Spain. The latter were followed by the transitions in Latin America, Eastern Europe and the former USSR. See Samuel P. Huntington, The Third Wave: Democratization in the Late Twentieth Century, University of Oklahoma Press, Norman 1991. So far, constitutional change in Western Europe has drawn little scholarly attention. Two exceptions are: Keith G. Banting and Richard Simeon, eds., The Politics of Constitutional Change in Industrial Nations, Macmillan, London 1985 and Joachim Jens Hesse, Nevil Johnson, eds., Constitutional Policy and Change in Europe, Oxford University Press, Oxford 1995.

3

CHAPTER 1 CONCEPTUAL FRAMEWORK 1.1. Introduction Having posed the basic problems we shall be dealing with in this study—the future of post-communist constitutions and prospects for constitutionalism in post-communist countries—it would be appropriate to address several methodological problems at the very outset. These problems mainly derive from the politico-legal nature of constitutions. That is to say constitutions are neither purely legal, nor purely political documents; they appear mainly as sets of legal rules constituting the supreme law of the land, but they differ from other legal rules in their function to organize, limit and divide political power. The Janus-faced nature of constitutions offers their students a number of methodological options, legal and political approaches being the most important ones. The peculiarity of the current study's topic makes such methodological problems even more complex. It has generally been said that political science has sprung from history, philosophy and law.1 This was particularly true for the Anglo-American social science tradition. Indeed, the legal-institutional approach was central both to legal and political sciences in Britain and America at the beginning of the century, but as a result of a struggle to become independent of constitutional law, political studies became more separate from constitutional law. Today, one can speak of independent legal and political sciences with their distinct methods and approaches; constitutional studies are placed at the intersection of the two.2 We shall first study legal and political approaches as they have been developed in the Anglo-American social science tradition and attempt to show their merits and drawbacks within the context of the current study. Then we shall turn to another important methodological problem: 1.

2.

For the separation of political science and constitutional law, see William G. Andrews, "Introduction: Freaks, Rainbows, and Pots of Gold", in International Handbook of Political Science, (William G. Andrews, ed.), Greenwood Press, Westport 1982,1-6. Also see Erkki Berndtson, "The Development of Political Science, Methodological Problems of Comparative Research", in The Development of Political Science, A Comparative Survey, (David Easton, John G. Gunnell and Luigi Graziano, eds.), Routledge, London/New York 1991,34-58. For constitutional law-political science relations in the Anglo-American literature, see John Dearlove, "Bringing the Constitution Back in: Political Science and the State", 37 Political Studies 1989, 521-539.

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whether post-communist constitutions should be studied comparatively or as case studies.

A Legal Approach to Constitutions Three mainstream theories can be distinguished in legal science: dualist theories (those theories accepting the hypothesis about the dualism between "positive" and "natural" law), positive law theories (those theories rejecting the dualism between natural and positive law) and sociological theories (those theories seeing law as a social product).3 Of course this list is not exhaustive, given new or emerging theories in modern legal science, but it would furnish some evidence about the nature of constitutional law studies in the Anglo-American tradition. The natural law/positive law dichotomy relates to the content of legal rules. Natural law theory sees law as the embodiment of certain moral or religious principles, whereas positive law theory sees it as a set of humandesigned rules posited by legislators. Lawyers generally study constitutions from a positivist point of view. They not only investigate the relationships between constitutional provisions and other legal rules in a given legal system, but also endeavor to determine the meaning of these provisions in individual cases. Accordingly, the positive law theory would be helpful in explaining such problems as whether given constitutional changes have been made in accordance with the amendment rules of the existing constitution, whether these changes have been made by authorized agencies or whether they will affect other constitutional provisions or the legal system as a whole, but it would not be adequate to understand and explain the main topic of the current study—the causes and dynamics of probable constitutional changes in post-communist countries. In other words, studying legal aspects of constitutional changes may explain at best "how" they have occurred, but not "why" they have occurred. The third set of legal theories, i.e., sociological theories, may complement the positive law theory in explaining constitutional changes. These theories analyze law in its social context and focus on such problems as the impact of law on society, the acculturation of law and the relationships between social and legal changes. Since constitutions are basically social products, one cannot disregard the importance of sociological elements in constitutional change. Such concepts as legitimacy,4 legal culture5 and legal 3. 4.

Viktor Knapp, "Legal Science", in Main Trends of Research in the Social and Human Sciences, Part II/Volume II: Legal Science/Philosophy, (Jacquet Havet, ed.), Mouton Publishers/UNESCO, The Hague 1978, 923-1069. Roger Cotterrell, The Sociology of Law, An Introduction, Butterworths, London 1984, 146-187.

Chapter 1. Conceptual Framework

5

institutions6 may serve to understand and explain the problem of constitutional change. For example, those authors contributing to sociological theories put emphasis on the importance of an appropriate legal culture for the viability of legal institutions.7 This would also apply to constitutions. That is to say, one may argue that the survival of a given constitution—as a set of legal institutions or as a supreme legal institution—may depend on the congruence between the constitution and the legal culture of a given society. Despite the relevance of these arguments of legal-sociological theories, they still seem to explain the problem of constitutional in/stability within the realm of law. Put another way, if one employs a legal approach, one may miss the point that there is a close relationship between political regimes and constitutions. First, since a constitutional change usually follows a regime change, their causes and dynamics may overlap. This urges us to study the relationships between constitutional change and regime change. Second, the fate of post-communist constitutions may affect the consolidation of emerging liberal democratic regimes in post-communist countries. Thus it is inevitable to focus on the relationships between constitutional change and consolidation of democracy. Third, constitutional change appears as a political, rather than a legal activity involving mainly political actors and institutions. This makes it necessary to study the process of constitution-making from a political point of view. Legal-sociological theories seem to fail to cover these aspects of probable constitutional changes in Eastern Europe and the former USSR.

A Political Approach to Constitutions We can study the political dimension of probable constitutional changes in post-communist countries by employing a political approach. Today the political approach consists of various theories, and most of them are directly or indirectly related to constitutions. Thus it is not so easy to make a choice between these theories to study prospects for constitutionalism in postcommunist countries. The history of political science can roughly be broken up into three periods. The first period can be characterized by the dominance of the institutional approach, today known as "old institutionalism", and by the 5. 6. 7.

Henry Ehrmann, Comparative Legal Cultures, Prentice-Hall, Inc., Englewood Cliffs, New Jersey 1976. Paul Bohannan, "Law and Legal Institutions", in International Encyclopedia of the Social Sciences, Vol. 9, (David L. Sills, ed.), The Macmillan Company & The Free Press, New York/London 1968, 73-78. Lawrence M. Friedman, The Legal System, A Social Science Perspective, Russell Sage Foundation, New York 1975,1-24. Also see Lawrence M. Friedman, Law and Society, Prentice Hall, Inc., Englewood Cliffs, New Jersey 1977, 70-91.

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amalgamation of legal and political studies. In this period, constitutions, typically defined as institutional frameworks of political regimes, were one of the main research fields of political scientists. For example, Herman Finer, one of the early institutionalists, defined a constitution as "[t]he system of fundamental political institutions..."8 The second period bears the stamp of criticisms of and reactions to the legal-institutional approach. Those claiming that political scientists ought to look beyond constitutions to understand and explain the actual working of a political system abandoned the legalinstitutional approach and developed a new theory known as "behavioralism".9 Its proponents attempted to explain political behavior at the individual or aggregate level by employing several empirical methods. Certain authors particularly focused on cultural aspects of politics and developed the concept of political culture. Owing to these developments, constitutions lost their central position in political science. Vernon Bogdanor observed this tendency in post-war political studies: Amongst political scientists... there was a reaction against the study of constitutions which was held to be static, formal and legalistic, in favor of analyzing the socio-economic realities which allegedly underpinned constitutional life. Constitutions, in short, were seen largely as epiphenomena, expressions of an underlying political culture, and it was this political culture which ought to be the prime object of analysis.10 The behavioral approach in general and cultural studies in particular came also under criticism in the third period. This period saw the rise of several new approaches, e.g., the rational choice theory and the discourse theory, as a reaction to the behavioral approach. More importantly, political scientists recently re-discovered political institutions which led to the emergence of a new approach known as the "new institutionalism". The latter, as a balanced approach between the "old institutionalism" and "behavioralism", has attracted many scholars.11 8.

Herman Finer, Theory and Practice of Modern Government, Revised edition, Methuen, London 1950, 116. 9. For the behavioral approach, see David Sanders, "Behavioural Analysis", in Theory and Methods of Political Science, (David Marsh and Gerry Stroke, eds.), Macmillan, London 1995, 58-75. 10. Vernon Bogdanor, "Introduction", in Constitutions in Democratic Politics, (Vernon Bogdanor, ed.), Gower Publishing Company, Cambridge 1988,1. 11. For a comparative survey of old and new institutionalism, see B. Guy Peters, "Political Institutions, Old and New", in A New Handbook of Political Science, (Robert E. Goodin and Hans-Dieter Klingemann, eds.), Oxford University Press, Oxford 1996,205-220. For the new institutionalism, see Peter A. Hall and Rosemary C.R. Taylor, "Political Science and the Three New Institutionalisms", 44 Political Studies 1996, 936-957.


7

Both institutionalism and behavioralism offer valuable insights within the context of this study. We shall try to explain probable constitutional changes in post-communist countries on the basis of the concept of legitimacy which basically derives from political culture and effectiveness. In this regard, behavioral studies and the concept of political culture will help us to understand the social bases of new constitutions. Institutional studies, in turn, will be useful in evaluating the performance of newly-created legal and political institutions in post-communist countries. Both behavioral and institutional perspectives, therefore, will illuminate different aspects of the core problem of this study. We shall also consult democratization studies (those studies aiming to explain the causes and dynamics of the global resurgence of democracy at the end of the 20th century) and focus particularly on the relationships between transition to democracy and constitution-making in post-communist countries.12 These political science approaches will most likely serve our purpose within the context of this study, but this does not necessarily mean that we shall completely abandon the legal approach. True, the latter cannot explain the underlying causes of probable constitutional changes, but it is essential to employ it to depict accurately the basic characteristics of pre-communist, communist and particularly post-communist constitutions. The legal approach will help us to make a descriptive analysis which would supplement behavioral and institutional theories. Consequently, we shall attempt to establish a link between legal and political approaches by combining behavioral and institutional perspectives within the framework of democratization studies.

Comparative or Case Studies The comparative method is widely employed both in constitutional law13 and political science.14 The proponents of this method maintain that such studies would prevent us to run into ethnocentrism, and that they would enable us to generate and test theories, hypotheses and concepts.15 More specifically, however, it has been noted that comparative studies would give us a chance 12. For a survey of democratization studies, see Laurance Whitehead, "Comparative Politics: Democratization Studies" in A New Handbook of Political Science, (Robert E. Goodin and Hans-Dieter Klingemann, eds.), Oxford University Press, Oxford 1996, 353-371. 13. See Jozsef Szabo, "Comparative Constitutional Law: Its Possibility and Limits", 21 OsterreichischeZeitschriftfiirOffentlichesRecht 1971, 133-165. 14. See David Collier, "Comparative Method", in The State of Discipline-II, (Ada Finifter, ed.), APSA (American Political Science Association), 1993, 105-119. 15. Tom Mackie, David Marsh, "The Comparative Method", in Theory and Methods of Political Science, (David Marsh and Gerry Stroke, eds.), Macmillan, London 1995,173188.

8


to make generalizations and predictions.16 Given the fact that our main objective in this study is to make certain predictions about the future of postcommunist constitutions and constitutionalism, the comparative method seems more suitable than case studies. Comparative studies might be inductive or deductive; both are relevant for the current study. That is to say, testing existing theories is just as important as generating new ones in discussing the constitutional prospects in post-communist countries. On the other hand, a comparison may be made between units which have similar (e.g., comparing post-communist constitutions with each other), or contrasting (e.g., comparing post-communist constitutions with pre-communist, communist and non-communist constitutions) features. Within the context of this study, when necessary, we shall make both types of comparison. This study, therefore, bears all advantages and disadvantages of a comparative study. That is to say a comparative approach may urge us to pass over certain national variations in some cases, but it may also be very helpful in understanding and explaining the problem of constitutional in/stability from a broader perspective.

1.2. Basic Definitions Having discussed certain methodological problems which had to be solved before proceeding to the business of this and next sections, we can now continue our analysis by defining the basic concepts which we shall be using throughout this study. As the above discussion suggests, the concept of constitution can basically be defined in two ways, legally and politically. Ivo D. Duchacek put the differences between the latter and the former in the following way. According to him, if one prefers a legal approach, a constitution can be defined as "...a supreme law of the land, a fundamental normative fountain from which all the other secondary norms such as statutory laws, executive orders, and ordinances are derived". If one prefers a political approach, it can be defined as "...a political manifesto and organizational chart or 'power map'..."17 These three aspects of constitutions, i.e., "supreme law", "political manifesto" and "power map", can be detected in most constitutions, be it liberal 16. Rod Hague, Martin Harrop, and Shaun Breslin, Comparative Government and Politics, Third edition, Macmillan, London 1992, 23-42, particularly see, 25-27. 17. Ivo D. Duchacek, "Constitution/Constitutionalism", in The Blackwell Encyclopedia of Political Science, (Vernon Bogdanor, ed.), Blackwell, London 1991,142. For the elaboration of the distinction between legal and political approaches, see Ivo D. Duchacek, Power Maps: Comparative Politics of Constitutions, ABC-Clio, Santa Barbara 1973. Also see Ivo D. Duchacek, "National Constitutions", 1 Comparative Politics 1968, 91102.


9

democratic or authoritarian. Let us look closer at these aspects of constitutions respectively by reviewing several definitions of the constitution made by different authors. Hans Kelsen typically defined the concept of constitution as the supreme law of the land. The author distinguished between constitutions' material (i.e., the positive norm or norms regulating the creation of general legal norms) and formal (i.e., a document called "constitution") meanings. He wrote that: "[considering only a national legal order, the constitution represents the highest level of positive law."18 Thus the constitution, as a source of validity for all other norms in a hierarchical legal system, performs a legitimation function and authorizes "specific persons to create general norms".19 Carl J. Friedrich and Zbigniew Brzezinski, in turn, stressed the political manifesto character of constitutions. According to them: "Every constitution contains strong ideological element. Not only any bill of rights it may contain, but also the organizational fixation it undertakes, are ideologically oriented."20 Indeed, today no constitution is ideologically neutral in the modern world. Their preambles, in particular, mirror the bitter memories, glorious victories and the sacred goals of a given nation. Apart from their legal and ideological characteristics, constitutions also organize political power. S.E. Finer, Vernon Bogdanor and Bernard Rudden underlined the "power map" characteristics of constitutions. According to them: "Constitutions are codes of norms which aspire to regulate the allocation of powers, functions, and duties among the various agencies and officers of government, and to define the relationships between these and the public."21 It is important to note that today almost every modern constitution performs these functions (i.e., it validates hierarchically inferior legal rules, reflects a nation's political experiences and goals, and serves as an organizational chart) whether it is promulgated in a liberal democratic or an authoritarian regime, but in a liberal democratic regime a constitution performs a much more important function: it divides and limits political power. The latter point highlights the relationships between the concepts of constitution and constitutionalism. Giovanni Sartori gave a definition of constitution in connection with constitutionalism. According to him, a constitution is "...a 18. Hans Kelsen, Pure Theory of Law, (Translated by Max Knight), University of California Press, Berkeley 1967, Reprinted in 1978, 222. 19. Hans Kelsen, 'The Function of Constitution", (Translated by Iain Stewart) in Essays on Kelsen, (Richard Tur and William Twining, eds.), Clarendon Press, Oxford 1986, 109119. 20. Carl J. Friedrich and Zbigniew K. Brzezinski, Totalitarian Dictatorship & Autocracy, Second edition, Praeger Publishers, New York 1969, 116. 21. S.E. Finer, Vernon Bogdanor and Bernard Rudden, Comparing Constitutions, Clarendon Press, Oxford 1995, 1.

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frame of political society, organized through and by the law, for the purpose of restraining arbitrary power."22 A political system, therefore, may have a constitution, but this does not necessarily mean that the authorities in the system are acting in accordance with the principles of constitutionalism. Communist regimes provided a typical example of such incongruity. So, what is liberal democracy? Today the terms of liberal democracy and democracy are generally used interchangeably, but as Giovanni Sartori put it: ... 'democracy' is only a shorthand—and a misleading one at that—for an entity composed of two distinct elements: 1) freeing the people (liberalism) and 2) empowering the people (democracy). One could equally say that liberal democracy consists of 1) 'demo-protection', meaning the protection of a people from tyranny, and 2) 'demo-power', meaning the implementation of popular rule. Historically, the creation of a free people was the accomplishment of liberalism (from Locke to, say, Benjamin Constant, the major French constitutionalist), and this element is generally singled out by the notions of constitutional democracy and/or liberal constitutionalism. A free demos, however, is also a demos that gradually enters the house of power, asserts itself, 'demands' and 'obtains'. And this is democracy per se.23 Accordingly, the concept of democracy can be defined in two ways.24 In its narrower meaning, democracy consists of two elements, "contestation" and "participation". The latter relates to the selection of leaders and policies through regular elections. The former refers to the free competition between individuals and parties to come to power. Such a minimalist definition of democracy has been inspired by Joseph Schumpeter's definition of democracy as a system "...for arriving at political decisions in which individuals acquire the power to decide by means of competitive struggle for the people's vote".25 Those defining democracy in such a way may be content with the existence of regular, free and fair elections to qualify a political system as democracy. Nevertheless, some authors have pointed out that democracy requires more than this. Robert Dahl, for example, expanded the definition of 22. Giovanni Sartori, "Constitutionalism: A Preliminary Discussion", 56 American Political Science Review 1962, 860, (italics are original). 23. Giovanni Sartori, "How Far Can Free Government Travel?", 6 Journal of Democracy 1995No.3, 102. 24. See Georg Sorensen, Democracy and Democratization, Westview Press, Boulder 1993, particularly see 3-24. Also see Michael Saward, "Democratic Theory and Indices of Democratization", in Defining and Measuring Democracy, (David Beetham, ed.), Sage Publications, London 1994, 6-24. 25. Joseph Schumpeter, Capitalism, Socialism, and Democracy, Second edition, Harper, New York 1947, 269.


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democracy in such a way that it comprised civil liberties and political rights. Those defining democracy in a broader way argue that contestation and participation would only be meaningful, if such rights as freedom of expression, freedom of the press and freedom to form and join organizations are guaranteed in a political system.26 Consequently, democracy has been termed in its narrower and broader senses "electoral" and "liberal" democracy respectively,27 and constitutionalism relates to the broader meaning of democracy, i.e., liberal democracy. One should note that to define democracy in a broader sense raises another problem. Given the constraining functions of constitutions, some authors have argued that there is an inherent tension between constitutionalism and democracy—or between limited government and self-government— because constitutional limitations may prevent the majority from implementing its will freely.28 The solution to this problem lies in the redefinition of the concept of constitutionalism from a different perspective. If we accept that constitutions are not merely disabling, but enabling documents, i.e., they enable the majority of "free" people to make the collective decisions concerning the entire polity, we may ease the tension between constitutionalism and democracy. No doubt, liberalism historically precedes democracy, but today one cannot maintain that one is more important than the other; i.e., one cannot imagine liberalism without demo-power, nor democracy without demo-protection. Thus it would be more suitable to see the relationships between the two as an interaction involving a delicate balance. If one puts too much emphasis on liberalism, i.e., demo-protection, the majority of people may be paralyzed and lose its governing ability. If one puts too much emphasis on democracy, i.e., demo-power, the majority may tyrannize the minority. In this respect, constitutionalism plays a significant role in striking a balance between these two elements. According to Stephen Holmes: "To discover the mutually reinforcing relation between liberalism and democ26. Robert A. Dahl, Polyarchy: Participation and Opposition, Yale University Press, New Haven/London 1971. 27. Larry Diamond, "Is the Third Wave Over?", 7 Journal of Democracy 1996 No. 3 ,21-25. 28. For these discussions, see Neil MacCormick, "Constitutionalism and Democracy", in Theories and Concepts of Politics, An Introduction, (Richard Bellamy, ed.), Manchester University Press, Manchester 1993, 124-147. Carl J. Friedrich, "Constitutionalism and Democracy", in Limited Government, A Comparison, Prentice-Hall, Inc., Englewood Cliffs, New Jersey 1974, 34-49. Walter F. Murphy, "Constitutions, Constitutionalism and Democracy", in Constitutionalism and Democracy, (Douglas Greenberg, Stanley N. Katz, Melianie Beth Oliviera, Steven C. Wheatley, eds.), Oxford University Press, Oxford 1993, 3-25. Ulrich K. Preuss, "Democracy and Constitutionalism", in Constitutionalism and Politics, (Irena Grudzinska Gross, ed.), Slovak Committee of the European Cultural Foundation, Bratislava 1994, 72-88. Cass R. Sunstein, "Constitutions and democracies: an epilogue", in Constitutionalism and Democracy, (Jon Elster and Rune Slagstad, eds.), Cambridge University Press, Cambridge 1989, 327-356.

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racy, we need to see constitutionalism in a more positive light. A liberal democratic constitution is not merely a preventive device. It is an instrument of government. It is a way of organizing the state. It is a technique which makes it possible for a community, in some sense, to rule itself."29 He employed the term of "positive constitutionalism" to stress that constitutions are not only disabling, but also enabling documents. Thus today constitutionalism should be understood in a way that it not only consists of demoprotection, but also of demo-power elements. Put differently, today one should speak not only of "negative constitutionalism", but also of "positive constitutionalism". This distinction is particularly important in studying the effectiveness of constitutions. We shall return to this point later on and attempt to define the functions of constitutions in liberal democratic regimes not only from a negative, but also from a positive standpoint. Now, it suffices to note that within the framework of this study we see constitutionalism as an inseparable part of democratic regimes and define it in such a way as to encompass both demo-protection and demo-power elements. That is why we shall usually use the term of liberal democratic constitutionalism, instead of liberal constitutionalism30 or constitutionalism,31 to emphasize this doubleedged characteristic of the concept of constitutionalism. Lastly, we wish to point out that one still needs another conceptual clarification before using the term of constitutionalism even in its conven29. Stephen Holmes, "Liberalism for a World of Ethnic Passions and Decaying States", 61 Social Research 1994,607. Holmes developed his accounts on positive constitutionalism in several articles. For example, see "Precommitment and Paradox of Democracy", in Constitutionalism and Democracy, (Jon Elster and Rune Slagstad, eds.), Cambridge University Press, Cambridge 1989,195-240. The same article reprinted in his book titled Passions and Constraint, On the Theory of Liberal Democracy, The University of Chicago Press, Chicago/ London 1995, 134-177. Also see the following article in the same book: 'The Positive Constitutionalism of John Stuart Mill", 178-201. For a summary of his accounts, see "Constitutionalism", in The Encyclopedia of Democracy, (Seymour Martin Lipset, ed.), Congressional Quarterly Inc., Washington D.C. 1995, 299-306. 30. For several definitions of liberal constitutionalism, see Ghita lonescu, "The Theory of Liberal Constitutionalism", in Constitutions in Democratic Politics, (Vernon Bogdanor, ed.), Gower Publishing Company, Cambridge, 1988, 33-49; Rune Slagstad, "Liberal Constitutionalism and its Critics: Carl Schmitt and Max Weber", in Constitutionalism and Democracy, (Jon Elster and Rune Slagstad, eds.), Cambridge University Press, Cambridge 1989,103-130. Donald Kommers and W. J. Thompson, "Fundamentals in the Liberal Constitutional Tradition", in Constitutional Policy and Change in Europe, (Joachim Jens Hesse and Nevil Johnson, eds.), Oxford University Press, Oxford 1995, 23-45. 31. For several definitions of constitutionalism, see Carl J. Friedrich, "Constitutions and Constitutionalism", in International Encyclopedia of Social Sciences, (David L. Sills, ed.), The Macmillan Company & The Free Press, New York/London 1968, 318-326. Harvey Wheeler, "Constitutionalism", in Handbook of Political Science, Vol.5, (Fred I. Greenstein and Nelson W. Polsby, eds.), Addison-Wesley Company, Reading, MA 1975, 1-91. Thomas C. Grey, "Constitutionalism: An Analytic Framework", in Constitutionalism, (J. Roland Pennock and John W. Chapman, eds.), Nomos XX, New York University Press, New York 1979, 189-209.


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tional sense. Constitutionalism has been defined sometimes as the "limitation of power",32 at other times as the "division of power".33 In fact, these definitions correspond to two essential principles, or devices, of constitutionalism: the rule of law and the separation of powers.34 Accordingly, constitutions validating, as the "supreme law", hierarchically inferior rules, expressing a given nation's political aspirations as a "political manifesto", and organizing political power as a "power map", perform a special function in liberal democratic regimes as dividing and limiting political power.

Political System, Regime, Constitution Having defined the key concepts which we shall be using in this study, we now wish to elaborate further the political nature of constitutions by studying the relationships between the concepts of regime, constitution and the political system. The political system involves the authoritative allocation of values in a given society and consists of the regime (thus the constitution), the political community and the authorities. The political community and authorities mainly concern the ruled and the rulers respectively, but the regime relates to the "rules of the game", /.e., constitutional order, regulating the power relations between all the actors in a given political system.35 So, how can we define the concept of regime? More importantly, can we distinguish it from the concept of constitution? According to Robert Fishman: "A regime may be thought of as the formal and informal organization of the center of political power, and of its relations with the broader society. A regime determines who has access to political power, and how those who are in power deal with those who are not."36 Donald Share defined a regime as 32. According to Charles Howard Mcllwain: "...constitutionalism has one essential quality: it is a legal limitation on government; it is the antithesis of arbitrary rule; its opposite is despotic government, the government of will instead of law." Constitutionalism, Ancient and Modem, Revised edition, Cornell University Press, Ithaca/New York 1947, 21-22. 33. According to Carl J. Friedrich, for example: "Division of power is the basis of civilized government. It is what is meant by constitutionalism." Constitutional Government and Democracy: Theory and Practice in Europe and America, Fourth edition, Waltham, Blaisdell 1968, 5. 34. Jan-Erik Lane underlined this point: "Two ideas are basic to constitutionalism: (a) the limitation of the State versus society in the form of respect for a set of human rights covering not only civic rights but also political and economic rights; and (b) the implementation of separation of powers within the state. While the first principle is an external one, confining State powers in relation to civil society, the second principle is an internal one, making sure that no State body, organ or person can prevail within the State." Lane, op.cit. note 3, 25. 35. David Easton, "An Approach to the Analysis of Political Systems", 9 World Politics 1957, 383-400. Also see David Easton, A Systems Analysis of Political Life, John Wiley & Sons, Inc., New York 1965. 36. Robert Fishman, "Rethinking State and Regime: Southern Europe's Transition to Democracy", 42 World Politics 1990, 428.

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"...the formal and informal structure of governmental roles and processes. Included within this concept of regime are methods of inauguration of governments, formal and informal representative mechanisms and patterns of coercion."37 These definitions imply that there is a close relationship between regimes and constitutions because both organize political power and structure governmental roles and processes, but they do not make a distinction between the two concepts. Then we need more clarification to distinguish regimes from constitutions. In this respect, the definition proposed by Philippe C. Schmitter and Terry Lynn Karl may be helpful. These authors saw the constitution as the institutional framework of a regime and defined a regime or system of governance as "...an ensemble of patterns that determines the methods of access to the principal public offices; the characteristics of the actors admitted to or excluded from such access; the strategies that actors may use to gain access; and the rules that are followed in the making of publicly binding decisions." They added that: "To work properly, the ensemble must be institutionalized—that is to say, the various patterns must be habitually known, practiced, and accepted by most, if not all, actors. Increasingly, the preferred mechanism of institutionalization is a written body of laws undergirded by a written constitution, though many enduring political norms can have an informal, prudential, or traditional basis."38 One may infer from these definitions that regimes involve several formal as well as informal structures organizing political power. Regimes, as it were, consist of two constitutions: a constitution on paper (i.e., the formal structure) and a constitution in operation (i.e., the informal structure).39 When we use the term of constitution, we usually mean a constitution on paper, i.e., a written constitution comprising a set of legal rules. Ideally, authorities exercise political power as prescribed by constitutional provisions. In these cases, the latter may accurately reflect how state institutions are actually run. But in reality it is always possible to find discrepancies between a constitution on paper and a constitution in operation. In these cases, the interaction between the political actors in a given political system are not determined by the rules set by the constitution, but by the informal structure. One may conceive at least two reasons why constitutional reality diverges from constitutional formality. First, authorities in a given political system may simply ignore the constitution; then the latter may be reduced to 37. Donald Share, 'Transition to Democracy and Transition Through Transaction", 19 Comparative Political Studies 1987, 527. 38. Philippe C. Schmitter and Terry Lynn Karl, "What Democracy Is...and Is Not", in The Global Resurgence of Democracy, (Larry Diamond and Marc F. Plattner, eds.), Johns Hopkins University Press, Baltimore 1993, 40. 39. For the concept of constitution in operation, see Jan-Erik Lane and Svante O. Ersson, Politics and Society in Western Europe, Third Edition, Sage Publications, London 1995, 194.


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window dressing.40 Second, a written constitution cannot regulate every aspect of constitutional practice; then customs, conventions and precedents complement the constitution on paper. Consequently, the term of "regime" can be used as an inclusive term comprising the constitution on paper and the constitution in operation. When necessary, a distinction will be made between the two. True, formal as well as informal rules and procedures make up the essence of regimes, but they also consist of norms and principles. A further distinction between basic regime elements (i.e., between norms and principles and rules and procedures) will enable us to identify two types of constitutional change: constitutional change concomitant with regime change and constitutional change within a regime. Stephen D. Krasner, studying the concept of regime in an international context, put this point as follows: "Principles and norms provide the basic defining characteristics of a regime. There may be many rules and decision-making procedures that are consistent with the same principles and norms. Changes in rules and decision-making procedures are changes within regimes, provided that principles and norms are unaltered."41 Consider the principle of the separation of powers as an example. The principle, providing that power should be divided and exercised by separate state agencies in liberal democratic regimes, can be applied in different ways through constitutions. Thus all modern liberal democratic constitutions allocate power among executive, legislative and judicial organs, but they regulate the relationships between them differently. Some of them, for example, provide that the executive should be elected directly by the people, whereas others require the election of the executive by the legislature. These two variations correspond to two well-known constitutional types, parliamentary and presidential constitutions. If a given political system shifts from parliamentarism to presidentialism, or vice versa, this would not change the liberal democratic nature of the regime, so long as its norms and principles are not violated. In the same vein, the principle of the 40. For these discussions, see Karl Loewenstein, Political Power and the Governmental Process, Second edition, The University of Chicago Press, Chicago, London 1965,147153. By the same author, "Reflections on the Value of Constitutions in our Revolutionary Age", in Constitutions and Constitutional Trends since World War II, Second edition, (Arnold J. Zurcher, ed.) New York University Press, New York 1955,203-206. Also see Gerhard Leibholz, "Constitutional Law and Constitutional Reality", in Festschrift fur Karl Loewenstein, (Henry Steele Commager, ed.), J.C.B. Mohr, Tubingen 1971, 305309. 41. Stephen D. Krasner, "Structural Causes and Regime Consequences: Regime as Intervening Variables", in International Regimes, (Stephen D. Krasner, ed.), Cornell University Press, Ithaca 1983,1, (italics are original). For an appraisal and application of Krasner's definition in regime changes and democratizations, see Stephanie Lawson, "Conceptual Issues in the Comparative Study of Regime Change and Democratization", 25 Comparative Politics 1993, 183-205.

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rule of law constitutes one of the most important characteristics of liberal democratic regimes. All liberal democratic constitutions mention this principle explicitly or implicitly, but they implement the same principle in different ways. Some of them establish a special constitutional court to review the constitutionality of laws, whereas others confer this power on ordinary courts. They both, however, aim at guaranteeing the supremacy of the constitution.

1.3. Constitutional Stability and Change This study is mainly concerned with the future of post-communist constitutions. So, what would happen to them in the foreseeable future? Given the distinction we have made above between constitutional change concomitant with regime change and constitutional change within a regime, one may conceive at least three possibilities. At best, both regimes and constitutions survive and the latter turn into social contracts accepted and supported by most major political groups within existing regimes. At worst, both regimes and constitutions perish and the latter are abolished, suspended or replaced by new ones following major political crises, such as a revolution or a coup d'etat. Another possibility is that regimes survive (i.e., their norms and principles remain intact), but constitutions are amended (i.e., the formal rules and procedures of the respective regimes are changed). All these possibilities shall be discussed in this section. Why do regimes, particularly democratic ones, remain stable? Today it is widely accepted that the stability of democratic regimes rests on their legitimacy.42 So, how can we define the concept of legitimacy? According to Seymour Martin Lipset: "Legitimacy involves the capacity of the [political] system to engender and maintain the belief that the existing political institutions are the most appropriate ones for the society."43 Juan J. Linz defined this concept in a similar way as: "...the belief that in spite of shortcomings and failures, the existing political institutions are better than any other that might be established..."44 Larry Diamond and Seymour Martin Lipset, in turn, pointed out that to speak of legitimacy: "Elites and the masses must share the 42. According to Diamond, Linz and Lipset: "All governments rest on some mixture of coercion and consent, but democracies are unique in the degree to which their stability depends upon the consent of a majority of those governed." Larry Diamond, Juan J. Linz, Seymour Martin Lipset, "Introduction: What Makes for Democracy?" in Politics in Developing Countries, (Larry Diamond, Juan J. Linz, Seymour Martin Lipset, eds.), Second Edition, Lynne Rienner Publishers, Boulder 1995, 9. 43. Seymour Martin Lipset, Political Man, The Social Basis of Politics, Doubleday, New York 1959, 77. 44. Juan J. Linz, "Introduction", in The Breakdown of Democratic Regimes, (Juan J. Linz and Alfred Stepan, eds.), The Johns Hopkins University Press, Baltimore/London 1978,18.


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belief that the system—that is, the set of constitutional arrangements, not the particular administration—is the best form of government (or the least evil)."45 Here, it is important to distinguish between trust and legitimacy. While the former relates to incumbent authorities, the latter relates to the entire political system. The most important implication of this distinction is that members of a given political system may distrust authorities, while not rejecting the political system as a whole.46 This brings us to the concept of political support. This means that legitimacy can also be defined as ".. .a kind of supportive sentiment that may be directed to any one of the components of the political system..." particularly to the regime and the authorities.47 Accordingly members of a given political system may be dissatisfied with the performance of authorities, but may continue to support the regime. We have made a distinction above between the two sets of regime elements: norms and principles; rules and procedures. Is people's belief in the appropriateness of abstract norms and principles sufficient to consider a given regime legitimate? Is the support of the people for the rules and procedures of the regime as important as the support for norms and principles in evaluating the overall legitimacy of the system? These questions lead us to redefine the concept of legitimacy at two levels: "...as a general principle, that the democracy is the best form of government possible, and as an evaluation of the believers' own system, that in spite its failures and shortcomings, their own democratic regime is better than any other that might be established for their country."48 For the sake of convenience, we can refer to these levels as "abstract" and "national" levels. In some cases members of a given political system give their support to the regime at both levels. For example, it has been argued that the American people believe that democracy, not only in the abstract, but also at the national level is the best form of government; today the American people tend to identify democracy with American democracy49 and American democracy with the American Consti45. Larry Diamond and Seymour Martin Lipset, "Legitimacy", in The Encyclopedia of Democracy, (Seymour Martin Lipset, ed.), Congressional Quarterly Inc., Washington, DC 1995, 747. 46. Mattel Dogan, "The Pendulum between Theory and Substance-Testing the Concepts of Legitimacy and Trust", in Comparing Nations, Concepts, Strategies, Substance, (Mattel Dogan and Ali Kazancigil, eds.) Blackwell, Oxford 1994, 297-313. 47. David Easton, "A Re-Assessment of the Concept of Political Support", 5 British Journal of Political Science 1975,435-457. Easton has developed the concepts of "specific" and "diffuse" support to explain the different orientations of members of a given political system towards authorities and the regime respectively. 48. Larry Diamond, "Introduction: Political Culture and Democracy", in Political Culture and Democracy in Developing Countries, (Larry Diamond, ed.), Lynne Riener, Boulder 1994, 13. 49. Dahl underlined that point: "Support for popular government was interwoven with support for a specifically American form of government... Most of the men who attended the Constitutional Convention lived to see their patchwork of compromises, the American

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tution.50 In many cases, however, one may observe striking differences between support for democracy at the abstract and national levels. The Italian case may illustrate this point. According to the Four Nation Survey, carried out in 1985,70% of the Italian people said "democracy is always preferable", whereas when they were asked their opinion about "their" democracy, only 4% said "our democracy works well". The 1992 Eurobarometer survey found similar results.51 Popular support for democracy at the abstract level derives ideally from political culture. This means that if the norms and principles of democracy are congruent with people's beliefs and values, they may easily be accepted and supported. If members of the political system are not familiar with or reject such basic principles as "the participation of the people in decisionmaking through their representatives", the "separation of powers" and the "rule of law", the establishment of democracy at the national level becomes very difficult. Democratic norms and principles, which have been accepted and supported by elites and masses, can be incorporated into the national political system through rules and procedures. During the process of constitution-making, constitution-makers choose the most appropriate set of rules and procedures for their society. Once members of the political system have expressed their commitment to democracy in the abstract, constitutionmaking mainly revolves around the negotiations and compromises between major political forces. Accordingly, other factors than political culture assume importance in the constitution-making process. For example, in many cases the interests of the actors who have taken part in the process of constitution-making play a most significant role in choosing between the Constitution, became an object of veneration. Within a few years it had already become dangerous to attack the Constitution, perhaps even before it had become politically dangerous—and futile—to attack popular government. An understanding quickly developed that all controversies, particularly constitutional controversies, must take for granted the overriding legitimacy of the Constitution and the superiority of the American institutions. Opposition groups were therefore restricted to changes that (so supporters would argue) were consistent with the Constitution." Robert A. Dahl, "The American Oppositions: Affirmation and Denial", in Political Oppositions in Western Democracies, (Robert A. Dahl, ed.), Yale University Press, New Haven/London 1996, 36-37. 50. As Devine observed: "It was the Constitution itself which provided the most important symbol for national regime identity. The place of the Constitution in the United States is probably unmatched in any other society... It represents—and to some extent is—the regime." Donald J. Devine, The Political Culture of the United States, Little, Brown and Company, Boston 1972, 88. 51. Leonardo Morlino and Jose R. Montero, "Legitimacy and Democracy in Southern Europe", in The Politics of Democratic Consolidation, Southern Europe in Comparative Perspective, (Richard Gunther, Nikiforos Diamandouros, and Hans-Jiirgen Puhle, eds.), Johns Hopkins University Press, Baltimore 1995,231-260. Also see on the same subject, Leonardo Morlino and Marco Tarchi, "The Dissatisfied Society: The Roots of Political Change in Italy", 30 European Journal of Theoretical Research 1996, 41-63.


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presidential and parliamentary forms of government. However, this does not necessarily mean that political culture is completely irrelevant at this stage. The constitution-making process imparts to the regime its national characteristics. Putting it another way, democracy, as a set of abstract norms and principles, turns into American democracy, French democracy, or Italian democracy thanks to constitutions. A constitution, therefore, must serve the further reflection of the beliefs and values of the people. For example, presidentialism may be accepted and supported more easily than parliamentarism in a society where a one-man leadership tradition have firmly taken root. Consequently, a constitution-making process can be considered successful if the final document satisfies all major political groups within the political system. Constitutional engineering offers several institutional alternatives for an emerging democracy such as federalism-unitary state, presidentialism-parliamentarism, unicameralism-bicameralism, etc. Ideally, constitution-makers negotiate and compromise on a specific institutional configuration to provide a consensual basis for the new regime. If, however, they cannot agree on the rules and procedures, this may create "birth defects", as it were, and this would eventually bring about constitutional change within the regime. In Portugal, for example, during the making of the Constitution of 1976, major political groups were opposed to certain constitutional arrangements and declared their intention to amend them immediately after its promulgation. Especially, the socio-economic model created by the Constitution and the balance of powers between state agencies came under strong criticism. In the end, these birth defects caused the revision of the 1976 Portuguese Constitution in 1982.52 Once the rules and procedures are in place, the regime begins to fulfill its functions at the national level. Rules and procedures provide a common framework in which individual actors interact with each other to produce several political and economic outcomes. If a given democratic regime works effectively at the national level (i.e., if it fulfills the expectations of members of the political system), this most likely reinforces support for democracy at the abstract level. As Lipset put it: "Legitimacy is best gained by prolonged effectiveness..."53 If, however, elites and masses are dissatisfied with the performance of a democratic regime at the national level, this ultimately affects negatively its legitimacy at the abstract level. Popular dissatisfaction with democracy at the national level may derive first and foremost from the lack of trust in incumbents, i.e., people may think that 52. Thomas C. Bruneau and Alex Macleod, Politics in Contemporary Portugal, Lynne Rienner Publishers, Boulder, Colorado 1986,118-125. 53. Seymour Martin Lipset, "The Social Requisities of Democracy Revisited", 59 American Sociological Review 1994 No.l, 8.

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abler authorities can provide desired outcomes within existing institutions. As a result, they replace ruling cadres by new ones thanks to certain constitutional mechanisms, free and fair elections being the most important ones. If successive incumbents prove to be inadequate to satisfy people's expectations, then most likely rules and procedures according to which individual actors fulfill their functions come under criticism. Here, one should take into consideration the distinction we have made above between constitutions on paper and constitutions in operation. If there are informal structures regulating the relations between individual actors along with formal structures, then it is conceivable that people may first assign the failure of "their" democracy to informal structures. Dieter Fuchs, Giovanna Guidorossi, and Palle Svensson placed the informal structure between the level of the formal structure and individual actors. According to the authors, when "consistently perceived performance deficits are no longer assigned to individual actors but they are not yet assigned to the formal structure of democracy", people most likely hold the informal structure responsible for the failure of the regime in satisfying their expectations.54 The gap between constitutions on paper and constitutions in operation may derive from the fact that authorities simply ignore constitutional provisions. For example, if constitutional provisions regulating the rights and liberties of citizens are not upheld by the authorities, this may cause popular dissatisfaction with the political performance of the regime. In this case, the application of constitutional provisions may satisfy members of the political system. Constitutions in operation may diverge from constitutions on paper not only because of authorities ignoring constitutional provisions, but also from the fact that the constitution cannot regulate every aspect of political life. In this case, changes or revisions in the informal structure of the regime, e.g., changes in the political party system, may make the regime more effective. If even this cannot be achieved or it cannot provide a solution to the problem of popular dissatisfaction, then inevitably the formal structure (i.e., the constitution) comes to be seen as the main cause of the ineffectiveness of the regime. This will most likely bring about constitutional changes within regimes too. For example, it is not surprising that constitutional reform has been on the Italian political agenda since the 1960's.55 Given the survey results mentioned 54. Dieter Fuchs, Giovanna Guidorossi, and Palle Svensson, "Support for the Democratic System", in Citizens and the State, (Hans-Dieter Klingemann and Dieter Fuchs, eds.), Oxford University Press, Oxford 1995, 325-329. 55. See David Hine, "Italy (1948): Condemned by its Constitution?" in Constitutions in Democratic Politics, (Vernon Bogdanor, ed.), Gower Publishing Company, Cambridge 1988, 206-228. Luigi Ferrajoli, "Democracy and Constitution in Italy", 44 Political Studies 1996, 457-472. Sergio Romano, "Italy's Constitutional Crisis", 31 The International Spectator 1996, 5-15.


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above, this can be interpreted in a way that most people in Italy think that democracy is the best regime there is, but the Constitution is not the best one that might be drawn up. Putting it another way, they are committed to democratic norms and principles, but they tend to replace the existing set of (formal) rules and procedures by another one. Today, popular dissatisfaction deriving from the failure of the regime to produce political and economic outcomes is common to many old democracies where regimes have been in operation for decades. However, one can hardly expect that such dissatisfaction would reach the level of rejection of the norms and principles of democracy in such regimes which rely on a long tradition of liberal democratic constitutionalism. Constitutional changes within regimes, therefore, appear as a solution in consolidated democracies for appeasing the dissatisfaction of members of the political system. Given the fact that consolidation of democracy is not a one-time, irreversible process, Larry Diamond, Juan J. Linz and Seymour Martin Lipset implied that such constitutional changes are necessary for democratic regimes in order to maintain their legitimacy. According to the authors: "In contrast to all other regimes, democracies depend for their survival almost exclusively on a widely shared belief in their legitimacy. This belief is passed on from generation to the next, but it must be renewed in each generation—not only through faith and ritual but also through practice and performance. What enables performance to continue to be effective, and institutions to work and command legitimacy, is not just stability but periodic adaptation and reform as well."56 The French case provides a typical example for constitutional change within the regime in a consolidated democracy. According to a public opinion survey, not only democratic norms and principles,57 but also the relevant rules and procedures as embodied in the Constitution of 1958 were accepted by the majority of elites and masses in France.58 There was, however, general agreement on the Constitution's failure in persuading citizens to become more involved in public affairs.59 As a result, Article 11 of the Constitution was amended in 1995 to allow higher popular involvement 56. Diamond, Linz, and Lipset, op.cit. note 42, 57. 57. According to a survey carried out in 1989,94.8% of the French people said that they were in favour of the idea of democracy. 78% of them also saw democracy as the best form of government. See Fuchs, Guidorossi, and Svensson, op.cit. note 54, 349. 58. According to a survey carried out in 1984, the vast majority of the French people approved the key provisions of the Constitution of 1958. For the results of this survey and its evaluation, see Henry W. Ehrmann and Martin A. Schain, Politics in France, Harper Collins Publishers, New York 1992,71-74. 59. Guy Carcassonne, "The Constraints on Constitutional Change in France", in Constitutional Policy and Change in Europe, (Joachim Jens Hesse and Nevil Johnson, eds.), Oxford University Press, Oxford 1995, 158-164.

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by granting the president the right to call referendums on a wide range of issues.60 Thus, constitutional changes in consolidated democracies may contribute to the maintenance of legitimacy by mitigating the dissatisfaction of members of the political system deriving particularly from the ineffectiveness of the regime. Such changes may even be more desirable in emerging democracies because not only ineffectiveness, but also incongruity between political culture and political institutions as well as unsuccessful constitution-making campaigns feed the dissatisfaction of both elites and masses. Accordingly, constitutional changes may serve the construction of legitimacy after transition to democracy so long as the norms and principles of democracy are firmly supported by elites and masses. Constitutional changes within regimes may reinforce popular support for democracy at the national level; this, in turn, may reinforce popular support for democracy at the abstract level; this ultimately may increase the overall legitimacy of the regime. Consequently, the in/stability of regimes and constitutions can be explained by a three-pillar legitimacy model whose components are political culture (i.e., the orientations of the members of a given political system towards the components of the system), constitution-making (i.e., the process of the creation of basic regime institutions) and effectiveness (i.e., the capacity of a regime or a constitution for satisfying the expectations of these members). So far, we have developed an analysis to study the stability of regimes and constitutions, and made a belief-based definition of the concept of legitimacy within the framework of this analysis. Now, we wish to say a little about criticism concerning such belief-based definitions before concluding this chapter. The concept of legitimacy, in fact, has been understood and defined in different ways by several authors. Max Weber's tripartite typology of authority or "domination" is perhaps the best known analysis of the concept.61 Although his analysis has been very influential in social sciences, it could not escape criticism. His scheme was found "obsolete"62 and "lim60. For these amendments, see Jeremy Jennings, "From 'Imperial State' to 'I'Etat de Droit': Benjamin Constant, Blandine Kriegel and the Reform of the French Constitution", 44 Political Studies 1996. 488-504. 61. Weber distinguished three types of authority (or domination): traditional, charismatic and legal-rational. He maintained that the prevalent basis of legitimacy in the modern world is the belief in legality, the willingness to obey a set of impersonal rules. Max Weber, "The Theory of Social and Economic Organization", in Theories of Society, (Talcott Parsons, Edward Shils, Kaspar D. Naegele, and Jesse R. Pitts, eds.), The Free Press, New York 1961, 627. 62. Mattei Dogan, "Conceptions of Legitimacy", in Encyclopedia of Government and Politics, Vol. I, (Mary Hawkesworth and Maurice Kogan, eds.), Routledge, London/New York 1992, 116-126.


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ited".63 Such criticisms produced alternative explanations of the concept from different perspectives. For the purpose of this study we have adopted a minimalist definition, proposed by Seymour Martin Lipset and Juan J. Linz, to link, on the one hand, the concept of legitimacy with the concept of culture, on the other, to explain constitutional change within regimes on the basis of the problem of legitimacy. Apart from these advantages, however, there are some disadvantages of such belief-based definitions.64 According to John Schaar, for example: "The new definitions all dissolve legitimacy into belief or opinion. If a people holds the belief that existing institutions are 'appropriate' or 'morally proper', then those institutions are legitimate. By a surgical procedure, the older concept has been trimmed of its cumbersome 'normative' and 'philosophical' parts." Thus, "...the investigator can examine nothing outside popular opinion in order to decide whether a given regime or institution or command is legitimate or illegitimate."65 Another critical remark by Schaar focused on the capacity of leaders to shape the beliefs of people. According to him: "Another important feature of new definitions, which emerges clearly from their contexts, is that they see legitimacy as a function of a system's ability to persuade members of its own appropriateness. The flow is from leaders to followers. Leaders lay down rules, promulgate policies, and disseminate symbols which tell followers how and what they should feel and do."66 Accordingly, people's beliefs in legitimacy might be an outcome of the success of power-holders in public relations campaigns. This is quite conceivable in the age of propaganda and public relations. Power-holders can convince people that their rule is legitimate. In this way, the problem of legitimacy comes under the total control of public authorities.67 Reducing the concept of legitimacy to people's beliefs carries several dangers, also in the post-communist context. Nationalistic groups, for example, commanding a sufficient majority in parliament, may insert certain provisions into a given constitution which would harm the interests of ethnic and religious minorities. Can we consider a constitution institutionalizing ethnic discrimination legitimate just because people believe that it is better than any other that might be drawn up? On the other hand, people's beliefs can easily be manipulated by national leaders particularly after such major political crises as post-communist transitions. Can we maintain that a consti63. Anthony H. Birch, The Concepts and Theories of Modem Democracy, Routledge, London/New York 1993, 35-37. 64. Generally see Hanna Fenichel Pitkin, Wittgenstein and Justice, University of California Press, Berkeley, Los Angeles/London 1972, 280-286. 65. John H. Schaar, "Reflections of Authority", 8 New American Review 1970, 48. 66. Ibid., 49. 67. David Beetham, The Legitimation of Power, Macmillan, London 1991, 9.

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tution, approved by people thanks only to their leaders' successful public propaganda, will enjoy profound legitimacy even after these leaders? To answer these questions affirmatively is really difficult, but it is still tenable to say that people act in most cases under the guidance of their beliefs, /. e., what is right or what is wrong in their perceptions.68 Accordingly, bearing in mind all these criticisms, we may continue to develop our analysis on the basis of the belief-based definition of the concept of legitimacy.

1.4. Conclusions In this chapter we have attempted to create a conceptual framework which will be used in the rest of the study. First, we have addressed several methodological problems and discussed particularly the relevance of legal and political approaches for our analysis. Then we have defined such basic concepts as constitution, constitutionalism, liberalism and democracy. Finally, we have explained the in/stability of democratic regimes and constitutions on the basis of their legitimacy deriving from political culture, constitution-making and effectiveness. Can we expect to see constitutional changes in post-communist countries in the near future? We shall try to demonstrate in the following chapters that there are serious legitimacy problems in these countries concerning political culture, constitution-making and effectiveness. First, although most post-communist constitutions reflect post-communist political culture, the latter is too fluid to provide a firm basis for the former. Apart from this, past experiences of post-communist countries are mixed. The absence of a liberal democratic constitutional tradition in certain countries may negatively affect newly-adopted constitutions. Second, the constitution-making processes in the countries under survey produced documents which are hardly satisfactory for the major political groups. This may cripple the legitimacy of post-communist constitutions from the very beginning. Third, almost all post-communist constitutions seem to have certain effectiveness problems in the near future. Constitutions in some countries have already failed to fulfill the expectations of elites and masses. All these legitimacy problems tend to bring about constitutional changes. So the question is whether these changes take place 68. For the relevance of beliefs to political action, see Dahl, op.cit. note 26,124-188. According to Dahl: "Beliefs guide action not only because they influence or embody one's more distant goals and values—one's religious salvation, for example, one's security in old age, or the independence of one's country—but because beliefs make up our assumptions about reality, about the character of the past and the present, our expectations about the future, our understanding of the hows and whys of action: in short, our 'knowledge'." Dahl, op.cit. note 26, 125.


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within emerging democratic regimes. We shall try to show in the next chapter that there is popular support for democratic norms and principles in certain countries. On the basis of these findings, we shall argue that one may expect to see several constitutional changes within regimes in these countries (particularly those in East Central and Eastern Europe) which would play a crucial role in the consolidation of democracy therein. We shall also argue that in other countries (e.g., certain former Soviet republics), where there is weak or no popular support for democratic norms and principles, constitutional changes may be a cause or a consequence of transition to semi- or nondemocratic regimes.


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CHAPTER 2 POLITICAL CULTURE 2.1. Introduction In the first chapter we have raised points about the stability of regimes and constitutions and developed a conceptual framework which will be used in the rest of this study. We have pointed out that the stability of regimes and constitutions depends on their legitimacy deriving from political culture, constitution-making and effectiveness. This chapter examines the relationships between political culture, constitutions and constitutionalism in the countries under survey. The Concept of Culture To understand and explain the concept of political culture, it is necessary to say a little about the concept of culture first. Culture can basically be defined in two ways. In its broader sense, it refers to the whole way of life of a given society; whereas in its narrower sense, it relates to a set of "mental products".1 Legal and political scientists generally define culture in the latter sense as people's beliefs, values and attitudes. To understand and explain what culture is, its components—i.e., beliefs, values and attitudes—must be defined clearly at the very outset. Beliefs relate to the real and the unreal. In other words, they are symbolic statements about reality, such as: "Honesty is a virtue." They attempt to depict a certain part of reality. If someone says: "I believe that honesty is a virtue", this denotes a personal belief which should not be confused with "cultural beliefs". What distinguishes the latter from the former is that the ultimate authority of the validity of cultural beliefs lies outside of individuals and that cultural beliefs are shared by other members of the society. While beliefs pretend to describe what reality is, values concern certain goals, i.e., the "ought" and the "ought not". Values rank forms of behavior and arrangements which are considered relatively desirable in a given society. Thus they relate to statements, not about "what is", but about "what ought to be". If someone says: "People ought to be honest", this involves a value statement. 1.

Michael Thompson, Richard Ellis, and Aaron Wildavsky, Cultural Theory, Westview Press, Boulder, Colorado 1990, 1.

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Attitudes, in turn, focus on emotions, such as love, hate, reverence, disgust, alienation, etc. Attitudes derive from beliefs and values and involve positive or negative evaluations of objects, people or situations according to which people behave in a negative or positive manner. Their emotional dimension distinguishes attitudes from beliefs and values. If we believe that honesty is a virtue, and if we think that people ought to be honest, we would condemn dishonesty and dislike dishonest people.2 If we translate these sociological accounts into politics, we may define political culture as people's beliefs, values and attitudes towards political objects.3 Needless to say, the latter cover constitutions.4 Thus it can be argued that in consolidated democratic regimes the majority of people believe that democracy is the best regime there is and that not only democracy in the abstract, but also the democratic system in their country as embodied in the constitution is the best. It can also be argued that they value democracy by holding that people as they are ought to be governed by democratic institutions. As a result, they support democracy at both abstract and national levels.

Criticism of the Civic-Culture Approach Although the civic-culture approach has been quite influential in subsequent political cultural studies, it has not been immune to criticism. To survey this criticism fully is outside the scope of this study, but it seems necessary to touch on some of it to continue our analysis. The first set of critical remarks concerns the plasticity of political culture. It has been argued that the civicculture approach sees political culture as a product of a socialization process, i.e., a process in which members of a given political system acquire their beliefs, values and attitudes through "socialization agents", such as the family and the school. The civic-culture approach tends to assume that people's political orientations coming into being in their childhood thanks to a socialization process do not change easily in their adulthood. Some authors opposed this argument by pointing out that it is quite conceivable that 2. 3. 4.

Allan G. Johnson, Human Arrangements, An Introduction to Sociology, Second edition, Harcourt Brace Jovanovich Publishers, San Diego 1989, 57-77. For different definitions of the concept of political culture and the analyses of these definitions, see Glenda M. Patrick, "Political Culture", in Social Science Concepts, (Giovanni Sartori, ed.), Sage Publications, London 1984, 265-314. Dennis Kavanagh, for example, counted constitutions among political objects. He defined the concept as "... the 'pattern of orientations' to political objects, for example parties, courts, constitution, and history of a state. Orientations are predispositions to political action and are determined by such factors as tradition, historical memories, motives, norms, emotions and symbols; the culture therefore represents a set of propensities." Dennis Kavanagh, "Political Culture", in The Blackwell Encyclopedia of Political Science, (Vernon Bogdanor, ed.), Blackwell, London 1991,447

Chapter 2. Political Culture

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political culture is the effect—not the cause—of a democratic process. People may develop a democratic political culture thanks to their experience with liberal democratic institutions during their life time.5 There are significant implications of this theoretical debate for the future of liberal democratic regimes and constitutions in post-communist countries. If we accept the arguments of the civic-culture approach, we may argue that, since people were socialized into authoritarian or totalitarian institutions in the communist period, and they most likely still preserve some of their antidemocratic orientations, the emergence of a political culture congruent with new liberal democratic institutions may only be possible when new generations replace the old ones. Ultimately, post-communist countries would have little or no chance to establish viable constitutional regimes in the near future. Can we really maintain that liberal democratic institutions have no future in post-communist countries? We believe that this is an unnecessarily pessimistic evaluation. One should not underestimate the capacity of institutions to shape people's political orientations. Members of a given political system may develop a set of liberal democratic beliefs and values by acting within the framework of several constitutional institutions. For example, casting their votes in elections or applying to courts for the protection of their rights and liberties may bring about changes in their non-democratic orientations. However, one should also bear in mind that it is the effectiveness of regimes and constitutions which plays the most important role in (re)shaping a given political culture. In other words, people would hardly change their beliefs and values, unless they see the positive results of the institutions concerned. As a consequence, we assume in this study that political culture can change. Indeed, as Larry Diamond put it: "To argue that political culture is not at least somewhat 'plastic' and open to evolution and change would be to condemn many countries...—countries in the developing world and the former communist bloc that have not consolidated democracy—to perpetual authoritarianism and praetorianism."6 The second implication of the capacity of change of a political culture is that, if culture really changes, several historical layers should be found in a given political culture shaped by changing social, economic and political conditions in different periods of a given nation's history. Indeed, as many public opinion surveys suggest, some beliefs and values of members of postcommunist societies tend to display continuity. However, along with the 5. 6.

See Brian Barry, Sociologists, Economists, and Democracy, University of Chicago Press, Chicago 1970,51-52. Carole Pateman, "Political Culture, Political Structure and Political Change", 1 British Journal of Political Science 1971, 291-305. Larry Diamond, "Political Culture and Democracy", in Political Culture and Democracy in Developing Countries, (Larry Diamond, ed.), Lynne Riener, Boulder, Colorado 1994, 9-10.

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latter, surveys have also found certain new orientations which are hardly the product of the communist socialization process. Thus the current political cultures of post-communist societies can be seen as an amalgam of precommunist, communist and post-communist orientations. We shall study the continuity and change in the political cultures of these societies by focusing on pre-communist and communist political cultures within the framework of a historical approach. We shall try to show that, contrary to what many expected, in the past there were some liberal democratic elements in the political cultures of certain countries, particularly those in Eastern and East Central Europe. Then we shall turn to post-communist political culture as an amalgam of past and present elements. We shall mainly look at public opinion surveys to find out whether there is political support for liberal democratic institutions in the countries in question. The second set of critical remarks of the civic-culture approach relates to the heterogeneity of political culture. It has been argued that the civic-culture approach tends to see political culture as a homogeneous body. True, the culture of a given polity may display uniformity, but this is not necessarily the case. There may be differences between "elite" and "mass" political cultures. Moreover, there may be several "sub-cultures" in a given polity because the political cultures of different groups vary with their religious, ethnic or class orientations.7 In this respect, we shall particularly focus on the differences between official, elite and dominant political cultures. The heterogeneity of a political culture may affect the legitimacy of a given constitution in different ways. First, constitutions generally tend to embody the elite political culture. They are usually drawn up by a small group of elites who generally pretend to represent the entire community. The more there is a gap between elite and mass cultures, the more difficult to establish the legitimacy of a given constitution. Harriet B. Applewhite underlined the incongruity between the political culture of deputies who had drawn up the French Constitution of 1791 and the institutions they created. According to the author, it would be unrealistic to expect that a constitution which had not even been supported by its designers could enjoy popular support.8 Thus one should investigate the cultural sources of a constitution to discuss its legitimacy. As we shall try to show in the next sections, precommunist and communist constitutions bore the stamp of elites. This is also true for most post-communist constitutions. We shall discuss later the 7. 8.

See Lucian W. Pye, "Political Culture", in International Encyclopedia of the Social Sciences, (David L. Sills, ed.), The Macmillan Company & The Free Press, New York 1968,218-225. Harriet B. Applewhite, "Political Legitimacy in Revolutionary France, 1788-1791", 9 Journal of Interdisciplinary History 1978, 245-273.


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cultural implications of elite dominance on the post-communist constitutionmaking process in detail.

The Concept of Political Culture Theories linking culture and institutions hark back to Ancient philosophy. According to Aristotle, who employed the term of constitution in the sense of the whole system of life: "It is useless to have the most beneficial laws, fully agreed upon by all who are members of the constitution, if they are not going to be trained and have their habits formed in the spirit of that constitution..."9 Political cultural studies, however, became very popular particularly in the 1960's. There were several reasons for this, but the failure of inter-war and post-colonial constitutions at the practical level and the reactions to the legalinstitutional approach at the level of theory certainly played a role. As mentioned above, early studies in political science and constitutional law had been based to a great extent on a legal-institutional approach. Its critics argued that this approach had ignored the real-life relationships between political actors by merely focusing on constitutions. Thus political cultural studies developed as a reaction to the legal-institutional approach. On the other hand, the repeated failure of liberal democratic constitutions led political scientists to rethink some widely-accepted theories of classical political science. Especially, the liberal theories of the 17th and 18th centuries envisaged an inevitable evolution towards a liberal democratic state. According to these theories, as the modernization of the respective countries progressed, liberal democratic institutions would gradually spread across the world.10 The validity of modernization theories began to be questioned after the collapse of liberal democratic regimes in inter-war Europe and postcolonial Africa. It was generally accepted that drawing up a perfect liberal democratic constitution might not be enough to establish a viable liberal democratic regime; what was needed was, according to political cultural theorists, a supportive political culture.11 9.

Aristotle, The Politics, Translated by T.A. Sinclair, Revised and Re-presented by Trevor J. Saunders, Penguin Books, London 1992, Book V, ix, 331. 10. Gabriel A. Almond, "The Intellectual History of the Civic Culture Concept", in The Civic Culture Revisited, (Gabriel A. Almond and Sidney Verba, eds.), Sage Publications, London 1989, 6, 7. 11. Verba noted the relations between political culture and the constitution: "A new constitution... will be perceived and evaluated in terms of the political culture of a people. When put into practice in one society it may look quite different from the same constitution instituted in another nation with another political culture... History is full of examples of constitutions that did not "take" as the constitution writers had hoped because their application was mediate through a particular political culture..." Sidney Verba, "Comparative Political Culture", in Political Culture and Political Development, (Lucian W. Pye and Sidney Verba, eds.), Princeton University Press, Princeton 1965, 517.

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Gabriel A. Almond, in his seminal article, "Comparative Political Systems", called attention to the importance of particular patterns of orientations to political action.12 He later developed his analysis together with one of his colleagues, Sidney Verba, in a book titled The Civic Culture.13Then he further elaborated the concept of political culture within the framework of political system and political development theories together with another colleague, G. Bingham Powell Jr.14 However, The Civic Culture has been considered by many as the basic text of political cultural studies. In this book, published in 1963, the authors surveyed the attitudes towards democracy in Britain, Germany, Italy, the United States and Mexico. The main theme developed in this study was that the stability or instability of a given political system depends to a great extent on the congruency between political culture and political institutions. Within the context of this study, Gabriel A. Almond defined the theory of civic culture as "...a psychological theory of democratic stability".15 Almond and Verba distinguished three dimensions of political orientations, cognitive (i.e., knowledge and awareness of political objects), affective (i.e., emotions and feelings about political objects), and evaluational (i.e., judgments and opinions about political objects). On the basis of this three-fold categorization, they distinguished three types of political culture; parochial, subject and participant political cultures. Citizens having a parochial political culture have little or no awareness of the political system. Those having a subject culture become part of the political system and perceive its impact or potential impact on their lives, but remain passive in terms of participating in politics. Those having a participant culture, in turn, tend to be explicitly oriented toward the system. According to Almond and Verba, a political culture congruent with a stable democracy would be a mixed one. They labeled this mixed culture as the "civic culture", and defined it as a balanced combination of "activity and passivity", "obligation and performance", "consensus and cleavage". They saw British and American political cultures as the closest ones to the civic culture.16

12. Gabriel A. Almond, "Comparative Political Systems", 18 Journal of Politics 1956, 391409. 13. Gabriel A. Almond and Sidney Verba, The Civic Culture, Political Attitudes and Democracy in Five Nations, Princeton University Press, Princeton 1963. 14. Gabriel A. Almond and G. Bingham Powell, Jr., Comparative Politics, System, Process, and Policy, Second edition, Little, Brown and Company, Boston 1978, 25-51. 15. Gabriel A. Almond, "Civic Culture", in The Blackwell Encyclopedia of Political Science, (Vernon Bogdanor, ed.), Blackwell, London 1991, 98. 16. Almond, Verba, op.cit. note 13, 12-26.


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Religion and Economics as the Determinants of Political Culture Having addressed certain theoretical problems concerning political cultural studies, we can now turn to another problem, the determinants of political culture. Which factors affect the development of a given political culture? It has been said that the material and ideal interests of human beings have to be satisfied in order to maintain their lives and develop their personality. In this respect, socio-economic conditions and religion would play a decisive role in people's lives. This being so, it can safely be assumed that, along with several others, these are among the most important factors shaping people's political culture.17 Many authors pointed to the role played by Christianity and the middle class within the context of Western political culture. A distinction has generally been made between Eastern and Western Christianity, as well as between Christianity and other religions, particularly Islam and Confucianism. It has been argued that Western Christianity, especially its emphasis on individual autonomy and the separation between state and Church, prepared the ground for Western political culture generating and supporting liberal democratic institutions. Although the historical correlation between liberal democratic political culture and Western Christianity is significant, the experience of countries such as Japan shows that a liberal democratic political culture may also flourish in a non-Christian setting. A part of the next section shall be devoted to the differences between Eastern and Western Christianity in terms of the religious foundations of constitutionalism. Apart from religion, the influence of socio-economic conditions on the evolution of political culture has been widely discussed in the literature. It has been argued that there is a correlation between socio-economic development and the emergence of a liberal democratic political culture. According to this way of thinking, economic development leads to the emergence of a larger middle class society and a better educated population who tend to commit themselves to such values as tolerance and trust which are highly important for the maintenance of a liberal democratic regime. Apart from theoretical discussions, there are certain empirical studies aiming to prove a relationship between socio-economic development and liberal democratic political culture.18 Although today one can find certain examples, such as India, in which poor and less-educated people espouse liberal democratic 17. See Hans-Georg Wehling, "A Historical and Regionalist Approach: National and Regional Dimensions of Polish Political Culture", in The Political Culture of Poland in Transition, (Andrzej W. Jablonski and Gerd Meyer, eds.), Wydawnictwo Uniwersytetu Wroclawskiego, Wroclaw 1996, 55-56. 18. For the discussion of theoretical and empirical aspects of this issue, see Larry Diamond, "Economic Development and Democracy Reconsidered", Reexamining Democracy, (Gary Marks and Larry Diamond, eds.), Sage Publications, London 1992, 93-139.

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values, one cannot disregard the fact that historically most revolutionary movements culminating in the establishment of liberal and democratic regimes were middle class movements. In the next sections, we shall put particular emphasis on the historical role played by the middle class in the development of the concept of constitutionalism.

Liberal Democratic Political Culture As mentioned above, a political culture consists of beliefs, values and attitudes towards political objects, including constitutions. So, one may reasonably ask: What kind of beliefs and values do support liberal democratic institutions? Several authors put emphasis on different values,19 but it is generally accepted that tolerance and trust are indispensable for a liberal democratic political culture.20 In democratic regimes it is essential that different groups having different opinions and ideas exist together. These groups compete with each other to come to power. Accordingly, they should admit the existence of diverse, opposing, even controversial ideas. If they ignore or try to suppress, eliminate or even destroy opposing ideas, democracy cannot work. As for trust, the viability of democratic institutions depends to a great extent on trust and cooperation among citizens. Not only mutual trust among the people, but also the people's trust in liberal democratic institutions makes a democracy work. People's distrust leads to alienation, and the latter undermines a regime like democracy resting on the consent and participation of citizens. There are certain problems in postcommunist countries in terms of trust and tolerance, which we shall discuss in the last section of this chapter. With regard to beliefs, we have pointed out in the previous chapter that the stability of constitutions depends on their legitimacy and made a beliefbased definition of the latter. Thus people's beliefs in the legitimacy of liberal democratic institutions constitute an important part of liberal democratic political culture. Dahl noted that: "...the greater the belief within a given country in the legitimacy of the institutions of polyarchy, the greater the chances for polyarchy."21 We have already defined certain basic liberal democratic institutions. It can, therefore, be said that the belief in participation and contestation is vital for liberal democratic regimes. However, that is not all; demo-protection elements of a liberal democratic regime are as important as its demo-power elements. Thus, people's belief in constitution19. Kristen Hill Maher, 'The Role of Mass Values", in Democratic Theory and Post-Communist Change, (Robert D. Grey, ed.), Prentice Hall, New Jersey 1997, 79-110. 20. Lucian W. Pye, "Political Culture", in The Encyclopedia of Democracy, (Seymour Martin Lipset, ed.), Congressional Quarterly Inc., Washington, DC 1995, 968-969. 21. Robert A. Dahl, Polyarchy: Participation and Opposition, Yale University Press, New Haven/London 1971, 129.


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alism, i.e., limited and divided government, also appears as one of the basic tenets of a liberal democratic political culture. The proceeding of this chapter will be as follows: we shall first study the pre-communist political cultures of the countries under survey by paying particular attention to the elements of liberal democratic constitutionalism which can be found in the past experiences of certain countries. Then we shall turn to communist political culture and try to demonstrate its unique characteristics, particularly the tradition of strong state authority/weak civil society and the absence of such liberal democratic values as trust and tolerance. The analyses in these sections will enable us to determine, on the one hand, whether post-communist countries have a liberal democratic constitutional tradition to rely on; on the other, to identify the basic characteristics of precommunist and communist political cultures which would affect the nature of post-communist constitutions negatively or positively. Lastly, we shall examine post-communist political culture as an amalgam of pre-communist, communist and post-communist elements. This analysis, in turn, will allow us, on the one hand, to find out whether post-communist constitutions reflect post-communist political culture; on the other, to investigate whether there is sufficient support for democratic norms and principles in post-communist countries to afford constitutional changes within regimes. Before proceeding, however, two caveats are in order. First, this chapter does not aim at introducing a comprehensive analysis of East European and Russian political cultures; rather it focuses on the political cultural dimensions of constitutionalism as they emerged in the respective countries to provide the reader an overview which can be used in constructing a three-pillar legitimacy model explained in the first chapter. Second, the first part of this chapter, which is relatively longer than other parts, puts particular emphasis on the political cultures of such countries as Poland, Hungary, Bulgaria, Romania and Russia where important constitutional developments took place from a comparative-historical point of view. This does not, however, necessarily mean that other countries, particularly the former Soviet republics, had no experience with constitutionalism at all. For example, Georgia experienced a short-lived constitutionalism before becoming a part of the USSR, but such developments were hardly conducive to the emergence of a liberal democratic constitutional tradition. Thus we shall concern ourselves mainly with the countries which have had relatively longer tradition of constitutionalism in which the current liberal democratic constitutions can take root.

2.2. Pre-Communist Political Culture and Constitutionalism Political and legal developments in Eastern and Western Europe in the precommunist period had significant effects on the creation of the current

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political cultures of the countries in these regions. One may even trace the emergence of the basic elements of constitutionalism back to the Middle Ages. In this respect, two characteristics of the theocentric European medieval political culture deserve particular attention: the separation of the Church and the state and feudalism. Apart from that, the secularization and democratization of European political culture between the 17th and 19th centuries had far-reaching repercussions in the evolution of the concept of constitutional government across the continent. Although there were some parallel developments in Russia to those in Western and Eastern Europe in terms of the emergence of the basic elements of constitutionalism, the Russian Revolution of 1917 marked the radical separation of Russian and European political cultures at the beginning of the 20th century. The foundation of people's democracies in Eastern Europe after the Second World War also put an end to the similarities between the political cultures of West and East European countries.

Germanic and Slavic Tribal Kingdoms In 395 one of the greatest empires of the world, the Roman Empire, was divided into two parts, as West and East. The division was highly important, for it laid the foundations for the lasting bifurcation of European society. In 476 the West Roman Empire was destroyed by Germanic tribes and the vacuum, created by its disappearance, was filled by numerous tribal kingdoms. The eastern part survived as the Byzantine Empire until the 15th century. Yet, in the 5th and 6th centuries the authority of the Empire on the Balkan Peninsula was undermined by migratory Slavic tribes. In the beginning, the migration movements had been sporadic in character, but in the 6th and 7th centuries, they turned into a mass movement. In the early ages the tribes split into three main branches: the Western Slavs, including the Poles, Czechs and Slovaks; the Southern Slavs, including the Bulgarians and Serbs; the Eastern Slavs, including the Russians. Thus massive migrations in the Middle Ages drew roughly the nationality map of Eastern Europe. In spite of the emerging political division, West and East European governmental institutions were similar to a great extent in this period. The absence of centralism was the definitive characteristic of Germanic tribal kingdoms. There were several rulers exercising their power autonomously in their jurisdictions. Kings held these rulers together and mobilized them when necessary. They were, however, by no means absolute rulers. Many important collective decisions were taken by nobles, and in some cases by all freemen, not by the king. Apart from this, the king had to observe tribal customs and respect his subjects' rights.22 Governmental institutions of the 22. R.C. van Caenegem, An Historical Introduction to Western Constitutional Law, Cambridge University Press, Cambridge 1995, 34-42.


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Slavic tribal kingdoms were also characterized by decentralization of power. The tribal chief was primus inter pares, but all important decisions were made by an assembly composed of the most eminent men of the tribe. Slavic tribal kings were initially military leaders and gradually became the permanent rulers of the territorial unit. Yet the firmness of the union of the Slavic tribes remained dependent largely on the personality of the leader.23 To sum up, by the 6th-7th century, the concept of central political authority was absent both in Germanic and Slavic tribal kingdoms. What was keeping these tribes together were the personal relationships between rulers and ruled. As a result, political authority was rudimentary and the political entities were shaky in this period. Between the 7th and 10th centuries, both Germanic and Slavic tribes consolidated their political organizations and turned into permanent political entities. In the 8th century a number of Germanic tribes were unified into an empire founded by Pippin and enlarged by Charlemagne, the Carolingian Empire. The latter remained as the central power of Western Europe until its division by the Verdun Treaty in 843, resulting in the emergence of the Holy Roman Empire and the French Kingdom. In the same period, England, another prominent actor of the Middle Ages, came into being as a separate entity. The Slavic tribes followed suit and welded together into the Bulgarian Empire in the 7th century. In the 9th century the Hungarian and Bohemian, and in the 10th century, the Polish Kingdom emerged. Thus the political landscape of Eastern and Western parts of Europe became more visible. More importantly, the demarcation of Eastern and Western churches in 1054 erected a cultural barrier between the East and the West. This, in turn, shaped the cultural landscape of Europe at the time.

Medieval Constitutionalism in Europe As William T. Bluhm put it: "The leading characteristic of medieval political culture...was its theocentrism."24 It would, therefore, be convenient to start to analyze Western and Eastern political cultures by studying the impact of Western and Eastern Christianity on the concept of constitutionalism. Western Christianity in the Middle Ages, ca. 1000, mainly prevailed in the Holy Roman Empire, the Kingdom of France and the Kingdom of England; as well as the Kingdom of Poland, the Kingdom of Hungary and the Kingdom of Bohemia-Moravia. Eastern Christianity, in turn, predominated in the Kingdom of Bulgaria, Serbia, Kievan Russia and the Byzantine Empire. Thus, 23. Jean W. Sedlar, East Central Europe in the Middle Ages, 1000-1500, University of Washington Press, Seattle 1994, 257-258. 24. William T. Bluhm, Ideologies and Attitudes: Modern Political Culture, Prenctice-Hall, Inc., Englewood Cliffs, New Jersey 1974, 30.

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while West and East Central Europe were in the realm of Western Christianity, the Balkans and Russia were in the realm of Eastern Christianity. One of the most important principles of Western Christianity was the separation of temporal and spiritual authorities providing a de facto separation of powers in medieval Europe. The intellectual sources of this principle can be found in the theories of early Christianity, particularly in St. Augustine's City of God. According to Augustine, the fulfillment of the physical and spiritual needs of the Christian society should be administered by the secular and ecclesiastical authorities separately. Separate functions concerning the physical and spiritual lives of the people are performed by the Church and the state respectively. The latter, aspiring to govern different spheres of people's life, should not violate each other's jurisdiction. This idea found its expression in slightly different versions in the theories developed by Pope Gelasius I and Pope Gregory VII who gave prominence to the Church in relation to the state, but the original premises remained unaltered for ages. Some counterarguments were also produced by writers such as Giles of Rome and Marsilio of Padua. Nevertheless, the division of powers between the Church and the state became one of the cardinal tenets of European political culture. Such a dual authority structure had several implications on the development of the idea of constitutional government in Western and East Central Europe. Since Western Christianity made a distinction between powers belonging to Caesar and to God, the spiritual authority, i.e., the Church, appeared as a counter-balancing, even a constraining force to the temporal authority, i.e., the king. Thus the rulers in the realm of Western Christianity had always to take into account the powers of the ecclesiastical authorities when wielding their powers. It can, therefore, be argued that this division of power made the establishment of constitutional government in Western and to a certain extent in East Central Europe easier in subsequent ages. European constitutionalism had not only religious foundations, but also secular foundations in the Middle Ages deriving mainly from the feudal structure of society. In this respect, particularly contractual liberties and medieval parliaments may be regarded as the forerunners of the most central institutions of liberal democratic constitutionalism in Europe. It was the Carolingian Empire which systematized and bequeathed feudalism to subsequent generations. The feudal system was chiefly based on a contract between two parties, lord and vassal. Under the contract, the lord provided protection and subsistence to the vassal, and the vassal provided service (especially military) to the lord. Initially, the needs of the vassal were satisfied by the lord. This meant that the vassal was accepted in the hall of the lord and received food and clothing. Subsequently, to meet his needs, the vassal was given lands, known as fief, for the term of the contract.25


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The contractual relationship between the superiors and the inferiors inevitably affected the constitutional position of the king. He assumed two separate roles within the framework of this power structure: on the one hand, he was an absolute ruler who had the right to rule his kingdom by the grace of God; on the other hand, he was a party of the feudal contract based on reciprocal rights and duties between him and his vassals. The latter role resulted in the limitation of the powers of the king by the privileges of the vassals who had the right of resistance and disobedience in the event of his violation of the contract. Feudal relationships gave rise to royal charters in the early Middle Ages; then, these charters paved the way for the constitutional protection of individual liberties in subsequent ages.26 In fact, the evolution of individual liberties out of royal charters displayed great similarity in the Western and East Central parts of Europe. Initially traditional tribal allegiance was replaced by contractual relationships within the feudal structure. The privileges of vassals were enshrined in feudal contracts confirmed by fealty oaths. Originally such privileges were enjoyed only by the parties of the feudal contract, but they were gradually expanded to estates by royal charters. One of the first charters of this kind was the English Magna Carta of 1215 which was granted by the King John after an unsuccessful military campaign against France. England, however, was not unique in this respect. Several royal charters emerged also in East Central Europe.27 The Golden Bull of 1222 was the first royal charter in the region, signed by the Hungarian King Andrew II after a failed military campaign against Naples. Although the Bull did not define or guarantee new liberties, it extended the old ones to the nonnoble portion of the society. In this respect, the Golden Bull even went further than the Magna Carta which included new liberties only for barons.28 25. See Van Caenegem, op.cit. note 22,48-49 and 56-62. 26. Walter Ulmann wrote as follows when discussing the evolution English Constitution: ".. .the feudal compact itself furnished a sufficiently strong base from which a later theory of individual rights and duties could, as it did, emerge. This individual relationship was a reciprocal relationship based upon the feudal contract, which was to display its influence far beyond feudalism, far beyond the [English] constitution, and was to radiate into all departments of social and public life. One might indeed go as far as to say that the slowly emerging constitution was that consequence of the rights which feudal practice had attributed to the individual." The Individual and Society in the Middle Ages, The Johns Hopkins Press, Baltimore 1966, 79. 27. For Magna Carta and other royal charters in the Middle Ages, see J.C. Holt, Magna Carta, Second edition, Cambridge University Press, Cambridge 1992, see particularly 23-49. 28. See Ferenc Somogyi, "The Constitutional Guarantee of 1351: The Decree of Louis the Great", in Lois the Great-King of Hungary and Poland, (S.B. Vardy, Geza Grosschmid, and Leslie S. Domonkos, eds.), East European Monographs, Boulder 1986,430-431. For the English translation of Golden Bull, see 455-460.

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In Poland initially one person or the nobles of a specific province—and from 1374 onward—the entire nobility obtained significant privileges. Thanks to the latter, the nobility was exempted from several tax and military obligations. Moreover, the privileges of 1422, 1425, 1430 and 1433 made the habeas corpus principle applicable to the Polish nobility.29 As medieval monarchs recognized the privileges of certain estates, the latter began to organize themselves into parliaments. Originally, expressing their opinions on important matters (consilium) was one of the duties of the nobility under the feudal contract. As the nobility grew stronger, the powerless monarchs more frequently sought their support, even their consent, to take important decisions. Thus impermanent counseling assemblies (curia regis), gradually transformed into parliaments convening regularly and assuming an effective role in decision-making. England was again the exemplar country in Europe in this respect. In the early Middle Ages, the English monarchs were assisted by assemblies consisting of landowning barons and bishops. Initially these assemblies, known as the Great Council, were summoned when the monarch needed information, advice and especially financial support from great lords. Yet the Council became a power to be reckoned with by the end of the 13th century thanks to vital changes occurring in its status and structure. It began to meet frequently and regularly and the Commons began to participate in its sessions. Gradually, Parliament, more correctly the Commons in Parliament, worked their way into the governmental machinery. They began to voice their grievances on the laws brought before them by the monarch. They went even further by expressing their wishes in the form of a bill. Thus the rough framework of the modern English constitutional system became visible at the end of the 14th century which was to be highly influential on other European countries in subsequent ages. Approximately from the 13th to the 17th century, parliaments were widespread across Europe. Those in Eastern Europe, particularly the Polish and Hungarian ones, came into being later (in the 16th and 17th centuries), but their functions and structures were to a great extent similar to those of their Western counterparts. These assemblies, comprising only nobles in the beginning, were gradually transformed into "estate assemblies". Almost all medieval parliaments "...were essentially assemblies of estates, organized to represent primarily the leading social classes; and this outstanding class character is one of the chief differences between them and modern parliaments."30 Thus, these assemblies began to include the clergy, nobles and 29. See Ludwik Kos-Rabcewicz-Zubkowski, "Polish Constitutional Law", in Polish Law Throughout the Ages, (Wenceslas J.Wagner, ed.), Hoover Institution Press, Stanford, California 1970, 224-225. 30. Robert Howard Lord, "Parliamentary Monarchy" in The 'New Monarchies' and Representative Assemblies, (Arthur J. Slavin, ed.), D.C. Heath and Company, Boston 1964,70.


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gentry, and the "burgesses of the good towns". The peasantry was represented only in a few instances. In Poland and Hungary parliaments were bicameral composed of magnates and less privileged estates. In Czech lands the Diet was tricameral (magnates, knights, burghers, and clergy). In Croatia-Slovenia and in Transylvania the Diets were unicameral consisting of the same estates as in the Polish and Hungarian ones. These parliaments exercised considerable authority in the 15th and 16th centuries, but they waxed and waned in the course of time. In Czech lands the Diet was dissolved in 1627 after a failed revolt against the Habsburgs. In Poland the Sejm was operative until the partition of 1795. In Hungary, Croatia and Transylvania they survived until 1814 when they were replaced by more modern representative institutions.31 Lastly, it is important to note that although there were many similarities between Western and Eastern governmental institutions in medieval Europe, there was a crucial difference between them in terms of the application of the principles of feudalism: there was no contractual relationship between the monarch and the nobility in most of the East European countries. In these countries military service was in principle an obligation deriving from allegiance to the monarch, rather than a payment for land-holding.32 It can be argued that this peculiarity of Eastern feudalism created unfavorable conditions for the emergence of contractual liberties in East Central Europe by obstructing the development of reciprocal relationships between rulers and their subjects. Comparing European Medieval Constitutionalism with Constitutionalism in Russia and the Balkans Although there were many common characteristics among the countries of Western Christianity, there were significant differences within the realm of Eastern Christianity in terms of the foundations of constitutionalism. In the Southern Slavic lands, particularly in Serbia and Wallachia, neither religious, nor secular foundations of constitutionalism could grow. As Sedlar put it: "Christianity in the Balkans remained rigidly Byzantine and traditional 31. See Andrew C. Janos, "Europe, East Central", in The Encyclopedia of Democracy, (Seymour Martin Lipset, ed.), Congressional Quarterly Inc., Washington, DC 1995,444445. 32. Sedlar underscored this point: "Most parts of medieval East Central Europe never experienced a feudal system of the type prevailing in France or England, where land was often granted as fiefs (i.e., in exchange for a vassal's promise to perform militarily service whenever summoned). This meant that landholding was not ordinarily linked to a military obligation in any formal or legal way, since in principle, if not always in practice, all able-bodied men owed this service to their sovereign." Sedlar, op.cit. note 23,260. Also see Piotr S. Wandycz, The Price ofFreedom-A History of East Central Europe from the Middle Ages to the Present, Routledge, London/New York 1992, 21.

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despite its Slavic dress."33 In the Byzantine tradition spiritual authority was subordinated to temporal authority. Thus there were no proper conditions in the Balkans for the religious foundations of constitutionalism to flourish. As for secular foundations, some royal charters were granted in the region, e.g., a code of law granted by the Serbian King Stefan Dusan in 1349 and that of the Wallachian Prince Vasile Lupu in 1646; and several assemblies emerged, e.g., the Serbian Stanak, and the Romanian Sfat, but they could not be regarded as the forerunners of constitutionalism as we have defined above.34 In Kievan Russia, on the other hand, there were some remarkable developments in terms of the emergence of both religious and secular foundations of constitutionalism. First, the Russian Church was to a great extent autonomous, "a state within the state", in the words of the prominent historian Vernadsky ,35 Regional princes turned to the Church for carrying out administrative tasks at that time. The relationships between temporal and spiritual authorities were regulated in accordance with the Byzantine theory of "symphonia". According to the latter, the Church and the state should cooperate to promote the well-being of the society. Although they were responsible for heavenly and earthly matters respectively, they should interact with each other harmoniously in order to secure the happiness of the entire community. True, authorities in Kievan Russia were committed to the principle of "symphonia", but there was a crucial difference between Russia and Byzantium. In the latter there was a strong political authority, whereas in Russia the government was relatively weak, and the Church was more involved in earthly matters, particularly in legal and administrative affairs.36 This position of the Church led to the division of political power, although to a limited extent, between secular and ecclesiastical rulers. Second, although conditions were not favorable for the development of contractual liberties, certain representative institutions came into being in Kievan Russia in this period. Russian feudalism, like feudalism in Eastern Europe, was different from West European feudalism: there were no reciprocal relationships between the prince and boyars.37 Since the latter held their lands freely as their 33. 34. 35. 36.

Ibid., 147. Janos, op.cit. note 31,445. George Vernadsky, Kievan Russia, Yale University Press, New Haven 1948, 204. Nicolai N. Petro, The Rebirth of Russian Democracy, An Interpretation of Political Culture, Harvard University Press, Massachusetts 1995, 61-63. 37. Downing compared the foundations of constitutionalism in Western Europe with Russia, Japan and China. He mentioned four principal characteristics of medieval Western constitutionalism: (1) balance between the crown and the nobility (consequences of this balance were the emergence of representative assemblies, the rising of towns and royal charters like Magna Carta); (2) decentralized military organization (feudal levies and militia); (3) survival (in some areas) of Germanic tribal customs; (4) peasant property rights and reciprocal relations between lords and peasants. He noted that, in Russia, along with Japan and China, there was no rough balance between the crown and the nobility,


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private property, they were able to change the prince they served without losing their lands.38 As George Vernadsky noted: First of all, [boyardom] was not an exclusive group, since a commoner could join it through his service in a prince's retinue. Second, it had no legal privileges as a class. Third, while the boyars together with the princes were the owners of large landed estates par excellence, they were not the only landowners in this period in Russia, since land could be bought and sold without restriction and a person of any social group could acquire it.39 Accordingly, there were no conditions at that time in Russia similar to those prevailing in Western Europe for the development of contractual liberties on the basis of reciprocal relations between rulers and the ruled. However, this did not create an obstacle to the emergence of certain representative assemblies in Kievan Russia resembling their West and East European counterparts. In the later Middle Ages the boyars organized themselves into an assembly known as the Boyar Duma. Apart from the latter, representing mainly the higher nobility, local assemblies, known as the veche, occasionally occurred. Every freeman, on condition of being head of a household, had the right to join these assemblies. In the veche important issues were discussed, and crucial decisions were taken unanimously. The prince was at the center of the governmental machinery, but he had to share his power with the Boyar Duma and the veche. It can safely be argued that all these institutions of Kievan Russia sowed the seeds of constitutionalism in the Russian lands.

2.2.1. First Stage of the First Great Transformation of European Political Culture Renaissance, Reformation, the Enlightenment and the rise of absolutism led to the first great transformation of medieval political culture in the West. This transformation occurred in two stages. In the first stage, Renaissance and Reformation undermined the strength and authority of the Church. This set the ground for the secularization of Western political culture. The Enlightenment completed this process in the second stage. As absolute monarchs contractual-military organization, and reciprocal relations between lord and peasants. Brian M. Downing, "Medieval Origins of Constitutional Government in the West", 18 Theory and Society 1989, 213-247. 38. According to George Vernadsky: "...it hardly would be possible to characterize the regime prevalent in Russia of the Kievan period as a feudal one. It is of the existence of some feudalizing tendencies only that we can speak with regard to the Kiev state and society." "Feudalism in Russia", Speculum 1939 No. 14, 311. 39. Vernadsky, op.cit. note 35, 140.

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emasculated the nobility and subverted medieval parliaments and contractual liberties, ecclesiastical and feudal constraints on monarchs gradually decreased. So, it can be maintained that the subject character of Western political culture remained intact—because monarchs exercised generally unfettered powers in their jurisdictions—but it lost its theocentric nature.

Renaissance and Reformation Renaissance, an artistic and scholarly revival around the 15th century in Western Europe, was the spark that set off the great transformation of Western political culture. In this period those who had been organizing their lives according to heavenly considerations, came to be aware of earthly interests. Artistic and scholarly activities, monopolized by the Church in the Middle Ages, began to be performed by secular artists and scholars under the patronage of rising middle class families. Most intellectual products of this age were pregnant with secular ideas. Reformation was the response of spiritual authorities to these developments. Those criticizing the abuses and corruption of the Catholic Church originally intended to restore the authority of the Universal Church by overhauling Catholic institutions, but their efforts produced unintended effects and the Christian world was fragmented by intramural struggles. The Church lost, on the one hand, its power to check the rulers, on the other, its authority over people.40 The growing tension between the major Christian denominations, Catholics and Protestants, culminated in the Thirty-Years War. This War was so ravaging that most people greeted absolute monarchs enthusiastically as the restorers of peace and order. The Peace of Westphalia, endorsing the victory of secular princes, ended this war. The sovereign rights of the princes, including the right to determine the official religion in their lands, were confirmed by the Peace Agreement. Thus, with the waning of the Church as a counter-balancing power to the temporal authority, royal absolutism began to rise on the continent, especially in France and Spain, from about the 16th century.41 Needless to say, royal charters, acknowledging the contractual liberties of privileged estates, were incompatible with absolutism. Medieval parliaments, sharing powers with monarchs in the Middle Ages, were also anathema to absolute monarchs. Charters were rescinded and parliaments, if not abolished completely, were relegated to an inferior status. Thus the nobility, sharing power with the monarchs through medieval parliaments and con40. For details, see Frederick Watkins, The Political Tradition of the West, Originally published in 1948, Greenwood Press, Westport, Connecticut 1982, 62-89. 41. For a comparative constitutional history of the 17th century, see Sir George Clark, The Seventeenth Century, Second printing, Oxford University Press, Oxford 1972, 82-97.


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tracts, became feeble and passive. As Van Caenegem put it: "As the hour of the nobility was gone, that of the bourgeoisie had not yet arrived, and the temporary void was filled by the autocrats: for one group it was too late, for the other too early, but for the monarchy the time was just ripe."42 Not only the nobility, but also national churches were subjugated by absolute monarchs. As a consequence, monarchs were no longer bound by spiritual and temporal constraints. Although these ages saw the rise of absolutism, this was hardly a discontinuity in Western political culture comprising the seeds of liberal democratic constitutionalism. It was rather a transition period involving the secularization of public and private lives. It is also important to note that although secularization was accomplished at the expense of medieval constitutionalism, something very important for constitutionalism, namely national unification, was also achieved in this period. Absolute monarchs managed to unify several national elements within the framework of a single political entity. This was particularly important because: "...only a firmly established government is capable of being constitutionalized."43

The Rise of the Nobility in Eastern Europe Although the repercussions of Renaissance and Reformation were felt also in Eastern Europe, absolutism could not penetrate in the region. Nor could national unification be achieved in these countries. Decentralization of power remained one of the most important characteristics of East European political systems. In this period socio-economic conditions began to play a much more crucial role in the evolution of the political cultures of these countries. The absence of a viable middle class and the rise of the nobility, in particular, deeply affected East European values. As mentioned earlier, there were three dominant actors in West and East European politics in the Middle Ages: the monarch, the Church and the nobility. The monarch was restrained by the other two actors through religious and feudal institutions respectively. A large portion of medieval society, however, was in a subject status involving obedience to, and in many cases service of, the king, God, or a feudal lord. But the power configuration changed in Western Europe at the end of the Middle Ages. As the Church and the nobility were tamed by absolute monarchs, religious and secular constraints ceased to be effective. Thus the monarch emerged as the dominant actor in the subsequent ages. In Eastern Europe matters developed differently. Particularly the rise of the nobility in Poland and Habsburg Lands put 42. Van Caenegem, op.cit. note 22, 93. 43. Carl J. Friedrich, Constitutional Government and Democracy: Theory and Practice in Europe and America, fourth edition, Waltham, Blaisdel 1968, 10.

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an end to the similarities between Western and Eastern Europe in terms of the development of constitutional government. East European monarchs, although reluctantly, yielded to the demands of the nobility. In Poland, for example, it was hardly possible for the monarch to make changes in privileges without the consent of the nobility which had to be given unanimously, according to the principle known as the liberum veto.44 In Habsburg Lands, particularly in Hungary and Bohemia, monarchs had to share their powers with the nobility too. The Habsburg Monarchy never managed to gain control over the Hungarian or Bohemian nobility, thus it could never become absolute or unitary. In Bohemia the struggle between the monarch and the Diet culminated in the uprising of 1618 followed by the Battle of the White Mountain in 1620. Although the battle temporarily placed the nobility in a disadvantageous position, it soon regained its power and resumed the struggle against the monarch. The situation in Hungary was not different. The authority of the Habsburg Dynasty was continuously challenged by the Hungarian Diet. The latter achieved important concessions, such as the 1740 Szatmar Compromise which restored and guaranteed its traditional powers.45 To aggravate matters, the phenomenon known as the "Second Serfdom", made the peasants into serfs and widened the gap between the lower and upper classes in Eastern Europe. Until about the 15th century, East European countries were the providers of raw materials, particularly grain, for expanding West European countries. The grain trade, carried on by urban merchants at the time, was seen as a highly profitable activity for the nobility. Therefore, to maximize the profits of grain export, the nobility asserted its dominance over the towns and strove to consolidate the weakened demesne economy, which needed serf labor. It particularly used parliaments to boost its power. From the late 15th century onwards, Eastern European parliaments began to issue edicts restricting free peasant movements and tightening up labor regulations.46 Accordingly, the early forms of liberal democratic elements survived into this period, but degenerated into institutions serving mostly upper class interests in Eastern Europe. Privileges and parliaments were used by the nobility to exploit the peasants much more effectively than in the past.

44. See Kos-Rabcewicz-Zubkowski, op.cit. note 29, 232-235. 45. See Robert A. Kann and Zdenek V. David, The Peoples of the Eastern Habsburg Lands, 1526-1918, University of Washington Press, Seattle 1984. 46. For details, see Robin Okey, Eastern Europe 1740-1980: Feudalism to Communism, Hutchinson, London 1982, 17-21.


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Autocracy in Muscovite Russia The Muscovite princes, having defeated all rival members of the House of Rurik, established their authority over the Eastern Slavs in the 15th century. Thus, after the Mongol invasions and a long period of fragmentation, the "Time of Troubles" (1598-1613), the Eastern Slavs regained their national unity under the Muscovite Dynasty. In this period, a highly important concept for Russian political culture, autocracy, emerged. This concept left deep scars on Russian institutions and shaped the main characteristics of Russian political culture in the pre-communist period. The roots of autocracy can be found in Muscovite Russia. Since the Muscovites were always at war in the South, East and the West, they strove to establish an organization resembling a permanent military power in a modern sense. This required a reliable taxing system and led to the increase of the role of the state. The defense of the country was originally the duty of both nobles and peasants. Yet in 1649, the peasants' right to leave the service of the nobles was abolished, and this turned the peasants into serfs. All these developments paved the way for autocracy. To answer the question of how the emergence of autocracy affected political culture and constitutionalism in Russia, we have to analyze the evolution of the two basic (religious and secular) foundations of medieval constitutionalism in Russia. As for the secular foundations, although many scholars agreed on the centrality of autocracy to Russian political culture, they disagreed on the nature of the institution, i.e., whether it was constrained or unconstrained. Some authors, such as Stephen White, claimed that there were no institutional constraints in this period to check the power of the tsar. Others, however, such as Nicolai N. Petro, argued that there was a "constrained autocracy", limited by secular and religious institutions in pre-communist Russia. Stephen White analyzed pre-revolutionary Russian political culture in three parts: structures of governments, perceptions of politics, and the scope of government. According to him, there was no political institution restraining monarchical power in Russia's governmental structure. He pointed out that the representative institutions in this period, the Boyar Duma (i.e., the Assembly of the Nobility), and the Zemskii Sobor (i.e., the Land Council) were relatively weak. Moreover, these institutions hardly enjoyed popular support due to such reasons as limited franchise and the alienation of underrepresented classes. The weakness of representative institutions affected to a great extent people's perceptions of politics. That is to say, their attachment to political authority was mainly personal in character. Their loyalty was mainly to the tsar, not to governmental institutions. Adding to this, the scope of government was enormously wide. Civil society was weak and there was

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no room for autonomous organizations in the public realm. In other words, the state was the ultimate authority in almost every sphere of life.47 No doubt, all these characteristics of Russian political culture, as put by White, contributed to the shaping of people's orientations towards political institutions, but one of them, the absence of institutional constraints on the authority of the tsar, was particularly important from a constitutional point of view. White argued that the two basic representative institutions in precommunist Russia, the Boyar Duma and the Zemskii Sobor, were by no means a bulwark against the autocracy. The Boyar Duma was relatively influential in the beginning, but it became feeble with the rise of autocracy. As for the Zemskii Sobor, White acknowledged that it was an "embryonic parliamentary institution", but he added that: "...[it] was in no sense a body which exercised a constitutional check upon the prerogatives of the sovereign."48 Nicolai N. Petro, on the other hand, saw popular councils from a different perspective. These councils, according to him, were the voice of the people. They comprised people's representatives and convened frequently in the 16th and 17th centuries to help the tsar in taking important decisions. Petro maintained that these councils were one of the most important pillars of "constrained autocracy". More importantly, he reminded us that the Zemskii Sobor had the right to elect the tsar after the "Time of Troubles". Upon the death of the last tsar from the Rurik dynasty, who did not leave a successor or a will, the new tsar, Mikhail Romanov, was elected by a popular council. Although this was not new in Russia—it was well established in Kievan times—Romanov's election confirmed for the first time the principle that the legitimacy of the tsar rested on a constitutional contract between him and his subjects. After the election of the tsar, the popular council continued to function in two bodies, comprising hereditary and appointed members and elected representatives, and played a crucial role in the passing of important decrees. According to Petro: "...though it is true that the councils had no formal charter or authority, Muscovite tsars relied on them to provide legitimacy for actions that might prove unpopular, particularly wars."49 In the course of time, the influential position of these councils gradually decreased. Finally, their right to elect the tsar was abolished in 1722. Accordingly, Petro, contrary to White, argued that representative institutions in this period were not completely insignificant. Following Petro, one may argue that the secular foundations of constitutionalism emerged in 47. Stephen White, "The USSR: Patterns of Autocracy and Industrialism", in Political Culture and Political Change in Communist States, (Archie Brown and Jack Gray, eds.), Macmillan, London 1979, 25-34.

48. Ibid, 26. 49. Petro, op.cit. note 36, 34.


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Muscovite Russia. What about religious foundations? Was the Russian Orthodox Church influential enough to restrain the autocracy? Again, the two authors disagree on this issue. Stephen White maintained that "... Russian Orthodoxy, was never as independent of the state as was generally the case elsewhere in Europe. The Orthodox Church had been so closely linked to the state since the time of Peter the Great (and even earlier) that is has often been termed a department of government."50 Petro, on the other hand, argued that the relations between Church and state were regulated in accordance with the doctrine of "symphonia", and this provided the Church a status equal to that of the tsar. Moreover, the Church, as the symbol of national identity, kept the Russian people together after the "Mongol Invasions" and in the "Time of Troubles". Having emerged from these difficulties much stronger than before, it became a counter-balancing power to the autocrat. According to Petro: "Symphonia meant that in times of crises for one partner of the dyarchy, the other would step in to help. Thus, monasteries provided economic and even military assistance when the state was beset by external foes; conversely, the tsar recognized the moral authority of the Church and delegated many essential political and administrative functions to it."51 Thus it can be argued that the political culture of Muscovite Russia was still a subject culture in this period, but there were also certain liberal democratic elements. The concept of "constrained autocracy" marked the presence of religious and secular foundations of constitutionalism in Muscovite Russia. To sum up, the 16th and 17th centuries saw the transformation of European political culture which was still a subject culture, but no longer theocentric. In Western Europe, as the nobility and the Church were losing their power, the monarch became the dominant actor. In Eastern Europe, on the contrary, the nobility grew stronger. In Russia, although the tsar was at the center of politics and society, his power was limited by popular assemblies and the Orthodox Church. Thus the Russian, Eastern and Western political cultures in this period were shaped respectively by constrained autocracy, noble domination and royal absolutism.

2.2.2. Second Stage of the First Great Transformation of European Political Culture The theocentric nature of medieval political culture, as pointed out in the last section, was greatly undermined by Renaissance and Reformation. Yet the secularization of European political culture was still incomplete. The age of 50. White, op.cit. note 47, 33. 51. Petro, op.cit. note 26, 65.

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Enlightenment marked the completion of this process. This was the second stage of the first great transformation of European political culture. On these secular foundations, liberal constitutionalism gradually became an inseparable part of Western political culture. To understand this transformation, one should study the age of Enlightenment and its consequences briefly at the very outset. The Enlightenment was essentially an intellectual movement attempting to change medieval dogmatism by promoting such concepts as science, reason and progress. According to the proponents of this movement, known also as thephilosophes, the only source of knowledge was empirical investigation. Scientific knowledge, stemming from experiment and observation, was at the service of humanity in providing and promoting people's happiness on earth. The philosophes believed in reason and rejected superstitions. They were critical of the irrationality and intolerance of ecclesiastical authorities and of the oppression and cruelty of secular rulers.52 France was the center of the Enlightenment in many ways. Two of the leading proponents of the principles of the Enlightenment, Voltaire and Montesquieu, were inspired by 17th century English theory and practice. They were influenced by English philosophers, such as Newton, Bacon and Locke, and impressed by the English parliamentary monarchy emerging after a long struggle between the supporters of the monarchy and of Parliament. There were three basic principles of Enlightenment thought: popular sovereignty, the rights of man and the autonomy of human reason.53 These principles laid the foundations for secular Western political culture and liberal democratic constitutionalism in a modern sense. As one may recall, there were two foundations of medieval constitutionalism, religious and secular. The religious foundation, i. e., the dualism between Church and state, was supplanted by the dualism between civil society and state in the modern era. The secular foundation, i.e., the notion of feudal contract, gave way to the notion of social contract. According to the principle of popular sovereignty, the only legitimate source of political power was the consent of the ruled. Since every individual was born free and independent, no power could give him commands without his consent. The philosophes ruled out the argument prevailing in the Middle Ages that all authority was derived from God. They maintained that the only source of authority was the individual. Thus it was accepted that individuals 52. See Anthony Arblaster, The Rise and Decline of Western Liberalism, Basil Blackwell, Oxford 1984, 177-95. 53. Donald Kommers, W.J. Thompson, "Fundamentals in the Liberal Constitutional Tradition", in Constitutional Policy and Change in Europe, (Joachim Jens Hesse, Nevil Johnson, eds.), Oxford University Press, Oxford 1995, 25.


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would give their consent to the rulers through a social contract approved by them explicitly or implicitly. As a consequence, the individual, whose basic duty had been to obey spiritual as well as temporal authorities in the Middle Ages, became the only source of authority. This principle found its expression in the American Declaration of Independence of 1776 and the French Declaration of the Rights of Man and the Citizen of 1789. Although the Enlightenment was essentially a philosophical movement, it is hardly possible to view it separate from the socio-economic changes in Europe occurring at the end of the 17th century, particularly from the Industrial Revolution and its consequences. The rise of a new class, the bourgeoisie, concurrent with the rise of towns, was particularly important.54 From this moment on, socio-economic factors played a much more crucial role in shaping Western and Eastern political cultures than religious factors. The strengthening of a capitalist economy and the advance of science opened up new economic and intellectual opportunities for the bourgeoisie. Its commercial experience and available liquid capital on the one hand, good education and an inquiring habit of mind on the other, allowed it to seize these opportunities. Still, at this time, economic and intellectual activities were held back by certain medieval institutions at national and international levels. To benefit from the radical changes of the age, the middle class had to cast off the shackles of the past. In other words, the only way to exploit the opportunities of this dynamic age was to change the status quo. The Enlightenment, in this sense, provided a common ground, more correctly a unifying paradigm, for the entire middle class in their struggle to change obsolete medieval institutions. Constitutional Models in the Age of the Enlightenment and Their Application in Eastern Europe and Russia Although the philosophes advocated middle class values, they lacked middle class support in the beginning. Thus they were compelled to search for another political power to implement their reforms and realize their ideals. They first turned to absolute monarchs in hoping to carry out their plans. Thus many philosophes, including Voltaire, supported enlightened absolutism in the beginning. The basic institutions of absolute monarchy were retained, but the duties of the monarch to their subjects were redefined by the principles of the Enlightenment in a way that he would be at the service of his people and responsible for the well-being of the whole of mankind.55 This model was applied in Austria and Prussia, but the tactic of "reform from above" failed in many cases. The actual application of the principles of the 54. See Watkins, op.cit. note 40, 119-148. 55. See Van Caenegem, op.cit. note 22,125-142.

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Enlightenment was achieved by middle class revolutions in America and France. The American Constitution of 1787 and the French Constitution of 1791 were the products of these movements. Most European constitutions, drawn up in the subsequent ages, were inspired by the models, i.e., republic and constitutional monarchy, introduced by the latter.56 The American and French revolutions were a turning point in Western political culture in many ways. Most importantly, the constitutional documents of the age were the first genuine examples of modem constitutionalism. Both the American and French constitutions, as well as subsequent documents taking the latter as their models, marked important steps towards the consolidation of liberal political culture. One should, however, note that European political culture was still not democratic at that time. Although both in America and France lower classes fought against the monarchy and aristocracy together with the bourgeoisie, they had yet no say in the governance of their countries even after revolutions. They had to wait until the second great transformation of Western political culture in the 19th century to gain their right to elect and be elected. The Enlightenment had far-reaching repercussions in Eastern Europe and Russia too. The model of enlightened absolutism, in particular, found many supporters in Habsburg and Russian courts. Maria Theresa and Joseph II in Habsburg Lands, and Catherine II in Russia were deeply attracted to the ideas of the philosophes, and they embarked upon several reforms in their countries to implement the principles of the Enlightenment. Nevertheless, their reforms did not produce the intended results. In Poland the principles of the Enlightenment acquired widespread currency too. The Polish Prince Stanislas Poniatowski, in particular, was a fervent defender of the ideas of the philosophes. He cooperated with the Polish intelligentsia and attempted to modernize his country through reforms. This, as opposed to Habsburg Lands and Russia, produced a written constitution, the first one in Eastern Europe.

Enlightened Absolutism in Habsburg Lands and Russia The model of enlightened absolutism readily appealed to Habsburg monarchs who tried to achieve internal and external sovereignty and modernize their multi-national empire at that time. However, they had been seen as foreign rulers even in their own lands. The growing opposition of a nationalist nobility gradually undermined their political authority. They could not be as absolute as their West European counterparts and yielded to the Bohemian and Hungarian nobility. As a consequence, enlightened absolutism could not flourish in Habsburg Lands. 56. S.E. Finer, "Notes Towards a History of Constitutions", in Constitutions in Democratic Politics, (Vernon Bogdanor, ed.), Gower Publishing Company, Cambridge 1988,17-32.


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This model failed also in Russia. With the advent of Peter the Great, the Russian political system lost its relatively liberal democratic characteristics which it had acquired in Kievan and Muscovite periods. Peter the Great freed himself from all constraints imposed on the tsar by popular assemblies and the Orthodox Church. Adding to the rise of autocracy, the country remained relatively poor and backward. More importantly, the tension between the upper and lower classes gradually increased. Thanks to the military reforms of Peter the Great, the country attained several successes in international warfare, but internally total chaos was around the corner. The rulers of Russia, in fact, were aware that change was inevitable, but it was not easy to overhaul the obsolete, and even corrupt, institutions of the country. The model of enlightened absolutism was seen as a solution particularly by Catherine II. However, her reforms did little to solve the urgent problems of Russia and encountered strong aristocratic opposition. For example, she was initially inclined to abolish serfdom, but, realizing that her power rested mainly on the support of the aristocracy, she gave the latter full authority over their serfs and exempted them from taxes and service obligations.

The Polish Constitution of 1791 As mentioned above, East European countries entered the age of Enlightenment with strong nobility and weak monarchs. This was particularly true for Poland. The Polish nobility was perhaps the strongest in the whole of Eastern Europe. It was composed of various substrata ranging from the town nobles to the magnates.57 The upper strata, which was usually called the aristocracy, represented the conservative part of the nobility. They strove to maintain their medieval status at all cost. The intelligentsia, another stratum of noble origin, represented the progressive part of the nobility. It was a small group in the beginning, but gradually became the most dynamic element of the society. The intelligentsia was deeply attracted to the ideas of the philosophes. Thus, cooperating with the monarch, the intelligentsia began to struggle against the conservative aristocracy in the name of the modernization of the country. The Polish Constitution of 1791 can be seen as the victory of the intelligentsia over the conservative aristocracy. After the death of the Saxon King Augustus III, Stanislas Poniatowski, a native candidate, was elected by the Sejm (i.e., legislature), and succeeded to the throne in 1764. Poniatowski, who was supported by a narrow circle of intellectuals, introduced a series of reforms, which were undermined by the conservative aristocracy. In the meantime, the powerful neighbors of Poland, Russia, Austria and Prussia, were disgruntled by the Polish revival and came 57. For the details, see Norman Davies, God's Playground, A History of Poland, Vol. I, Clarendon Press, Oxford 1981, 218-233.

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to an agreement to invade the country. Poland was partitioned by Russia, Austria and Prussia in 1772 and lost the bulk of its territories.58 Still, this partition could not stop the movement of national regeneration. On the contrary, it stimulated comprehensive progress throughout Poland and culminated in the Constitution of 1791. The Constitution guaranteed two important constitutional principles of Enlightenment culture, popular sovereignty and the rights of man. It also put emphasis on the principle of separation of powers. According to Article V of the Constitution: All authority in human society takes its origin in the will of the people. Therefore, that the integrity of the state, civil liberty, and social order remain forever in equal balance, the government of the Polish nation ought to, and by the will of the present law forever shall, comprise three authorities, to wit, a legislative authority in the assembled estates, a supreme executive authority in a king and guardianship, and a judicial authority in jurisdictions to that end instituted or to be instituted.59 The governmental form, introduced by the Constitution, was the constitutional monarchy. Accordingly, executive power was conferred on the king and the Guardianship of the Laws (a body composed of the king, the primate, five ministers and two secretaries), whereas legislative power was vested in the Sejm, composed of the Senate and the Chamber of Deputies. The acts of the king had to be countersigned by the responsible ministers. The latter were to be appointed and, upon the request of the Sejm, dismissed by the king and to be responsible to the Sejm. Although the Constitution placed the peasants under the protection of the state, it provided for limited franchise, based on property qualifications. Thus, in spite of its progressive rhetoric, participatory elements were largely absent in the Constitution. In this respect, the Polish Constitution was again no different from its Western counterparts. The Constitution retained the concept of the division of society into estates, but it broke with the past to a certain extent by introducing two decisive innovations, namely the abolition of elective kingship and the liberum veto, replacing them by a hereditary monarchy and a majority vote.60 These innovations were anathema to the conservative aristocracy who regarded them as the death warrant of the "Noble Democracy". In fact, not only 58. See O. Halecki, A History of Poland, Routledge & Kegan Paul, London 1978, 189-201. 59. For the English translation of the Polish Constitution of 1791, see Christopher Kasparek translation on the Internet (www.richmond.edu/~jpjones/confinder/), originally published in 3 PNNC Studies 1993, 45-58. 60. See Jacek Jedruch, Constitutions, Elections and Legislatures of Poland, 1493-1977, University Press of America, Washington, DC 1982, 202-217 and 218-219.


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these constitutional innovations, but Poniatowski's reforms generally were disliked by the aristocracy. As a result, the latter turned to Russia for aid to maintain its immune status. This not only brought about the end of the Constitution of 1791, but also of Polish independence. Russia invaded Poland in 1792 and, before long, the country was partitioned between Russia and Prussia. The Constitution of 1793 was made under the supervision of foreign powers. After the second partition of Poland, the occupying powers, Russia and Prussia, pressed the Sejm to approve the Partition Treaties. Thus Poland was obliged to sign the latter and drew up a new constitution. The Constitution of 1793 restored elective kingship and liberum veto and Poland returned with slight changes to the system which had been in force before the Constitution of 1791.61 The Polish constitutionalist movement in the 18th century was considerably different from similar movements in Western Europe and North America in the same period. In the latter, constitutions and constitutional governments were the outcome of a bottom-up revolutionary struggle carried out by an active middle class, whereas in the former liberal democratic institutions were the product of a "reform from above" led by the monarch and a progressive intelligentsia. It follows that, in the 18th century movements, for example in America and France, the middle class fought against the monarchy and the aristocracy, but in Poland the struggle was mainly between the progressive intelligentsia and the conservative aristocracy.

The Ages of Napoleon and Conservatism, and Their Impact on Eastern Europe Although France largely contributed to the transformation of medieval political culture, its own political culture displayed a great deal of instability. In this period, France oscillated between the "strong executive/weak legislature" and the "strong legislature/weak executive" patterns. The Jacobin Constitution of 1793 introduced a strong legislature and a weak executive, whereas the Thermidorian Constitution of 1795 strengthened executive power. In 1799 a new constitution was promulgated conferring executive power on a committee called the "Consulate". After the promulgation of the Constitution Napoleon took the title of "First Consul". The Constitution of 1799 was amended in 1802, and Napoleon received the title of "Consul for life". Then the French Empire was founded by the Constitution of 1804, and Napoleon was proclaimed emperor. This was the last step to make him a veritable dictator. He consolidated his absolute regime through the French Constitution of 1804 and began to expand his rule throughout Europe. At the 61. Ibid, 222-229 and 232-233.

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beginning of the 19th century, Continental Europe and the western part of Russia were under the control of Napoleon. In the age of Napoleon several constitutional developments occurred in Poland. In 1807 Napoleon created the Grand Duchy of Warsaw as envisaged by the Treaty of Tilsit. As far as the constitutional system of the Duchy was concerned, several ideas were articulated amongst the Polish intelligentsia. Some groups in the Polish rump state were in favor of reinstating the Constitution of 1791 with minor modifications. This idea was opposed by conservative groups, but no clear set of ideas was introduced by them. In the end, a constitutional proposal was prepared, and a delegation was sent to Dresden to submit it to Napoleon. The emperor, however, paid little attention to these efforts and granted another constitution to the Duchy of Warsaw by himself.62 The Constitution was different from the other imposed Napoleonic constitutions, such as the Constitution of the Kingdom of Westphalia (1807), the Constitution of the Kingdom of Naples (1808), and the Constitution of the Grand Duchy of Berg (1812) in retaining certain principles of the longstanding constitutional tradition of Poland. For example, while the imposed constitutions adhered to the principle of an appointed legislature, the Constitution of the Duchy of Warsaw introduced an elective assembly. The Constitution also included a bill of rights stipulating that all citizens were equal before the law. Executive power was vested in a strong hereditary duke who was assisted by a body consisting of six ministers and a prime minister. The Constitution of the Duchy of Warsaw, designed mainly to serve the interests of the French Empire, was abolished after the defeat of Napoleon.63 The four victors (Great Britain, Russia, Austria and Prussia) gathered in Vienna in 1815 to discuss the future of Europe after Napoleon. The main objective of the victors was to establish a European system which could not be destroyed by war or revolution. To do so, in 1814 and 1815, they signed a series of treaties re-establishing the classical absolute monarchies. This marked the rise of a new intellectual movement in European history, conservatism, as a reaction to liberalism and the French Revolution. France, along with England, was again the bastion of liberalism in this period. After the tumultuous years of revolution, a constitutional monarchy, similar to that of 1791, was established in France by the Constitution of 1814. The Constitution, which was regarded as "a grant of the monarch to his subjects", bore the stamp of Enlightenment culture. By the treaties of 1814 and 1815, most European countries were placed under the rule of new sovereigns without their consent. Again, Poland was the country suffering most from those developments in Eastern Europe. It 62. Ibid, 245-257. 63. See Norman Davies, God's Playground, A History of Poland, Vol.11, Clarendon Press, 1981,300.


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was placed under the rule of Russia, as the Vienna Treaties converted Napoleon's Grand Duchy of Warsaw into a constitutional kingdom under the sovereignty of Alexander I. Throughout 1815, a group of senators worked on a new constitution for the Kingdom of Poland. The document, prepared by the senators, served as the basis for the draft constitution of the Polish leader Adam Czartoryski. The draft was altered by Alexander I and the Russian Commissioner of Warsaw, N.N. Novosiltsev. Thus the final document reflected the ideas of Novosiltsev who was opposed to the autonomy of the Kingdom. The Constitution included a bill of rights. While executive power was conferred on a hereditary monarch from the House of Romanov who was assisted by five appointed ministers, legislative power was vested in an appointed senate and an elective Sejm whose members were to be elected by limited suffrage. In fact, the Polish Constitution of 1815 was a relatively liberal document. It was even believed that it would have stimulated a liberalization movement in Russia, if the emperor had granted a liberal constitution to his subjects. Yet, this did not happen in the reign of Alexander I.64 Constitutional developments in Poland in the age of Napoleon and Conservatism can hardly be depicted as the continuation of the reforms promoted by the intelligentsia in the previous age. Rather, the foreign rulers attempted to establish constitutional systems which would serve their interests. The imposed constitutions of this age were the outcome of interest calculations of foreign powers, rather than the reflection of the fledgling Polish liberal political culture. The Polish case, in this respect, illustrated the importance of external factors in East European constitutionalism.

2.2.3. The Age of Nationalism The Vienna Congress, which set Europe under the guidance of the principles of conservatism, slowed down the trend towards liberal constitutionalism but it could not put it into reverse. Liberal constitutions, made in this period, reaffirmed the essence and the principles of the Enlightenment and marked the consolidation of liberal democratic political culture in Western Europe. This period saw also the rise of nationalism, one of the most important elements of modern political culture. According to Bluhm: "Whether a political culture is Liberal, Conservative, Fascist, or Communist, it is always national. Though a parochial sentiment, nationalism is the most universally shared aspect of modern political culture."65 The constitutions of the age of nationalism were basically the product of such a culture. The alliance 64. See Jedruch, op.cit. note 60, 260-277 and 278-279. 65. Bluhm, op.cit. note 24, 60.

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between nationalism and liberalism, however, was somewhat paradoxical. While liberalism intended to protect individual interests and defend pluralism, nationalism aimed to secure the entire nation's interests and stood for monism.66 All these sets of ideas, namely nationalism, liberalism and constitutionalism, found their expression in the Revolutions of 1830 and 1848.

The Revolution of 1830 France was again the hub of constitutional developments in Western Europe. The Revolution of 1830, as most other revolutionary movements, broke out in France. Charles X, attempting to restore classical absolutism, encountered a strong reaction of the French people. As a result, another revolutionary tide swept the country and Charles X abdicated, and was succeeded by Louis Philippe. After the Revolution of 1830, some minor amendments had been introduced to the Constitution of 1814 and its revised version was promulgated as the new Constitution of France. The most significant difference between the old and new constitutions was that the former had been granted by the monarch to his subjects as a "royal gift", whereas the latter was made by the representatives of the nation. As this marked the revival of the principle of national sovereignty, France took another important step towards the consolidation of liberal constitutionalism with the promulgation of the Constitution of 1830. This Constitution remained in effect until 1848 and served as a model for several countries, including Belgium.67 The Belgian Constitution of 1831 was drawn up by the National Congress immediately after the achievement of independence. It was a mixture of available models at that time. The Belgian Founding Fathers were inspired by several sources, such as the Dutch, French and the British constitutional systems. It has been argued that 40% of its provisions were taken from the 1815 Constitution of the Netherlands, 35% from the 1830 Constitution of France, 10% from the 1791 Constitution of France, and 5 % from the British constitutional system. Only the rest, 10% of its provisions, was original.68 The Belgian model of limited monarchy (a monarch, strictly limited by a written constitution) was highly celebrated by the liberals at that time. Romania, in particular, emulated the Belgian model, but in Eastern Europe the immediate impact of the Revolution of 1830 was limited in general. The Poles attempted to throw off the yoke of Russia in 1831, but the rising was 66. See Theodor Schieder, "Political and Social Developments in Europe", in The New Cambridge Modern History, Vol. XI, (F.H. Hinsley, ed.), Cambridge University Press, Cambridge 1962, 260. 67. J.A. Hawgood, "Liberalism and Constitutional Developments", in The New Cambridge Modern History, Vol. X, (J.T. Bury, ed.), Cambridge University Press, Cambridge 1960, 190. 68. Van Caenegem, op.cit. note 22, 237.


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crushed ruthlessly by Tsar Nicholas I. Thus, the Poles, unlike the Belgians, could not gain their independence in this period.

The Revolution of 1848 After the Revolution of 1830, the conservative politics of Louis Philippe and his prime minister Guizot were resented by the opposition which included Liberals and Socialists. As the tension rose throughout the country, the Revolution of 1848 broke out in Paris and spread all over Europe. There were some important implications of the Revolution in the region. Most importantly, the Congress of Europe collapsed and two new states, Germany and Italy, came into being. On the other hand, France, where the revolutionary spirit always found a breeding ground, strove to stabilize its regime. These efforts found their expression in several constitutions promulgated in this period. The French Constitution of 1848 introduced a republican government with a popularly elected president. Presidential elections were held in December 1848, and Louis Napoleon Bonaparte, nephew of Napoleon, was elected president. Yet he did not feel himself limited by the Constitution and engineered a successful coup in 1851. Soon afterwards, he proclaimed himself Emperor Napoleon III in 1852. This was the beginning of the Second Empire in France. The Constitution of the Second Empire was promulgated in 1852. Although the republican form of government was ostensibly retained, France, in fact, returned to an absolute monarchy. The Constitution granted the president supreme executive powers, making Napoleon III almost a dictator. If this was not enough, other state organs were seriously weakened in favor of the president. Thus the Constitution mainly served Napoleon's imperial ambitions. Having vacillated among various constitutional forms, France attempted to make its regime stable again with the Constitution of the Third French Republic in 1875. The latter introduced a strong legislature and a weak president, who was to be elected by the former. The Third Republic survived until 1940. The emergence of German and Italian states confirmed the peculiar alliance between nationalism and constitutionalism in Western political culture. The first attempt of Germany at unification remained a fruitless effort and the 1849 Constitution of the German Empire, introducing a federal system with a constitutional monarchy, remained a dead letter. Following this unsuccessful attempt, Germany achieved unity in 1871 thanks to the determined policies of Bismarck. Italy, like Germany, adopted a new constitution after the Wars of Unification. The Constitution, in fact, was not new at all. The 1848 Constitution of Piedmont-Sardinia was adopted as the Constitution of (United) Italy in 1861. It established a constitutional monarchy under which the monarch held considerable powers.

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In the words of Frederick Watkins: "...nationalism and constitutionalism had become inextricably associated in the popular imagination. Since nationalism remained one of the dominant factors of nineteenth—and early twentieth-century politics, this association helped to insure the triumph of liberal institutions."69 The alliance between nationalism and constitutionalism played a decisive role in the constitutional developments in Eastern Europe too, and nationalism became an inseparable part of East European political culture. It was nationalism which was the cement binding rulers and ruled. In most countries, national elites appealed to people's nationalistic sentiments in order to mobilize them against sovereign empires. Nationalism, as it were, imparted an identity to those peoples who had suffered from partitions and invasions for ages. Yet, as we shall try to show later, nationalism was also used in inter-war years by several political groups to evoke popular support. Such nationalism was not tolerant of ethnic and religious differences. In the course of the 19th century, almost all East European countries were under the sovereignty of foreign rulers, for instance, Poland under the Romanov Dynasty, Bohemia and Hungary under the Habsburg Dynasty, Bulgaria and Romania under the Ottoman Dynasty. That is why nationalism played a far more important role in East European political culture than it did in Western Europe.70 Constitutions became the hallmark of national sovereignty, and they were deemed to be one of the preconditions of being a nation. This idea was epitomized in Lajos Kossuth's lines, one of the greatest national leaders of Hungary: "Nationality is a historical fact of which language is not the sole factor. For a people to qualify to be a nation, it is also necessary to possess a common constitution, common sentiments, interests and the common need for progress and development."71 To a great extent the Revolution of 1848 marked the success of nationalist movements in many East European countries and it culminated in several written constitutions. In Habsburg Lands the spirit of 1848 was particularly influential among the Bohemians and the Hungarians. Although the latter declared an independent Hungarian Republic and promulgated a liberal democratic constitution, the uprising was quelled by Austria and Russia. In their second try, in 1867, the Hungarians partially succeeded in gaining their independence and restoring the Constitution of 1848. The Settlement of 1867 established the socalled dual monarchy and from then on equally independent Austrian and Hungarian states constituted the Austro-Hungarian Empire with a common monarch.72 69. Watkins, op.cit. note 40, 290-291. 70. Generally see Okey, op.cit. note 46, 75-83 and Wandycz, op.cit. note 32, 135-165. 71. Quoted by Laszlo Peter, "Language, the Constitution, and the Past", in The Habsburg Legacy, National Identity in Historical Perspective, (Ritchie Robertson, Edward Timms, eds.), Edinburgh University Press, Edinbrugh 1994, 18 (italics added).


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Compared to the situation in Habsburg Lands, the revolutionary spirit of 1848 proved to be more successful in the Balkans. It accelerated the downfall of the Ottoman Empire which had already become internally and externally feeble. In the beginning of the 20th century, the Ottoman Empire lost its control over the Balkan peninsula and the Balkan nations, including Romania and Bulgaria, gained their independence one after another.73 Following the general tendency of the age, these newly-born countries immediately constitutionalized themselves after the achievement of independence. Two constitutions in this period, in Romania and Bulgaria, reflected the characteristics of the relationships between pre-communist political culture and constitutionalism.

The Romanian Constitution of 1866 Romania was in a relatively advantageous position even under Ottoman rule thanks to treaties it had signed with the Ottoman Empire. Under these treaties, Moldavia and Wallachia preserved their political autonomy and kept their traditional socio-economic structure intact. Unlike Serbia, Bulgaria and Albania where the local aristocracy largely ceased to exist, Romanian boyars maintained their ruling position. Romania was, therefore, better off in comparison with other countries under Ottoman domination thanks to its special relations with the Ottoman Empire. Nevertheless, by the 18th century, the autonomous status of Romania became precarious. The Ottoman Empire tightened its control over the country as a reaction to the Austrian and Russian threat from the north. Romanian boyars began to seek foreign aid to restore their autonomy and eventually to cast off Ottoman rule. Thus they first turned to Russia which had had certain ambitions in the Balkans for a long time. As a result of three wars against the Ottoman Empire, Russia became the protector of the Romanian principalities under a series of treaties (the Treaty of Iasi of 1792, the Treaty of Bucharest of 1812, and the Treaty of Adrianople of 1829). The latter entrenched Russia firmly in the Balkan peninsula, but this alarmed the boyars worrying about the replacement of Ottoman domination by Russian. The Revolution of 1848 gave a chance to the Romanians to free themselves from the yoke of the Ottomans, as well as the Russians.74 72. See C.A. Macartney, The Habsburg Empire, 1790-1918, Weidenfield and Nicolson, London 1968,560-568, Joseph Redlich, 'The Compromise of 1867: Constitutional Straitjacket, in The Austrian Empire, Abortive Federation?, (Harold J. Gordon and Nancy M. Gordon, eds.), D.C.Health & Company, Lexington 1974, 76-85. 73. See Barbara Jelavich, History of the Balkans, Vol. I, Cambridge University Press, Cambridge 1983, 171-299. 74. See Keith Hitchins, Oxford History of Modern Europe, Rumania 1866-1947, Clarendon Press, Oxford 1994, 1-10.

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The spirit of 1848 found its expression particularly in the events in Wallachia where a provisional government had been established. Russia, the protector of Wallachia and Moldavia, did not tolerate this. Emperor Nicholas I dispatched Russian troops to Wallachia. They invaded Bucharest and dispersed the provisional government. This was the end of Romania's short experience of liberalism. The Russian intervention delayed the solving of two vital problems of Romania, namely unification and independence. Moreover, the Crimean War, breaking out between Russia and the Ottoman Empire (1853-1856), gave another chance to the Romanian people to realize their cherished ideals. After three years of merciless war, a treaty was signed in Paris which not only ended the War but also confirmed the eventual downfall of the European system created in Vienna in 1815. The Treaty was extremely important for Romania, for it contained several arrangements paving the way to its independence. The great powers, as envisaged by the Treaty of Paris, promulgated the Convention of Paris in 1858. Despite the fact that the Convention determined the outline of the way in which the Romanians were to govern themselves, it remained silent about the unification of the principalities. Thus, Romanian Unionists took the initiative and elected Alexander Cuza as their prince in 1859 by exercising their rights granted by the Convention.75 Cuza arranged for the unity of the principalities and introduced a series of reforms, but he encountered an intransigent assembly. The latter did not approve the agrarian and electoral laws which were the most important part of Cuza's reform program. Hence he dissolved the Assembly and submitted a draft constitution to a referendum which would give his authority a legitimate basis. The Constitution of 1864, approved by an overwhelming majority in a referendum, created a predominant executive and made the prince the center of the system, but it soon proved to be inadequate to solve the problems of Romania. A liberal-conservative coalition, alarmed by Cuza's dictatorial tendencies, urged him to abdicate. He took the advice of the coalition and abdicated. Then he went into exile and Prince Charles of Hohenzollern, who had been recognized by the Great Powers, ascended the throne in 1866. In the same year, a new constitution went into effect. Liberals and conservatives competed with each other to win the majority in the Constituent Assembly, and the latter secured a majority in the elections. Thus conservative ideas usually prevailed in the constitution-making process. The Constitution, promulgated on 12 July 1866, converted Romania into a constitutional monarchy. 75. See ibid, 11-21. Also see Barbara Jelavich, Russia and the Formation of the Rumanian National State, 1821-1878, Cambridge University Press, Cambridge 1984,142-144 and 179-180.


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As mentioned above, the Romanian Founding Fathers were inspired to a great extent by the Belgium Constitution of 1831. This was by no means a coincidence, for most Romanian intellectuals, who had been educated in France and Germany, celebrated the Belgian Constitution as an exemplary liberal document. They thought that the Belgians had achieved their rapid development thanks to their constitution. Thus Romanian elites saw the constitution as an instrument of modernization. The 1866 Constitution of Romania curbed the powers of the prince who had been elevated almost to the rank of a dictator by Cuza's Constitution. Under the new arrangements, executive power was shared among the prince, the prime minister and his cabinet. Although the latter were appointed and dismissed by the prince, they were responsible to parliament. Moreover, the acts of the prince had to be countersigned by the responsible ministers. Legislative power, in turn, was vested in an elective bicameral legislature composed of the Senate and the Chamber of Deputies. As opposed to Cuza's Constitution, not only the members of the Chamber of Deputies, but also the members of the Senate were elected by indirect-limited suffrage. As Hitchins put it: ...[the Romanian Constitution of 1866] was a middle-class document prepared for a country whose middle class formed only a thin stratum of the population. At the top of the social scale remained the boyars, who were intent upon maintaining their political and economic predominance. At the other end of the scale was a peasantry who composed over 80 per cent of the population and had little political experience.76 Most Romanian intellectuals turned their face to the West in the 1830's and aspired to modernize their country by introducing Western institutions. Consequently, one may maintain that the Romanian Constitution of 1866 appeared as the embodiment of elite political culture, rather than of mass political culture.

The Bulgarian Constitution of 1879 Spurred by the nationalist ideas of the age, Bosnia-Herzegovina, one of the Ottoman principalities, revolted against the Ottoman Empire in 1875. Having aided Bosnia-Herzegovina, Serbia also found the Ottoman troops close to its border. Russia, which had already proclaimed itself the protector of the Slavic people, got involved in the fray. Thus a war broke out between two arch-foes, Russia and the Ottoman Empire. The War ended in the defeat of the latter, and the Treaty of San Stefano was signed between the parties in 76. Hitchins, op.cit. note 74, 19-20.

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1878, appearing to serve mostly the Russian interests. All these developments were unacceptable to the other Great Powers, particularly Britain and Austria. At their request, a conference convened in Berlin, and a treaty was signed at the end of the Conference. This Treaty disenchanted the Bulgarian people, for it put an end to the dream of a united "Great Bulgaria" by splitting the country into five pieces. Nevertheless, a constituent assembly convened in Turnovo in 1879, as envisaged by Article IV of the Treaty. The Assembly was opened on 10 February 1879. At the very outset, the delegates voiced their criticism of the Berlin Treaty. Three alternatives appeared during the discussions: repudiating the Treaty and dispersing the Assembly; postponing the work of the Assembly for three months and requesting the revival of the "Great Bulgaria project"; and continuing to work in the Assembly, but expressing a protest and sending a deputation to the Great Powers to articulate their grievances.77 In the end, the third alternative prevailed, and the Assembly began to work on a new constitution.78 The Assembly was provided with a draft document, prepared by General A.M. Dondukov-Korsakov (Russian Imperial Commissioner in Bulgaria) and S.I. Lukianov (advisor of Dondukov-Korsakov), and edited by Russian authorities. In preparing such a draft, Russia did not intend to interfere with the constitution-making process. It only provided a document which would be discussed in the Assembly. Thus the Turnovo Assembly freely discussed the available alternatives and produced a document which was considerably different from the Russian draft.79 Although liberal and conservative ideas competed with each other during the constitution-making process, liberal ideas prevailed contrary to the situation in Romania. The Constitution guaranteed the fundamental rights of citizens. Executive power was conferred on the council of ministers and the prince. However, the latter was dominant within the system, as he had the right to appoint and dismiss the ministers and also to dissolve parliament. Although the prince was powerful in many ways, the legislature was not a feeble institution. It had, for example, complete authority to make laws, to impose taxes and to draw up the budget. The Constitution also provided for a unicameral legislature which was to exercise its powers in two different forms: the extraordinary form (the Grand National Assembly, which was to convene for extraordinary issues, such as, changing the Constitution, selecting the prince), and the ordinary form (the National Assembly, which was in 77. See Duncan M. Perry, Stefan Stambolov and the Emergence of Modern Bulgaria 18701895, Duke University Press, Durham 1993, 35-40. 78. See D. Kossev, H. Hristov, D. Angelov, A Short History of Bulgaria, Foreign Languages Press, Sofia 1963, 226-227. 79. See Charles Jelavich, Tsarist Russia and Balkan Nationalism, University of California Press, Berkeley, Los Angeles 1958, 31-63.


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charge of carrying on routine legislative work). Under the Constitution, members of the Assembly were to be elected by universal and direct suffrage. The Bulgarian electoral system was one of the most democratic systems at the time. All males, older than 21, had the right to vote and all literate males, older than 30, were eligible.80 The so-called Turnovo Constitution remained in effect for 65 years with minor amendments. During its existence, it was seen as the symbol of democracy by the Bulgarian people and it was treated with great respect. One may, however, argue that the Bulgarian Constitution of 1879, just as the Romanian Constitution of 1866, was the reflection of elite political culture. Most Bulgarian intellectuals, aspiring to elevate their country to Western standards, were well acquainted with Western political culture and constitutionalism at that time. Therefore traces of Enlightenment culture can be found in the Constitution.81 The Bulgarian Constitution came closer to the Romanian one in terms of its lack of popular support. According to Richard J. Crampton: "Bulgaria's Constitution had been fashioned by intellectuals for peasants. It did not succeed in winning the confidence of those for whom it was designed."82

2.2.4. The Impact of Liberal Constitutionalism in Russia While liberal constitutionalism was having its golden age in Western and to a certain extent in Eastern Europe, Russia was still laboring under the yoke of autocracy and serfdom. Although liberal constitutional ideas spread particularly among the intelligentsia, concrete constitutional steps were first taken in the reign of Alexander I. There were actually two liberal periods in Alexander's reign, from 1801 to 1805, and from 1807 to 1812 which were both interrupted by a war with France. In the first liberal period, Alexander worked together with a group known initially as the "Unofficial Committee". He aspired to reform the country with the help of this Committee whose members (Nicholas Novosiltsev, Count Paul Stroganov, Count Victor Kochubey and the Polish Prince Adam Czartoryski) were mostly proponents of Enlightenment culture. He frequently called on the Committee to shape his policies, but these efforts bore no fruit. The Russian-French War in 1805 put an end to working of the Committee. The second liberal period was marked by the efforts of one of the 80. See Edward Dicey, The Peasant State an Account of Bulgaria in 1894, John Murray, London 1894, 120-162 81. See C.E. Black, "The Influence of Western Political Thought in Bulgaria, 1850-1885", 48 The American Historical Review 1943, 507-520. 82. Richard J. Crampton, Bulgaria, 1878-1918, A History, East European Monographs, Boulder 1983, 325.

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ministers of Alexander, Speranskii. He prepared a draft constitution in 1809 and submitted it to the emperor.83 Speranskii, in fact, was planning to change the system within the system. If progressive ideas would proliferate in Russia, and those who believed in these ideas would occupy the key positions in society and the state, the autocrat, feeling more and more the pressure of reformists, could transform the autocratic system voluntarily into a more democratic one. Yet even the self-transformation of autocracy required the introduction of several reforms. If the emperor would have launched such reforms, this could have led to the destruction of his own power. To persuade the emperor, Speranskii stressed the benefits of change, but his tactics proved to be unsuccessful. He was dismissed by Alexander I in 1812, and went into exile. Thus the second liberal period ended, just as the first one, without producing any practical outcome in terms of the establishment of a constitutional government. "Speranskii believed in essence in the middle class: but a middle class, which he saw as the vital support of constitutionalism, would have been a likely outcome of his reforms, and could hardly therefore be the progenitor of them."84 The latter aspect, leaving aside the resentment of the nobility, highlights the Achilles' heel of Russian constitutionalism at that time. In the pre-communist period, there was another attempt at establishing a constitutional government in Russia, this time, however, from the bottom, the Decembrist Movement of 1825. The leaders of the Movement were mainly committed to the principles of the Enlightenment. They aspired to introduce a constitutional government in Russia and abolish serfdom. A draft constitution, prepared by one of the leaders of the Movement, Nikita M. Muraviev, mirrored the principles of the Enlightenment, such as popular sovereignty and the rights of man.85 Unfortunately, the Decembrist Movement was harshly crushed by the troops of the new emperor, Nicholas I. It is interesting to note that the leaders of the Movement were mostly educated army officers from aristocratic families. This was, in fact, not a coincidence. In the absence of a proper commercial middle class, reform movements were supported by an intelligentsia of noble origin in Russia, as happened in other countries of Eastern Europe.

83. For the English translation of "Speranskii's Proposed Brief Outline of State Organization, 1809", see Imperial Russia A Source Book, 1700-1917, (Basil Dmytryshyn, ed.), Holt, Rinehart and Winston, Inc., New York 1967, 136-141. 84. John Gooding, 'Towards a Russian Constitutionalism", 30 Coexistence 1993, 73. 85. For the English translation of Muraviev's draft constitution, see Dmytryshyn, op.cit. note 83, 167-175.


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The Russian Constitution of 1906 Although the attempts at establishing a constitutional government in Russia bore no fruit in the 19th century, after the Revolution of 1905, the Russian people, for the first time in their history, were granted a constitution. To analyze this document, the socio-economic background of the Revolution should be studied first.86 There were two emerging groups, more correctly classes, in Russia on the eve of the Revolution of 1905, bourgeoisie and proletariat. The latter was the product of a rapid industrialization campaign inaugurated by the Russian leaders to catch up with Europe. This campaign led to the emergence of a growing working class population flocking to the new industrial areas where living conditions were mostly unbearable. The industrialization campaign also resulted in the rise of a commercial middle class, although weak and ineffective. Adding to these, a non-commercial middle class, comprising mainly professionals, became more vocal in claiming their rights and liberties. Besides these newly arrived classes, the peasantry, the traditional class of the Russian society, was in transformation, although not in a positive way. One of the most important reforms in Russian history, probably the most important one, was the abolition of serfdom in the reign of Alexander II. Yet, because of the high redemption payments and of obsolete agricultural methods, this highly important reform did not solve the peasants' problem; on the contrary it dashed their hopes. All these developments set the socio-economic background of the Revolution of 1905. The revolutionary ideas of the age were promoted and defended mostly by the intelligentsia. According to Hugh Seton-Watson: The distinctive and modern culture which such an intelligentsia enjoys separates its members from the rest of the society. This sense of isolation, and the vast contrast between the realities of its own society and the modern ideas with which its education has made it familiar, are powerful factors leading first towards uncritical acceptance of revolutionary ideas, and later to leadership and organization of revolutionary action.87 Thus all the main social groupings in Russia at that time (peasants, proletariat, bourgeoisie and intellectuals) were critical of the regime; political change was their common expectancy. 86. See Anne Morgan, "Revolution of 1905 in Russia", in The Modem Encyclopedia of Russian and Soviet History, Vol. 31, (Joseph L. Wieczynski, ed.), Academic International Press, Gulf Breeze 1983, 57-69. Also see Hugh Seton-Watson, The Russian Empire 1801-1917, Clarendon Press, Oxford 1967, 598-606. 87. Quoted by Aleksander Gella, Development of Class Structure in Eastern Europe, State University of New York Press, Albany 1989,136.

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In the first days of January 1905, the members of "The Assembly of Russian Factory and Mill Workers of the City of St. Petersburg" went on strike to vent their grievances. Soon after, strikes spread across the country. Upon the dismissal of a number of workers, Father Georgii Gapon, head of the Assembly, decided to send a deputation to present a petition to Nicholas II at the Winter Palace on 9 January 1905. People gathered in front of the Winter Palace to present their petition to the tsar, but they were fired upon and many of them were killed. This event, known as "Bloody Sunday", was the beginning of the Revolution of 1905.88 One strike was followed by another, and popular unrest reached its peak. At the end of the year, the Russian Empire was on the brink of total chaos. To save the day, the tsar issued a constitutional manifesto on 17 October 1905 (the October Manifesto). Russian political culture in the pre-communist period was characterized by passivity and obedience at the mass level, and particularly by the absence of popular support for liberal democratic institutions. Some authors, however, such as Nicolai N. Petro, argued that Russia had been already prepared for constitutional monarchy at the beginning of the century. According to Petro, the local assemblies (zemskie sobraniya, orzemstvos), emerging in the reign of Alexander II, played a crucial role on the road to the October Manifesto. These assemblies were like mini-parliaments working in accordance with the principle of popular sovereignty. Those who had participated in these assemblies got acquainted with the concepts of democracy and constitutionalism. After such a socialization process, Petro argued, it was hardly possible to subdue popular demands for a constitutional government. Zemstvos, therefore, were used by the activists to exert pressure on the tsar for the promulgation of the Constitutional Manifesto of 1905. In Petro's words: "Although proposals for a constitution had abounded during the nineteenth century, they had come mostly from the gentry and senior government officials. What made these new appeals different (and ultimately irresistible) was the direct support of large segments of the population galvanized by the zemstvos."89 Following Nicolai N. Petro, in this way of thinking, one may argue that there were some liberal democratic elements not only in elite, but also in mass culture in pre-communist Russia. Reading the Petition of 9 January 1905 may bolster this argument: Sire; We the workers and the inhabitants of St. Petersburg, of various estates, our wives, our children, and our aged, helpless parents, come to 88. See Walter Sablinsky, "Bloody Sunday" in The Modern Encyclopedia of Russian and Soviet History, Vol.4, (Joseph L. Wieczynski, ed.), Academic International Press, Gulf Breeze 1977, 233-237. 89. Petro, op.cit. note 36, 44-45.


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Thee, o sire, to seek justice and protection... we are many thousands here, but we are human beings in appearance only, for we, with the rest of the Russian people, do not possess a single human right, not even the right to speak, think, gather, discuss our needs, and take steps to improve our conditions. We are enslaved, enslaved under the patronage and with the aid of Thy officials... The bureaucratic administration brought the country to the brink of ruin, involved her in a humiliating war, and is leading Russia closer and closer to disaster... The people are deprived of the opportunity to express their wishes and demands, to participate in the establishment of taxes and public spending. The workers are deprived of the opportunity to organize into unions in order to defend their interests... Russia is too vast, and her needs are too great and manifold to be dealt with exclusively by the bureaucrats. Popular representation is essential; it is essential that the people help themselves and govern themselves...let everyone, whoever he may be, elect his representative. Let everyone be free and equal in his choice, and for this purpose let the elections to the constituent assembly be conducted under conditions of universal (direct), secret, and equal suffrage. This is our principal request, upon which everything else depends...90 The October Manifesto, with its emphasis on the rights of man and popular sovereignty, was a reflection of liberal democratic political culture prevailing in Western Europe at that time. It was also a brief summary of the principles of Enlightenment culture. According to this document, the tsar ...imposefd] upon the government the duty to execute [his] inflexible will: 1. To grant the population the inviolable foundations of civic freedom based on the principles of genuine personal inviolability, freedom of conscience, speech, assemblies and associations. 2. Without postponing the scheduled elections to the State Duma, to admit in the participation of the Duma insofar as in the short time that remains before its scheduled meeting all those classes of the population which presently are completely deprived of voting rights, and to leave further development of general elective law to the future legislative order; 3. To establish as an unbreakable rule that no law shall become effective without the confirmation by the State Duma, and that the elected representatives of the people shall be guaranteed an opportunity of real participation in the supervision of the legality of the acts by authorities whom [the tsar] shall appoint.91 90. For the text of the Petition of 9 January, see Walter Sablinsky, The Road to Bloody Sunday, Princeton University Press, Princeton 1976, 344-349. 91. See Dmytryshyn, op.cit. note 83, 314-315.

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All these efforts bore fruit in 1906. The first Duma, convening under the October Manifesto, drew up and promulgated a constitution.92 Although the latter was not as liberal as the Russian intelligentsia expected, it adhered to liberal democratic principles prevailing in Europe during this period. The Constitution of 1906 emphasized the unity and indivisibility of the Russian Empire in its first article. Given the negative impacts of nationalist movements on old regimes in Europe at that time, the underlying motives of this meaningful introduction can readily be understood. The first chapter contained several articles concerning the powers of the tsar. The Constitution vested supreme power in the tsar and defined his person as sacred and inviolable. He was dominant over the legislature and the executive. He, for instance, had the right to initiate laws on all legislative issues, approve legislative acts, and appoint and dismiss the chairman of the council of ministers, ministers and various chief administrators. The second chapter of the Constitution guaranteed the rights and liberties of Russian citizens. This chapter included several rights, such as freedom of conscience, speech, assembly and association. The third chapter comprised the articles concerning the procedure of making, putting into effect and repealing laws. One of these articles, Article 45, provided that, while the State Duma was not in session, the tsar would be able to issue imperial decrees on urgent matters. Although these decrees had to be approved by the legislature subsequently, this article strengthened the authority of the tsar. The fourth chapter included articles dealing with the State Council and the State Duma on whom legislative power was conferred. While half of the members of the State Council were to be elected on a corporative basis, the rest was to be appointed by the tsar. Finally, the fifth chapter determined the powers and functions of the council of ministers, ministers, and the heads of various departments. Under the Constitution, these executive bodies were to be responsible to the tsar.93 In the first Russian elections, the opposition parties won the majority of the seats in the Duma. Thus the First Duma appeared as far from being cooperative with the government. The growing tension between the government and the Duma culminated in the dissolution of the latter by the tsar. The next elections, held in 1907, did not change the composition of the Duma, and the tsar dissolved it for the second time. As a response, the tsar and his ministers changed the electoral law in violation of the Constitution to create a more cooperative Duma. A minority of the nobility managed to control 92. For the English translation of The Constitution of Imperial Russia, 23 April 1906, see Ibid, 316-324. 93. See James A. Malloy Jr., and Jane E. Good, "Constitutional Manifesto of 1905" in The Modern Encyclopedia of Russian and Soviet History, Vol. 8, (Joseph L. Wieczynski, ed.), Academic International Press, Gulf Breeze 1978,44-47.


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more than half of the seats thanks to the electoral law. Having created a more cooperative Duma, the government inaugurated several reforms with the chief minister Stolypin at the helm. Stolypin abolished collective village ownership and encouraged private farming. Although the reforms proved to be successful in the short run, they could not prevent the eventual downfall of the Empire. In 1911 Stolypin was assassinated and three years later Russia became involved in the First World War. It is interesting to note that neither the first, nor the second dissolution of the Duma precipitated a comprehensive popular reaction. Those classes which had backed the Revolution of 1905 and the Constitution of 1906, particularly the peasants and the workers, did not react strongly to the destruction of constitutional government by the conservative elements of Russian society. After the second dissolution of the Duma, the deputies issued the "Vyborg Manifesto", and called on people to revolt in response to the dissolution, but this produced no concrete results. Apart from the lack of a supportive political culture, there were other reasons for the inertia of the people. Most importantly, the government had crushed the opposition immediately after the issue of the October Manifesto. This document had initiated the "Days of Freedom" in Russia lasting in total for six weeks. In this period, certain anti-government ideas were disseminated and several dissident groups emerged. The government could only restore its authority by using force. Thus most extra-parliamentary groups which would give their support to the Duma had been subdued before the establishment of the latter. That meant that the Duma was deprived of vital support in civil society. Adding to the destruction of civil society, the Russian people, particularly the workers, had depleted their material and moral resources during the revolutionary straggle. They were too drained to rise again. Conservative elements in Russian society and the state made an enormous effort to undermine the emerging progressive institutions, e.g., the government weakened the Duma with several legal and electoral stratagems. To sum up, conservative elites (particularly the tsar, the bureaucracy, the gentry, the military and the Church) were against the Constitution of 1906, and the people, who had no thorough supportive political culture, were exhausted and disorganized. Consequently, the efforts of progressive elites proved to be insufficient to save the Constitution.94

94. See Nader Sohrabi, "Historicizing Revolutions: Constitutional Revolutions in the Ottoman Empire, Iran, and Russia, 1905-1908", 100 American Journal of Sociology 1995, 1406-1409, 1423-1431, and 1434-1435.

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2.2.5. The Second Great Transformation of European Political Culture At the beginning of the 19th century, voting rights were limited across Europe and the bulk of the people had no say in the governance of their countries. Although the principle of popular sovereignty was part of Enlightenment culture, its wide, if not complete, implementation could only be achieved in the course of the 19th century. The incorporation of participatory elements in liberal political culture gave way to the second great transformation of Western political culture since the age of Enlightenment. The middle class, succeeding in transforming absolute monarchies into liberal constitutional states, and the working class, emerging as a result of the Industrial Revolution, became increasingly vocal about their political rights. Thus voting rights were extended to the masses at the end of the 19th century. This meant the transformation of liberal constitutionalism into liberal democratic constitutionalism. Although the English constitutional system had been exemplary in terms of liberal constitutionalism, limited franchise undermined the democratic characteristics of the entire system. The undemocratic deficiency of the system was corrected by the "Reform Act of 1832". Thus England led the way in the democratization campaign in Europe at the end of the 19th century. Other West European countries followed England; universal male suffrage was introduced in Germany in 1867, in France in 1848, and in Belgium in 1893.95 Some East European countries, in spite of the opposition of the conservative aristocracy, followed suit. Universal male suffrage was introduced in 1879 in Bulgaria, and in 1866 in Romania. Still, it should be noted that East European democratization lagged somewhat behind developments in Western Europe, partly because of the resistance of conservative elements in the respective societies.

2.2.6. Liberal Democratic Constitutionalism in the Inter-War Years Although the 19th century trend towards liberal democracy was interrupted by the First World War across Europe, the latter could not destroy the impact of liberal democratic principles. Several liberal democratic constitutions emerged on the continent during the inter-war years, but, as the subsequent collapse of these constitutions dramatically suggested, constitutionalism was not yet an indispensable part of the political cultures of all West European countries. 95. See Thomas T. Mackie and Richard Rose, The International Almanac of Electoral History, Second edition, Macmillan., London 1982.


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After the First World War, the victors advanced the principle of national self-determination as the basis for a lasting peace in Europe. Through the application of this principle, centuries-old multi-national empires, such as Austria-Hungary and the Ottoman Empire, collapsed, and several new states were founded on the ruins of these empires. Having gained their independence, most of the newly-born states drafted their new constitutions. The great importance attached by these states to the principle of national selfdetermination imparted a nationalist character to inter-war constitutions. At the same time, individual liberties, a legacy of the 19th century constitutionalism, were guaranteed, and universal suffrage was expanded and consolidated. Thus one may safely argue that liberal democracy prevailed on the continent in this period. The Weimar Constitution was one of the best known liberal democratic constitutions of this period. This Constitution is particularly relevant for the purpose of the current study because its tragic failure may illustrate the difficulties which post-communist countries might encounter in establishing their liberal democratic regimes. Having been defeated in the First World War, Germany had been shaken by a revolution in 1918 after which a provisional government was established with the socialist leader P. Scheidemann at the helm. In January 1919, thanks to the efforts particularly of the Social-Democrats, elections were held to form a constituent assembly. In August 1919 the Assembly promulgated the Weimar Constitution establishing the Federal Republic of Germany. The Weimar Republic, although encountering several serious problems, survived for a decade. The Reichstag Elections of July 1932, however, signaled the end of the Weimar Constitution. At the elections, two extreme parties, the National-Socialist and the Communists together acquired the majority. In January 1933 President Hindenburg appointed the Nazi leader Hitler as chancellor. The Constitution remained in effect, but in February 1933, an emergency decree, suspending constitutional rights, and in March 1933, the "Enabling Act", transferring legislative power to the government, were issued. Finally, after the death of President Hindenburg, in August 1934, Hitler, or the Fiihrer, as was his new title, established a veritable dictatorship.96 True, there were several reasons for the collapse of the Republic, such as the party system, the economic situation and social structure, but the absence of liberal democratic beliefs and values in German society played a crucial role in this tragedy. The well-known phrase of "the republic without republicans" summarizes the situation in Germany at that time.97 Moreover, the failure of the Weimar Constitution, particularly in providing governmental 96. Van Caenegem, op.cit. note 22, 270-291.

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stability, undermined the regime in general. Maybe the Constitution was not the sole factor responsible for the collapse of the Republic, but it was not helpful for consolidation of democracy either. The mixed model of executive-legislative relations introduced by the Constitution was mainly responsible for its ineffectiveness. The Constitution conferred executive power on the president and the cabinet, i.e., the chancellor and ministers. Of these agencies, the president was relatively stronger, for he was chosen directly by the people as the American President, and he had the right to appoint and dismiss the chancellor and ministers. The German President, however, was not as strong as his American counterpart, for the cabinet was responsible to the Reichstag, whereas the American ministers are only responsible to the president. The Weimar Constitution was much closer to the Constitution of the French Third Republic which provided that the president was a figure-head and the cabinet was responsible to parliament. But, the Weimar Constitution was also different somewhat from the French Constitution because the French President was elected by parliament. The Weimar Constitution, therefore, blended the American and French presidential models. This hybrid model was inherently unstable because the cabinet was under double-pressure deriving both from the president and parliament. To have chosen such an unstable form of government was one of the factors leading to the downfall of the Republic.98 The Weimar tragedy underlined the importance of the combined effects of the absence of a supportive culture and the ineffectiveness of a given constitution on the political system in general. The fate of inter-war constitutions in Eastern Europe was not different from that of the Weimar Constitution. The peace treaties, concluded after the First World War, radically changed the map of Eastern Europe. On the one hand, they created several new states, such as Czechoslovakia and Yugoslavia, on the other, they affected profoundly some of the existing states, such as Romania and Bulgaria. While the latter lost most of its possessions, the former gained new territories." After the First World War, several significant constitutional developments occurred in Eastern Europe. New constitutions emerged in the region between 1920 and 1923: in Czechoslovakia in 1920, in Yugoslavia in 1921, 97. Michael J. Baun, "The Federal Republic of Germany", in Political Culture and Constitutionalism, A Comparative Approach, (Daniel Franklin, Michael J. Baun, eds.), M.E. Sharpe, New York/London 1995, 79-97. 98. M. Rainer Lepsius, "From Fragmented Party Democracy to Government by Emergence Decree and National Socialist Takeover: Germany", in The Breakdown of Democratic Regimes, (Juan J. Linz and Alfred Stepan, eds.), The Johns Hopkins University Press, Baltimore/London 1978,47-50. 99. Generally see Okey, op.cit. note 46, 157-180 and Wandycz, op.cit. note 32, 201-235.


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in Poland in 1921, in Romania in 1923.100 The Baltic States promulgated their new constitutions too.101 Given the prestige of the principle of self-determination after the War, it was not surprising that the alliance between liberalism and nationalism, as it emerged after the Revolutions of 1830 and 1848, played a decisive role in inter-war constitutionalism. But apart from this, the international environment also played a crucial role in East European constitution-making. According to R.J. Crampton: "In many cases the new authorities would probably have liked to take radical measures, usually against a previously ruling minority, but such steps could well have caused the allies to fear that some new variant of bolshevism was afoot; the state in question might then face international isolation and, most crucially, might be unable to secure loans."102 All East European constitutions in inter-war years, as their West European counterparts, recognized liberal democratic principles. They guaranteed individual rights and liberties. The Czechoslovak Constitution even went further by including a special section for the protection of national, religious and racial minorities. The Yugoslav Constitution, on the other hand, put particular emphasis on social and economic rights. All of these documents introduced universal suffrage with varying voting age criteria. The voting age was 21 for the Chamber, and 26 for the Senate in Czechoslovakia; 25 for the Sejm and 30 for the Senate in Poland. Of these constitutions, the Polish and Czechoslovak ones established a republic with a president elected by the legislature. In both countries executive power was conferred on the president and the cabinet. Although the Polish and Czechoslovak presidents had considerable powers, such as appointing and dismissing the cabinet members, they were not the center of the system for two reasons. On the one hand, they were elected by the legislature, on the other, their acts had to be countersigned by ministers responsible to the lower chamber of the legislature. Accordingly, the Czechoslovak and Polish constitutions were closer to the Constitution of the French Third Republic, than to the American or German Constitution. The Yugoslav and Romanian constitutions, in turn, established constitutional monarchies as opposed to the Czechoslovak and Polish ones. The Yugoslav and Romanian monarchs retained significant prerogatives, but they were by no means absolute. Lastly, all of these 100. Generally see Ralston Hayden, "New European Constitutions in Poland, Czechoslovakia and The Kingdom of the Serbs, Creates and Slovenes", 16 The American Political Science Review 1922, 211-227. For the English translation of these constitutions, see Howard Lee McBain, Lindsay Rogers, The New Constitutions of Europe, Doubleday, Page & Company, New York 1922. 101. See John Hiden, Patrick Salmon, The Baltic Nations and Europe, Estonia, Latvia and Lithuania in the Twentieth Century, Revised edition, Longman, London/New York 1994, 43-58. 102.R.J. Crampton, Eastern Europe in the 20th Century, Routledge, London 1994, 33.

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constitutions provided for popularly elected national assemblies which were, in fact, the center of inter-war liberal democracies in Eastern Europe. Inter-war constitutions, just as the Weimar Constitution, did not live long. Most East European countries fell prey to dictatorships in the 1930s. No doubt, there were a number of reasons for the downfall of liberal democratic constitutional systems in Eastern Europe,103 but the incongruity between mass values and constitutions played a crucial role. Although at the end of the 19th century liberal democratic political culture prevailed in Europe, it was by no means the uncontested victor. It was still vulnerable in Eastern Europe and alternative beliefs and values were still attractive and promising for elites and masses in these countries. In Polonsky's words: The failure of the democratic constitutions established in Eastern Europe after 1918 is not difficult to explain. Democracy is not only a constitutional framework, but also a habit of mind, a willingness to accept that one's point of view may not necessarily prevail, and an ability on the part of politicians to accept long periods out of office... The conditions which existed in Eastern Europe after 1918 were hardly conducive to the emergence of effective democratic institutions.104 Adding to the absence or weakness of liberal democratic beliefs and values, it can safely be argued that the ineffectiveness of inter-war constitutions undermined the credibility of nascent liberal democratic regimes. Most East European countries were inspired by the French Third Republic with a strong legislature and a weak executive. The application of this model in Eastern Europe brought about several governability problems. Given the social and economic conditions in the region after the First World War, it was obvious that these countries were not in a position to afford ineffective governments.105 This was also true for the Baltic states. They took the Weimar Constitution as their model which brought about executive instability. As a result, people and politicians became disillusioned with the working of liberal democratic systems. The combined effects of economic hardship and the rise of anti-democratic tendencies put an end to fledgling democracies in the region.106 103. For a recent comprehensive comparative study on this subject, see Gisele de Meur and Dirk Berg-Schlosser, "Conditions of Authoritarianism, Fascism, and Democracy in Interwar Europe", 29 Comparative Political Studies 1996, 423-468. 104. Anthony Polonsky, The Little Dictators, The History of Eastern Europe since 1918, Routledge & Kegan Paul, London 1975, 127. 105. Ibid, 22-23. 106. V. Stanley Vardys, "The Rise of Authoritarian Rule in the Baltic States", in The Baltic States in Peace and War 1917-45, (V.S. Vardys and RJ. Misiunas, eds.) University Park, Pennsylvania/London 1978, 65-80.


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2.2.7. Conclusions So far, we have studied political culture, constitutions and constitutionalism in Eastern Europe and Russia by employing a historical approach. Now we can recapitulate our findings. As a general conclusion, it must be emphasized that the pre-communist political culture of the countries concerned was characterized by the "strong state authority/weak civil society" tradition. Owing to the ill-development of religious and secular foundations of constitutionalism in Eastern Europe and Russia, the state was usually predominant in respect of society. The strong state, in some cases, particularly in East European countries, gave way to the rise of a conservative aristocracy as the ruling elite, but in other cases, such as in Russia, it laid the foundations for a strong leadership tradition. Even today in many post-communist countries, a considerable number of people prefer a strong leader to decide. It is obvious that such an attitude would be incompatible with constitutionalism involving divided and limited government. Nevertheless, this does not necessarily mean that liberal democratic institutions were completely alien to East European and Russian political cultures. Many countries had significant experiences, although in some cases short and imperfect, with liberal democracy. Accordingly pre-communist political culture comprised a tradition of strong state authority along with some elements of liberal democratic constitutionalism. Apart from that, we may list the characteristics of the relations between political culture and constitutions in these countries as follows: First, East European and Russian constitutions were chiefly the embodiment of elite political cultures which were considerably different from elite and mass cultures. More importantly, different sections of the elites had different orientations. Among these, particularly the intelligentsia believed in the virtue of liberal democratic institutions. Liberal democratic constitutions in the countries surveyed were usually the product of such a progressive elite culture. Other elites, however, particularly the conservative aristocracy, were generally opposed to liberal democratic institutions. Such a conservative elite culture brought to end most of the East European constitutions. The Polish, Bulgarian and Romanian intellectuals, for example, advocated the progressive values of the Enlightenment of the 18th and 19th centuries. The aristocracy, on the other hand, tried to preserve the status quo. In Poland, and to a certain extent in Romania, they actively opposed constitutions embodying democratic norms and principles. The Polish aristocracy even went further and cooperated with Russia to subvert the Constitution of 1791. In some cases, ruling elites played a crucial role in the establishment of a constitutional government. In the 18th century, for example, King Stanislas Poniatowski initiated and carried out constitutional reforms in Poland. In

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other cases, constitutions were also supported by the people. In Russia, for example, there was considerable popular backing for the October Manifesto and the Constitution of 1906 in the beginning. Second, East European and Russian constitutions were seen as the instruments of modernization. In Eastern Europe and Russia, as opposed to Western Europe, constitutions were the means, not the end, of modernization. The definition of modernity was different in Eastern Europe. East European elites understood modernization as "Westernization". They took Western Europe as their model for modernity. They generally thought that it would be sufficient to import Western institutions to catch up with the West. In Poland, Romania and Bulgaria, constitutions were seen as a cure-all for the backwardness of these countries. This was also true for Russia, particularly for the attempts at constitutional reforms in the reign of Alexander I. Third, external factors played a crucial role in East European constitutionalism. The international environment had always been very important in this region. The Romanian and Bulgarian constitutions in the 19th century, for example, were the result of international treaties. In addition, during the inter-war years, the aspirations of the new powers to integrate with the emerging international order was a significant factor in choosing Western models in East European countries. In these cases, international actors played a positive role in the consolidation of liberal democratic values. Yet, in other cases, such as Poland, imposed constitutions prevented the evolution of native variations of liberal democratic political culture.

2.3. Communist Political Culture and Constitutionalism In the pre-communist period, the political cultures of East European countries and Russia were different from the West European ones, but they shared to a certain extent the common values and established similar institutions. However, in the communist period a completely different value system and an institutional framework resting on Marxist-Leninist principles appeared in these countries. The First World War brought about revolutionary effects in Russia. An alliance of workers and soldiers organized themselves into a council known as the Soviet. The emperor was obliged to abdicate and the Duma set up a provisional government to restore peace and order. Relying on the support of the factories and the army, the Bolsheviks challenged the central authority. They managed to oust the provisional government thanks to a successful coup d'etat on 7 November 1917 and promised to draw up a new constitution through a freely elected constituent assembly. However, the Assembly, in which the Bolsheviks could only control less than one-fourth of the seats, was


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dispersed by soldiers who acted under the command of Lenin. Before long, the confrontation between the various anti-Bolshevik groups and the Bolsheviks resulted in a civil war won by the latter under Lenin's leadership. This was the beginning of the communist period in Russia. After the Second World War, the USSR consolidated its domination over East European countries which fell one after another under the control of Moscow. Only Yugoslavia, led by Tito, chose a different path and decided to go its own way. Notwithstanding this exception, communist regimes were prevalent in Eastern Europe from 1950's onwards. The "weak civil society/strong state authority" tradition remained the definitive characteristic of East European107 and Russian108 political cultures in the communist period.109 The strong party-state made the emergence of a viable civil society impossible. In addition, communism was to a great extent responsible for the creation of another important aspect of the political cultures of these countries: statism. The state declared itself responsible for almost everything in the country, for jobs and housing, production, education, social security, etc. People generally accepted the comfort of being taken care of by the state and gradually developed a habit of expecting everything from it, particularly in terms of material welfare. So, it can be said that communism led to the preservation of the notion of strong state, but it defined its functions in terms of the welfare of the entire community. There were some important consequences of these developments also in the constitutional realm. When discussing Polish constitutionalism, Wiktor Osiatynski noted that: "...[people] understood a strong state to be the instrument to provide social welfare; the constitution, in turn, was to create that very instrument."110 Needless to say, it was hardly possible to apply such basic principles of constitutionalism as the separation of powers and the rule of law in the presence of such a strong and active state. Communist political culture was considerably different from liberal democratic political culture. On the one hand, such liberal democratic values as tolerance and trust were almost non-existent in communist societies. Distrust of political institutions and fellow citizens, and intolerance towards 107. See George Schopflin, "Culture and Identity in Post-Communist Europe", in Developments in East European Politics, (Stephen White, Judy Batt, and Paul G. Lewis, eds.), Macmillan, London 1993,16-34. 108. See Stephen White, "Russia", in European Political Cultures, Conflict or Covergence?, (Roger Eatwell, ed.), Routledge, London/New York 1997,193-209. 109. For a comparison between the political cultures of Eastern Europea and the former USSR, see Stephen White, George Schopflin, and Tony Saich, Communist and Post-Communist Political Systems: An Introduction, Third edition, Macmillan, Basingstoke, 1990. 110. Wiktor Osiatynski, "Perspectives on the Current Constitutional Situation in Poland", in Constitutionalism and Democracy, (Douglas Greenberg, Stanley N. Katz, Melianie Beth Oliviera, and Steven C. Wheatley, eds.), Oxford University Press, Oxford 1993, 313.

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different views prevailed during the communist period. On the other hand, communist political culture, as pre-communist political culture, was mainly a subject culture in the terminology of the civic culture approach. True, there were some participant elements in communist political culture, such as high level popular participation in sham elections, but political life was ultimately directed from the top, by the Party.111 Apart from their subject and non-liberal, non-democratic nature, precommunist and communist political cultures in Eastern Europe and the USSR resembled each other in terms of incongruity between levels of political culture. It was possible to speak of four basic sub-categories in communist political culture: official, elite, dominant and sub-cultures. Official culture refers to beliefs and values which elites wanted citizens to hold, whereas elite culture relates to the actual beliefs and values of elites. Theoretically, official and elite cultures are supposed to be identical, but, in practice, it is always possible to observe discrepancies between what elites claim they believe in and what they actually believe. This was the case in most communist countries. Dominant culture, in turn, concerns the beliefs and values of the general population. Within the framework of dominant culture, people in communist countries generally shared the same beliefs and values concerning basic political issues, but certain groups developed different orientations towards various political objects. Subcultures of such groups varied with ethnicity, religion, class and gender.112 Given this categorization, one can maintain that communist constitutions, particularly their preambles, were mainly the reflection of official political culture which had not always been shared by masses. Since there were differences between official and elite political cultures, one can also safely assume that communist constitutions even hardly mirrored the beliefs and values of certain groups of elites. To understand and explain the incongruity between official, elite and mass political cultures, let us look closer at the socialization process through which these beliefs and values had been acquired. Communist authorities, in fact, saw law as an instrument of socialization. Harold J. Berman coined the term of "parental law" to emphasize the educational function of Soviet law. According to Berman: "The Soviet legislator, administrator, or judge plays the part of a parent or guardian or teacher; the individual before the law, 'legal man', is treated as a child or youth to be guided and trained and made to behave."113 It can be assumed that 111. Frederick C. Barghoorn and Thomas F. Remington, Politics in the USSR, Third edition, Little, Brown and Company, Boston 1986,44-49. 112. See Leslie Holmes, Politics in the Communist World, Clarendon Press, Oxford 1986,7695. 113. Harold J. Berman, Justice in the USSR: An Interpretation of Soviet Law, Revised edition, Harvard University Press, Cambridge 1963,6.


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as a result of such a system communist authorities attributed a socialization function to constitutions. Socialization, as mentioned above, refers to a process in which people acquire their beliefs and values. In this sense, one can speak of two general types of socialization, "purposive" and "latent". In purposive socialization, certain agencies attempt to inculcate values consciously and explicitly, whereas in latent socialization, values pass from one generation to another without the interference of such agencies. Purposive socialization was common practice in communist societies. Socialization was a life-long process which started at schools and continued in youth leagues, in the Communist Party, in trade unions, and in other mass organizations. Media, under the strict control of the Communist Party, also contributed to the inculcation of communist values. To create "communist man and woman" was one of the main objectives of the communist authorities in Eastern Europe and the former USSR. This was, in fact, an attempt to create a political culture congruent with communist institutions. Constitutions played a crucial role in this process. According to the Preamble of the Constitution of the USSR of 1977, for example, one of the principal aims of the people's socialist state was "to mould the citizen of communist society", and the constitution could be seen as one of the essential instruments of this enterprise. To use constitutions as socialization instruments, in fact, is not unique to communist regimes. Almost every constitution inherently performs a socialization function. As Ivo D. Duchacek put it: ...national constitutions are messages addressed to officials and citizens so that they can understand, use, and obey the governmental agencies, whose roles and structures have been identified and described in the constitutional text. Thus, through the supreme law of the land, the national leadership tries to regulate political behavior and elicit the people's cooperation in the use of constitutionally defined structures. A macroscopic power map is expected to contribute to the process of constitutional socialization, i.e., the process by which citizens and officials acquire political attitudes and behavior consonant with the prescriptions and admonishments contained in the supreme law of the land.114 Accordingly, purposive socialization was one of the distinguishing characteristics of communist regimes. Although communist authorities spent a great deal of effort to create "socialist man and woman" through purposive socialization, they failed to a 114. Ivo D. Duchacek, Power Maps: Comparative Politics of Constitutions, ABC-Clio, SantaBarbara 1973, 8-11.

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great extent.115 True, communism brought about some changes in the political cultures of the countries in question, but these fell short of the intentions of elites. "Comrades", uttered mostly what party elites had wanted to hear, and mostly did what party elites had wanted them to do, but they preserved most of their pre-communist values latently. As we shall try to explain later, according to some authors, this entailed the emergence of an "alternative political culture". Moreover, as subsequent events suggest, even certain groups of elites themselves did not hold the beliefs and values resting on Marxist-Leninist principles. We shall say more about these issues when explaining support for democratic norms and principles in post-communist countries. The first Soviet Russian Communist Constitution was promulgated in 1918. After that, there were three communist constitutions of the USSR, in 1924, 1936, and 1977, until the inauguration of the post-communist Constitution of Russia in 1993.116 In Eastern Europe communist constitutions were promulgated in Albania, in 1946; in Bulgaria, in 1947; in Romania and Czechoslovakia, in 1948; in Hungary, in 1949; in Poland, in 1952. New communist constitutions were drawn up in Czechoslovakia, in 1960; and in Romania, in 1952 and 1965; in Bulgaria, in 1971; and in Albania, in 1976.117 Although these constitutions were slightly different from each other, they were based on the same Marxist-Leninist principles. Communist authorities saw Western constitutionalism as an instrument for the maintenance of the exploitation of the proletariat by propertied classes and rejected two important principles of constitutionalism, the separation of powers and the rule of law.118

115. See Jack Gray, "Conclusions", in Political Culture and Political Change in Communist States, (Archie Brown and Jack Gray, eds.), Macmillan, London 1979,253-272 (italics in original). 116. For the English translation of and commentaries on the RSFSR Constitution of 1918, the USSR Constitutions of 1924,1936 and 1977, see Aryeh L. Unger, Constitutional Developments in the USSR, Methuen, London 1981. Also see for the English translation of federal constitutions of the Union republics, The Constitutions of the USSR and the Union Republics, Analysis, Texts, Reports, (F.J.M. Feldbrugge, ed.), Sijthoff & Noordhoff, Alphen aan den Rijn, The Netherlands/Germantown 1979. 117. For the English translation of these constitutions, see The Constitutions of the Communist World, (William B. Simons, ed.), Sijthoff & Noordhoff, Alphen aan den Rijn, The Netherlands/ Germantown 1980. For an analysis of these constitutions, see C.E. Black, "Constitutional Trends in Eastern Europe, 1945-48", 11 The Review of Politics 1949, 196-207. 118. See for a comparative analysis of East and West European constitutions in the communist period, Karl Loewenstein, "Constitutions, Constitutional Law", in Marxism, Communism and Western Society, A Comparative Encyclopedia, Vol. II, (C.D. Kernig, ed.), Herder and Herder, New York 1972, 169-190.


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Communist Rejection of the Principle of Separation of Powers To understand and explain the Marxist-Leninist position on the principle of the separation of powers, it would be appropriate to start with studying the meaning of the principle within the context of liberal democratic tradition.119 This principle entails the division of political power among several branches of government. Such a division requires the fulfillment of the law-making, law-enforcing and the law-adjudicating functions by the legislative, executive and the judicial branches of government respectively. This principle, aiming at protecting individuals against tyranny, constitutes one of the two pillars of constitutionalism along with the principle of the rule of law. As the principle of the separation of powers concerns the law-making, law-enforcing and law-adjudicating functions of government, it is natural that its development has been closely related to the evolution of the concept of law. In the early Middle Ages it was thought that law could only be discovered and declared, but it could not be made by humans or posited by rulers. Accordingly, the source of law was the will of God, nature or custom, and the essential function of government was the settlement of disputes between members of the society on the basis of the application of these laws to individual cases. This function, however, mainly concerned the application of law through judicial procedures, rather than its application through administrative mechanisms. The idea of man-made law was developed in the course of time. Particularly, the distinction between the law-making and lawapplying functions were clearly formulated during the English Civil War involving a struggle between the king and Parliament. By the end of the 17th century, two functions of government were clearly discernable: law-making and law-applying functions. It is important to note that most writers at the time did not make a distinction between the application of law through judicial procedures (law-adjudication function) and the application of law through administrative mechanisms (law-enforcing function). Only by the 18th century, the law-adjudicating and law-enforcing functions came to be accepted as separate functions of government. Montesquieu, for the first time, developed the doctrine of the separation of powers much closer to its modern version. James Madison combined Montesquieu's theory with the idea that the separate governmental agencies should check and balance each other to prevent the abuse of power. The latter idea, known as checks and balances, derived from the theory of a mixed constitution entailing that several (e.g., monarchical, aristocratic and democratic) elements in a given society, represented in the separate branches of government, could counterbalance each other in exercising political power. The combination of the 119. See W.B. Gwyn, The Meaning of the Separation of Powers, Martinus Nijhoff Publishers, The Hague 1965.

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principle of the separation of powers and idea of checks and balances found its clear expression in the American Constitution of 1787 according to which political power is divided between a president, a bicameral legislature and a judiciary, checking and balancing each other thanks to several constitutional channels. Marxism-Leninism rejected the principle of the separation of powers as developed in the Western political and legal traditions on the ground that it would impede the representation of the people. Marxist-Leninist authors argued that the principle of separation of powers served only to mask the oppressive rule of the bourgeoisie. Marx and Lenin developed an alternative model in the light of the experience of the 1871 Paris Commune and the Russian revolutions of 1905 and 1917. Councils or Soviets were the building blocs of this model of revolutionary self-government designed exclusively for the proletariat. According to this model, all three powers were to be concentrated in the hands of the Soviets. Thus the proletariat could fight against external and internal enemies of communism thanks to its undivided power. A prominent Soviet jurist Vishinsky underlined the latter point: "From top to bottom the Soviet social order is penetrated by the single general spirit of the oneness of the authority of the toilers."120 All communist constitutions introduced the model of assembly government which was perfectly consistent with the Marxist-Leninist idea of the concentration of powers. According to these constitutions, the supreme state power resided in the people's assembly. In fact, the assembly government model was originally introduced by the French Constitution of 1793 and adopted by the Swiss Constitution of 1848 and 1874, but the communist application of this model served only further concentration of powers in the hands of the communist authorities. Although communist assemblies were supreme on paper (i.e., it was impossible to limit, control, or dissolve parliament in the Soviet system), in reality the entire system was under the control of the Communist Party. No discussions took place, no independent decisions were made in these assemblies. Governments were also defined as the supreme organs of state administration in communist constitutions, but they hardly played a role in the actual working of the system. As a consequence, neither in theory, nor in practice, there was room for the principle of the separation of powers in communist regimes.

Communist Rejection of the Principle of the Rule of Law The realization of the principle of the rule of law was also impossible in communist regimes in Eastern Europe and the former USSR. It was the 120. Andrei Y. Vyshinsky, The Law of the Soviet State, (Translated by Hugh W. Babb), The Macmillan Company, New York 1948, 318.


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state—or more correctly the law-making bodies of the state—which was the sole source of law in communist legal systems. According to the MarxistLeninist way of thinking, the state was not bound by a higher law to which its positive law should conform in order to be valid. To understand and explain the position of Marxist-Leninist writers on the principle of the rule of law, it would again be appropriate to define at the outset what we mean by the rule of law within the context of liberal democracy.121 The source of the concept of the rule of law can be found in the natural law tradition. From Cicero to Aquinas, the natural law theory set certain higher moral standards deriving from human nature against which the positive law of the state could be judged. The natural law theory waxed around the 12th century within the context of the theocentric political culture of medieval Europe and waned with the rise of absolutism around the 16th and 17th centuries. As absolute rulers relieved themselves from religious and secular constraints, any law or command of the sovereign became the undisputed rule to be obeyed by the subjects. However, the theory of natural law and the idea of natural rights were revived in the writings of the philosophes, such as Locke and Kant, in the Age of Enlightenment. England had always occupied a special place in the evolution of the principle of the rule of law. While the principle was explicitly articulated by King Charles I, who was tried and condemned to death for treason by the Puritans in the 17th century, it was clearly formulated by the leading English jurist A.V. Dicey in his book Introduction to the Study of the Law of the Constitution in the 19th century. According to the English conception, Parliament was sovereign, but even it was bound by fundamental principles of justice, which could be found in the historical traditions of the English people. Americans added two new dimensions to the principle of the rule of law evolving within the English theory and practice. On the one hand, Americans drew up a written constitution incorporating certain higher standards rooted in reason and conscience; on the other hand, they created the mechanism of judicial review to ensure the supremacy of the constitution. The French conception of the rule of law was also different both from the English and American conceptions. Neither the supremacy of certain fundamental rules over the will of parliament, nor the review of the constitutionality of the legislation by the judiciary were accepted in France, particularly in the revolutionary period. According to the French conception, the ultimate source of law was the law-making authority who was responsible and accountable only to the people, not to a higher law. The German conception of Rechtstaat, or law-based state, resembled the French conception. Basically, both were positivist in nature. According to the German conception, 121. See Franz Neumann, The Rule of Law, Political Theory and Legal System in Modern Society, Berg, Heidelberg 1986.

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the ultimate source and sanction of law was the will of the law-giver. This conception did not necessarily require the subjection of the state authorities to a higher law or the review of the constitutionality of laws. It was sufficient for a state to be considered a law-based state to be governed by law. This was, therefore, not the rule of law, but rule by law.122 It is obvious that when we use the term of the rule of law, as we have defined it as one of the two pillars of constitutionalism along with the principle of separation of powers, we do not mean a law-based state in the sense prevailing in France and Germany around the 19th century. We rather use this term as developed in the AngloAmerican tradition to refer to a law-governed state exercising its power on the basis of the principle of the supremacy of the constitution.123 MarxistLeninist theory and practice rejected this conception.124 Marxist theory saw the state as an instrument which imposed the will of the ruling classes on the entire community. It was believed that the Socialist Revolution would lead to the transfer of power from the exploiting classes to the exploited ones and make the latter the ruling class in the newly established system. Since there would no longer be exploiting classes, the state, as their oppressive instrument, would wither away. In spite of this theoretical elegance, it was obvious that the disappearance of the state would simply mean the end of Soviet rule. That is why the original Marxist understanding of the state was modified by Lenin and Stalin, and the maintenance of the state in the communist system was justified by internal and external "pretexts". Externally, it was claimed that the USSR was surrounded by enemies. Internally, it was argued that there were no favorable conditions which would be conducive to the withering away of the state. Accordingly, there was still room for the state in communist regimes. Stalin even maintained that maximizing the strength of the state would lead to its eventual dissolution. In this way, Stalin tried to justify his reign of terror. Khrushchev also advocated the preservation of the state, although with different considerations. He claimed that the Revolution had eventually brought about a state of the whole people by annihilating the antagonisms between the different social classes (exploiting/exploited, ruling/oppressed). Accordingly, the entire population 122. See Harold J. Herman, "The Rule of Law and the Law-Based State (Rechtstaat) With Special Reference to the Soviet Union" in Toward the "Rule of Law " in Russia ?, (Donald D. Barry, ed.), M.E. Sharpe, Armonk,N.Y. 1991,43-60. See also Harold J. Berman, "The Struggle for Law in Post-Soviet Russia" in Western Rights? Post-Communist Application, (Andras Sajo, ed.), Kluwer, Dordrecht 1996, 41-55. 123. See John Reitz, "Constitutionalism and the Rule of Law: Theoretical Perspectives", in Democratic Theory and Post-Communist Change, (Robert D. Grey, ed.), Prentice Hall, New Jersey 1997, 111-143 124. See M.D.A. Freeman, "The Rule of Law-Conservative, Liberal, Marxist and Neo-Marxist: Wherein Lies the Attraction?" in Perestroika and the Rule of Law Anglo-American and Soviet Perspectives, (W.E. Butler, ed.), I.B. Tauris & Co. Ltd. Publishers, London/ New York 1991,37-59.


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appeared as the ruling class after the Revolution. This doctrine, with minor modifications, survived until perestroika. According to these theories, the state was the main source of law, and law was supposed to serve the interests of the state. Lenin, Stalin and Khrushchev, in fact, tried ideologically to justify their retention and use of law, in spite of the original Marxist views on law. As the communist regime firmly entrenched itself, authorities came to see the advantages of law. It offered totalitarian leaders a perfect instrument for maintaining control over society. Thus, "[t]he totalitarian system found law useful, but did not take any risks in burdening itself with rules which might constrain its complete freedom to act."125 In other words, there was law in Russia, but no rule of law. This was also true for Eastern Europe. There was no room for the rule of law under the imposed constitutions of these countries. Apart from these general considerations, if one compares the pre-communist and communist periods in terms of the relationships between political culture and constitutions, one may find striking similarities. First, communist constitutions, just as pre-communist ones, were mainly the embodiment of elite political culture. Although the names and objectives of communist and pre-communist elites were different, constitutions essentially mirrored their beliefs and values. Second, although the definition and strategies of modernization in the communist period were different from that of the 18th and 19th centuries, communist constitutions were also seen as instruments of modernization. The attribution of socialization functions to constitutions, and to law in general, underlined these characteristic of communist political culture. Third, external factors were just as important in communist constitution-making as they had been in pre-communist times. East European constitutions, in particular, were the products of Soviet domination in the region.

2.4. Post-Communist Political Culture and Constitutionalism The aim of this section is two-fold. First, we shall investigate whether there is sufficient popular support for democratic norms and principles in postcommunist countries to afford constitutional changes within regimes. Second, we shall explore to what extent post-communist constitutions reflect the beliefs and values of the people in post-communist societies. The first question will help us to clarify the relationships between constitutional change and consolidation of democracy, whereas the second will enable us to flesh out our three-pillar legitimacy model which we have devised to study the in/stability of constitutions. 125.F.J.M. Feldbrugge, Russian Law: The End of the Soviet System and the Role of Law, Martinus Nijhoff Publishers, Dordrecht 1993, 30.

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Popular Support for Democratic Norms and Principles and Conditions of Constitutional Changes within Regimes Our basic assumption in this study is that one may expect to see several constitutional changes within regimes in certain post-communist countries, and this would contribute to the consolidation of democracy therein. We have listed the conditions of constitutional change within regimes in the First Chapter: first, there must be popular support for the norms and principles of democracy at the abstract level; second, there must be legitimacy problems deriving particularly from political culture, constitution-making and effectiveness. If these conditions are met, members of a given political system will most likely prefer to mitigate their dissatisfaction by changing the rules and procedures of the regime while preserving its norms and principles. In the next section we shall explore whether post-communist constitutional systems meet one part of the second condition of constitutional change within regimes, i.e., whether post-communist constitutions are congruent with postcommunist political cultures of the countries concerned. But now we wish to focus on the first condition of constitutional change within regimes, i.e., whether people in post-communist countries support the norms and principles of democracy. We shall try to answer this question with the help of the data provided by surveys on post-communist public opinion. Before proceeding, however, we wish to point out that peculiar characteristics of post-communist societies create several problems in studying public opinion through the survey method. We have made a distinction between the legitimacy of a given political regime at abstract and national levels. In post-communist countries this distinction is blurred. Most people in these countries are not familiar with basic liberal democratic institutions. As a consequence, when they are asked about their satisfaction with democracy, they will most likely answer this question with different democracy conceptions in mind. Apart from this, there are some problems stemming from the insufficiency of the public opinion surveys in the pre-communist period. Particularly, a shortage of trained personnel, an inadequate material base and a lack of experience, as a heritage of the problems in the professionalization of public opinion research in communist countries, affect public opinion surveys negatively.126 Bearing these problems in mind, we may look at public opinion surveys on support for democracy in Eastern Europe and the former USSR.127 There is a lot of evidence that people in certain post-communist countries support democracy at the abstract level. Geoffrey Evans and Stephen 126. Jeffrey W. Hahn, "Public Opinion Research in the Soviet Union: Problems and Possibilities", in Public Opinion and Regime Change, (Arthur H. Miller, William M. Reisinger and Vicki Hesli, eds.), Westview Press, Boulder 1993, 37-47.


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Whitefield designed the following question to measure normative commitment to democracy in Bulgaria, Estonia, Hungary, Lithuania, Poland, Romania, Russia and Ukraine: "How do you feel about the aim of introducing democracy in [respondent's country], in which parties compete for government? Are you a...strong supporter, supporter, opponent, strong opponent, neither supporter, nor opponent?"128 It is interesting to note that, with the exception of Poland, Russia and Ukraine, the majority of people in these countries expressed their support for democracy as an ideal form of government. Even in Bulgaria and Russia, where the percentage of negative sentiments towards democracy in abstract was the highest, a considerable number of people displayed democratic commitment.129 When we look closer at the specific norms and principles of democracy this support becomes more visible. As we have mentioned above, democracy consists of two elements: demo-protection and demo-power. These two elements can be characterized by individual liberties and regular elections respectively. Do people in post-communist countries support free and fair elections and a multi-party system? Do they value individual rights and liberties? An early survey, conducted in the Moscow Oblast in February/ March 1990, revealed that the Russian people supported these principles of democracy, along with others.130 According to another survey, conducted in 127. Unfortunately, we have no empirical data about the public opinion in the former Soviet republics, except Armenia, Belarus, Estonia, Georgia, Latvia, Lithuania, Russia and Ukraine. Nevertheless, one should not expect to observe totally different orientations towards democracy at the abstract and national levels in other Soviet republics from those observed in Belarus, Russia and Ukraine. 128. Geoffrey Evans, Stephen Whitefield, 'The Politics and Economics of Democratic Commitment: Support for Democracy in Transition Societies", 25 British Journal of Political Science 1995, 485-514. For a similar study only on Russia, see Stephen Whitefield, "Social Responses to Reform in Russia", in Russia in Transition, Politics, Privatization and Inequality, (David Lane, ed.), Longman, London/New York 1995, 91-115. 129. The result of the survey as follows: Bulgaria (support: 56%; oppose: 21%); Estonia (support: 51%; oppose: 16%); Hungary (support: 54%; oppose: 13%); Lithuania (support: 57%; oppose: 18%); Poland (support: 49%; oppose: 12%); Romania (support: 81%; oppose: 10%); Russia (support: 49%; oppose: 21%); Ukraine (support: 40%; oppose: 20%). 130. Gibson and Duch listed six items to study popular support for democracy: political tolerance, valuation of liberty, rights consciousness, support for dissent and opposition, support for an independent media and support for competitive elections. With the partial exception of support for independent media and political tolerance, the responses of the people in the Moscow Oblast suggested that there is considerable support for democratic norms and principles. James L. Gibson, Raymond M. Duch, "Emerging Democratic Values in Soviet Political Culture", in Public Opinion and Regime Change, (Arthur H. Miller, William M. Reisinger and Vicki Hesli, eds.), Westview Press, Boulder 1993,6994. 13I.Jeffrey W. Hahn, "Continuity and Change in Russian Political Culture", 21 British Journal of Political Science 1991, 393-421.

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the Russian provincial capital of Yaroslavl' in 1990, there had been considerable support for basic democratic principles.131 A repeated survey in the same place in 1993 verified the findings of the previous research. Although the poor economic performance of the current regime undermined popular support to a certain extent, people in this Russian city continued to support democracy as an ideal form of government.132 James L. Gibson, compared people's orientations towards democracy in Russia and Ukraine in 19901992. He also found widespread support for democratic norms and principles.133 A more comprehensive survey, conducted by the Council of Europe in 1991, produced similar results also in Eastern Europe.134 Although these surveys paint a rosy picture about prospects for democracy in certain post-communist countries, this does not necessarily mean that all the people in these countries support the norms and principles of democracy unconditionally. For example, the data provided by New Democracies Barometer suggested that a considerable number of people are ready to compromise their liberties for peace and order. When people were asked in 1993: "Which is the most important, maintaining peace and order in our society or personal freedom, the right to do whatever you like without the state interfering?" 49% of them in a total of seven countries (Bulgaria, the Czech Republic, Hungary, Romania, Slovakia, Belarus, Ukraine) responded that definitely peace and order were the most important. In the same vein, when people were asked in 1995: "Some people say that we would be better off if the country was governed differently. What do you think? Best to get rid of parliament and elections and have a strong leader who can quickly decide everything", only 44% of them strongly disagreed.135 The majority of the Russian people, who have suffered from a high crime rate in the country, 132. Jeffrey W. Hahn, "Changes in Contemporary Russian Political Culture", in Political Culture and Civil Society in Russia and the New States of Eurasia, (Vladimir Tismaneanu, ed.), M.E. Sharpe, New York 1995, 112-36. 133. Gibson, this time, studied seven items to measure popular support for democracy: support for an independent media, support for the institution of competitve elections, support for a multi-party system, valuation of individual liberty, support for dissent and opposition, rights consciousness and political tolerance. James L. Gibson, "The Resilience of Mass Support for Democratic Institutions in the Nascent Russian and Ukranian Democracies", in Political Culture and Civil Society in Russia and the New States of Eurasia, (Vladimir Tismaneanu, ed.), M.E. Sharpe, New York 1995, 53-111. 134. See Pamela Waldron-Moore, "Eastern Europe at the Crossroads of Democratic Transition, Evaluating Support for Democratic Institutions, Satisfaction with Democratic Government, and Consolidation of Democratic Regimes", 32 Comparative Political Studies No. 1 1999,32-62. Also see Mary E. Mclntosh, Martha Abele Mac Iver, Daniel G. Abele, Dina Smeltz, "Publics Meet Market Democracy in Central and East Europe, 1991-1993", 53 Slavic Review 1994, 483-512. David S. Mason, "Attitudes toward the Market and Political Participation in the Postcommunist States", 54 Slavic Review 1995, 385-406. 135. For the archive of New Democracies Barometer, see TARKI(http://rs2.tarki.hu:90/ndbhtml/entry. html).


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were even willing to reject legal procedures in order to fight crime, although they were not hostile to the rule of law.136 On the other hand, the percentage of the people who prefer rule by a strong leader to democracy rose to 32% in Russia.137 The percentage of approval of undemocratic alternatives in 1998 in nine post-communist countries was as follows; rule by the army: Belarus (10%), Bulgaria (13%), Czech Republic (3%), Hungary (1%), Poland (6%), Romania (18%), Russia (15%), Slovakia (6%), Ukraine (14%); rule by a communist regime: Belarus (33%), Bulgaria (24%), the Czech Republic (16%), Hungary (23%), Poland (15%), Romania (20%), Russia (41%), Slovakia (29%), Ukraine (51%); rule by a dictator: Belarus (38%), Bulgaria (29%), Czech Republic (13%), Hungary (18%), Poland (27%), Romania (26%), Russia (36%), Slovakia (23%), Ukraine (55%).138 What would be the source of this support or lack of it? The answer of this question again lies in the concept of political culture. Political culture, as mentioned above, does not change or come into being overnight. It evolves in the course of time and passes from generation to generation through a socialization process. Such a conventional understanding of political culture does not accept that there could be two competing political cultures in a given society. It is obvious that these theories of political culture are not very helpful in explaining popular support for democracy in post-communist countries. Some authors have, therefore, attempted to explain such support by pointing to the existence of an "alternative political culture" during the communist period. We have studied the political cultures of the respective countries from a historical point of view and found out that there had been some liberal democratic elements in the pre-communist political cultures of certain countries. Although communism damaged most of these values, communist authorities largely failed to create a "communist man and woman". Employing the terminology of political cultural studies, there were some discrepancies between mass political culture and official political culture in this period in the countries concerned. As people retained certain precommunist values in spite of intense socialization efforts, there was always a countercurrent of alternative political culture flowing under the official one. This was revived after the collapse of communism.139 136. William M. Reisinger, Arthur H. Miller, and Vicki L. Hesli, "Russians and the Legal System: Mass Views and Behaviour in the 1990s", 13 Journal of Communist Studies and Transition Politics No.3 1997, 24-55. 137. Overall 67% of the people, interviewed across seven post-communist countries (Bulgaria, the Czech Republic, Slovakia, Hungary, Poland, Romania and Russia), rejected all three alternatives in 1997 (i.e., rule by the army, a communist regime, and a strong leader). See Richard Rose, "Where are Postcommunist Countries Going", 8 Journal of Democracy 1997 No. 3, 103-104. 138. Richard Rose, 'Two Cheers for Democracy", The World Today October 1998, 254. 139.Petro, op.cit. note 26, 1-27.

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Another explanation of the immediate political support for liberal democracy after the collapse of communist regimes would be the emergence of a "new middle class" with its distinct beliefs and values, thanks to rapid modernization during the communist period. According to this argument, industrialization and urbanization had created an educated "new middle class" in these countries. This non-commercial class was made up mainly of intellectuals and professionals whose members were absorbed by party cadres in the beginning. Gradually this portion of society became an independent power to be reckoned with. On the other hand, the partial establishment of free market conditions in some countries, particularly in East Central Europe during the communist period, prepared the ground for the emergence of a fledgling commercial middle class. Finally, the acquaintance of the working class with the benefits of a consumer culture elevated it to a lower middle class status. All these developments created a nascent middle class which was aspiring to the establishment of a market democracy.140 These theories, in fact, explain support for liberal democracy in postcommunist countries only partially. To understand and explain such political support or lack of it, one should dwell on the relationships between regime at the abstract level and regime at the national level because people's satisfaction with "their" democracy reinforces or undermines support for "ideal" democracy in their mind. Do people in post-communist countries support democracy at the national level? Central and East European Barometer asked people in eighteen post-communist countries in 1995 whether they were satisfied with the way democracy was actually working in their country.141 The survey revealed that the majority of people in the majority of these countries were not satisfied with the working of democracy. The survey, repeated in 1996 and 1997, found that the overall situation in these countries remained basically the same with slight changes in particular countries. New Democracies Barometer, in turn, gave a scale (plus 100 is the best, minus 100 is the worst) for ranking how the government worked in certain postcommunist countries. In Eastern Europe a considerable number of people rated communist regimes negatively. In 1991 the mean of the percentage of positive attitudes towards the old regime of five East European countries (Bulgaria, Czechoslovakia, Hungary, Poland, Romania) was 34%, and of negative attitudes 58%; of positive attitudes towards the new regime 62%, and of negative attitudes 26%.142 In 1994 these ratings slightly changed in 140. See Ronald M. Glassman, The Middle Class and Democracy in Socio-Historical Perspective, E.J. Brill, Leiden 1995, 250-256. 141. The European Commission, European Public Opinion, Central and East European Barometer, Internet version, (http://europa.eu.int/en/comm/dglO/infcom/epo/ceeb.html). 142. Richard Rose and William T.E. Mishler, "Mass Reaction to Regime Change in Eastern Europe: Polarization of Leaders and Laggards", 24 British Journal of Political Science 1994, 159-82.


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favor of the old regime, but the majority of people in the countries concerned still preferred new regimes. Across six countries (Bulgaria, Czech Republic, Hungary, Poland, Romania, Slovakia), 42% of the respondents gave a positive rating to the old regime, while the positive rating given to new regimes remained the same as that in 1991:62%. In 1996, with the exception of Hungary, the majority of people in East European countries again preferred current regimes to the communist ones.143 It is interesting to note that only 38% of the Russian people evaluated the new regime positively in 1996, whereas 60% of them responded in favor of the old regime.144 The positive ratings given to the old and new regimes in nine post-communist countries in 1998 were as follows: Belarus (communist regime: 60%, current regime: 48%); Bulgaria (communist regime: 43%, current regime: 58%); Czech Republic (communist regime: 31%, current regime: 56%); Hungary (communist regime: 58%, current regime: 53%); Poland (communist regime: 30%, current regime: 66%); Romania (communist regime: 33%, current regime: 56%), Russia (communist regime: 72%, current regime: 36%), Slovakia (communist regime: 46%, current regime: 50%), Ukraine (communist regime: 82%, current regime: 22%). Why do people support "their" democracy? It has generally been argued that the more a regime fulfills the expectations of the people, the more the latter support this regime. Putting it another way, poor performance of a given regime undermines political support. A causal relationship between effectiveness and legitimacy has been established not only for new democracies, but also for old ones. Even certain theories have been developed about a probable legitimacy crisis in Western democracies. Nevertheless, there has not been convincing empirical evidence yet to confirm these theories for Western democracies.145 When we turn to post-communist countries, theories focusing on the relationships between effectiveness and legitimacy seem more relevant than they are within the West European context, given the peculiar conditions of the transition period. Generally those theories focusing on the relationships between effectiveness and legitimacy put particular emphasis on economic performance. Although there is some evidence of the eroding effects of poor economic performance on emerging post-communist regimes, public opinion surveys generally suggest that in many cases people evaluate economics and politics separately. A survey, carried out in 1994, found that even though respondents disapproved of the current economic system, they gave a positive rating to 143. Richard Rose, "Choosing Democracy as the Lesser Evil", Transition 3 May 1996,40-45. 144.Richard Rose, What is Europe?, Addison Wesley Longman, New York 1996, 92-108. 145. For these discussions, see Frederick D. Weil, "The Sources and Structure of Legitimation in Western Democracies: A Consolidated Model Tested with Time-Series Data in Six Countries since World War II", 54 American Sociological Review 1989, 682-706.

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the political system.146 In the same vein, Central and East European Barometer found in a survey, carried out in 1995, that political performance is more important than economic performance in the eyes of the citizens in postcommunist countries. The survey accepted the citizens' evaluation of human rights conditions in their country as an indicator of political outcomes. People in the countries concerned were asked: "How much respect is there for individual human rights nowadays in [your country]? Do you feel there is a lot of respect for individual human rights, some respect, not much respect or no respect at all?" Overall 43% of people thought that there is a lot or some respect for individual human rights in their countries. When these were asked: "Over the next twelve months, do you expect that the financial situation of your household will get a lot better, a little better, stay the same, get a little worse, get a lot worse?", 34% of the respondents across eighteen countries said that their financial situation will be better over the next year. Hans-Dieter Klingemann and Richard I. Hofferbert, interpreting the findings of the Central and East European Barometer, observed a correlation between the legitimacy of given regime and its political and economic outcomes. According to the authors: ...[both] political and economic outputs...are positively related to evaluations of democratic performance. Thus, if a citizen perceives a positive development in household income, assessment of democratic performance also goes up. The same is true if the citizen perceives that there is respect for individual human rights. Without dismissing the relevance of either, we nonetheless found it interesting, especially in light of the general emphasis given by scholars to economic performance, that the human rights circumstances were more important than economics at this critical junction in history.147 It can, therefore, be argued that political outcomes can more easily be converted into popular support than economic outcomes in post-communist countries. How does the success or failure of a given regime at the national level affect its legitimacy at the abstract level? We have defined the effectiveness of a regime as its capacity for satisfying the expectations of citizens. Thus if the performance of a regime falls short of satisfying these expectations, people will most likely attribute this failure first to individual actors performing their functions within the framework of the rules and procedures of the 146. Rose, op.cit. note 144, 96-101. 147. Hans-Dieter Klingemann and Richard I. Hofferbert, "Remembering the Bad Old Days: Human Rights, Economic Conditions, and Democratic Performance in Transitional Regimes", Center for the Study of Democracy, Research Papers, Internet version 1998, (http://hypatia.ss.uci.edu/democ//papers).


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regime. They will most likely replace unsuccessful authorities peacefully thanks to free and fair elections. Newly-elected authorities will naturally try to satisfy people's expectations to stay in power and to guarantee their reelection. If the newly-elected authorities fail to provide the desired outcome, the search for abler authorities will continue until all available alternatives have been tried in power. Then critical attention will most likely shift from individual actors to the rules and procedures of the regime within which these actors perform their functions. First, possibly the informal rules and procedures or constitution in operation (i.e., the patterns of interaction between individual actors) will come under criticism. Here, one should take into consideration the conditions giving way to the development of the informal structure in a given regime. If the informal structure develops because of the fact that authorities simply ignore certain constitutional provisions, then the application of the provisions in question may appease popular dissatisfaction. This is the case in many post-communist countries. As we shall try to show in Chapter 4, there is a gap between a constitution on paper and a constitution in operation particularly in terms of constitutional provisions regulating individual rights and liberties. So, the full application of these provisions may increase the satisfaction of citizens with the political performance of the regime. If, however, the informal structure develops because of the fact that the constitution is unable to regulate every aspect of political life, then one cannot readily assume that people would assign the failure of "their" democracy to the informal structure, before holding the formal structure responsible. This is particularly true within the context of post-communism. First, regimes must be in operation for a relatively long period of time for the development of the informal structure in a given political system. When we turn to post-communist countries, we see that many democratic regimes are quite new. Second, people must be able to distinguish the informal structure from the formal structure in order to hold one of them responsible. Given the fact that the experience of the people in post-communist countries with democracy is rather limited, one can hardly expect that they would identify the informal structure as the source of the failure of the respective regimes. Above all, even though we assume that there have already been certain informal structures in post-communist countries regulating the relations between individual actors, and that the people in these countries are able to perceive the differences between formal and informal structures, there is no guarantee that changes in informal rules and procedures, for example changes in the political party system, will provide an ultimate solution. First, in contrast with changes in the formal structure, changes in the informal structure may not be subject to negotiation and compromise which would give a chance to the parties concerned to express their disillusionment and expectations. Second, since the informal structure changing today may again

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change tomorrow, such changes solve performance problems only temporarily, if they can solve them at all. Accordingly, changes in the informal structure hardly seem to be a solution in the long run. Then, changes in the formal structure or the constitution on paper (i.e., the catalogue of provisions regulating the relationships between state organs and between the state and its citizens) appear as the most reasonable way to solve the effectiveness problem of the regime. The situation is aggravated by the fact that authorities are always ready to blame constitutions for their failure. If constitutional change cannot be made or it cannot appease the dissatisfaction of members of the political system, the latter may start to think that certain non-democratic alternatives are more appropriate for their society than democracy. As a rule, in consolidated democracies popular dissatisfaction with neither the constitution in operation, nor with the constitution on paper threatens the viability of the norms and principles of democracy. What makes these regimes different from newly-emerging democracies is that, as a rule, popular or elite dissatisfaction will always try to be accommodated within the framework of the existing democratic norms and principles (if necessary by constitutional change), and that such an effort never entails the alteration or rejection of these norms and principles which have usually been firmly entrenched in the political cultures of citizens living under these regimes. In newly-emerging democracies, on the contrary, it can more easily reach the stage of denunciation of the norms and principles of democracy both at elite and mass levels, for members of the respective political systems have no or little experience with a favorable outcome of this type of regime. One should always bear in mind that "ideal" democracy in people's mind in post-communist countries is much more fragile than in, say, West European countries. Most of these people nurture high hopes about democracy as a means to provide them a better life. Thus they may react immediately to short-term disappointments at the national level in a negative way as far as their support for democracy at the abstract level is concerned. This hypothetical analysis points to the advantage of constitutional changes within regimes in transition societies; such changes may be a safety valve for emerging democratic regimes in which people can more easily blame democracy at the abstract level for its failure at the national level. Before concluding this section, we wish to point to the importance of elite orientations in the survival of democratic regimes. It has been argued that elites' support for, and commitment to democracy is more important than that of masses.148 Since they have the capacity and sources to produce a crisis 148. For these discussions, see John Higley and Michael G. Burton, "The Elite Variable in Democratic Transitions and Breakdowns", 54 American Sociological Review 1989, 1732.


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in the regime, their commitment seems more decisive. When we turn to postcommunist countries, we generally see that elites are committed to democratic norms and principles. Most importantly, the peaceful nature of regime changes in many countries indicates the presence of substantial elite adaptation. Transitions to democracy were mostly non-violent in character because old elites opted for adaptation, instead of struggle; they survived the collapse of communist regimes and adapted themselves to new conditions.149 Today the bulk of the ruling elites in most post-communist countries are excommunists, and it is these elites who carry out economic and political reforms in the respective countries. This is true for most post-communist countries, with certain exceptions in the former USSR, where ruling elites themselves are obstacles to consolidation of democracy. Consequently, we may safely argue that certain post-communist countries (such as Poland, Hungary, Bulgaria and Romania) meet the second condition of constitutional change within the regime, namely popular support for democratic norms and principles. If there are certain legitimacy problems deriving from political culture, constitution-making and effectiveness, constitutional change may be a solution. As for other countries (such as Russia and Ukraine), although they can afford constitutional change within the regime, there is always a risk that the politics of constitutional change may easily turn into regime crisis. Still in other countries (such as Belarus), where there is no commitment to democratic norms and principles, particularly at the elite level, constitutional change may be used as a stepping stone to mask or establish a semi-authoritarian or an authoritarian regime or constitutional change may result in total or partial disruption of democracy. All these mean that constitutional change would only be desirable during or immediately after transition to democracy, if, only if, democratic norms and principles are supported firmly at elite and mass levels in a given country.

Post-Communist Political Culture and Post-Communist Constitutions In this section we shall lastly study the relationships between political culture and constitutions in the post-communist setting. We have pointed out that the more a constitution is congruent with the beliefs and values prevailing in a given society, the more it has a chance to survive. Thus it is necessary to explore to what extent post-communist constitutions embody dominant beliefs and values of the people in post-communist societies. According to George Schopflin: 149. John Higley, Judith Kullberg, and Jan Pakulski, "The Persistence of Postcommunist Elites", 7 Journal of Democracy 1996 No.2, 133-147.

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The political culture of Central and Eastern Europe was probably never more fluid than in the early 1990s, in the immediate aftermath of the collapse of communism. Various value systems were on offer, some derived from the pre-communist past, some conditioned by the anticipatory socialization of communism and some structured by expectation of 'entering Europe'. Elements taken from all three broad possibilities were combined in a variety of ways to produce an uneasy and complex situation, in which no one political culture could be described as dominant.150 Accordingly, post-communist political culture appears as an amalgam of different cultural layers corresponding to different historical periods. This being so, one may safely assume that certain pre-communist and communist elements still survive in post-communist political culture. In previous sections we have attempted to determine the defining characteristics of East European and Russian political cultures. We have pointed out that the latter can be characterized by the tradition of strong state authority/weak civil society, statism, and the absence of such values as trust and tolerance. Let us now survey the reflections of each of these characteristics of pre-communist and communist political cultures on post-communist constitutions. First, in both pre-communist and communist periods, the state was extremely strong in comparison with civil society. When we look at post-communist constitutions, we see that the tradition of the strong state finds expression in most of these documents, particularly in the former Soviet republics. On the one hand, although most constitutions guarantee individual rights and liberties, they attach several qualifications to them in the interest of the state. On the other hand, most constitutions, along with rights and liberties, put emphasis on people's duties toward the state. Another implication of the tradition of the strong state is the personalization of state power. The Russian and Central Asian constitutions, in particular, grant supreme powers to executive agencies, namely presidents. Of twenty-two countries under survey, more than half of them preferred a presidential form of government with a strong executive. Second, under the communist regimes, as pointed out earlier, the state proclaimed itself responsible for everything. The people, in turn, developed a habit of expecting everything from the state. Post-communist constitutions also reflect this statist characteristics of communist political culture. Notwithstanding the theoretical discussions concerning whether social and economic rights should be included in constitutions, almost all post-communist constitutions offer a rich 150. Schopflin, op.cit. note 107,16. In the same vein, see Sharon L. Wolchik, 'The Politics of Transition in Central Europe", Problems of Post-Communism, January/February 1995, 35-40.


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catalogue of these rights. Such rights as the right to work, to education, to free health care were almost verbatim taken over from the communist constitutions into the post-communist ones. Third, one of the most important features of pre-communist and communist political cultures, the absence of trust and tolerance, also seems to survive into the post-communist period. The absence of these values has certain constitutional implications. Most people in postcommunist countries do not trust the institutions established by post-communist constitutions. According to a public survey, conducted by New Democracies Barometer in 1993, the Russian people distrust political parties most (7% trust, 93% distrust), and trust the army (62% trust, 38% distrust).151 According to another survey, conducted in Russia in June 1993, more than the majority of the people did not qualify any of the basic political institutions (the president, the government, the Constitutional Court, the Supreme Soviet and oblast authorities) as fully trustworthy.152 This is also partially true for East European countries. New Democracies Barometer found in a recent survey of popular trust in fifteen institutions in nine Eastern and Central European countries that skepticism, rather than distrust, was predominant.153 Apart from the problem of trust, tolerance towards different groups and thoughts, particularly ethnic and religious minorities, is absent or weak in most post-communist societies. Many Russians, for example, think that political opponents or groups they dislike should not have political rights. More importantly, they express generally negative attitudes towards ethnic minorities and minority rights.154 Such intolerance towards ethnic and religious minorities is particularly perilous for the protection of minority rights in heterogeneous polities. From a constitutional point of view, such an attitude has already found its expression in the provisions of some constitutions regulating minority rights. On the other hand, persistence of such attitudes would affect negatively even the implementation of equality rights. Provisions in some constitutions regulating the right to association also reflect the absence of tolerance towards political opposition. 151.Richard Rose, "Postcommunism and the Problem of Trust", 5 Journal of Democracy 1994 No.2, 18-42. 152. Matthew Wyman, Public Opinion in Postcommunist Russia, Macmillan, London 1997, 96. 153. William Mishler and Richard Rose, "Trust, Distrust and Skepticism: Popular Evaluations of Civil and Political Institutions in Post-Communist Societies", 59 The Journal of Politics 1997,418-51. 154. Wyman, op.cit. note 152, 134-37. Also see James Gibson, Raymond Duch, "Political Intolerance in the USSR: The Distribution and Etiology of Mass Opinion", 26 Comparative Political Studies 1993,286-329. For a recent discussion of the problem in the context of transition to democracy, see Donna Bahry, Cynthia Boaz and Stacy Burnett Gordon, "Tolerance, Transition, and Support for Civil Liberties in Russia", 30 Comparative Political Studies 1997, 484-510.

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So far, we have analyzed the legacy of pre-communist and communist political cultures on post-communist constitutions in a broader perspective. Now we can turn to the relationships between political culture and constitutions in a narrower sense. In previous sections three important characteristics of pre-communist and communist constitutions in relation with the political cultures of the respective countries have been identified: -

they were the embodiment of elite political culture; they were the instruments of modernization; the international environment played a crucial role in the making of these constitutions.

Let us survey the implications of these characteristics within the postcommunist context. First, post-communist constitutions, as their predecessors, are mostly the product of elite political culture. As we shall try to show in the next chapter on constitution-making, most post-communist constitutions were drawn up by small groups of elites. In some cases (such as the Central Asian republics), several groups were excluded from the constitution-making process. Most importantly, in some cases (such as Russia and Poland), constitutions did not manage to garner substantial popular support. Consequently, most post-communist constitutions appeared mainly as elite documents. Second, there is a close relationship between post-communist constitutions and modernization efforts in the countries under survey. To compare East European countries with Latin American ones would be helpful in explaining this point. After the Second World War, several countries ventured to approach modernization in different ways. They tried to cope with the problems of backwardness and establish their economic and political independence. In this respect, East European countries (adhering to state ownership of the means of production, central planning and an autarkic development strategy) and South American countries (subscribing to private property, an active role of the state, and a fair dose of protectionism) followed different paths. Both models, however, collapsed in the 1980's more or less at the same time. Although the causes of the failure of these models were different, East European and Latin American countries reacted in the same way: "modernization via internationalization". According to this strategy, both East European and Latin American countries aspired to join the "First World" by becoming members of the "Western" and "Northern" clubs respectively. In Adam Przeworski's words: In this strategy, modernization becomes synonymous with internationalization: integration into the world economy, combined with an imitation of economic, political, and cultural patterns prevalent in the advanced


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capitalist countries... Today modernization means liberal democracy, consumption-oriented culture, and capitalism.155 Accordingly, adoption of liberal democratic constitutions can be seen as part of this strategy. Today one can speak of a "world culture"156 or "international political culture"157 of which liberal democratic principles, particularly constitutionalism, is an inseparable part. Analyzing constitutional problems in developing nations, Peter H. Merkl noted that: "Adopting constitutions is part and parcel of the spreading world political culture which has given certain Western overtones to political modernization everywhere. Its cultural values, such as democracy and nationhood, are becoming increasingly amalgamated with the native cultural and subcultural patterns in most developing countries. This process of acculturation, of course, involves conflicts, survival of native patterns, and breakdowns of adopted mode as well. And these cultural conflicts explain better than any other condescending theory of imperfect constitutional 'imitation', why constitutionalism in developing nations often differs from the Western models."158 This is also generally true for post-communist constitutions. Third, in connection with the latter point, the international factors also played a crucial role in post-communist constitution-making, particularly with regard to the countries of Eastern Europe. As most East European countries want to join the EU, they strive to meet the criteria introduced by the latter, particularly in terms of the promotion of constitutional government. As for the other countries, such as Russia and other former Soviet republics, observing certain liberal democratic standards appears at least to be a key to secure badly needed foreign aid. In this respect, it is interesting to note that in many countries several international organizations monitored constitution-making processes and expressed their opinions about the final documents. Moreover, foreign experts were directly involved in the making of new constitutions in many post-communist countries.

2.5. Conclusions This chapter produces two main conclusions. First, there is support for democratic norms and principles in certain post-communist countries both at 155. Adam Przeworski et a/., Sustainable Democracy, Cambridge University Press, Cambridge 1995, 3,4. 156. Lucian Pye, "Political Science and the Crisis of Authoritarianism", 84 American Political Science Review 1990, 3-19. 157. Said Amir Arjomand, "Constitutions and the Struggle for Political Order, A Study in the Modernization of Political Traditions", 33 European Journal of Sociology 1992, 39-82. 158. Peter H. Merkl, Modem Comparative Politics, Second edition, The Dryden Press, Hinsdale, Illinois 1977,193.

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elite and mass levels. Here, it is important to note that the concept of democracy in people's minds in these countries is most likely quite different from what can be found, say, in Western Europe or America. Most people are not really acquainted with democratic norms and principles and have little, or no experience with democratic rules and procedures. They are still learning by trial and error what exactly democracy is. So, there is support for liberal democratic institutions, but this does not derive from a deeply-rooted political culture. It stems partly from the past experiences of the respective countries with liberal democratic institutions, but mainly from the expectations, more correctly hopes, of the people. They hope that the nascent regimes will take them to a better future. This, in turn, makes the legitimacy of emerging democracies highly dependent on their performance. In this context, the political performance of new regimes seems to be more important than their economic performance. Second, post-communist political culture is a mixed culture. It consists of pre-communist, communist and postcommunist values together. Most post-communist constitutions reflect this mixed culture, but this hardly provides a firm basis for post-communist constitutions to rely on.

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CHAPTER 3 CONSTITUTION-MAKING 3.1. Introduction Constitution-making is the second source of legitimacy we shall study within the context of the in/stability of constitutions. Under the assumption that there is sufficient popular support for democratic norms and principles in a given political system, the most important problem to be solved in the constitution-making process is to create a document which would satisfy elites and masses in the system. Naturally, there may be some differences between political groups about the ideal application of democratic norms and principles at the national level, but constitution-making gives a chance to these groups to solve these problems. A constitution which would approximate the "ideal" version of democracy in the minds of members of the political system may bridge the gap between the legitimacy of the regime at the national level and the legitimacy of the regime at the abstract level. Thus it is important to allow as many groups as possible to participate in the constitution-making process to express their opinions. If certain problems cannot be solved to the satisfaction of major political groups involved in constitution-making, these problems can affect the future of a given constitution and regime negatively. These unsettled questions, "birth defects" as it were, make the life of constitutions difficult, even shorter. A good performance of the constitution may cure these defects, but it may happen otherwise, and they may be aggravated by poor performance. This, in turn, most likely undermines the legitimacy of the regime and the constitution. Constitution-Making As pointed out in previous chapters, to be viable, constitutions must be congruent with the dominant beliefs and values of members of a given political system. This is, however, not enough. They must also be effective to be lasting. Following this train of thought, to be effective, constitutions must first come into effect. This requires the support of people, or of their representatives in their inauguration. Although no constitution relies on unanimous consent, they differ from other legal and political documents in their consensual character. Daniel Elazar reminded us that: Constitutional legitimacy involves consent. It is not a commitment which can be coerced—however much people can be coerced into obedience to

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a particular regime. Consensual legitimacy is utterly necessary for a constitution to have real meaning and to last. ...while rule can be imposed by force, constitutions can only exist as meaningful instruments by consent...1 It is important to note that the consensual nature of a constitution entails the support of more than a simple majority of members of the political system. We have explained earlier that a constitution can be considered legitimate, if the majority of people believes that it is the best one that might be drawn up. Constitution-making allows major political groups to promote their perceptions about the "best" constitution. The presence of a homogenous political culture may facilitate the convergence of the constitutional solutions of major political groups, but even this cannot guarantee the smooth adoption of a constitution at least because of two reasons. First, constitution-making involves a procedure in which the norms and principles of a given regime are adapted to the national political system. Major political groups may disagree with the version which would perfectly match national conditions. Second, since the different application of the norms and principles produces different results, each group participating in the constitutionmaking process may try to promote the most advantageous version.2 Constitution-making, therefore, appears as one of the most important moments to create a consensual basis for a given regime. So, what is constitution-making? Since the constitution-making process differs significantly from the ordinary law-making process, its political, rather than legal, characteristics come generally to the fore in theory and practice. Politics may be defined as a "choosing process". People in politics, as in their daily life, always make a choice among available alternatives when they are "voting in an election, attending a local public hearing to change school policies, or deciding to intervene in a war."3 In that sense, constitution-making can be seen as a political activity in which the fundamental political choices of a given political system are made. Such fundamental choices are usually made after major political crises, such as war, achieving 1. 2.

3.

Daniel Elazar, "Constitution-Making: The Pre-eminently Political Act", in The Politics of Constitutional Change in Industrial Nations, (Keith G. Banting and Richard Simeon,eds.), Macmillan, London 1985, 232-233. "The political forces involved in establishing the new democratic system may initially share a minimal common conception of what democracy is (or perhaps of what it is not), but as they attempt to establish definite rules and institutions they discover that they differ on what these should be. Even if everyone knew the consequences of particular institutional arrangements, institutional issues would still generate conflicts because institutions have distributional consequences." Adam Przeworski et ai, Sustainable Democracy, Cambridge University Press, Cambridge 1995,49. William C. Meulemans, Making Political Choices, Prentice Hall, Englewood Cliffs, New Jersey 1989,1.

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independence or revolution. And in most cases, as happened in post-communist countries, such crises culminate in regime change followed by a constitution-making campaign. Accordingly, we can start with studying the nature and characteristics of recent political crises in Eastern Europe and the former USSR culminating in sweeping constitution-making campaigns in these regimes.

3.2. Transition to Democracy Constitution-making movements in post-communist countries were the outcome of a multi-dimensional transformation process affecting the whole of Eastern Europe and the former USSR. Glaus Offe noted that there are three levels of decision-making in any operative political system: decisions concerning nationhood, regime and specific policies. First of all, members of a political system must decide who will be a member of the political system. These decisions relate to identity, citizenship, territorial, social and cultural boundaries of the nation-state. Then members of the political system must decide on the institutional framework of the regime, i.e., the constitution. This entails the enactment of rules, establishing procedures and entrenching rights. Lastly, members of the political system must decide how to allocate the values. This concerns decisions on who gets what, when and how. According to the author: What used to be the second world of the Soviet Empire is now undergoing a triple transformation affecting all three levels of nationhood, constitution-making, as well as the 'normal polities' of allocation.4 The events constituting the background of this triple transformation are usually known as the "Revolution of 1989". Although this description is widely accepted in daily parlance, and to a certain extent in the social science literature, one should investigate the appropriateness of the term, given the peculiar conditions of post-communist transformations. Revolution or Transition to Democracy The concept of revolution is, in fact, a muddled one. Several scholars, belonging to various disciplines, defined and analyzed the concept in different ways. Christoph M. Kotowski, for example, put the defining characteristics of revolutions as violence, popular involvement, change of governing 4.

Claus Offe, "Capitalism by Democratic Design? Democratic Theory Facing the Triple Transitions in East Central Europe", 58 Social Research 1991, 871.

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body, structural political change, and changes in the systems of social stratification.5 Since, as we shall see in the next section, it is hardly possible to observe all these characteristics in post-communist transformations, particularly the first one, one should be cautious in using the term of revolution. Another term which has been used to describe the events in Eastern Europe and the former USSR is "transition to democracy". O'Donnell and Schmitter defined the transition as an ...interval between one political regime and another... Transitions are delimited, on the one side, by the launching of the process of dissolution of an authoritarian regime and, on the other, by the installation of some form of democracy, the return to some form of authoritarian rule, or the emergence of a revolutionary alternative.. .6 The global resurgence of democracy at the end of the 20th century gave way to a growing literature on democratization. The "Third Wave" of democracy, in the words of the prominent American political scientist Samuel P. Huntington, became recently one of the most popular topics of political science.7 Political scientists shifted their attention from the causes and dynamics of the collapse of liberal democratic regimes in Europe and elsewhere to the causes and dynamics of transitions from authoritarian regimes. The recent developments in Eastern Europe and the former USSR can be seen as the latest chain of the ongoing global democratization movement. Post-communist transformations, in this sense, can be defined as (revolutionary) regime changes culminating in transition to democracy.8 Transition to democracy is such a comprehensive topic that it is outside the scope of this study, but two aspects of transitions are particularly relevant 5. 6.

7.

8.

Christoph M. Kotowski, "Revolution", in Social Science Concepts, (Giovanni Sartori, ed.), Sage Publications, London 1984, 403-451. Guillermo O'Donnell and Philippe Schmitter, "Tentative Conclusions about Uncertain Democracies", in Transitions from Authoritarian Rule: Prospects for Democracy, (Guillermo O'Donnell, Philippe Schmitter, and Laurence Whitehead, eds.), Johns Hopkins University Press, Baltimore 1986, 6. For a survey of the literature on democratic transitions, see Don Chull Shin, "On the Third Wave of Democratization, A Synthesis and Evaluation of Recent Theory and Research", 47 World Politics 1994,135-170. Also seeGerardo L. Munck, "Democratic Transitions in Comparative Perspective", 26 Comparative Politics 1994, 355-375. For a survey of the application of democratization theories to post-communist cases, see Dean McSweeney, Clive Tempest, 'The Political Science of Democratic Transition in Eastern Europe", 41 Political Studies 1993, 408-419. According to Zic: "Although the term revolution has been almost universally accepted for the East European upheaval of 1989, the processes underway are essentially a restoration of democracy from communism as a type of modern authoritarianism; thus the term transition would appear to be better suited." Zoran Zic, "Eastern Europe", in Encyclopedia of Government and Politics, Vol. 2, (Mary Hawkwsworth and Maurice Kogan, eds.), Routledge, London/New York 1992, 1228.


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for constitution-making: their actors and modes.9 It can safely be assumed that those initiating and controlling transition processes would play a crucial role in the following constitution-making process. Thus the power relations between transition actors may furnish evidence for the manner of constitution-making. This being so, we can continue our analysis by briefly surveying transition modes from a comparative perspective. Modes of Transition In political science literature there has been an ongoing discussion about the classification of transition modes and their effects on emerging democratic regimes. True, transition to democracy occurred in several countries in different ways, but common characteristics of democratization movements enable scholars to break transition modes into broad categories. One of the first attempts at such categorization was made by Juan J. Linz comparing transitions to democracy in Spain and Portugal. He coined the terms of reforma and ruptura to connote two different modes of transition in these countries respectively. The former relates to transitions in which the authorities of the outgoing regime retain considerable power in their hands, whereas the latter concerns transitions in which non-democratic regimes collapse abruptly. One may, however, observe some mixed modes between these two extreme poles. Linz, in this sense, spoke of the reforma pactada-ruptura pactada mode. The latter refers to elite settlements involving negotiations and compromises between regime and opposition forces.10 Alfred Stepan proposed a more comprehensive categorization. The first three categories of Stepan focused on transitions following a war or conquest: "internal restoration after external reconquest" (e.g., The Netherlands and Norway), "internal reformulation" (e.g., France and Greece) and "externally monitored installation" (e.g., Germany and Japan). The rest of the categories in Stepan's typology was based on the relationships between regime and opposition forces. He developed three categories in which authoritarian forces play a dominant role: "redemocratization initiated by the civilian or civilianized political leadership", "redemocratization initiated by 'military-as-government'", "redemocratization led by 'military-as-institu9.

In the literature, relatively less attention has been paid to the relationships between constitution-making and transition to democracy. For a few exceptions, see Andrea Bonime-Blanc, Spain's Transition to Democracy, The Politics of Constitution-making, Westview Press, Boulder, Colorado 1987. Ergun Ozbudun, Demokrasiye Gecis Siirecinde Anayasa Yapimi [Constitution Making in Democratic Transitions], Bilgi Yayinevi, Ankara 1993. Also see Juan J. Linz and Alfred Stepan, Problems of Democratic Transition and Consolidation, Sothern Europe, South America, and Post-Communist Europe, The Johns Hopkins University Press, Baltimore/London 1996, 81-83. 10. Juan J. Linz, "Transition to Democracy", 13 The Washington Quarterly 1990, 143-164.

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tion' ". Adding to these three categories, he proposed four more categories: "society-led regime termination", "party-pact induced transitions", "an organized violent revolt coordinated by democratic reformist parties", and a "Marxist-led revolutionary war". Stepan noted that most empirical cases fit into more than one category.11 Donald Share's categorization rested on two variables. He first investigated the participation and consent of authoritarian incumbents (whether the transitions are consensual or non-consensual). Then he focused on the time dimension (whether transitions are gradual or rapid). He introduced a fourfold categorization of democratic transitions: gradual-consensual (incremental democratization), rapid-consensual (transition through transaction), non-consensual-gradual (transition through protracted revolutionary struggle) and rapid-non-consensual (transition through rupture: revolution, coup, collapse and extrication).12 Scott Mainwaring, coming closer to Share, proposed a three-fold categorization deriving mainly from Latin American experience: transition through transaction, transition through extrication and transition through regime defeat. Regime defeat refers to transitions in which authoritarian regimes collapse abruptly. Transaction relates to transitions in which authoritarian incumbents initiate liberalization and determine the course of the transition. Extrication, in turn, takes place between transaction and regime defeat. An authoritarian regime becomes feeble, but not to the extent that it can be defeated by opposition forces. Outgoing authorities can still negotiate the principal elements of democratic transition. They, therefore, appear to be strong enough to dictate the important terms of transitions.13 Samuel P. Huntington gave different names to transition modes, but basically meant the same things in his categorization as the authors surveyed above. He proposed the terms of "transformation", "transplacement" and "replacement", instead of transaction, extrication and defeat.14 Lastly, we may mention the latest contribution of Juan J. Linz and Alfred Stepan to the transition literature. They focused particularly on the influence 11. Alfred Stepan, "Paths Toward Redemocratization: Theoretical and Comparative Considerations", in Transitions from Authoritarian Rule: Prospects for Democracy, Part III, (Guillermo O'Donnell, Philip C. Schmitter, and Lawrence Whitehead, eds.), Johns Hopkins University Press, Baltimore 1986, 64-84. 12. Donald Share, "Transition to Democracy and Transition through Transaction", 19 Comparative Political Studies 1987, 525-548. 13. Scott Mainwaring, 'Transitions to Democracy and Democratic Consolidation: Theoretical and Comparative Issues", in Issues in Democractic Consolidation, (Scott Mainwaring, Guillermo O'Donnell, and J. Samuel Valenzuela, eds.), University of Notre Dame Press, Notre Dame/Indiana 1992, 294-341. 14. Samuel P. Huntington, The Third Wave: Democratization in the Late Twentieth Century, University of Oklahoma Press, Norman 1991,109.

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of prior regime types on the transition modes and analyzed mainly four types of non-democratic regimes: authoritarianism, totalitarianism, post-totalitarianism (including several sub-types such as early, frozen and mature posttotalitarianism), and sultanism. They argued that there are significant differences between these regime types in terms of pluralism, ideology, mobilization and leadership, and that authoritarian and sultanistic regimes are the most and least favorable regimes respectively in terms of the emergence of the conditions for transition to democracy. They characterized the transitions to democracy in Eastern Europe in connection with the prior regime types as follows: Poland (pacted transition from authoritarianism), Hungary (negotiated transition from mature post-totalitarianism), Czechoslovakia (transition by the collapse of "frozen" post-totalitarianism), Bulgaria (a regime-controlled transition from early post-totalitarianism), and Romania (violent exit from sultanism).15 We can, therefore, distinguish basically three basic modes of transition, as well as their variations, "reforma" (or transaction, or transformation), "ruptura" (or regime defeat, or replacement) and the mixture of these two modes (extrication, or transplacement), or "ruptforma", if we may use the term which was used by Huntington to connote this mixed form. Undoubtedly, all these modes display different characteristics and affect emerging regimes in different ways. Nevertheless, for the purpose of the current study, one can speak of two important effects of transition modes on constitutionmaking: their impact on constitutional choices and on the legitimacy of emerging documents. First, it has been argued that the relative bargaining strength of incoming and outgoing powers and their expectations from first elections after transitions are decisive factors in shaping institutional choices of emerging regimes.16 Political scientists generally explain the basic constitutional choices of new democracies, particularly their choices about electoral system (proportional or majoritarian system) and governmental form (presidentialism or parliamentarism), on the basis of the aspirations of incoming and outgoing regime forces to secure the most favorable position for themselves in the new regime.17 Such theories have an explanatory utility particularly in transitions where there is a bargain between old and new regime forces, but when there is no such bargain, it becomes difficult to apply 15. Linz and Stepan, op.cit. note 9, 3-83. 16. Josep M. Colomer, "Strategies and Outcomes in Eastern Europe", 6 Journal of Democracy 1995 No.2, 74-85. 17. Arend Lijphart, "Constitutional Choices for New Democracies", in The Global Resurgence of Democracy, (Larry Diamond and Marc F. Plattner, eds.), Johns Hopkins University Press, Baltimore 1993, 146-158, Also see Arend Lijphart, "Democratization and Constitutional Choices in Czechoslovakia, Hungary and Poland", 4 Journal of Theoretical Research 1992, 207-223, and Jon Elster, "Bargaining over Presidency", 2/3 EECR (East European Constitutional Review) 1993/1994 No. 4/1, 95-98.

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them. Second, and more importantly, the transition mode may have some impact on the establishment of the legitimacy of new constitutions. In the reforma mode incumbents of a given authoritarian regime initiate liberalization and play a crucial role in the progress of transition. Thus they can influence, even dominate, the constitution-making process. The emergence of a consensual constitution from this mode depends to a great extent on the inclusion of opposition forces in the creation of new institutions. Bulgaria, Albania and the former Soviet republics made a transition to democracy through reform and in most cases former communists dominated the constitution-making processes. In the ruptura mode, as opposed to reforma, the consensual nature of an emerging constitution depends to a great extent on the attitude of revolutionary victors after the transition towards the supporters and elites of the outgoing regime. The defining characteristic of this mode is that an authoritarian regime simply collapses. The forces toppling the old regime usually call for a clear break with the past. Thus they may exclude old regime forces from the constitution-making process. This, in turn, may undermine the social contract characteristics of new constitutions. The Romanian and Czechoslovakian transitions were rupture transitions, but owing to the peculiar conditions of the respective countries the social contract characteristics of their new constitutions were undermined by other reasons than the exclusion of old regime forces. In Romania old regime forces excluded new ones—not the other way around—whereas in Czechoslovakia, the characteristics of constitution-making were determined by the break-up of the Federation, rather than by transition to democracy. Of those three transition modes, pacted or negotiated transition (i.e., transition through accommodations between ongoing and incoming regime forces) appears to be the most promising one in producing a consensual constitution for the emerging regime. In this mode old and new regime forces negotiate and compromise, and sometimes sign a document, on the basic principles and institutions of the emerging regime. This of course does not necessarily mean that these settlements will culminate in a thorough constitutional document. A number of issues may remain unsettled, but the agreements between regime authorities and the opposition may provide the consensual basis of the new constitution. Put another way, major forces reach a consensus on the best set of institutions that might be created for their society even before the making of the constitution. They can flesh out such a framework during the constitution-making process. Consequently, transition through elite settlements may have more chance to produce legitimate documents than transitions through reforma or ruptura. It is important, however, to note that even pacted or negotiated transitions cannot guarantee the legitimacy of a given constitution at the mass level. The Polish and Hungarian cases illustrate this point. The Hungarian Constitution (the amended

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version of the communist Constitution of 1952) was generally accepted by the major political forces in the country, but it could not escape being an elite document. The Polish Constitution of 1997, in turn, could not gain the support of the majority of the people. We shall analyze these points in detail when studying the relationships between transition to democracy and constitution-making in these countries.

3.3. Constitution-Making In the introductory section, we have defined constitution-making as the making of fundamental political choices in a given political system. This being so, one is bound to ask: Who makes these choices? Those, who see constitutions as the embodiment of popular will, would answer this question as "the people". Yet this may not necessarily be the case. Constitutions may be imposed externally or internally in some cases. The 1814 Constitution of France, for example, was the "grant" of the king to his subjects. The 1947 Constitution of Japan, in turn, was drawn up under the supervision of the USA. In other cases, constitutions may be made under imposed constraints, or they may embody merely a contract between elites.18 Elite Characteristics of Constitution-Making Even those constitutions, which have been introduced and accepted as the embodiment of popular will, are not actually made by the people. A small group of elites, which can be called "founding elites", make fundamental constitutional choices on behalf of the people. Consider the American Constitution as an illustration. The fifty-five persons, writing the American Constitution, represented the intellectual and economic elite of the country, and given the fact that small farmers, traders, and slaves made up the majority of the American people at the time, they did not represent perfectly the American people with all their power and wealth. At the time of the Revolution, the freeholders made up the majority of the white Americans. These were small farmers working on the land and eking out a living. There was a nascent middle class, but social, economic, political and intellectual life was controlled by a small group of elites. It was these elites, known as the "Founding Fathers", who wrote the American Constitution.19 18. For different ways of constitution-making, see Jon Elster, "Constitution-Making Ways", in Democracy's Victory and Crisis, (Axel Hadenius, ed.), Cambridge University Press, Cambridge 1997,123-142. Also see John R. Vile, "Three Kinds of Constitutional Founding and Change: The Convention Model and Its Alternatives", 46 Political Research Quarterly 1993, 881-895, and Elazar, op.cit. note 1, 242-246. 19. Thomas R. Dye and L. Harmon Zeigler, The Irony of Democracy, Fifth edition, Duxbury Press, Monterey, California 1981, 28-66.

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Constitutional history abounds with constitutions written by a small group of elites. This empirical observation made some authors see constitution-making as purely an elite enterprise. According to Ivo D. Duchacek, for example, ...many national constitutions express the political leaders' concept of what the people should want (or what they should reject) for their own good. The ruling group's political doctrine is written in a capsule form. The basic expectations and demands concerning power relations and practices in the society are translated into legalistic language. Many constitutions can be appropriately described as being expressions of the mandate of the leaders' doctrinal or ideological heaven.20 The elite characteristics of constitutions derive from the difficulties besetting collective decision-making in democratic polities. Two different ways of decision-making can be distinguished in such polities: either all members of a given political system can debate and vote on a certain issue or they can elect their representatives and assign to them the debating and voting tasks. Apparently, the first path has some inherent limits, for it can only be used in small-scale polities (such as ancient city-states), whereas the second one is more appropriate for large-scale polities (such as modern nation-states). The shift from the city-state to the nation-state brought about the most significant change in the concept of democracy. Until the end of the 18th century, the city-state was seen as the only political and social organization in which a democratic order could be established. The emergence of the nation-state, however, changed this perception. It became necessary to accommodate the concept of democracy to changing conditions. The people in a nation-state were so numerous and scattered that it was hardly possible to get together and make political choices collectively. That is why they had to elect representatives who could act on their behalf. It is these conditions which gave way to the emergence of the second method: "representative democracy". The indispensable tenet of contemporary democratic politics has been the participation of the people in making collective choices through their representatives. Constitutional choices are no exceptions. They are generally made by the representatives of the people in modern democratic political systems. However, in some cases, constitution-makers try to involve the people in the constitution-making process to solidify the legitimacy of the final document. They usually resort to the referendum device to realize popular support for the basic law. As a result, constitution-making activity in 20. Ivo D. Duchacek, Power Maps: Comparative Politics of Constitutions, ABC-Clio, SantaBarbara 1973, 4.


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modern democratic political systems usually comprises both elements of representative and direct democracy. Constituent or National Assemblies

How do founding elites, as the representatives of the people, fulfill the constitution-making task? In constitutional practice and theory there are two basic methods: making a constitution by a constituent assembly and by an ordinary legislature. The American Constitution of 1787, for example, was drawn up by a constituent assembly, whereas the 1791 Constitution of France was made by a national assembly. Although both in constituent and national assemblies, constitutions are made by the representatives of the people, these two methods differ from each other in the termination of their mandate. A constituent assembly, even though it serves as an ordinary legislature, is exclusively and primarily in charge of creating a new constitution. It is dissolved after the adoption of the constitution. A national assembly, in turn, functions basically as a law-making body during the constitution-making process and continues to do so after the adoption of a new constitution. Some may advocate the convention of an ad hoc assembly to draw up the constitution of an emerging regime. They would argue that constitutionmaking is such an important moment in a given nation's history that those who will carry out this task must be selected exclusively unlike an ordinary legislature. It can, however, hardly be maintained that a constitution drawn up by a constituent assembly is better or more enduring than one drawn up by an ordinary legislature. This issue (i.e., convening constituent assemblies or charging ordinary legislatures with drawing up the new constitutions of nascent regimes) was widely discussed in post-communist countries. Yet the efforts of the proponents of constituent assemblies bore no fruit. Most postcommunist constitutions were drawn up by national assemblies. In Eastern Europe, only Romania and Bulgaria; and in the former USSR, only Estonia set up ad hoc assemblies. Election of Constitution-Makers The election of constitution-makers, rather than the type of constitutionmaking bodies, assumes paramount importance in the establishment of the legitimacy of constitutions. They must be elected freely and fairly. Moreover, these elections must be organized in a way that can ensure maximum representation of political groups in a given political system. First, there must be "universal suffrage". All adult citizens, with the possible exception of criminals and the insane, must have the right to vote. Second, elections must be "equal". This concerns the "one man-one vote" principle; every citizen must have only one vote. Although they may affect

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the outcomes of elections, other conditions, such as voting age, direct/ indirect vote and compulsory/non-compulsory vote, are not as vital as universal and equal suffrage. Adding to these conditions concerning the electorate, some other conditions concerning competing political parties and individual candidates must be present. Severe restrictions on candidacy or de jure and de facto bans on parties may cripple the democratic characteristics of elections. There must be more than one party and/or candidate competing with each other freely. Third, there must be some conditions concerning the organization of elections. First, the security of balloting must be provided; intimidation prevents the electorate from revealing their true will. Second, balloting must be secret. That is to say, the electorate must cast their votes in election booths without worrying about the possible consequences of their votes. Third, votes must be counted without rigging. As a rule, the conditions concerning the electorate (i.e., universal and equal suffrage) have been met in the elections of most post-communist constitution-making bodies. Yet there were some problems in certain countries concerning the other conditions. First of all, in some countries, particularly in the former Soviet republics, constitutions were made by rump parliaments elected in the communist period. Given the well-known characteristics of communist-style elections, one may rightly suspect the representativeness of these assemblies. On the other hand, in some countries, restrictions (de facto or dejure) on certain parties and candidates (particularly ethnic and religious ones) as well as vote rigging and misconduct allegations in many elections affected the representative nature of constitution-making bodies. These problems will be discussed in detail in related sections. So far, we have studied the conditions of the election of constitutionmaking bodies. Now we can turn to electoral systems. One may speak of two basic systems for converting ballots into seats, the "majority system" and "proportional representation". In a majority system the candidate securing the largest number of votes in a certain constituency wins the seat. In proportional representation political parties win seats in proportion with the votes they get. Each system, undoubtedly, has advantages and disadvantages. It has been argued, for example, that the majority system creates more stable and coherent legislatures by eliminating small parties. This may be important for normal legislatures, but when it comes to constitution-making bodies, one should take into account the peculiar characteristics of the constitutionmaking enterprise. In the election of constitution-makers, differing from normal legislative elections, the electoral system must ensure the representation of as many groups as possible, rather than creating stable or coherent legislatures. Accordingly, proportional representation would be more suitable in the election of constitution-making bodies. In the same vein, in certain electoral systems, a threshold is created to eliminate small parties with the


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purpose of preventing the emergence of fragmented legislatures. For the same reason, a threshold may undermine the representativeness of a constitution-making body. A fragmented legislature may make it more difficult to reach a consensus on a given constitution, but easy constitution-making cannot be purchased at the expense of the consensual basis of constitutions. In Eastern Europe and the former USSR both systems, the majority system and proportional representation, have been employed in the election of constitution-making bodies. In some cases a threshold was also introduced. The consequences were mixed and will be discussed in related sections. Constitution-Making Style Constitution-making style (i.e., the incentives of constitution-makers, the internal procedure of constitution-making bodies and the nature of decisionmaking in these bodies) is as important as the election of constitution-making bodies in the establishment of the legitimacy of a given constitution. Constitution-makers fulfill a special mission and they are supposed to protect and improve not only their own interests, but also those of the entire community. Do they always act in conformity with the people's needs and demands? Put differently, what sort of motivations influence the behavior of founding elites having been elected? Some authors argue that constitutionmakers act in accordance with their self-interests. The American Constitution of 1787 again provides a classical example. One of the early critics of elite constitution-making, Charles E. Beard, maintained that the American Constitution was written to promote the economic interests of the framers. That is to say, the essential motivation, guiding the founding elites in the constitution-making process, was the securing of certain advantages and benefits which they could get through the adoption of the constitution.21 Such an analysis tends to see the constitution-making process as an isolated activity involving internal negotiations and compromises among constitution-makers. In this way of thinking, one could argue that a constitution is nothing but the embodiment of the negotiated and compromised interests of elites, particularly given the fact that there is no formal mechanism—except "recalling" which is hardly used in constitution-making—to prevent the founding elites from pursuing their self-interests. Put another way, in this view, constitution-making can be seen as an activity in which elites attempt to entrench their short-term interests at the expense of the longterm interests of the whole community. In most cases, however, founding elites are in contact with, even subordinate to their electorate. Most of them do not leave the political scene after fulfilling their constitution-making 21. Charles A. Beard, An Economic Interpretation of the Constitution of the United States, Macmillan, New York 1968 (Original publication 1913).

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mission. They seek to be re-elected, and thus improve their political career. This, in turn, depends to a great extent on how successfully they voice and promote their constituencies' interests in the constitution-making process. The interest-based explanations of constitution-makers' motives seem still attractive to scholars. The proponents of the Rational Choice Theory, for example, argued that rational individuals behave in such a manner that they can maximize the benefits and minimize the pains in making a decision on a certain matter. Game Theory, an application of the Rational Choice Theory, also suggests that in a game in which more than one player takes part, each player will select the option which would maximize his personal advantage, and in doing so each of them will take into account the expected choices of other players. Following this line of thought, it can be said that each founding elite in a constitutional convention, as a rational actor, will make his constitutional choices in conformity with his and his constituents' interests and the strategic calculation of the other rational elites.22 In the constitution-making process, therefore, founding elites defend not only their interests, but also their constituencies' interests. Even some other interests may be added to the latter. Jon Elster, in this respect, mentioned two more types of interests in constituent assemblies: the interests of political parties and the interests of political institutions.23 He argued that institutional interests play a particular role in constitution-making. He tested four implications of this hypothesis in the East European constitution-making environment. The first implication is that those constitution-making bodies serving simultaneously as constituent assembly and ordinary legislature tend to give a predominant position to the legislative agency at the expense of executive and judicial agencies. The second implication is that constituent parliaments tend to give a decisive role to Parliament in constitution amendment procedure. The third implication is that unicameral and bicameral constituent assemblies tend to create unicameral and bicameral legislatures. The last implication is that if presidents are involved in the constitution-making process, they tend to promote a strong presidency. All these implications, as Elster convincingly showed, can be observed with partial exceptions in East European constitution-making.24 As for the former Soviet republics, particularly the fourth implication seems to hold true. 22. For the application of rational choice theory to constitution-making, see Robert A. McGuire, "Constitution-Making: A Rational Choice Model of the Federal Convention of 1787", 32 American Journal of Political Science 1988, 483-522. 23. Jon Elster, "Constitution-Making in Eastern Europe: Rebuilding the Boat in the Open Sea", 71 Public Administration 1993, 169-217. 24. Jon Elster, 'The Role of Institutional Interest in East European Constitution-Making", 5 EECR 1996 No. 1,63-65.


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The internal procedure of constitution-making bodies (i.e., the existence of free speech and free assembly in constitution-making bodies) is relevant for the construction of the legitimacy of final documents. As Carl J. Friedrich put it: ... [constitutional] decision must be reached after the mature deliberation of those who participate in the decision... For mature deliberation of an issue by any number of people who are act collectively presupposes an exchange of views on the issues involved in the decision. If that opportunity is not available, nothing can be decided.25 In East European constitution-making, it can generally be said that the principles of free speech and free assembly were observed, but in the former Soviet republics, either because of the deliberate obstruction of dominant political forces, or because of their inherent weakness and fragmentation, opposition groups could not voice their criticisms, even could not participate in the constitution-making process. Apart from the internal procedure of constitution-making bodies, external factors are also important. The question is whether certain extra-assembly actors, either national (e.g., the president, the military, or the Church) or international (e.g., the EU), are influential in the constitution-making process. The influence of these actors may be positive or negative, i.e., they may facilitate or obstruct constitution-making, and steer constitution-making towards more democratic or authoritarian poles. In post-communist constitution-making both internal and external actors played a crucial role. Lastly, the decision-making style of constitutionmakers should be taken into account when studying constitution-making style. Is it consensual or dissensual? Is the final document the embodiment of the accommodations between participating groups or is it imposed by strong groups on weak ones? True, the representation of as many political groups as possible is important, but it is equally of significance that the constitutional expectations of these groups find their expression in the final document. In other words, constitutions must be a sort of "social contract". A constitution must reflect the consensus of these groups, rather than the imposition of the will of one or some of these groups. The consensual or dissensual characteristics of constitutions varies with several factors, such as the nature of the transition to democracy, the relative powers of participating political forces and their strategies.26 Unfortunately, one can generally detect a dissensual constitution-making style in post-communist constitution-making. This problem shall be discussed in the following sections. 25. Carl J. Friedrich, Constitutional Government and Democracy: Theory and Practice in Europe and America, fourth edition, Waltham, Blaisdel 1968, 128-129. 26. For the distinction between consensual and dissensual constitution-making, see BonimeBlanc, op.cit. note 9, 12-14.

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Ratification of Constitutions Finally, the ratification of a constitution appears as the last, but may be the most important stage of a constitution-making process because, if not perfectly, it enables us to measure the popular or elite support behind the constitution. Generally speaking, there are mainly four methods in constitutional theory and practice to ratify a constitution: approval by an ordinary legislature, being put to a nation-wide referendum after having been approved by an ordinary legislature, approval by an ad hoc constituent assembly, being put to a nation-wide referendum after having been approved by an ad hoc constituent assembly. As seen in Table 1, all available methods have been used in postcommunist constitution-making. Of these techniques, the referendum is particularly important. Since constitutions are supposed to be "social contracts", to give the last word to the people may solidify the consensual character of a constitution. In a referendum, voters decide on important public issues. A great variety of issues can be put to a referendum, and it can be arranged in different ways. Almost all democratic political systems resort to referendums from time to time, in particular for constitutional issues. The referendum device combines the representative and direct elements of democracy. More correctly, it supplements representative democratic decisionmaking process by bringing the people in. Two advantages are generally expected from the referendum, maximization of legitimacy and maximization of participation.27 As for the maximization of participation, Table 2 indicates that voter turnout was under 75% in most cases (notably in Poland and Russia) and this is inauspicious for the future of most post-communist constitutions. As for the maximization of legitimacy, referendum results must be interpreted with caution. First, most post-communist referendums were held in such an atmosphere that public psychology was susceptible to internal and external influences, even manipulation. After forty to seventy years of repressive communist rule, constitutions were presented as the symbol of the end of the latter, the bulwark against a chaotic transitory period, as well as the guarantee of stability. Second, the efforts of charismatic leaders played a significant role in the adoption of new constitutions, particularly in the former Soviet republics. Third, given the fact that the voting habits of the communist period still persist in some countries, the high figures in the former Soviet republics should be interpreted cautiously. Apart from these problems, perhaps more importantly, post-communist referendums were tainted by rigging allegations in most cases. Not only 27. David Butler and Austin Ranney, "Theory", in Referendums Around the World, (David Butler and Austin Ranney, eds.), Macmillan, London 1994, 11-23.


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Table 1. Ratification of Post-Communist Constitutions With referendum

Without referendum

Parliamentary approval

Albania, Azerbaijan, Lithuania, Tajikistan, Armenia, Kazakhstan, Poland

Georgia, Latvia*, Ukraine, Belarus, Moldova, Kyrgyzstan, Uzbekistan, Turkmenistan, Czech Republic, Slovakia

Approval by an ad hoc assembly

Russia, Estonia, Romania

Bulgaria

*

Latvia reinstated its pre-communist constitution.

Table 2. Post-Communist Referendums on the Adoption of Constitutions "Yes" votes (%)

Country/Republic

Date of referendum

Voter turnout (%)

Albania

22 November 1998

51

94

Armenia

5 July 1995

56

68

Azerbaijan

12 November 1995

92

92

Estonia

28 June 1992

67

91

Kazakhstan

30 August 1995

67

91

Lithuania

25 October 1992

75

75

Poland

25 May 1997

43

53

Romania

13 December 1991

69

54

Russia

12 December 1993

58

55

Tajikistan

6 November 1994

not available

90*

*

Unofficial result.

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national, but also international observers reported various irregularities. Undoubtedly, all these ratification problems affected the legitimacy of postcommunist constitutions negatively. Timing of Constitution-Making Post-communist constitutions emerged after a series of events marking the crises of the communist regimes in the respective countries. Although these crises bore different overtones in different countries, all of them culminated in the collapse of long-standing communist regimes. According to Edward McWhinney: ...the successful act of legal codification—whether of the private (civil) or the public (constitutional) law—almost invariably occurs in or immediately after a period of great public excitement and resultant public euphoria when it is relatively easy to build, and retain for a sufficiency of time to enable codification, a certain climate of popular consensus.28 MeWhinney's argument, although it seems theoretically plausible, furnishes no useful evidence for the exact timing of constitution-making. Practically, it would be very difficult to determine whether the public element (i.e., public excitement and public euphoria) is ripe enough to be conducive to writing a sustainable constitution. We therefore need a more concrete criterion to determine the optimal constitution-making moment. Adam Przeworski, analyzing the transitions to democracy in Eastern Europe and Latin America comparatively, elucidated the timing of constitution-making more accurately. According to him: .. .constitutions that are written when the relations of forces are still unclear are likely to counteract increasing returns to power, provide insurance to the eventual losers, and reduce the stakes of competition. They are more likely to induce the losers to comply with the outcomes and more likely to induce them to participate. They are more likely, therefore, to be stable across a wide range of historical conditions.29 He argued that if major political forces in a given country know little about their political strength under the eventual democratic institutions, they most likely choose a "maximin" solution. That is to say, they try to establish institutions that introduce checks and balances, and maximize the political 28. Edward McWhinney, Constitution-making: Principles, Process, Practice, University of Toronto Press, Toronto 1981, 15. 29. Adam Przeworski, Democracy and the Market, Political and Economic Reforms in Eastern Europe and Latin America, Cambridge University Press, Cambridge 1991, 8788.


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influence of minorities, or, equivalently, make policy highly insensitive to fluctuations in public opinion. Thus these forces most likely seek to promote such institutions that can provide guarantees against temporary political adversity, against unfavorable tides of opinion, against contrary shifts of alliances. It seems that Przeworski tended to see early constitution-making as an advantage for emerging democracies, but the optimal constitution-making moment is still unclear in his analysis. He, in fact, built his argument on the uncertainty of power relations between the major forces in a given political system after transition to democracy. Thus it can be argued that the first free elections after the transition would be a decisive moment in determining these relations. Before such elections, it might be difficult to estimate the strength of incoming and outgoing regime forces. How many people do support the new regime, how many people are still loyal to the old one, and how many people are simply indifferent? All these questions cannot be answered satisfactorily before the first free elections, particularly before legislative elections. The ambiguity before the first legislative elections provides ideal conditions to write a new constitution according to Przeworski's analysis. One should, however, take into account that the constitutionmaking enterprise, as a rule, has still to be carried out in this period by parliaments elected or appointed under authoritarian regimes. This, in turn, may generate several legitimacy problems as we shall see in related sections.30 Accordingly, it would be theoretically reasonable to conclude that the constitution of an emerging regime can optimally be drawn up after the first free elections to a new parliament or a constituent assembly, providing that these elections are held in an early stage of the transition. Practically, however, the legitimacy of a given constitution cannot be explained merely on the basis of the timing of constitution-making. It depends on a set of complex factors which we have been addressing so far. Several countries, avoiding to leave constitution-making to parliaments elected in the communist period, opted for a different constitution-making method. Poland, Hungary, Czechoslovakia and Albania employed the method of "constitution-making through amendments". They followed dejure their amended communist constitutions for a long time after the transition to democracy. In the literature some authors have criticized the method of "constitution-making through amendments" and advocated early constitution-making.31 Others have proposed a "stop-gap constitutionalism" allowing "...politicians to re-negotiate the rules while they are playing the game, or 30. Ozbudun emphasized this point. See Ozbudun, op.cit. note 9,117-120. 31. Bruce Ackerman, The Future of Liberal Revolution, Yale University Press, New Haven 1992, 61-2.

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to repair the bus and install replacement parts while the bus is hurtling down the hill."32 Constitution-making through amendments raised an important question within the context of post-communist transitions, particularly at the level of theory: in a revolutionary break, should legal changes take place within the existing legal structure or should they be implemented without observing it? Put in a constitutional language, in a revolutionary break, should a new constitution be made according to the previous constitution's amendment rules, or should it be a clear break with the past? The problem of legal continuity has been widely discussed by legal and political philosophers. Yet there has been no consensus among the authors.33 Philosophical discussions on this issue aside, we may simply ask: Can making constitutional changes within an existing legal structure guarantee the legitimacy of a given constitution? Legal continuity, undoubtedly, produces a certain degree of legitimacy for a new or a modified constitution, but, as Andrew Arato observed: "...the new constitution's roots in the old constitution's rule of revision carries only a minimum of a procedural, legal legitimacy that is (pace Weber) much too shallow without a wider, democratic (though also procedural) legitimacy."34 In parallel with the latter thought, we have been analyzing the legitimacy of constitutions on a three-pillar basis: culture, constitutionmaking and effectiveness. In Eastern Europe, as a rule, constitutional changes were made in accordance with the revision rules of communist constitutions. The former Soviet republics also carried out their constitutional reforms within the framework of communist constitutions, although the Minsk Agreement ended the legal continuity of the former USSR.

3.4. Transition to Democracy and Constitution-Making in Eastern Europe In Eastern Europe all three modes of transition—reform (Bulgaria, Albania), rupture (Czechoslovakia, Romania), pacted transition (Poland) or negotiated transition (Hungary)—were observed.35 Before analyzing these modes and their relations with constitution-making, it is necessary to say a little about 32. Stephen Holmes, "Conceptions of Democracy in the Draft Constitutions of Post-Communist Countries", in Markets, States, and Democracy, (Beverly Crawford, ed.), Westview Press, Boulder, Colorado 1995, 75. 33. For these discussions, see J.M. Finnis, "Revolutions and Continuity of Law", Oxford Essays in Jurisprudence, Second Series, (A.W.B. Simpson, ed.), Clarendon Press, Oxford 1973,44-76. 34. Andrew Arato, "Constitution and Continuity in the East European Transitions", Constitutionalism and Politics, (Irena Grudzinska Gross, ed.), Slovak Committee of the European Cultural Foundation, Bratislava 1994, 166.


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the collapse of communism in Eastern Europe. The causes of the collapse of communism exceed the scope of the current study,36 but one of the most important aspects of the problem, the international dimension of postcommunist transitions, deserves attention because of its impact on East European constitution-making. The collapse of communism at the end of the 20th century was undoubtedly the outcome of a complex set of factors, ranging from a legitimacy crisis to economic stagnation.37 Yet changes in the USSR also played a crucial role in East European transitions. These countries were under Soviet domination for more than four decades. Although there were several attempts at overthrowing Soviet hegemony, these were brutally quashed by Soviet troops. All these interventions were ideologically justified by the so-called "Brezhnev Doctrine", which provided that the USSR had the right to intervene in the internal affairs of East European countries to preserve the irreversible gains of socialism. In other words, it was argued by Brezhnev, as well as by his successors, that the interests of world socialism and the world revolutionary movement were to be protected, even at the expense of the sovereignty of other socialist countries. The unbreakable domination of the USSR and the repressive rule of Soviet-sponsored national communist parties led the Polish and later the Hungarian dissidents to develop a doctrine known as "new evolutionism" or "self-limiting revolution". This doctrine emphasized the rebuilding of civil society rather than a direct struggle for state power in the periphery of the Soviet Imperium. This brought about the idea of change within the existing system and negotiation as a strategy. The Round Table Talks (RTT), held in most countries between regime and opposition forces, can be seen as a reflection of this concept.38 More importantly, "new evolutionism" or "selflimiting revolution" paved the way for the method of "constitution-making through amendments" which we have discussed above in detail. Consequently, the transition to democracy was dependent on changes in the USSR. So, what happened in the USSR to trigger democratization in Eastern Europe? Perestroika and glasnost, a reform package proposed by the 35. For an overview of transition to democracy in Eastern Europe, see Paul G. Lewis, "Democratization in Eastern Europe", 27 Coexistence 1990, 245-267. Also see Paul G. Lewis, 'Theories of Democratization and Patterns of Regime Change in Eastern Europe", 13 Journal of Communist Studies and Transition Politics 1997, 4-26. 36. For a brief analysis of the collapse of communism, see George Schopflin, "The End of Communism in Eastern Europe", 66 International Affairs 1990, 3-16. Also see Daniel Chirot, "What Happened in Eastern Europe in 1989?", 10 Praxis International 1990/ 1991 No. 2/3, 278-305. 37. For several theories about the collapse of communism, see Leslie Holmes, Post-Communism, An Introduction, Polity Press, Cambridge 1997,23-62. 38. Arato, op.cit. note 34, 160.

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new leader of the Communist Party of the USSR, Mikhail Gorbachev, were to a great extent responsible for the subsequent developments in the whole Communist Bloc. Gorbachev was well aware that certain reforms had to be made in the USSR, but this was hardly possible in the Cold War atmosphere for at least two reasons. First, the success of perestroika was to a great extent dependent on the flow of foreign investment and technology. This, in turn, required the establishment of good relations with the public and private sectors in the USA and Western Europe. The Cold War was an obstacle at theoretical and practical levels to the development of such relations. Second, in the USSR, a large portion of the national income had been assigned to military expenditures. With the end of the Cold War, these sources could be used for the reconstruction of the Soviet economy. With these considerations in his mind, Gorbachev announced the withdrawal of Soviet troops from Eastern Europe in December 1988. This was officially the end of the Brezhnev Doctrine. Gorbachev, in fact, intended to preserve the status quo in international relations of the USSR, as he tried to do in internal affairs, but he failed in this. When he launched his reforms, most Soviet-sponsored regimes in Eastern Europe had already lost their legitimacy and become unpopular. As a result, the liberalizing effects of perestroika and glasnost, on the one hand, the disappearance of the threat of Soviet military intervention, on the other, undermined the authority of unswerving communist leaders in Bulgaria, Romania, East Germany and Czechoslovakia, and encouraged moderate regime forces in Hungary and Poland who were willing to enter a dialogue with opposition forces. Democratic oppositions in East European countries gradually became stronger, and this brought an end to communist regimes in Eastern Europe at the end of the 1980's. At this point, one should note that events in one country affected those in another, and the opposition in a given country was encouraged by the success of others in the region. This phenomenon, known as "snowball effect" in the transition literature, explains to a great extent the rapid and comprehensive nature of the collapse of communist regimes in Eastern Europe.39 These abrupt changes in the political realm also had significant impact on constitution-making. The collapse of communism took most by surprise. Even the opposition in these countries entered the new era ill-prepared. Thus, 39. Adam Przeworski wrote: "I know that hundreds of macrohistorical comparative sociologists will write thousands of books and articles correlating background conditions with outcomes in each country, but I think they will be wasting their time, for the entire event was one single snowball. I mean it in a technical sense: As developments took place in one country, people elsewhere were updating their probabilities of success, and as the next country went over the brink, the calculation was becoming increasingly reassuring. And I have no doubt that the last holdouts will follow." Przeworski, op.cit. note 29, 3-4.


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as the old regime ceased to exist, the new regime forces, be it reformers or the opposition, had no ready institutional framework in mind. Some countries attempted to revive their pre-communist constitutions, but it soon appeared that the conditions of post-communism were very different. Thus this lack of preparation led new regime forces to borrow heavily from Western constitutional models, sometimes even without taking into account probable negative effects in national settings. By the end of 1998, Bulgaria, Romania, Poland, the Czech Republic and Slovakia adopted their post-communist constitutions. Hungary is still waiting for a basic law. In Albania several attempts were made at adopting a new constitution after the collapse of the communist regime, but these bore no fruit. Constitution-making came to a halt when the country slipped into chaos and anarchy following the collapse of investment schemes in mid-1997. After returning to normal politics, Albania adopted its first post-communist constitution in late 1998 in a nation-wide referendum.

3.4.1. Poland Of all East European countries, Poland comes to the fore with its leading role in democratization movements in the region. It is widely accepted that the Polish Solidarity Movement, harking back to the 1980's, was the spark that set off the subsequent revolutionary events in Eastern Europe. The RTT between Solidarity and regime forces underscored the pacted nature of the Polish transition. The Emergence of Solidarity The Polish opposition was considerably different from other East European opposition movements. It came into existence relatively early and grew steadily stronger. There were mainly two reasons for this. First, there had always been genuine resistance against Soviet domination in Poland. The source of this resistance may be found in the long tradition of revolt and rebellion of the Polish people. They struggled against powerful neighbors for ages to achieve their independence and secure their statehood. The advent of communism, in this sense, was seen by many Poles as the loss of independence to Russia. On the other hand, Poland emerged as a homogeneous nation-state for the first time in its history after the Second World War, mainly as a result of the extermination of the Jews, the expulsion of the ethnic Germans and the incorporation of the Belorussian and the Ukrainian populations into the Soviet Union. This undoubtedly was one of the most important factors solidifying Polish national resistance. Second, and maybe more importantly, the communist regime in Poland had always displayed authori-

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tarian, not totalitarian, characteristics. In a totalitarian regime, by definition, the state penetrates so deeply into every sphere of citizens' lives that it leaves no room for even limited pluralism. The Polish regime, however, tolerated limited pluralism in the communist period, particularly in two important areas, agriculture and religion. Although Poland was officially atheist, the Polish Catholic Church had always maintained a privileged position even under communist rule. The Church traditionally played a crucial role in public and private realms and provided a breeding ground for civil society activities. On the other hand, communist economic policies, such as the collectivization of agriculture and nationalization through cooperatives, were implemented in a flexible manner in Poland. In other East European countries at the time, with the exception of Yugoslavia, both lands and industry had been socialized and the private sector had been annihilated. In Poland, on the contrary, peasants held their land as private property. Particularly, after the uprising of 1956, farmers were allowed to leave the state-owned and collective farms. As a result, a vast private agricultural sector came into being. All these factors encouraged the emergence of an active civil society in Poland.40 The struggle between civil society and the authoritarian party-state reached its peak in the 1980's. In July 1980 the attempts of the communist authorities to raise food prices precipitated strikes and demonstrations in the factories around the capital which would soon spread throughout the country. Shipyard employees in the Baltic ports, particularly those in the Gdansk shipyard, demanded not only the improvement of economic conditions, but also the right to establish independent trade unions. After a series of talks between workers and the government, the latter accepted the establishment of free unions under the leadership of Solidarity, a labor organization led by Lech Walesa. At that point, one should note that the unity of Polish civil society was one of the most important factors in its success in challenging the communist authorities. When the demonstrations began in Gdansk's Lenin shipyard, all other civil society organizations (ranging from the Church to intellectuals) supported Solidarity. Among the emerging civil society organizations of Eastern Europe, this was a unique development. In October 1981 General Wojciech Jaruzelski became Head of the Polish United Workers' Party (PZPR), i.e., the Communist Party. He at the same time held the post of Chairman of the Council of Ministers. Thus he began to control all key posts in the governmental machinery. As Solidarity grew stronger and began to pose a threat to the regime, martial law was proclaimed under pressure of Moscow. On 13 December 1981 a Military Council of 40. David S. Mason, "Poland", in Developments in East European Politics, (Stephen White, Judy Batt, and Paul G. Lewis, eds.), Macmillan, London 1993, 36-40.


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National Salvation, headed by General Jaruzelski, was established. All trade union activity was suspended, and several Solidarity leaders, including Lech Walesa, were arrested. The declaration of martial law was, in fact, a turning point in the Polish democratization movement, for the transfer of power from the Party to the Council marked the end of the leading role of the former. The leader and the key ministers of the Cabinet were not the party officials, but the "partysoldiers", i.e., military officials who were at the same time members of the Communist Party, under the leadership of General Jaruzelski. By the end of 1981, the major political forces in the country were Solidarity and the Catholic Church on one side; military, security forces and the Communist Party on the other. This power configuration set the ground for a "pacted" transition to democracy in Poland.41 Although the clashes between regime and opposition forces continued sporadically throughout 1982, martial law was officially ended and the Military Council of National Salvation was abolished in July 1983. At the same time, a general amnesty was proclaimed. In October 1985 legislative elections, which had been postponed since March 1984, were held. In these elections voters were given a chance to make a choice between two candidates for 410 seats of the Sejm. The remaining 50 seats were filled by unopposed deputies elected on a national list. After the elections, General Jaruzelski resigned as Chairman of the Council of Ministers and became President of the Council of State (i.e., Head of State) in November 1985. In June 1986 he was re-elected First Secretary at the 10th Congress of the PZPR. In order to increase political support for the regime, he set up a 56-member "Consultative Council" comprising mainly non-PZPR members, including independent Roman Catholic activists and former Solidarity members. In October 1987 the government proclaimed its economic and political reform plans and put them to a referendum. The government's proposals failed to secure the support of the majority of voters. As a result, the government was obliged to change its original plans. In fact, to call for a referendum on government policies, more importantly to admit their rejection by the ballot box, was unprecedented under communist regimes. After the referendum, Solidarity grew much stronger, and a new wave of Solidarity strikes, led by young and more militant Solidarity members, swept the country in May 1988. Thus the parties for a pacted transition were clearly identifiable by the end of 1988, namely regime radicals, regime moderates, opposition radicals and opposition moderates.

41. Linz and Stepan, op.cit. note 9, 261-264.

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The RTT and the Parliamentary Elections of 1989 Negotiations between regime and opposition forces took place between 6 February 1989 and 5 April 1989. There were two important items on the RTT agenda: the upcoming parliamentary elections and the creation of a presidency. The terms and the date of the elections occupied a special place in the talks. Communist authorities needed political support to implement their economic policies. They were aware of the fact that the upcoming parliamentary elections would grant them the legitimacy they needed. They, however, were alarmed that Solidarity would boycott the elections. Solidarity, in turn, wanted legal recognition which could only be granted by communist authorities at the time. The RTT revolved around trading-off these mutual interests. The regime moderates, in spite of strong nomenklatura opposition, found a solution to persuade Solidarity to participate in the elections. They opened 35% of the seats to free contest. Solidarity leaders did not believe that a complete transition to democracy would be possible, but they calculated that if they could manage to obtain a legal status through elections, they could start free political campaigning. So, Solidarity accepted partially free elections in exchange for the legalization of the Union. The nature and powers of the Senate and the President were also subject to negotiations and compromises. Regime forces were in favor of a strong presidency. They predicted that they would secure an absolute majority to elect the President both in the Sejm and the Senate and proposed the election of the President by Parliament. Solidarity rejected this proposal. Then, regime forces changed their tactic and proposed the creation of a Senate whose members would be chosen by free elections. After fervent discussions, Solidarity accepted the creation of an indirectly elected presidency and a freely-elected Senate. On 7 April 1989, immediately after the closure of the RTT, a series of significant amendments were made to the Constitution of 1952 in order to arrange particularly the powers of the presidency in accordance with the terms of the RTT agreements.42 The first and the second rounds of parliamentary elections, as envisaged in the RTT, were held on 4 and 8 July 1989 respectively. Solidarity's Citizens Committee, the political wing of Solidarity movement, won 99 out of 100 seats in the Senate. One seat was won by an independent candidate. In the 460-member Sejm, Solidarity secured all seats open to contestation. The rest was shared by the PZPR and its allied parties. The 1989 elections had farreaching consequences for the future political landscape of Poland. These elections were not only a turning point in transition to democracy, but also the harbinger of the disintegration of Solidarity. The power struggle between 42. For these amendments, see Anna Sabbat-Swidlicka, 'The Powers of the Presidency", Report on Eastern Europe 2 November 1990, 20-23.


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Solidarity leaders, particularly between Lech Walesa and Tadeusz Mazowiecki, became more and more visible. The 1990 presidential elections elevated the struggle to institutional level. Thereafter, the struggle between Walesa and Parliament in particular affected the adoption of the new constitution negatively. In July 1989 the new Parliament elected Jaruzelski as President. Although the communists were controlling the majority in the Sejm, they failed to form a government. Thus President Jaruzelski accepted Walesa's proposal to set up a coalition between Solidarity, the United Peasants Party (UPS) and the Democratic Party (DP). Tadeusz Mazowiecki's appointment as Chairman of the Council of Ministers was approved by the Sejm on 24 August 1989. This was officially the end of 45 years of communist rule in Poland. After this historical turning point, another series of amendments to the Constitution of 1952 were introduced by the Solidarity-led government on 29 December 1989. At the same time, a constitutional committee was set up by the Sejm to prepare a draft constitution. This Committee came under strong criticism on the grounds that it was appointed by a parliament which had been created by partially free elections. Thus the Senate, considering itself more representative than the Sejm, set up another committee to work on a different draft. However, since none of the major political forces in Parliament approved its formation, the Committee could not play a significant role in the Polish constitution-making process. Consecutive attempts at merging the separate committees came also to naught. Consequently, although it was not fully acknowledged by the Senate, the constitution-making process was dominated by the Constitutional Committee in Parliament.43 The Parliamentary Elections of 1991 and the Adoption of the "Little Constitution" of 1992 In September 1990 Jaruzelski agreed to resign before the expiry of his sixyear term. This cleared the way for the direct election of the President. On 27 September 1990 the Constitution was amended in a way that the President should be elected directly by the people. The first round was held on 25 November 1990 in which six candidates competed. It was expected that Mazowiecki and Walesa would be the two front runners, but Mazowiecki lost dramatically. In the second round, held on 9 December 1990, Walesa and Stanislaw Tyminski competed. Walesa, securing 74.3% of the votes cast, resigned as the Chairman of Solidarity and became the President of Poland in December 1990. 43. Andrzej Rapaczynski, "Constitutional Politics in Poland: A Report on the Constitutional Committee of the Polish Parliament", in Constitution Making in Eastern Europe, (A.E. Dick Howard, ed.), The Woodrow Wilson Center Press, Washington, DC 1993, 98-104.

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On 27 October 1991, the elections to the Sejm and the Senate were held with the participation of 43.2% of eligible voters. These elections created a highly fragmented legislature. Twenty nine parties managed to win representation in the Sejm, but none of them had the majority to form a government. The biggest party was the Democratic Alliance and it only received 13% of the votes. Walesa's candidate for premiership was Jan Krzysztof Bielecki, who had held this post since 4 January 1991, but his candidacy was not welcomed by opposition parties, known as the "group of five". Walesa was then obliged to appoint Jan Olszewski, a critic of his economic reforms, as Prime Minister. Thus, the struggle between the President and Parliament reached another stage. Although the fragmented landscape of the Parliament of 1991 appeared as an obstacle to the adoption of a new constitution, the President and his old Solidarity allies in Parliament managed to enact a provisional constitutional law on 23 April 1992.44 This Law, also known as the "Little Constitution", came into effect on 8 December 1992 and introduced a mixed presidentialparliamentary system.45 In this respect, the document perfectly reflected the power struggle between these two powerful actors on the Polish political scene after the collapse of the communist regime. The Little Constitution also introduced a new and more complex procedure for the adoption of a new constitution. According to the new procedure, a joint commission, composed of 46 Sejm and 10 Senate members, was to be set up. The Commission was to prepare a draft either on its own initiative, or based on proposals submitted by the President or a group of any 56 deputies and Senators. The National Assembly was to approve the final document. After the approval of the Assembly, the President was to have the right to propose amendments to the draft in 60 days. Finally, after presidential approval, the document was to be put to a nation-wide referendum. On 30 October 1992 the newly-created Constitutional Commission began to work on a new draft constitution in accordance with the procedure laid down in the Little Constitution.46 In the meantime, the Sejm passed a vote of no confidence and dismissed the government on 5 June 1992. Waldemar Pawlak, the leader of the PSL, attempted to set up a new government, but he failed and resigned in early June. On 6 July 1992, Hanna Suchocka of the UD was appointed Prime Minister and set up a new seven-party coalition dominated by the UD and the Christian National Union. 44. See Louisa Vinton, "Five-Party Coalition Gains Strength, Walesa Proposes 'Little Constitution"', Report on Eastern Europe 6 December 1991, 5-12. 45. See Louisa Vinton, "Poland's 'Little Constitution' Clarifies Walesa's Powers", 1 RFE/ RL (Radio Free Europe/Radio Liberty) 4 September 1992 No. 35, 19-26. 46. Wojciech Sokolewicz, "The Relevance of Western Models for Constitution-Building in Poland", in Constitutional Policy and Change in Europe, (Joachim Jens Hesse and Nevil Johnson, eds.), Oxford University Press, Oxford 1995, 243-250.


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The Parliamentary Elections of 1993 The economic policies of the Suchocka government faced strong Solidarity opposition. The latter called for a vote of confidence on 28 May 1993, and the government lost with one vote short. The Sejm approved the result, but Walesa did not accept the resignation of the government and dissolved the Sejm. He scheduled new elections to both chambers of Parliament for 19 September 1993. Left parties emerged as victors from theses elections. The Democratic Left Alliance (DLA) and the Polish Peasant Party (PPP), dominated by former communists, won the majority of the seats in the Sejm and Senate. This was another turning point in post-communist Polish politics. Solidarity elites left the political scene, and the Left returned. The number of the parties represented in Parliament was reduced from 29 to 7. Solidaritybased parties acquired only 157 seats out of 460. These results were to a great extent the outcome of the electoral system used in the elections of 1993. The Electoral Law generally served the interests of bigger parties.47 The Law was designed to prevent the emergence of a fragmented legislature, but this raised another problem, under-representation. Five and eight percent thresholds for political parties and coalitions respectively, in particular, made the elimination of smaller parties easier. As all conservative, nationalist, free-market and Catholic parties were excluded from the new Parliament, one-third of the total electorate was left without representation in the legislature. Thus the question whether such a parliament was qualified to prepare a new constitution resurfaced.48 In October 1993, two parties, the DLA and PPP, set up a coalition government led by Waldemar Pawlak. In the meantime, the work on the new constitution continued. On 19 February 1994 the President proposed the dissolution of the Sejm, if it could not adopt the presidential draft constitution. The Sejm rejected this proposal. On 25 March 1994 the Sejm extended the right to submit a draft constitution to groups of at least 500,000 voters. It also accepted the re-submission of the drafts prepared by the 1991-1993 Parliament. As a result, seven drafts were submitted to the Constitutional Commission, prepared by the President, the Senate, Solidarity and several political parties (the Democratic Union [UD]—this party changed its name in 1994 to the Freedom Union [UW]—the PPP, the Confederation for an Independent Poland, and the DLA). The Solidarity draft had been signed by 870,000 people. On 22 September 1994, the National Assembly adopted a decree clarifying the procedure concerning the adoption of the new constitu47. See Louisa Vinton, "Poland's New Election Law: Fewer Parties, Same Impasse?", 2 RFE/RL Research Report 9 July 1993 No. 28, 7-17. 48. Andrew A. Michta, "Democratic Consolidation in Poland after 1989", in The Consolidation of Democracy in East-Central Europe, (Karen Dawisha and Bruce Parrott, eds.), Cambridge University Press, Cambridge 1997,78-82.

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tion. After a two-day discussion, all seven drafts were sent to the Commission continuing its work on the drafts.49 The Adoption of the Constitution of 1997 In February 1995 the tensions between the President and the Prime Minister reached a peak. Walesa threatened to dissolve Parliament, and asked Pawlak to resign. The Sejm, in response, initiated the impeachment procedure of the President. The tension, however, was eased by the resignation of Pawlak and Josef Olesky set up a new government. By June 1995, the Constitutional Commission adopted the first two chapters of the Constitution. In July the UW members of the Commission asked the postponement of the work of the Commission, claiming that it interfered with the presidential election campaign, but the ruling DLA members demanded the acceleration of the process. Aleksander Kwasniewski, Head of the Commission and later on the President of the Republic of Poland, said that: "... some election or other is always under way, and the time is ripe for Poland to have a constitution."50 The Constitutional Commission completed its work at the end of 2,5 years of intense work on 18 June 1996 and approved a draft constitution with 45 votes in favor, 2 against and 1 absentee on 16 January 1997 following further elaboration of the document in Parliament.51 Since the right-wing members of the Commission (Solidarity and the Confederation for an Independent Poland) had resigned in protest in early January, the draft appeared as a compromise between major left-wing political parties in Parliament: the DLA, the PPP, the UW and the Labor Union. Adding to the exclusion of right-wing parties from the Parliament in the 1993 elections, the domination of left-wing parties in the Commission deprived a significant portion of political groups from participating in the preparation of the new basic law.52 After the approval of the Commission, the National Assembly (the Sejm and the Senate) passed the draft with 461 votes in favor, and 36 votes against on 23 March 1997. Then, according to the procedure laid down in the Little Constitution, the draft was submitted to the President. He proposed several 49. Jakup Karpinski, "The Constitutional Mosaic", Transition 11 August 1995, 4-9. 50. Jakup Karpinski, "Continued Quarrel Over Poland's Constitutional Draft", OMRI(Open Media Research Enstitute) Daily Digest 5 July 1995, Internet version (http://www.omri.cz). 51. Jakup Karpinski, "Poland Has a Constitution Draft", 1 OMRI Daily Digest Analytical Brief 20 June 1996 No. 187, Internet version (http://www.omri.cz/). 52. For the making of the Polish Constitution of 1997, see Jan de Weydenthal, "Poland: Constitutional Debates Shapes Politics", RFE/RL 27 February 1997, Internet version (http://www.rferl.org/). "Poland: National Assembly Accepts Draft of Constitution", RFE/RL 24 March 1997, Internet version (http://www.rferl.org/). "Poland/Slovakia: The Tale of Two Referanda", RFE/RL 26 May 1997, Internet version (http://www.rferl.org/).


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amendments to the draft, but some of them were rejected by the Assembly. Finally, the draft was approved by the National Assembly with 451 votes in favor and 50 votes against on 3 April 1997. Both parliamentary and extra-parliamentary right-wing groups expressed their critical opinion about several issues, e.g., the banning of Nazi, Fascist and Communist parties (Art. 13), the state's obligation to implement profamily policies (Art. 71) and the responsibility of citizens for the common good (Art. 82). More importantly, these groups were critical as far as the place of religious values in the emerging institutional framework, was concerned. The Church, in turn, either directly participated in the debates or actively supported the right-wing parties as a powerful extra-parliamentary actor. As a result, most of the demands of the right-wing groups, such as the Movement to Rebuild Poland (MRP) and Election Action Solidarity (EAS), as well as the Church were met.53 However, even these concessions did not satisfy these actors. The Church, in particular, issued a statement in a Conference of the Episcopate of Poland held from 30 April 1997 to 2 May 1997, although it accepted to stop campaigning against the Constitution in exchange of the adoption of some its of suggestions. The statement read as follows: "We call on everyone to make in their conscience a decision expressing their responsibility before God and nature, because the text of the Constitution raises serious moral reservations." The right-wing parties, in turn, particularly EAS, promised to amend the Constitution in their electoral campaign.54 When it came down to the mass level, the legitimacy of the Constitution seemed more dubious. If the results of a referendum are an indication of the legitimacy of a constitution, the Polish Constitution can hardly be considered legitimate. Only 43% of eligible voters took part in the referendum, held on 25 May 1997, and only 53% of them voted in favor of the draft. That means that only about 30% of the total electorate supported the new constitution. There might be several causes for such a tragic result in the referendum, such as the general apathy of the Polish voters or the over-politicization of the referendum campaign.55 But these results should not be surprising for a constitution drawn up by a parliament excluding a significant number of political groups from the constitution-making procedure. So, as a Polish scholar predicted, the life of the Constitution will not be very long, and its authority will be recognized only by a part of society.56 53. See "Constitution Watch: Poland", 6 EECR 1997 No. 1, 20-22. 54. See "Constitution Watch: Poland", 6 EECR 1997 No. 2/3, 25-28. 55. See "Feature: The 1997 Polish Constitution", 6 EECR 1997 No. 2/3. Also see the following articles in the same issue, Wiktor Osiatynski, "A Brief History of the Constitution", 66-76, Ewa Letowska, "A Constitution of Possibilities", 76-81. 56. Pawel Spiewak, 'The Battle for a Constitution", 6 EECR 1997 No. 2/3, 89-96.

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3.4.2. Hungary There were some similarities between the transition to democracy and constitution-making in Hungary and Poland. In Hungary, as in Poland, transition to democracy was the outcome of negotiations and compromises between regime and opposition forces in the RTT. Moreover, as we have seen earlier, the concept of "new evolutionism" set the background for "constitution-making through amendments" in these countries. Yet, as opposed to Poland, this method of constitution-making did not result in the emergence of a totally new constitution in Hungary. The Resurgence of Civil Society There had always been strong resistance to the domination of Moscow in Hungary. The failed Revolution of 1956 was one of the symbols of this resistance. After the suppression of the uprising, Janos Kadar was appointed Prime Minister. Despite the fact that his coming to power had been the result of Soviet intervention, Kadar rapidly improved his public image. Most importantly, he introduced the "New Economic Mechanism" in 1968. There were also some reform attempts in other areas during his reign, particularly in the 1980's, but this top-down liberalization was mainly limited to the economic realm. Accordingly, although certain market elements were inserted in the Hungarian economy in the communist period, this did not create a breeding ground for civil society activities as had happened in Poland. There was no organized political opposition in Hungary until 1987. At the end of the 1980's, the economic policies of the Kadar government in particular, and the communist party-state in general, came under strong criticism. The reformists in the Hungarian Socialist Workers' Party (HSWP) began to seek allies within the Party and society. In the meantime, several independent groups came into existence. They gradually organized themselves de facto into political parties. One of the most important of these groups, the Hungarian Democratic Forum (HDF), made its first organizational convention in October 1987. The Forum was followed by other independent groups such as the Federation of Young Democrats.57 By 1987, there were four main tendencies in the HSWP: a group, known as "hard-liners", expecting the fall of Gorbachev to implement a strategy similar to the post-1968 Czechoslovak normalization; a group around Kadar, which was in favor of retaining the status quo; a moderate reformist group, known as the "Grosz group", which was advocating economic and legal reforms, but limited political change in the political system; a reformist 57. See Nigel Swain, "Hungary", in Developments in East European Politics, (Stephen White, Judy Batt, and Paul G. Lewis, eds.), Macmillan, London 1993, 67-70.

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group, known as the "Pozsgay group", seeking comprehensive economic, legal and political change. From mid-1987, moderate reformists and reformist groups increased their powers, and began to exert more pressure on Kadar. This paved the way for a negotiated transition in Hungary.58 In May 1988 Janos Kadar was replaced by Karoly Grosz as General Secretary of the Central Committee at a special conference of the HSWP. In January 1989 Imre Pozsgay, one of the reformist leaders in the Party, declared in a radio interview that the events of 1956 were not a "counterrevolution", but a "popular revolt". This declaration activated social and political dynamics in Hungary. Grosz called for an extraordinary session of the HSWP. As many social and political organizations gave their support to Pozsgay, he and his reformist allies in the Party gained a veritable success. In February 1989, at a central committee session, not only the re-evaluation of 1956 events, but also a partial transition to a multi-party system was accepted. Several amendments were made to the "Act of Associations". These changes were approved by the government in November 1988, and passed by Parliament in January 1989. The amended version of the Law was interpreted narrowly by some groups and broadly by others. Communist hard-liners, for example, maintained that the Law was only applicable to interest groups, not to political parties. Historical parties (parties which had been active in the 1940's), and new proto-parties (emerging from independent groups) interpreted the Law broadly and maintained that the right to association included the right to organize political parties. Hence a de facto multi-party system came into being within the framework of the one-party system. Three historical parties, the Independent Smallholders Party (ISP), the Hungarian Social Democratic Party (HSDP) and the Christian Democratic People's Party (CDPP) resumed their activities. This limited pluralism brought about significant consequences. Once the process had started, neither HSWP, nor the government, nor Parliament could control the course of events. The RTTand the "September Pact" There was a continuing struggle between conservative and progressive factions in the Party throughout 1989. In April 1989 Grosz was re-elected General Secretary. In the meantime, the Politburo was replaced by a smaller body. In mid-1989, regime forces decided to enter negotiations with the opposition. The RTT were held between 13 June and 18 September 1989. In October 1989, at the 14th Congress of the HSWP, delegates voted to dissolve the Party and establish the Hungarian Socialist Party (HSP). This was the end of communist rule in Hungary. 58. Linz and Stepan, op.cit. note 9, 304-305.

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The RTT imparted the Hungarian transition its negotiated characteristics. By 1989, the Hungarian opposition consisted of several parties and social movements. Regime forces wanted to negotiate with each element separately, but the opposition, in a shrewd tactical move, created first its own round table, known as the "Opposition Round Table", and reached a compromise on several significant issues. This undoubtedly increased the opposition's negotiating power. Consequently, the parties to the negotiations in the Hungarian RTT were regime forces and several proto-political parties, whereas in other RTT in the region they were usually regime forces and various independent opposition groups. Such a unified opposition movement was unique in Eastern Europe.59 Moreover, the powers of participating parties in the upcoming elections were utterly uncertain in the Hungarian RTT. That is why all parties tried to keep Parliament under control. They wanted to establish indirect control through the Constitutional Court over their partners. In this atmosphere of uncertainty parties relatively easily agreed on important issues. During the reform attempts in the 1980's, there were several proposals for constitutional models. It had been proposed that the Constitution of 1949 should be abolished, and the Constitution of 1946 (the Constitution of the young Hungarian democracy made by the Parliament elected in 1945) reinstated. Even though a draft constitution had been prepared by the reformist communist government in 1988, the parties to the RTT agreed to amend radically the communist Constitution of 1949, instead of drawing up a new one.60 The main motive behind this decision was to leave the task to the first freely elected Parliament. According to the agreement, known as the "September Pact", the amended version of the Constitution of 1952 was proclaimed on 23 October 1989, on the anniversary of the 1956 Revolution. The Parliamentary Elections of 1990 and 1994 The first multi-party elections in Hungary were held on 25 March and 8 April 1990. The HDF won 165 seats in a 386-member Parliament. Jozsef Antall, the leader of the HDF, set up a coalition government with the CDPP and the ISP. Then, the ruling coalition reached a compromise on a new set of constitutional amendments. The agreement, known as the "April Pact" introduced a considerably different system from that established by the "September Pact". The April Pact put emphasis on strong government, not on 59. Andras Bozoki, "Party Formation and Constitutional Change in Hungary", 10 The Journal of Communist Studies and Transition Politics 1994, 44-51. 60. Peter Paczolay, "The New Hungarian Constitutional State: Challenges and Perspectives", in Constitution Making in Eastern Europe, (A.E. Dick Howard, ed.), The Woodrow Wilson Center Press, Washington, DC 1993, 21-55.


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a strong parliament. Thus the Hungarian constitutional system shifted from a parliamentary government towards a "premiership government". The strength of the Prime Minister led other political powers to seek a counter-power. In this respect, Parliament and the President frequently turned to the Constitutional Court. The April Pact came under criticism on the ground that it was an elite accommodation excluding the bulk of the political and social forces in the country. Moreover, constitutional solutions introduced in the Pact were not satisfactory to the opposition. On 29 July 1990 a referendum was held on the direct election of the President, but it failed due to insufficient voter turnout. Thus the young Hungarian democracy has followed so far its communist constitution as amended beyond recognition by the September and April pacts.61 The second post-communist parliamentary elections in Hungary were held on 8-29 May 1994. The ex-communists emerged as the victors from these elections. The HSP set up a coalition with the Alliance of Free Democrats (AFD). Thus the new coalition controlled a majority of 74% of the seats in Parliament which would be sufficient to adopt a new constitution. On 17 June 1995 a parliamentary constitutional commission was established to prepare a draft. However, opposition parties were aware that the ruling coalition was enjoying a substantial majority which would enable them to dominate the constitution-making process. To prevent this, the Constitutional Commission had designed a procedure which was incorporated later on in the Standing Orders. Accordingly, the term of the Commission was to expire with the Parliament's mandate and, if a draft constitution could not be prepared within this appointed time (4 years), the process of constitutionmaking was to begin all over again. An amendment package prepared by a five-party coalition, was rejected by Parliament on 27 June 1996. Upon this, the Commission continued its work and agreed upon another draft at the end of 1996. Parliament, however, again failed to pass it on 17 December 1996 due to the opposition of the Independent Smallholders Party (ISP), CDPP and the HDF. Consequently, by the end of 1998, nine years after the collapse of the communist regime, Hungary did not yet have a new constitution. Although the amended communist constitution was accepted by and large by major political forces and the people, critics have argued that the current constitution has no democratic legitimacy. It came into being piecemeal as an elite accommodation without public participation and involvement. Furthermore, several arrangements in the Constitution, such as the Electoral Law, the 61. Attila Agh, "The Permanent 'Constitutional Crisis' in the Democratic Transition: The Case of Hungary", in Constitutional Policy and Change in Europe, (Joachim Jens Hesse and Nevil Johnson, eds.), Oxford University Press, Oxford 1995, 300-311.

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amendment procedure and the position the Constitutional Court, have been criticized.62

3.4.3. Czechoslovakia In Czechoslovakia, unlike Poland and Hungary, the communist regime collapsed abruptly. In this respect, the Czechoslovakian transition provided an example of rupture. As mentioned above, incoming forces generally call for a clear break with the past in this mode of transition. In Czechoslovakia, however, the amended version of the communist Constitution of 1961 was applied for a considerable time after the collapse of communism. This distinguished the Czechoslovakian rupture from others. The Collapse of the Communist Regime As opposed to Poland and Hungary, there had been no noteworthy civil society activity in Czechoslovakia before the transition to democracy. Organizations, such as Charter 77, were neither as comprehensive as the Polish Solidarity, nor as firmly established as the Hungarian proto-party organizations. In Czechoslovakia the opposition remained to a great extent passive until the end of the 1980's. Even ten years after its formation, the manifesto of Charter 77 was signed by only 2000 people. Accordingly, it can be argued that the collapse of communism was to a great extent the outcome of the defects within the regime.63 There were some reform attempts even during the communist period in Czechoslovakia. Gustav Husak was replaced by Milos Jakes as General Secretary of the Communist Party of Czechoslovakia (CPC) in December 1987. Although Jakes declared that he would follow the limited reform program initiated by Husak, no significant changes occurred in Czechoslovakia at that time. The pressure on the Roman Catholic Church and dissident groups continued, even increased. The most important opposition group was Charter 77 which had been established by intellectuals in January 1977. In February 1989 the playwright Vaclav Havel, the leader of Charter 77, was arrested and sentenced to nine months imprisonment, but he was released in May owing especially to international reactions. By the end of 1989, civil society became more active. There were more anti-government demonstrations in May, August and October 1989. On 17 November 1989 the biggest demonstration of the last 20 years was staged in 62. Andrew Arato, "Parliamentary Constitution Making in Hungary", 4 EECR 1995 No. 4, 45-51. 63. Gordon Wightman, "The Czech and Slovak Republics", in Developments in East European Politics, (Stephen White, Judy Batt, and Paul G. Lewis, eds.), Macmillan, London 1993,51-65.


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Prague and attended by 50,000 people, mainly students. As security forces brutally dispersed the crowd, popular unrest reached its peak. Although this was the first and the last time that regime forces used force in the Czechoslovak transition, it was enough to spark off the so-called "Velvet Revolution". On 24 November 1989 Milos Jakes and the entire CPC leadership resigned. As the communist leadership was disintegrating, Civic Forum, an alliance of several opposition groups and Charter 77, as well as "Public Against Violence" (PAV), the Slovak counterpart of Civic Forum, grew steadily stronger. They denounced the federal government, consisting mostly of communists. Hence Ladislaw Adamec resigned as the Federal Prime Minister and he was replaced by Marian Calfa. The following week, an interim government, consisting mainly of non-communists, was set up. Husak resigned as President on 4 December 1989, and the communist Parliament voted for the only candidate, Vaclav Havel, on 29 December 1989. In the meantime, Alexander Dubcek was elected Chairman of the Federal Assembly. In an emergency Congress of the CPC, Karel Urbanek, General Secretary of the Central Committee, was dismissed and his post was abolished. Ladislav Adamec was appointed to the newly-created post, Chairman of the Party. As a result, by the end of 1989, the communist leadership was largely replaced by reformist cadres. The RTT and the Parliamentary Elections of 1990 The Czechoslovakian RTT were different from other RTT in the region. There were two RTT, not only one. One of them was between regime forces and Civic Forum in Prague, and the other was between, again, regime forces and the PVA in Bratislava. Communists in Slovakia emerged more powerful than their counterparts in Czechia from the RTT, partly because of the weakness of the opposition, and partly because of the integrity of the organizational structure of the Slovak Communist Party. This was particularly important for constitution-making in Czechoslovakia; the Bratislava communists always played an obstructive role in constitution-making.64 The first free elections in Czechoslovakia were held on 8 and 9 June 1990. Civic Forum and the PAV won 170 seats out of 300 in the Federal Assembly. The CPC emerged as the second party from the elections with 47 seats. Thus the communists, partly because of the electoral system, managed to retain considerable power in the emerging democratic regime.65 A new 64. See Jon Elster, "Transition, Constitution-Making and Separation in Czechoslovakia", 34 European Journal of Sociology 1994, 105-134. 65. David M. Olson, "Democratization and Political Participation: The Experience of the Czech Republic", in The Consolidation of Democracy in East-Central Europe, (Karen Dawisha and Bruce Parrott, eds.), Cambridge University Press, Cambridge 1997, 150196.

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federal government was proclaimed on 27 June 1990. The government, led by Marian Calfa and composed of Civic Forum, the PVA, the Christian and Democratic Union-Czech People's Party, and independents, submitted its program to the Federal Assembly on 3 July 1990. After the formation of the Cabinet, all three assemblies (the Czech and Slovak National Assemblies, as well as the Federal Assembly) began to function as constitution-making bodies to prepare the new constitutions of the Federation (i.e., the Czech, Slovak and Federative constitutions). The mandate of the newly-elected legislature was limited to two years.66 After the June 1990 elections, the Federal Assembly made significant amendments to the communist Constitution of 1961, but the basic institutional structure of the Communist Federation remained unaltered. The Federal Constitution of 1961, in fact, was prone to generate crisis because there were two chambers in the Federation of Czechoslovakia: the Chamber of the People (lower house, 150 members, based on population) and the Chamber of Nations (upper house, 150 members, 75 members in the Czech section, 75 members in the Slovak section) whose powers and structures would have given small groups several opportunities to bring the legislature to a standstill. More importantly, the Czechoslovak Constitution, like other Sovietstyle constitutions, had not granted the President or the Prime Minister the right to dissolve Parliament and call for new elections in case of deadlock. The absence of such crises in the communist period can be explained by the fact that the Constitution had to a great extent been "fictive". That is to say, most provisions of the Constitution had not been applied by communist authorities. Only after the transition the Constitution came to be applied, and this enabled the Slovak minority to block the whole process. Consequently, as Jon Elster rightly observed, these aspects of the "Velvet Revolution", (i.e., the persistence of communists in the new Parliament, the limitation of the mandate of constituent assemblies to two years and the negative effects of the Constitution of 1961) made the emergence of a new constitution and the preservation of the Federation in Czechoslovakia impossible.67 There were two crucial items on the agenda of the new Federal Assembly and the government: creating a legal and institutional framework for a market economy and defining the new power relationships between the Czech and Slovak communities within a new federal structure. The latter task was central to the constitution-making enterprise. Although the "federal question" was to be resolved by the new basic laws, the Slovaks, particularly 66. Dusan Hendrych, "Constitutionalism and Constitutional Change in Czechoslovakia", in Constitutional Policy and Change in Europe, (Joachim Jens Hesse and Nevil Johnson, eds.), Oxford University Press, Oxford 1995, 278-295. 67. Elster, op.cit. note 64, 110-114.


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the newly-established Slovak National Party, appeared to be too impatient to wait for a new constitution. They demanded an immediate solution. Thus, to appease the tension, the Federal Assembly adopted a constitutional amendment on 12 December 1990 granting more powers to federative governments. Apart from this power-sharing amendment, the Assembly adopted a federal bill of rights on 9 January 1991 which was a genuine success in Czechoslovak constitution-making. It is interesting to note that constitutionmakers could not repeat this success in the adoption of the new federal constitution. Such issues as the relationships between Parliament and the President, as well as the nature of the Federation, were the subject of heated discussions. Although a constitutional draft was submitted to the Federal Assembly in Spring 1992, it was rejected in the Upper House by a margin of only two Slovak deputies' votes. The Parliamentary Elections of 1992 and the Break-up of the Federation In the course of time, the driving force behind the transition to democracy in Czechoslovakia, the liberal center, began to crumble. On 23 February 1991 Civic Forum split into conservative and liberal groups, the Civic Democratic Party (ODS) and the Civic Movement respectively. The Slovak counterpart of Civic Forum, the PVA, could also not escape disintegration. On 5 March 1991 Vladimir Meciar founded his own party, known later as the Movement for a Democratic Slovakia (HZDS). These parties took part in the parliamentary elections of 5 and 6 June 1992. As the pro-federation liberal center parties were defeated in the elections, Parliament came under the domination of centrifugal forces. Vladimir Meciar's Party, HZDS, won only 12% and 34% of votes in the lower and upper houses respectively, but, as explained above, under the institutional structure of the Constitution of 1961, this was enough to obstruct the legislative process. Similarly, Vaclav Klaus' party, ODS, was in the same position. Thus separation was the only rational solution for these two leaders, who had de facto veto power in Parliament and held different opinions about socio-economic issues. President Vaclav Havel offered Klaus the Federal premiership, but he preferred the premiership of the Czech Republic. This was the harbinger of coming events. On 3 June 1992 the newly-elected Federal Assembly failed to elect Havel as President. Then, on 17 July 1992, the Slovak National Council proclaimed the independence of the Slovak Republic. On 22 and 23 July 1992 Klaus and Meciar reached an agreement on the termination of the Czechoslovak Federation. The two republics were officially separated on 1 January 1993. The Slovak Constitution came into effect at the same day.68

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The Constitution of the Czech Republic, in turn, was adopted on 16 December 1992.69 As mentioned above, there were separate commissions in Parliament to prepare constitutional drafts both for the Czech and Slovak republics. At the same time, the preparation of a federal constitution continued. The Czech Commission had prepared several drafts but they were never published. Thus they had little influence on the Constitution of 1992 of the Czech Republic. However, the Slovak Constitution was based on the final draft of the Slovak Commission. As a result, the Slovak Constitution incorporated the Bill of Rights, adopted in 1991 by the Federal Assembly, whereas the Czech Constitution only made reference to the Bill. In the Czech Republic many opposition deputies had expressed their uneasiness about the Constitution. This made many observers think that it might be a close vote, although it was widely expected that the draft would be approved. The Constitution, however, contrary to what was expected by many, was supported by 172 out of 200 Czech National Council deputies and rejected by 16.70 The Slovak Constitution, on the other hand, was rejected by minority groups. It was supported by 114 deputies and rejected by 16; 4 deputies abstained, and 16 were not present. It is interesting to note that shortly before the vote, deputies representing the ethnic Hungarian element walked out.71 They argued that the Constitution did not guarantee the protection of Slovakia's national minorities.72 The delegates representing the Hungarian minority even went further, and walked out of the signing ceremony of the Constitution at Bratislava in protest against the insufficient protection of minority rights.73 Although constitution-making was considerably different in Czechoslovakia as compared to Poland and Hungary, the latter converged in their elite characteristics. Ruling elites in Czechoslovakia, for example, did not resort to public opinion on such vital issues as the drawing up of the new constitutions or even the separation of the republics. A referendum was planned in mid-December 1992 in Slovakia to approve the separation agreements, but it was postponed due to lack of time. In the Czech Republic a referendum was 68. Pavel Mates, 'The New Slovak Constitution", 1 RFE/RL Research Report 30 October 1992 No. 43, 39-42. 69. Pavel Mates, "The Czech Constitution", 2 RFE/RL Research Report 5 March 1993 No. 10, 53-57. 70. Jan Obrman, "Parliament Approves Czech Constitution", OMRl Daily Digest 17 December 1992, Internet version (http://www.omri.cz/). 71. Jiri Pehe, "Slovak Parliament Adopts Constitution", OMRl Daily Digest 2 September 92, Internet version (http://www.omri.cz/). 72. Alfred Reisch, "Ethnic Hungarian Deputies Explain Walkout", OMRl Daily Digest 3 September 1992, Internet version (http://www.omri.cz/). 73. Jiri Pehe, "Slovak Constitution Signed", OMRl Daily Digest 4 September 1992, Internet version (http://www.omri.cz/).


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seen as neither useful, nor expedient. Thus people were never asked their opinion on the termination of the old constitutional order.74 Interestingly enough, most public opinion surveys, carried out before the "Velvet Divorce", showed that a majority of Czechs and Slovaks were in favor of retaining a common state.75 3.4.4. Bulgaria The Bulgarian transition to democracy was neither a "pacted" transition like the Polish one, nor a "negotiated" one in the sense of the Hungarian transition. Neither did the regime collapse abruptly, as had happened in Czechoslovakia. Rather regime forces initiated the transition and never lost control. Although there were some pacted or negotiated elements in the Bulgarian transition, it was mainly a reform transition.76 Transition through Reform The communist regime in Bulgaria, contrary to East Central European countries, remained a totalitarian regime until its collapse. Todor Zhivkov, General Secretary of the Bulgarian Communist Party (BCP), had repeatedly declared the fidelity of Bulgaria to the USSR and always tried to establish closer ties with Moscow. Thus it was not surprising that he introduced several reforms in parallel with the inauguration of perestroika and glasnost in the USSR. Zhivkov, although reluctantly, proposed the "July Concept" introducing an economic and administrative reconstruction program, as well as certain steps towards limited liberalization to increase the freedom of speech and the press, and holding multi-candidate elections. These attempts, however, bore no fruit and the totalitarian characteristics of the Bulgarian regime remained largely unchanged until the end of the 1980's. On 10 November 1989 the Zhivkov regime officially ended. It is interesting to note that, although several independent groups came into existence in Bulgaria throughout 1989 (such as Eco-glasnost, Podkrepa and the Club for the Support of Glasnost and Perestroika) Zhivkov was overthrown by a "palace coup" engineered by Petar Mladenov, not by a bottom-up civil society movement. Mladenov's position towards reforms was not clear in the beginning, but being faced with growing popular pressure, he felt obliged to take steps towards liberalization. For example, the First Article of the Constitution, providing for the leading role of the BCP, was repealed. More 74. Wightman, op.cit. note 63, 61-65. 75. JiriPehe, "The Referendum Controversy in Czechoslovakia", 1 RFE/RL Research Report 30 October 1992 No. 43, 35-38. 76. Linz and Stepan, op.cit. note 9, 333-343.

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importantly, moderate regime forces, led by Mladenov, entered into limited negotiations with the opposition.77 TheRTT The RTT in Bulgaria took place between the BCP, and the Bulgarian Agrarian People's Union (BAPU) and the Union of Democratic Forces (UDF), an umbrella organization comprising Eco-glasnost, Podkrepa and some other opposition groups. Andrei Lukanov from the Communist Party, one of the architects of the "palace coup", presided over the talks, determined the agenda and guided the discussions. This was significant evidence for the reform characteristics of the Bulgarian transition. The talks began on 4 January 1990 and culminated in a series of agreements on certain institutional reforms. There were several issues on the agenda, such as the nature and powers of the presidency, the timing of elections and the preparation of a bill of rights. The UDF held its position on the latter issue, but it compromised on holding parliamentary elections earlier (on 10 and 17 June 1990), and on retaining Mladenov as President until the expiry of the term of the Grand National Assembly which was to draw up and promulgate a new constitution within 18 months. The parties of the RTT signed three agreements on 12 March 1990 on these issues. On 3 April 1990 the National Assembly amended the communist Constitution to create the post of president. On the same day, Petar Mladenov was elected President as had been agreed in the RTT. Moreover, the Assembly adopted two important laws, an Electoral Law and the Law on Political Parties which would set the institutional structure of a multi-party system in Bulgaria. Lastly, the BCP voted to change its name to Bulgarian Socialist Party (BSP).78 The 1990 Elections to the Constituent Assembly On 10 and 17 June 1990 the elections to the Constituent Assembly were held. The BSP emerged from the elections as the victor. On 30 July 1990 the newly-elected Grand National Assembly, functioning as a law-making body at the same time, set up a commission to draw up the new constitution as envisaged in the RTT agreements. The BSP was, in fact, the largest political party in the Grand National Assembly, and able to control the legislative process, but for tactical reasons, 77. John D. Bell, "Bulgaria", in Developments in East European Politics, (Stephen White, Judy Batt, and Paul G. Lewis, eds.), Macmillan, London 1993, 83-97. 78. John D. Bell, "Democratization and Political Participation in 'Post-Communist' Bulgaria", in Politics, Power, and the Struggle for Democracy in South-East Europe, (Karen Dawisha and Bruce Parrott, eds.), Cambridge University Press, Cambridge 1997, 364.


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it sought the support of the UDF. First, the BSP did not want to shoulder alone the responsibility of economic reforms which would create hard times for the Bulgarian people. Second, it was hardly possible for the BSP to muster a twothirds majority to elect the President and ratify the new constitution without the support of the UDF. The BSP, as a tactical move, attempted to set up a "government of national unity" with the UDF, but the latter refused to take part in such a coalition. While the government problem was still unsolved, the election of the President gave rise to another problem. This was the first sign of the approaching impasse in the newly-elected Parliament. The crisis, however, was avoided relatively easily when parties compromised on Zelyu Zhelev as president candidate. He was elected President in August 1990. Although the problem of the presidency seemed to be solved, there was still no government in the country. Since The UDF and other parties did not want to take the responsibility for economic reforms, they kept refusing to join a government which would be set up by the BSP. Thus the latter had to form a government alone in September 1990, with Prime Minister Andrei Lukanov at the helm. The predictions of the UDF and other parties proved to be true. The BSP lost a great deal of popularity during its reign from 21 September 1990 to 26 November 1990. Faced by growing popular reaction, Lukanov resigned in October 1990. On 2 January 1991 secret negotiations took place between the UDF and the BSP, known as the "Second RTT". As a result, the BSP, the UDF, and the Bulgarian Agrarian National Union (BANU) agreed on setting up a government led by Dimitar Popov. They also compromised on holding new elections in March and May and on giving priority to economic reforms in the parliamentary schedule. Although the primary task of the Assembly was to draw up a new constitution, there was little progress in constitution-making by the beginning of 1991. The inertia of the BSP and the Assembly generated public disillusion. Not only the Bulgarian people, but also the Bulgarian political elites were unhappy with the working of the Assembly. The UDF, for example, took a critical position towards the BSP by arguing that it was trying to regain its popularity by postponing elections as long as possible. President Zhelev, on the other hand, wanted the BSP and the Assembly to solve the constitutional problem immediately. He maintained that the BSP had not kept its promise to the electorate, and began to exert more pressure on the Assembly. The BSP, facing pressure from the public, opposition parties and from the President, concentrated on constitution-making. By April 1991, however, there was still no draft constitution on the agenda of the Assembly. Zhelev, in the end, set a deadline (17 July 1991) for the completion of the constitution-making task. Although the BSP held the absolute majority in the

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Assembly, given the popularity of Zhelev, it could not run the risk of defying him.79 After Zhelev's maneuvers, several groups in the UDF proposed different strategies against the BSP's delaying tactic. One group, which could be called radicals, proposed to postpone the adoption of the new constitution, and exert more pressure on the BSP to call early elections, whereas another group, which could be called moderates, proposed to continue to work on the Constitution under the condition of observing the deadline set by the President. The BSP adopted the moderates' proposals and agreed on the observation of the deadline as well as on the calling of new elections if the new constitution could not be adopted within the appointed time.80 The moderate group in the UDF voted in favor of the Constitution. Most radical UDF deputies and the deputies of the Movement for Rights and Freedoms (MRF), representing mainly the Turkish minority in Bulgaria, were either absent, or voted against the Constitution. Some UDF deputies and a small group from BANU abstained. Some radicals in the Parliament even went on hunger strike to protest against the Constitution. Thus constitution-making led to the disintegration of the UDF and culminated in the victory of the BSP. The latter, thanks to its tactical decision, not only secured a two-thirds parliamentary majority for the adoption of the Constitution, but also eliminated its most important political rival, the UDF. The Constitution was approved by 309 out of 400 votes on 12 July 1991. The toughest opposition to the newly-adopted basic law came from the MRF. The Movement argued that the Constitution failed to protect minority rights, and going even further, that the protection of minority rights had been better under the communist Constitutions of 1947 and 1971 in some respects.81

3.4.5. Romania The communist regime in Romania, as had happened in Czechoslovakia, collapsed abruptly, but there was a crucial difference between the two cases. Transition to democracy in Romania was the most violent in the region. On the other hand, unlike the Polish and Hungarian transitions, there was neither negotiation, nor pact in the Romanian transition. The latter was also different from the Bulgarian transition in that communist authorities opposed political and economic reforms until the collapse of the communist regime. Under the 79. See, Kjell Engelbrekt, "The Grand National Assembly to Adopt a New Constitution", Report on Eastern Europe 19 April 1991, 5-8. 80. Generally see Tony Verheijen, Constitutional Pillars for New Democracies-The Cases of Bulgaria and Romania, DSWO Press, Leiden 1995, 105-153. 81. See Kjell Engelbrekt, "Constitution Adopted, Elections Set", Report on Eastern Europe 16 August 1991, 1-5.


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"sultanistic" rule of Nicolai Ceausescu, as it was described by Linz and Stepan,82 there was no room for independent groups like the Polish Solidarity, the Hungarian Democratic Forum and Charter 77 of Czechoslovakia. Thus, given the weakness of the opposition, it was not surprising that communists won the first free elections thanks to their organizational and financial power. The electoral victory of communists was particularly important for constitution-making because this Assembly drew up the post-communist Constitution of Romania. The Collapse of Communist Regime in Romania Upon the death of Gheorghiu-Dej, Romania's unchallenged leader, Nicolae Ceausescu became First Secretary of the Romanian Workers' Party in 1965. Thereafter, the name of the Party was changed to Romanian Communist Party (RCP), and the post of First Secretary was replaced by that of General Secretary. General Secretary Ceausescu made himself gradually into a veritable dictator and held his position unswervingly until the end of the 1980's. He harshly criticized other East European countries who were making the transition to democracy one after another. There was, however, an emerging grass roots popular movement in Romania. Popular demonstrations in Timisoara in mid-1989 were the first indication of subsequent events. Laszlo Tb'kes, a young Protestant pastor, was faced with police pressure and transferred to a remote country parish because he had allowed three of his students to recite poetry during a service in the Church. Needles to say, this was a pretext. The actual reason for his transfer was that he was a critic of Ceausescu's regime. His supporters staged demonstrations in Bucharest, but security forces responded by opening fire on the crowd. Many people were killed. On 21 August 1989 Ceausescu attended a mass rally in Bucharest with the aim of proving his popularity, but, surprisingly enough, his speech was interrupted by protest slogans. And-government demonstrations continued on the same day, and clashes broke out between security forces and the people. As popular unrest escalated, Ceausescu declared a state of emergency. The army however, took the side of the opposition. This was the turning point in the Romanian transition. When demonstrators marched towards the RCP Central Committee headquarters, Nicolae and Elena Ceausescu fled from the top of the building by helicopter. On 25 December 1989 they were captured and executed after a token trial. After the overthrow of Ceausescu, an interim government was set up by a small group, known as the National Salvation Front (NSF), consisting mostly of former communists. On 26 December Ion Iliescu and Petra Roman became the provisional 82. Linz and Stepan, op.cit. note 9, 347.

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Head of State and Prime Minister respectively. This was the end of communist rule in Romania.83 The Parliamentary Election of 1990 On 22 December 1989 the NSF issued a communique declaring the abolition of communist power structures and emphasizing the necessity of drawing up a new constitution. But it remained silent about the legal status of the Romanian Constitution of 1965. Given the wording of the Communique, the Constitution of 1965 ceased de facto and—although somewhat vaguely—de jure to exist. With the same document, all communist institutions, including Parliament which would draw up the new constitution, disappeared too. Thus, in Romania, by 22 December 1989, on the one hand, a parliament was needed to draw up a new constitution, on the other, a constitution was needed to lay down the principles of the parliamentary elections. This legal stalemate placed Romania in a vicious circle.84 However, the circle was broken on 23 January 1990, when the NSF declared that post-communist elections would be held in April 1990. The Front revealed that it would participate in these elections. That meant that the new constitution could be drawn up by the newly-elected Parliament. This declaration was criticized by other political parties, student associations and intellectuals on the ground that it left no time to other political forces to prepare themselves for the upcoming elections. Some even saw this declaration as a step towards a new single-party regime. Thus, as the opposition to NSF grew, a "Provisional Council of National Unity" was set up on 1 February 1990. The Council, like the NSF, was a selfappointed body and composed of several high-ranking military officers as well as some reformist communists, but it was different from the Front in consisting of 29 other groups which shared power with the former Front members. The Council of National Unity began to function as a law-making body. A decree-law (no. 92/1990) on the "Election of the Romanian Parliament and President", issued by the Council on 14 March 1990, set the legal framework of the Romanian transition to democracy and constitution-making. According to Article 80 of the Law, the Assembly of Deputies and the Senate, in a joint session, were to form a constituent assembly which was to adopt the new Constitution of Romania. Its work was to be presided over by the 83. For more details, see Vladimir Tismaneanu, "Romanian Exceptionalism? Democracy, Ethnocracy, and Uncertain Pluralism in Post-Ceausescu Romania", in Politics, Power, and the Struggle for Democracy in South-East Europe, (Karen Dawisha and Bruce Parrott, eds.), Cambridge University Press, Cambridge 1997, 409-417. 84. Lucian Mihai, "On the Process of Adopting the Romanian Costitution", 36 Revue Roumaine des Sciences Juridique 1992 No. 2, 127-136.


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Speaker of the Assembly of Deputies and the President of the Senate, in turn. Until the promulgation of the Constitution, Parliament was to function as a legislative assembly too. After the adoption of the Constitution, Parliament was to schedule new elections within but not later than one year.85 The Election Law also included several rules concerning the nature and the functions of state agencies. A bicameral legislature was to be elected on a proportional basis on the same day as direct presidential elections. Presidential and parliamentary elections were held on 20 May 1990 under the terms of the Election Law. Ion Iliescu, the candidate of the NSF, won the presidential elections by receiving 85% of the votes cast. The NSF was also very successful in the legislative elections by winning 263 seats out of 387 in Parliament and 92 seats out of 119 in the Senate. The elections, however, were overshadowed by allegations of irregularities. The Adoption of the Constitution of 1991 A constitutional commission was set up on 11 July 1990, but economic reforms and growing popular unrest, rather than constitution-making, occupied the Romanian political agenda immediately after the elections. There was little progress in constitution-making by mid-1991. The discussions on the new constitution could only begin in September 1991, but were interrupted by the resignation of the Petra Roman government due to increasing public pressure. Theodor Stolojon became Prime Minister and set up a coalition government composed of members of the NSF, NLP (National Liberal Party), ADPR (the Agrarian Democratic Party of Romania) and the Romanian Ecological Movement. With the resolution of the government crisis, constitution-making resumed. On 11 December 1990 the first draft constitution was submitted to Parliament. Following parliamentary discussions, the Constitutional Commission reviewed the draft. The revised version was submitted again to Parliament on 9 July 1991. Further parliamentary discussions on the draft began on 10 September 1991. Up to 1000 amendments were proposed, and 145 of them were accepted. The last version of the draft was adopted by an overwhelming majority of 81%.86 Despite this high figure, the Constitution was criticized by opposition parties in many respects. They particularly focused on the broad powers conferred on the President and on the Constitutional Court's set-up.87 On the other hand, the Hungarian Democratic Federation of Romania, representing the Hungarian minority,

85. Michael Shafir, "The Electoral Law", Report on Eastern Europe 4 May 1990, 28-31. 86. Generally see Verheijen, op.cit. note 80,155-198. 87. Michael Shafir, "Romania: Constitution Approved in Referendum", RFE/RL Research Report 10 January 1992, 53-55.

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warned that the First Article of the Constitution, providing that Romania was a unitary and indivisible national state, would be used to deny the ethnic Hungarians their rights and liberties.88 Consequently, the Constitution bore the stamp of the NSF. On the one hand, a two-thirds majority in both chambers of Parliament was controlled by the Front. On the other hand, the President, who became very influential in Romanian politics after the elections, was the candidate of the NSF. Moreover, the opposition was highly fragmented, thus it could not play an effective role in constitution-making. The Romanian Constitution of 1991, therefore, appeared as a dissensual document shaped by the NSF. The dissensual characteristics of the Constitution were accentuated by weak popular support in a referendum held on 13 December 1991 on the adoption of the Constitution. 69% of eligible voters took part in the referendum and only 54% of them voted in favor of the Constitution.

3.4.6. Albania Transition to democracy in Albania was a "regime-initiated" transition. Communist authorities, facing growing public pressure, initiated democratization in the country. Thus the Albanian transition, as the Bulgarian transition, falls in the category of reform transition. Albania, however, differs from Bulgaria in that it operated for a long time under its communist Constitution which had been amended extensively several times. A number of drafts had been prepared in Albania, and one of these drafts, the draft of President Sali Berisha, was rejected in a referendum held on 6 November 1994. The country was on the verge of total chaos throughout 1997 owing to popular upheaval erupting after the collapse of pyramid investment schemes. By the end of 1998, however, Albania managed to adopt its first post-communist constitution. The End of Communist Rule In December 1985 Enver Hoxha, Albania's unchallenged communist leader, died. Ramiz Alia succeeded him as First Secretary of the Party of Labor of Albania (PLA). He was also elected President of the Presidium of the People's Assembly in February 1987. In November 1989, on the 45th anniversary of the end of Nazi invasion, an amnesty was proclaimed for some prisoners. Among them, there were political prisoners, who had been excluded from amnesty in previous years. The amnesty encouraged reform demands in the country. One popular demonstration was followed by another. Even though Ramiz Alia denied that there was popular unrest in the 88. Michael Shafir, "Romania: Toward a Rule of Law, 1 RFE/RL Research Report 3 July 1992No.27,37.


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country, he felt obliged to propose some limited political and economic reforms in January 1990. In March and April anti-government demonstrations continued. In July 1990 people took the streets in Tirana to vent their grievances, but they were violently dispersed by security forces. Many Albanians sought asylum in the Federal German Embassy. These were followed by others. Before long, up to 5000 people took refuge in the Italian, French, Greek, Turkish, Polish, Hungarian and Czechoslovak embassies. Most of these refugees managed to leave the country thanks to an evacuation operation coordinated by the UN. In December 1990 communist authorities proclaimed that the elections to the People's Assembly would be held on 10 February 1991, and that independent political parties would be allowed to compete in the elections. Even this did little to ease the growing tension in the country. Ramiz Alia appointed a provisional government led by Fatos Nano. Before long, however, he declared a state of emergency and formed a nine-person presidential council to restore peace and order in the country. In the meantime, parliamentary elections were postponed until March 1991 thanks to the pressure of newly established opposition parties. The Parliamentary Elections of 1991 and the Adoption of a Provisional Constitution The first post-communist elections, tainted by several allegations of rigging and misconduct, were held on 31 March, 7 and 14 April 1991. The APL emerged as the victor from the elections by winning 169 seats out of 250. The second party was the Albanian Democratic Party (ADP) with 75 seats. On 30 April 1991 the newly-elected Parliament adopted a provisional constitution. The adoption of this document was, in fact, the outcome of a compromise between the PL A and the ADP. The deputies of the latter argued that the country was too unstable to adopt a permanent constitution, thus they proposed to enact a fundamental law which would provide the legal and institutional framework for economic and political reforms. Communist deputies, on the other hand, argued that it was necessary to adopt a new constitution to solve certain problems concerning the working of the political system such as the election of the President and the formation of the new government. Finally, the parties compromised on a middle way formula. Communists were strong enough to repudiate the demands of the opposition, but this would have led to the opposition walking out of Parliament. This, in turn, would have aggravated the political situation which had already been extremely unstable. Communists opted to compromise with the opposition. This was interpreted by the latter as a political victory.89 89. Louis Zanga, "A Ttransitional Constitutional Law", Report on Eastern Europe 31 May 1991, 1-4.

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Under the provisional constitution, Ramiz Alia and Fatos Nano became President and Prime Minister respectively. Growing popular unrest in the country, however, led to the resignation of the Nano government in June 1991. A government of national stability, a coalition government (consisting of the PLA, the DPA, the Albanian Republican Party, the Social Democratic Party of Albania, the Agrarian Party, and nine independent members), was set up with Ylli Bufi at the helm on 12 June 1991. In the meantime, a special commission was created to prepare a new constitution. In November 1991 the DPA withdrew from the coalition claiming that the Socialist Party of Albania (SPA, the former PLA) was procrastinating on political reforms. Then, Vilson Ahmeti set up a provisional coalition government which was composed of non-party members, intellectuals and specialists. The Referendum of 1994 The DPA won the new parliamentary elections which were held on 22 and 23 March 1992. On 3 April 1992 Ramiz Alia resigned as President upon the electoral failure of the SPA, and the 140-member People's Assembly elected Sali Berisha, the leader of the DPA, as President. In mid-April Aleksander Meksi set up a new coalition government. As the country was watching governments coming and going, the constitution-making process progressed very slowly. Upon the Constitutional Commission's failure to submit a draft constitution within the appointed time, the SPA walked out of Parliament in June 1993. Moreover, it proposed a motion of no confidence against the government in late July 1994 on the grounds of several reasons including the delays in the presentation of a draft constitution. This accelerated the constitution-making procedure to a certain extent. A draft constitution was submitted to President Berisha on 4 October 1994, and hastily put to a referendum on 6 November 1994. But the President's draft was rejected by the people.90 The failure of Berisha's draft was mainly the result of the fact that most voters were against the regime in general, and Berisha in particular. Adding to this, other factors certainly played a role in the rejection of the document. First, the draft provided that the leaders of religious groups should be born in Albania and have resided in the country for at least 20 years. This was against the interests of the Greek minority, living in the south of Albania. More specifically, the Albanian Orthodox Church had invited the Greek Archbishop Anastasios to head the Church and help to re-establish Orthodox institutions in the country. Under the proposed constitution, it became impossible for Anastasios to stay in Albania. This prepared the ground for the rejection of the Constitution by the Orthodox South. Second, the draft came 90. Fabian Schmidt, "Winning Wary Recognition for Democratic Reforms", Transition 25 August 1995, 3-7.


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under criticism on the ground that it conferred disproportionate power on the President. Most political groups, favoring a parliamentary system, voted against the Constitution. The Western and Albanian media, in turn, given the importance of the Constitution for joining the EU, interpreted its rejection as an indication of people's reluctance to enter the European Club.91 After a period of chaos and anarchy owing to the collapse of pyramid investment schemes, the process of constitution-making resumed in Albania with the formation of the new government in Summer 1997. It is important to note that international actors played a positive role in the progress of the working on the new constitution. The Constitutional Commission, set up by a parliamentary decision on 3 September 1997, began immediately to work on a draft constitution.92 However, the Union for Democracy, a coalition led by the former President Sali Berisha's Democratic Party, not only refused to participate in the drafting process, but also repeatedly called on Albanians to boycott the referendum on the adoption of the Constitution.93 Berisha's efforts bore no fruit, as 50.57% of the electorate participated in the voting and 93.5% of them voted in favor of the Constitution. The Constitution went into effect on 28 November 1998, on the 86th anniversary of the declaration of independence of Albania from the Ottoman Empire. Berisha and the Democratic Party claimed that the turnout was only 39.6% and the results were falsified. They even went further by declaring that they would not recognize the Constitution.94 Consequently, one may argue that the long constitutionmaking process in Albania failed to produce a document satisfying all major political groups in the country.

3.5. Conclusions There were a number of similarities between East European transitions to democracy, particularly in Poland and Hungary. Most importantly, in both countries there were some negotiations and compromises between regime forces and the opposition. This imparted the Hungarian and Polish transitions their negotiated and pacted characteristics. There were also some differences between the two cases in terms of the actors and the results of the negotiations between outgoing and incoming forces. First, the Hungarian opposition had 91. Fabian Schmidt, "Between Political Strife and a Developing Economy", Transition 30 January 1995, 8-13. 92. Constitution Watch, "Albania", 7 EECR 1998 No. 3, Internet version, (http:// www.law.uchicago.edu/Publications/CSCEE/EECR/). 93. Constitution Watch, "Albania", 7 EECR 1998 No. 4, Internet version, (http:// www.law.uchicago.edu/Publications/CSCEE/EECR/). 94. "Albanian Presidenet Signs Constitution into Law", RFE/RL 30 November 1998, Internet version (http://www.rferl.org/).

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already been organized into political parties even in the wake of the RTT. Thanks to its coherent structure, the Hungarian opposition developed and defended its institutional proposals firmly. In Poland, on the other hand, the opposition consisted of several independent groups, in particular the Solidarity movement, lacking an overall organizational framework. Second, the participants of the Hungarian RTT decided to hold parliamentary elections first. Although some amendments had been introduced to the Constitution of 1952 before the parliamentary elections, the final version of the basic law was shaped by the forces coming to the fore after these elections. This, at least at the elite level, provided a consensual basis for the emerging regime in Hungary. The 1991 parliamentary elections in Poland, in turn, gave way to a fragmented legislature. As a result, the post-Solidarity parties could not reach an agreement on vital constitutional issues. The situation was aggravated by the fact that the President exploited the fragmented landscape of Parliament to dictate his will. Third, the Polish RTT did not produce a fullfledged constitution, whereas the Hungarian "September" and "April" pacts created an almost complete constitutional structure. Consequently, the relative legitimacy and the success of the Hungarian Constitution can be traced back to the RTT. Despite these differences, the Hungarian and Polish cases converged on an important aspect of the new constitutions; neither the Hungarian, nor the Polish Constitution could be considered a "social contract". The April and September pacts, which had given the current Hungarian Constitution its final shape, were elite accommodations. The Polish Constitution, on the other hand, rested on only a 30% majority of the total electorate which can hardly be considered sufficient for establishing the legitimacy of a constitution. Transition to democracy in Czechoslovakia was different from Poland and Hungary. Unlike the pacted or negotiated transition in the latter countries, the regime collapsed abruptly in Czechoslovakia. Constitution-making also proceeded differently in this country. It was shaped more by the collapse of the Czechoslovak Federation, than by the nature and mode of a democratic transition. Nevertheless, the final document was no different from the Polish and Hungarian constitutions in terms of its elite characteristics. People were not even asked their opinion about the most important constitutional issue: the break-up of the Federation. Bulgaria and Romania made their transitions to democracy through reform and rupture modes respectively. Although there were some pacted and negotiated elements in the Bulgarian transition, it was mainly a regimeinitiated transition. In Romania, as opposed to Bulgaria, there was a "societyinitiated" democratization culminating in the most violent transition in the region. In spite of such differences in transitions, there were some common elements in constitution-making in these countries. First, certain political


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groups criticized new constitutions; the Turkish minority in Bulgaria and the Hungarian minority in Romania did not give their support to the new basic laws. Second, new constitutions in Bulgaria and Romania were shaped by former communists in a dissensual style of constitution-making. The opposition, because of the stratagems of the ruling BSP in Bulgaria, and of its internal fragmentation in Romania, could not play an important role in constitution-making. Albania was an exceptional case in Eastern Europe. Transition to democracy has been very painful, uncertain and lengthy. Naturally, the constitution-making process was affected negatively by unfavorable conditions created by such a painful transition. More importantly, although a great deal of time and resources had been spent in adopting a new constitution, successive attempts dramatically failed. The adopted document, on the other hand, was far from being satisfactory for the major political forces in the country. Lastly, we wish to point out that East European experience offers us valuable insights not only into the relationships between constitution-making and transition to democracy, but also into the timing of constitutionmaking. The Polish example, in particular, refutes the arguments of those advocating stop-gap constitutionalism. The Bulgarian and Romanian experiences, however, only partially confirm counter arguments about early constitution-making. Accordingly, it would be more suitable to look beyond the timing of constitution-making to determine the sources of legitimacy of constitutions as we have been doing in this study.

3.6. Transition to Democracy and Constitution-Making in the Former USSR Transition to democracy in the former USSR, then in the former Soviet republics, was considerably different from Eastern Europe. First and foremost, while East European countries made a double transition—from authoritarian or totalitarian regimes to democracy, and from central planning to market economy—the former Soviet republics made a triple transition— they made a transition from a semi-imperial federal structure to independence in addition to market democracy. In connection with the latter point, with the exception of Yugoslavia and Czechoslovakia, East European states were nation-states in the communist period, and they retained their unitary character after the collapse of communism. The former USSR, however, was a federal state. It dissolved during transition, or more correctly was transformed into another federal entity. As a result, democracy and independence went hand in hand in most republics. In some republics, on the other hand, democracy has fallen behind independence among the preferences of ruling

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powers. Today it is still hardly possible to speak of a transition to democracy in these particular countries. Another difference between East European transitions and those in the former USSR derived from the nature of, and the role played by the civil society organizations in the respective democratization movements. In Eastern Europe Gorbachev's policies led to the emergence of various independent groups. These groups proliferated throughout 1989. They organized themselves around common issues, such as environmental protection, human rights, ethno-national issues and economic problems. Their actual target, however, was the power and privileges of the Soviet-sponsored communist elites. Their common goals draw them to unite under umbrella organizations, such as Civic Forum in the Czech Republic, Public Against Violence in Slovakia, Solidarity in Poland, the Democratic Forum in Hungary and the Union of Democratic Forces in Bulgaria. They rapidly grew stronger and managed to enter negotiations with regime forces. As a result, they played a crucial role in the transition period. Even after the transition, although they became weaker, they took part in the creation of basic institutions of the emerging regimes. At least, they participated in discussions on basic regime institutions. Similar independent groups with similar goals emerged also in the former Soviet republics. However, most of such groups were unable to influence transition and post-transition politics as their East European counterparts had done. The results of the 1990 republican elections furnished evidence about the nature of opposition forces in the USSR.95 Accordingly, opposition groups in the Baltic republics, Georgia and Armenia gained a veritable victory in the elections and managed to enter communistdominated parliaments, whereas in Central Asian parliaments opposition was almost non-existent. The results of the 1990 elections were highly important for constitution-making in the former USSR. For, with few exceptions, post-communist constitutions of the former Soviet republics were drawn up by these parliaments. Most consensual constitutions in the region were made by parliaments in which regime forces shared their power with opposition forces, e.g., the Baltic and Georgian constitutions. Mostdissensual documents, in turn, were the products of parliaments in which opposition forces were not represented. Central Asian constitutions, in particular, were imposed by regime authorities on other political groups.

95. See Kathleen Montgomery and Thomas F. Remington, "Regime Transition and the 1990 Soviet Republican Elections", 10 The Journal of Communist Studies and Transition Politics 1994, 55-79.


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3.6.1. USSR In the former USSR, although there were several reform attempts in the communist period, sweeping changes took place under Mikhail Gorbachev. His reform package, known also as perestroika and glasnost, led to the transformation of the former USSR. He, in fact, wanted to preserve the main elements of the communist system, particularly the leading role of the Communist Party and the planned economy, but matters developed considerably different from his original intentions. To put it crudely, he managed to wrest power from the Party by activating nationalistic and democratic forces, but then he could not master them. This is not the place to make a thorough analysis of the causes of the collapse of the former USSR. For the purpose of the current study, it suffices to note that transition to democracy in the former USSR was a regimeinitiated transition. Gorbachev and his allies, whatever their original intentions were, played a leading role in the democratization of the country. Gorbachev first attempted to rejuvenate the Soviet economy. To this end, he introduced some limited measures, known also as the "acceleration program". Before long, he and his allies came to realize that more radical steps had to be taken to solve the acute problems of the country, but it became apparent that the most important obstacle to reform was the existing power structure, particularly the nomenklatura. Thus Gorbachev introduced the concepts of glasnost (openness) and demokratizatsiya (democratization) to make the system more responsive and create a lively civil society against the one-party state. The 19th Conference of the Communist Party (CPSU), which was a highly important event for the perestroika movement, was convened between 28 June and 1 July 1988. Following the Conference the post of Chairman of the Supreme Soviet was created and the Constitution of 1977 was amended accordingly in December 1988. In the elections to the Congress of People's Deputies, held on 26 March 1989, a number of party candidates were defeated. On 25 May 1989 the Congress elected Gorbachev as Chairman of the Supreme Soviet. The repealing of Article 6 of the Constitution of 1977, defining the leading role of the Communist Party, in March 1990 was another turning point in Soviet democratization. A series of laws, aiming to end one-party hegemony and overhaul the federal structure, followed the March 1990 amendments. One of the most important laws of this period was the "Secession Law" of 3 April 1990. The latter, regulating the secession procedure from the USSR, envisaged a procedure requiring a referendum and a transition period for secession. It was, in fact, designed for the Baltic nations who were apparently not willing to stay within the USSR, but they did not follow the procedure and declared their independence unilaterally. Thus the Law

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failed to fulfill its original mission, but it produced a much more important effect on the relations between the Union and the republics. It gave the message that the right to secession was no longer fictive and, as subsequent events proved, the republics got this message correctly. On 2 April 1990, a law, amending the "Law on Crimes Against the State", was adopted. According to the Law in question, peaceful campaigning for the dissolution of the USSR was no longer a crime. On 26 April 1990, another important law, "On the Delimitation of Powers between the USSR and the Subjects of the Federation", was enacted. This Law, in turn, was aimed at repairing the broken federal machinery of the USSR and regulating the power relations within the Union. On 12 June 1990 the Russian Congress of People's Deputies, presided over by Boris Yeltsin, proclaimed a declaration of state sovereignty. This declaration laid the foundations for the future government of Russia. Another important document in this period was the "Party Statute" of July 1990. Although it was mainly designed to give a more democratic character to the Party, it was, in fact, its death certificate. Lastly, the powers of the President were expanded with a series of constitutional amendments in December 1990. According to Gorbachev and his advisors, this was necessary to cope with the pressing economic problems of the Union. Thus two main elements of the Soviet System, one-party hegemony and federalism had already undergone a radical transformation even before the so-called August Coup.96 As reforms progressed, the urgency of the need to elaborate a new Union Treaty was felt ever more strongly. Although several drafts had been prepared, and even one draft was about to be signed, these attempts came to naught by a coup d'etat on 19-21 August 1991. The conspirators were well aware that signing a new Union Treaty would proclaim the end of the USSR de jure, which had already been in the process of dissolution de facto. Thus they engineered the August Coup to stop the fragmentation of the Soviet Union, but, contrary to their original intentions, the Coup accelerated its disintegration. After the coup, representatives from the Russian Republic, Belarussia, Armenia and the Central Asian republics (Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, Uzbekistan) signed a treaty on the Economic Community on 18 October 1991. This was the dress rehearsal for the Commonwealth of Independent States (CIS). On 8 December 1991 the presidents of Russia, Ukraine, and Belorussia signed an agreement in Minsk creating a Commonwealth of the three Slavic republics, thus proclaiming the end of the USSR. Although after the Minsk Agreement it was hardly possible to speak of the USSR, several aspects of the Agreement were legally controversial. First, the 96. Generally see F.J.M. Feldbrugge, Russian Law: The End of the Soviet System and the Role of Law, Martinus Nijhoff Publishers, Dordrecht 1993,119-121.


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Agreement was signed only by the presidents and prime ministers of the three republics, but it was not clear whether they had the right to dissolve the Union. Second, even after the Agreement, some of the republics (e.g., the Central Asian ones) were still members of the USSR. Third, the Union still fulfilled some of its functions de jure and de facto through Union agencies, such as the President, the Supreme Soviet, ministries, etc. More importantly, the source of the power of the three presidents was the USSR Constitution of 1977. Thus it can be argued that they changed the Constitution in a way not prescribed in the Constitution. As F.J.M. Feldbrugge put it, ...the declaration of the three presidents of 8 December can...only be regarded as an unconstitutional coup, albeit a successful one. It enjoyed considerable public support and was joined by almost all the other republics.97 Although the Minsk Agreement interrupted legal continuity at the federative level in the former USSR, most republics adopted their post-communist constitutions in accordance with the amending rules of the communist constitutions. More importantly, most post-communist constitutions in the republics were drawn up by rump parliaments elected in the communist period. This was one of the most important differences between East European constitution-making and constitution-making in the former USSR. Some republics, such as Estonia, Latvia, Lithuania, Turkmenistan and Uzbekistan, made their constitutions immediately after the dissolution of the USSR. Others, such as Ukraine, drew up their new constitutions more recently. Some republics, such as Kazakhstan and Belarus, even promulgated their second generation post-communist constitutions. Kyrgyzstan, in turn, amended its post-communist constitution comprehensively.

3.6.2. The Russian Federation In Russia, the First Russian Congress of People's Deputies appointed a constitutional commission to draw up the new Constitution of Russia in June 1990. The Commission was chaired by Boris Yeltsin and comprised 102 deputies as well as legal experts. Oleg Rumyantsev served as Executive Secretary and was responsible for day-to-day activities of the Commission.98 97. Ibid., 136. 98. For constitutional developments in Russian Federation, see Vera Tolz, "Drafting the New Russian Constitution", 2 RFE/RL Research Report 16 July 1993 No.29, 1-12. Ariel Cohen, "Competing Visions: Russian Constitutional Drafts and Beyond", 2 RFE/RL Research Report 24 September 1993 No.38, 50-56. Wendy Slater, "Russia's Plebiscite on a New Constitution", 3 RFE/RL Research Report 21 January 1994 No.3, 1-7. Vera Tolz, "Problems in Building Democratic Institutions in Russia", 3 RFE/RL Research Report 4 March 1994 No.9,1-7.

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An outline was agreed on in August 1990, and published in November 1990. However, the debate on the draft in the Congress was postponed due to the opposition of the communist deputies. In October 1991 the Commission unveiled its second draft, but the Fifth Congress of People's Deputies again failed to approve the draft. During the discussions, two important problems came to the fore, horizontal (i.e., the relationships between executive and legislative agencies) and vertical (i.e., the relationships between the Union and the republics) separation of powers. On the instruction of the Congress, the Commission began to prepare another draft for the Sixth Congress. According to Oleg Rumyantsev, Secretary of the RSFSR Constitutional Commission, "three groups of RSFSR deputies—'Communists of Russia', the national autonomies, and deputies who resented the fact that they had had no part in drawing up the new RSFSR constitution—were blocking the work of the Commission."99 The third draft, published in March 1992, was debated by the Sixth Congress of People's Deputies in April 1992. On the eve of the Sixth Congress, however, alternative constitutional drafts emerged: two drafts prepared by communist factions, that of Anatolii Sobchak (Mayor of St. Petersburg) and a group of leading jurists, and that of Sergei Shakhrai (Yeltsin's legal adviser). Although Yeltsin was Chairman of the Constitutional Commission, he ignored the draft of the Commission and supported Shakhrai's draft envisaging a strong presidential executive. This was naturally much to the chagrin of the Commission and the Congress. The latter refused even to consider Shakhrai's draft and approved only "the general concept and basic proposals" of the new Russian Constitution drafted by the Parliamentary Commission.100 The Congress also called for further revision. Yeltsin, in turn, proposed to put Shakhrai's draft to a referendum.101 The result was a stalemate in the constitution-making process. The process was resumed only after the Congress and the President had reached an agreement to hold a referendum on confidence in the President and the desirability of holding earlier presidential and parliamentary elections. Although the referendum, held on 25 April 1993, was not on the adoption of the Constitution, Yeltsin unveiled the outline of his draft constitution two days before the referendum.102 This gave him an opportunity to 99. Ann Sheehy, "Obstruction of Work of RSFSR Constitutional Commission", RFE/RL 10 April 1991, Internet version (http://www.omri.cz/). 100. Julia Wishnevsky, "Concept of the Draft Russian Constitution Approved", RFE/RL 21 April 1992, Internet version (http://www.omri.cz/). 101. Alexander Rahr, "Yeltsin Supports Shakrai' s Constitution", RFE/RL 14 May 1992, Internet version (http://www.omri.cz/). 102. Vera Tolz, "Yeltsin Makes Public Key Points of New Constitution", RFE/RL 26 April 1993, Internet version (http://www.omri.cz/).


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interpret the referendum results, at least informally, as the approval of his draft. According to official results, 60% of the Russian people gave their support to Yeltsin. On 29 April 1993 the full text of the draft in question, known as the presidential draft, was unveiled.103 The draft was prepared by legal experts, including Sergei Alekseev (the former Chairman of the USSR Committee for Constitutional Supervision), August Mishina (specialist on American Constitutional Law), some reformist politicians, such as Anatolii Sobchak (Mayor of St. Petersburg) and Shakhrai (Deputy Prime Minister). By mid-1993, therefore, there were two constitutional drafts in Russia, a presidential draft (prepared by legal experts and politicians), and a parliamentary draft (prepared by the Constitutional Commission). On 12 May 1993 Yeltsin issued a decree on "Measures for Concluding the Preparation of a New Constitution of the Russian Federation". This decree set up a working commission to complete the work. The Commission was to function until a constituent assembly would convene in early June.104 Yeltsin, along with other deputies, also claimed that the 1993 referendum, calling for new parliamentary elections, made the legitimacy of the rump Parliament controversial. A new constitution, therefore, should be adopted by a newly elected parliament. On 21 May 1993 Yeltsin issued another decree regulating the convocation of a constituent assembly. The decree conferred the power to discuss and finalize the draft on this body, but it remained silent about the adoption process. Finally, the Constitutient Assembly was convened on 5 June 1993 amid growing signs of possible political crisis. There were mainly three issues on the agenda: the preparation of a draft, the determination of the method of its adoption and the establishment of the process of electing a new parliament. Before long, Assembly delegates came to realize that it was going to be very difficult to reach an agreement on key issues. At a session, held on 16 June 1993, the delegates agreed on a declaration on the principles of the new constitution, but some of them were not satisfied by the silence of the declaration on the status of the republics and regions. The constitutional draft, in effect, could again not be finalized. Another plenary session was arranged to discuss the draft. Before the delegates adjourned, Yeltsin issued another decree, according to which certain selected delegates were to complete the final draft and submit it to the President. As the session convened as it had planned on 26 June 1993, Yeltsin declared that the text prepared by the Commission could not be considered a final draft. It should be elaborated by working groups in the Assembly and another plenary session would be held. 103. Vera Tolz, "Yeltsin to Unveil Full Text of Draft Constitution", RFE/RL 29 April 1993, Internet version (http://www.omri.cz/). 104. Vera Tolz, "President Takes Further Steps to Speed up Constitution Adoption", RFE/RL 13 May 1993, Internet version (http://www.omri.cz/).

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Finally, on 21 September 1993 Yeltsin issued a new decree on constitutional reform. Accordingly, the Congress of People's Deputies and the Supreme Soviet were suspended and elections for a new bicameral legislature were scheduled for 11-12 December. Also, presidential elections would take place on 12 June 1994. The Congress, in a counter-attack, convened in an emergency session. It appointed Rutskoi as Yeltsin's successor and voted for the impeachment of the President. The political squabble culminated in the storming of the Parliament Building on 4 October 1993 and claimed 140 lives. On 15 October 1993 Yeltsin issued a decree providing that the vote of 12 December was to include a referendum on a new constitution and the elections of the Federal Council members. This decree also determined the method of adoption of the Constitution. It is interesting to note that it used the term of "plebiscite" instead of "referendum". This was, in fact, an inevitable tactical move to secure the adoption of the new constitution. According to the October 1990 "Law on a Referendum in the RSFSR", issues affecting the Russian Constitution were to be decided by a simple majority of all registered voters in the country. A referendum, on the other hand, would only be valid with the participation of at least half of the eligible voters. By the end of 1993, it appeared that it was hardly possible to secure this majority. Hence, there was no way out but to by-pass the Referendum Law. The decree on the constitutional plebiscite introduced another criterion for adopting the Constitution; the participation of at least half of the registered voters was to be sufficient to validate the voting, and a simple majority of the participating voters, rather than a majority of the total number of eligible voters, was to be sufficient for the adoption of the new basic law. According to a survey, conducted by the Public Opinion Foundation among 1018 urban Russians on 30 May 1993,68% of the respondents did not know anything about the constitution-making process.105 Even after the publication of the draft in national newspapers on 10 November 1993, this grim picture did not change. According to another survey, carried out by the Mnenie Polling Organization among 1270 Moscow residents on 22 November 1993,24% of the respondents had read the draft, 63% had not, 5% had no idea about it.106 These figures, considering the fact that they had been received from urban inhabitants, furnish enough evidence about the alienation and indifference of the Russian people in general towards the Constitution. The draft was adopted in a referendum held on 12 December 1993, but only 58% of the electorate participated in the referendum and only 55% of them approved the Constitution. This meant that in spite of Yeltsin's per105. Mark Rhodes, "What Do Russians Think About the Constitutional Process", 2 RFE/RL Research Report 16 July 1993 No.29, 13-15. 106. Slater, op.cit. note 98, 3.


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sonal efforts and various stratagems, the presidential draft became the Constitution of Russian Federation only with the consent of 30% of the whole population. When assessing this negative or indifferent position of the Russian people towards the Constitution, one should take into account the extraordinary conditions of the country making a triple transition. Stephen White, Richard Rose and Ian McAllister observed that: .. .the referendum was not so much about legal clauses that had been debated between the President's staff and Parliament; as it was about apportioning blame for how the country had been governed in the past and how it was to be governed in the future... Those who blamed the government and capitalists for the country's economic problems or were Communist Party members were likely to vote against the Constitution, and those who blamed the communists for economic problems were likely to vote for it. Moreover, those who rejected the old communist regime and welcomed new freedoms were likely to support the new constitution.107 Accordingly, "...Russia had a new constitution, but it had been achieved in ways that prejudiced its long-term future."108 The legitimacy of the Constitution of 1993 was weak not only at the mass level, but also at the elite level. All political parties (with the exception of Russia's Democratic Choice Bloc, led by Egor Gaidar, and the Liberal Democratic Party, led by Vladimir Zhirinovsky), and most republics were critical of the draft. After its adoption, most reactionary groups in Russia, communists and federal subjects in particular, opposed the Constitution. Gennadii Zyuganov, the leader of the Russian Communist Party, said that "almost all factions [in the new Parliament] support the idea that the Constitution should be revised."109 This was not surprising because the Russian Constitution of 1993 emerged from the power struggle between the President and Parliament. Needless to say, it appeared mainly as a dissensual document imposed by the victor of this struggle (i.e., the President), on the loser (i.e., the Parliament). Demands for constitutional change, articulated by all major political groups, have steadily grown since the very day of its adoption. Constitutional change has been on the political agenda of the Russian Federation for such a long time, and the issue has become central to almost every political discus107. Stephen White, Richard Rose, and Ian McAllister, How Russia Votes, Chatham House, New Jersey 1997, 101. l08.Ibid, 106. 109. Vera Tolz, "Communist Leader Says Parliament Should Reexamine Constitution", RFE/ RL 29 December 1993, Internet version (http://www.omri.cz/).

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sion in recent years. From political parties to civil society organizations, from bureaucrats to judges, almost all groups in the country see that the Constitution is becoming a source of instability. Several attempts have been made to amend the Constitution, but they bore no fruit because of the difficult amending procedure introduced by the Constitution. Yeltsin's firm opposition to constitutional change made matters worse. Yeltsin ruled out any amendment to the Constitution. For example, in his meeting with the Chairman of the Constitutional Court in 1997, he said that: "Under no circumstances should the Constitution be amended within the next several years." He added that: "Our society has not reached this stage yet."110 In his meeting with Deputy Presidential Chief of Staff in the same year, he said that: "As long as I am President, I will not allow any changes to the Constitution."111 In a radio address on 12 December 1998, the fifth anniversary of the adoption of the Constitution, he warned that its total revision would be "deadly for the country".112 Consequently, as put by a specialist on the Russian Constitution studying the debates on constitutional amendment in 1996-97: ".. .what now seems much clearer is that it may no longer be a question of whether the Constitution will be amended and reformed, but when, in what ways, and with what consequences for the governance of the Russian Federation."113

3.6.3. Baltic Republics Perestroika and glasnost had far-reaching repercussions in the Baltic republics. Unlike most of the other Soviet republics, Estonia, Lithuania and Latvia had been nation-states even before the advent of communism. Thus there had always been a potential for national autonomy in these republics. Gorbachev's policies activated this potential and led to the emergence of several independent groups, such as the Estonian Popular Front, Sajudis and the Popular Front of Latvia. Thanks particularly to the pressure exerted by these groups, the republics proclaimed their sovereignty. As the republics were marching towards independence, the position of the USSR became more important. Several concessions of the Soviet leadership, such as the recognition of the republics' economic independence and the proclamation of the MolotovRibbentrop Pact of 1939 as illegal, did not reverse the tide. In parliamentary elections, held in the beginning of 1990 in all three republics, nationalist 110. Laura Belin, "Yeltsin Meets With Constitutional Court Chairman", RFE/RL 25 February 1997, Internet version (http://www.rferl.org/). 111. "Yeltsin Rules Out Constitutional Amendments", RFE/RL 29 December 1997, Internet version (http://www.rferl.org/). 112. "Yeltsin Warns Against Tinkering with Constitution", RFE/RL 14December 1998, Internet version (http://www.rferl.org/). 113. Robert Sharlet, 'The Politics of Constitutional Amendment in Russia", 13 Post-Soviet Affairs 1994, 197-227.


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parties emerged victorious. By mid-1990, all three republics were in a considerably better position than other Soviet republics in terms of independence and democratization. On 11 March 1990 Lithuania led the way and proclaimed its independence. On 30 March, Estonia and, on 4 May, Latvia followed Lithuania. This was much to the chagrin of Moscow. Soviet troops were dispatched to Lithuania, but it soon appeared that it was no longer possible to restore Soviet authority in the Baltics. In the wake of the August 1991 Coup, Moscow recognized the independence of Estonia, Lithuania and Latvia on 6 September 1991. The Baltic republics were ahead of other Soviet republics not only in terms of independence and democratization, but also in constitutionmaking. Independent groups played also a crucial role in the drawing up of new constitutions of the Baltic republics. By the end of 1992, Estonia and Lithuania promulgated their new constitutions, whereas Latvia restored its pre-communist constitution. Estonia With the progress of glasnost, independent groups working for the independence and democratization of Estonia became more vocal. One of the first major public demonstrations in the 1980's took place in north-eastern Estonia to protest against Moscow's plan to increase the scale of open-cast phosphorite mining. The demonstrators managed to make Soviet authorities review their plans. The success of these civil society movements encouraged others. On 23 August 1987 the anniversary of the Molotov-Ribbentrop Pact was commemorated with the participation of 2000 people and for the first time the legitimacy of Soviet rule was publicly questioned. Soon after, an Estonian Group for the Publication of the Molotov-Ribbentrop Pact (MRPAEG) was founded. In spite of the opposition of the conservative members of the Communist Party of Estonia (CPE), the progressive members began to articulate their demands for more autonomy from Moscow and the necessity of economic reconstruction. Throughout 1988, dissident movements became more influential. In April 1988, another important group, the Estonian Popular Front (EPF), was founded. In July and August the Front organized several demonstrations. The MRP-AEG was re-established as the Estonian National Independence Party (ENIP) and proclaimed as its main political goal the restoration of Estonian independence. The EPF, however, took a more cautious position on the independence issue and advocated the transformation of the USSR into a confederal body. The CPE, in turn, felt obliged to soften its firm position in order to survive in the emerging highly nationalistic political atmosphere. Thus the Supreme Soviet adopted a declaration of sovereignty on 16 Novem-

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ber 1988. As expected, the Supreme Soviet of the USSR announced that the declaration was unconstitutional, but the Estonian Supreme Soviet affirmed its decision in December 1988. Throughout 1989, the opposition became stronger and the CPE became weaker. On 23 February 1990 the Supreme Soviet of Estonia amended the communist Constitution and put an end to the power monopoly of the Communist Party. This opened the way to free elections to the Supreme Soviet in March 1990. The opposition won the majority of the seats, and the newly-elected Supreme Soviet adopted a declaration on 30 March 1990 proclaiming the beginning of a transitional period towards full independence. The Estonian authorities refused to take part in the All-Union referendum on the future of the USSR and decided to conduct a referendum on the independence of Estonia. The referendum was held on 3 March 1991 and 78% of the electorate voted for independence. On 20 August 1991, following the August Coup in Moscow, Estonia declared its full independence.114 The post-communist constitution was drawn up by a constituent assembly in Estonia elected by the Supreme Council (the former Supreme Soviet of Estonia) and the Congress of Estonia (an interim independent quasi-parliament of people of Estonian origin).115 The Supreme Council and the government were dominated by the EPF consisting of reformist communists and elected by all residents in Estonia. The Congress, in turn, was dominated by former dissidents advocating the full independence of Estonia and elected by the electorate restricted to pre-1940 citizens and their descendants. This was one of the most important drawbacks of Estonian constitution-making. The selection of Constituent Assembly delegates on a parity basis by these two rival groups made some think that they would compromise, even co-operate, on important political issues during the transition period. But such expectations proved to be too optimistic. The Council and the Congress came into conflict even before the selection of Assembly delegates.116 The Supreme Council selected its delegates on 6 September 1991 and the next day the Congress followed the Council. The Assembly consisted mainly of creative intelligentsia, i.e., poets, artists and musicians. Although some observers called attention to the disadvantage of the scarceness of legal experts, it was said that the Assembly mirrored a wide range of the political spectrum in the country.117 The approximate breakdown of the 60-member 114. For more details, see Toivo U. Raun, "Democratization and Political Development in Estonia, 1987-96", in The Consolidation of Democracy in East-Central Europe, (Karen Dawisha and Bruce Parrott, eds.), Cambridge University Press, Cambridge 1997, 345348. 115. "Constitution Watch: Estonia", 1 EECR 1992 No. 1, 5. 116.Riina Kionka, "Estonia's New Constituent Assembly", Report on the USSR, 4 October

1991,22. 117.Ibid, 24.


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Assembly was as follows: the EPF (c. 20), national radicals (c. 20), moderates and reform communists (c. 13), and ethnic Russians (c. 7).118 Convening for the first time on 13 September 1991, the Constituent Assembly initially focused on its working order. The procedural rules were laid down by the three-member directorate and approved by the Assembly. Accordingly, the Assembly was to select a working draft from among those prepared by the committees in the Assembly or by extra-assembly groups. After further elaboration, the final draft was to be open to public discussion. Following the incorporation of public proposals into the final document, a nation-wide referendum was to be called on its ratification. The Assembly spent the first weeks selecting the working draft. Although this document was only to provide a departure point for further discussions, political groups in the Assembly could not easily compromise on it, given its importance in the shaping of the last draft. Five drafts in total were submitted to the Assembly. Two of them, favoring a strong executive, were eliminated at the outset because of their poor quality. The rest were the subject of heated discussions. The first draft was prepared by a group led by Justice Minister Juri Raidla. The executive was in a predominant position in this draft, thus it was rejected by other groups advocating a strong legislature. The second draft was, in fact, a proposal calling for the reinstatement of the Constitution of 1938. This proposal was greeted emotionally, but it soon appeared that it would hardly be possible to apply such an old document under current conditions. The third draft was prepared by the ENIP, led by Juri Adams. Although Arnold Ruutel, Chairman of the Supreme Council, and some other former communists considered a strong parliament not to be in their interests and advocated a strong presidency, the final document was, with slight differences, based on the Adams' draft.119 Also the rules concerning the conduct of the referendum on the adoption of the Constitution was on the Assembly's agenda. According to the agreed solution, persons over the age of 18 and holding Estonian citizenship by 28 June 1992, were to have the right to vote in the referendum which would be valid with the participation of more than 50% of all eligible voters. For the approval of the draft constitution, the affirmative votes of the majority of the participants was to be sufficient.120 It is important, however, to note that citizenship was granted only to those individuals born in Estonia before 1940 and their descendants. This meant that almost 40% of the population of HS.Raun, op.cit. note 114, 349. 119. "Constitution Watch: Estonia", 1 EECR 1992 No. 2, 3-4. 120. Riina Kionka, "Debate About New Constitution Sparks Old Rivalries in Estonia", Report on the USSR, 13 December 1991, 20-24.

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Estonia, particularly ethnic Russians, had no say in the adoption of the new constitution. Before the referendum, it was almost guaranteed that the draft would be approved by the people. All parties, except the CPE, called for their supporters to cast their votes affirmatively in the referendum. Nevertheless, a small, but influential right-wing group, "Restitution", emerged and began to campaign against the draft constitution just before the referendum. This group demanded the observation of the principle of legal continuity and the reinstatement of the Constitution of 1938. There was a relation between the emergence of this group and the withdrawal of Russian troops. The withdrawal negotiations with Russia came to a standstill because of the unwillingness of the latter to recognize the Republic of Estonia as the legitimate successor of the inter-war republic. The aim of the group, according to its leader Endel Lippmaa, was to link legally the current republic to the interwar republic by restoring its constitution. The timing, tactics and principles of Restitution, however, made many people suspicious of its actual motives. Many thought that the aim of the movement was to revive right-wing authoritarian rule by restoring the Constitution of 1938 which had established a dictatorial presidency. The movement gained a considerable amount of popular support owing to people's nostalgic sentiments towards the interwar republic, to the importance of the principle of legal continuity in the struggle for independence, and to the popularity of the movement's leaders. Alarmed at the rise of Restitution, on 14 June 1992, all other parties issued a joint declaration calling on people to vote in favor of the draft constitution. Consequently, the Estonians acted in accordance with the joint call of the major political forces in the country; the new constitution was approved on 28 June 1992 with the participation of 66% of eligible voters of whom 91% voting in favor of the new basic law.121 To sum up, although the Estonian Constituent Assembly produced a document accepted by major political groups and approved by the majority of those taking part in the a referendum on its adoption, the legitimacy of the document was undermined by the exclusion of ethnic Russians from the constitution-making process. The method of the election of the constitutionmaking body and the rules about the eligibility of the electorate participating in the referendum eroded the consensual bases of emerging Estonian democracy.

121. Riina Kionka, "Drafting New Constitutions: Estonia",1 RFE/RL Research Report 3 July 1992 No. 27,57-61.


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Lithuania In Lithuania there were significant dissident movements in the 1960's and the 1970' s. In May 1972 demonstrations were staged in Kaunas for religious and political freedom. With the advent of Gorbachev, such movements became more active. In August 1987 a demonstration, denouncing the Molotov-Ribbentrop Pact, was tolerated by communist authorities, whereas another one, arranged to celebrate the 70th anniversary of the independence of Lithuania, was prevented by security forces. One of the most important independent groups in Lithuania, and even in the Baltics, Sajudis (the Lithuanian Movement for Reconstruction) was established by intellectuals in June 1988. This group organized several mass demonstrations for the independence of Lithuania. Alarmed at the growing popularity of such groups, the Lithuanian Supreme Soviet and the Communist Party of Lithuania (CPL) made several concessions, such as the adoption of Lithuanian as the official language of the Republic. Members of Sajudis, in the meantime, won 36 of 42 popularly-elected seats in the elections to the Ail-Union Congress of People's Deputies in March 1989. Upon the victory of the Sajudis, in order to retain its popular support, the CPL decided to take more decisive steps towards independence. As a result, the CPL-dominated Supreme Soviet approved a declaration of sovereignty on 18 May 1989. In August 1989 more than 1 million people from Estonia, Latvia and Lithuania created a human chain on the 50th anniversary of the Molotov-Ribbentrop Pact. In December 1989 the CPL declared its independence from the CPSU. In the elections to the Lithuanian Supreme Soviet in March 1990 the supporters of Sajudis won the majority of the seats. Then Algirdas Brazauskas was replaced by Vytautas Landsbergis, leader of Sajudis, as Chairman of the Supreme Soviet. On 11 March 1990 the Supreme Soviet, which was renamed the Supreme Council, declared the restoration of Lithuanian independence. It also reinstated the Lithuanian Constitution of 1938, although only for a period of one hour, for purposes of legal continuity. Soon after, it adopted a Provisional Fundamental Law. This Law introduced some minor amendments to the communist Constitution of Lithuania, but it was far from producing a full constitutional document.122 Not surprisingly, the Supreme Soviet of the USSR announced that the Independence Declaration of Lithuania was unconstitutional and sent Soviet troops to the capital of Lithuania in January 1991. The January intervention, however, made matters worse. Lithuania, together with five other Soviet republics, refused to take part in the All-Union Referendum on the preservation of the USSR in a renewed form and decided to hold its own referendum on independence. The referendum 122. "Constitution Watch: Lithuania", 1 EECR 1992 No. 1, 5.

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was held on 9 February 1991 and 90.5% of the electorate supported the independence of Lithuania. On 6 September 1991 the USSR recognized the full independence of Lithuania, along with other Baltic republics.123 Only after gaining full independence, could the Supreme Council of Lithuania focus on constitution-making. On 10 December 1991 a 14-member commission was set up by the Council to work on the first postcommunist Constitution of Lithuania. On 11 February 1992 the Supreme Council fixed the timetable for the adoption of the Constitution. Accordingly, the draft, passed by the Supreme Council, was to be open to public discussion from 1 May to 31 August. The Supreme Council, taking into account popular proposals, was to finalize the draft by 15 October 1992. At the end of April 1992, the Commission unveiled two drafts. The first draft, approved by a majority of the Commission members, introduced a parliamentary government with a popularly elected president. The second draft, establishing a presidential government, was approved by only three members of the Commission and was never published. The latter, however, provided the basis of the draft constitution prepared by a "Sajudis Coalition for a Democratic Lithuania", an umbrella organization founded by Sajudis, and nine other political parties and various social organizations on 9 May 1992 in Vilnius. Thus there were eventually two draft constitutions in Lithuania by mid-1992: the coalition's draft and the Commission's draft.124 While the constitution-making process was continuing, the Provisional Fundamental Law, adopted on 11 March 1990 by the Supreme Council, remained in force. As implied above, the latter was far from being a complete constitution and could only work properly in the presence of a consensus in Parliament. Thus the inadequacy of this document became more visible with the emergence of a parliamentary impasse in mid-1992. The Chairman of the Supreme Council, Vytautas Landsbergis, saw a strong presidency as the only way out of this deadlock. Thus he convinced Sajudis to hold a referendum on this issue. The Referendum was held on 23 May 1992, but the turnout (57.5%) was lower than required by the Referendum Law for the approval of the proposal. Thus the latter was considered rejected.125 The first post-independence parliamentary elections were held in 25 October and 15 November 1992. Sajudis was defeated by the former communists, the Lithuanian Democratic Labor Party (LDPL), formerly known as the CPL. Sajudis lost not only in parliamentary elections, but also in the referen123. For more details, see Richard J. Krickus, "Democratization in Lithuania", in The Consolidation of Democracy in East-Central Europe, (Karen Dawisha and Bruce Parrott, eds.), Cambridge University Press, Cambridge 1997, 294-300. 124. See Saulius Girnius, "Drafting New Constitutions: Lithuania", 1 RFE/RL Research Report 3 July 1992 No. 27, 67-69. 125. "Constitution Watch: Lithuania", 1 EECR 1992 No. 2, 5.


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dum held on the adoption of the new constitution on the same day as the first round of the elections. 57 % of the electorate supported the Commission's draft, establishing a parliamentary government with a popularly-elected president.126 Consequently, constitution-making in Lithuania reflected the struggle between two major political groups emerging after the independence of the country, Sajudis and the former communists. Sajudis lost a great deal of its popularity during its reign, in particular on account of deteriorating economic conditions. In this way, it paid the price for being the ruling party in a very painful transition period, both in the parliamentary elections and in the referendum on the new constitution. Latvia In Latvia there were few independent groups in the 1970's and 1980's. Such groups as the "Environmental Protection Club" and "Helsinki-86", began to articulate the need for more national autonomy and freedom for Latvia. Gorbachev's policies encouraged these groups. However, the Communist Party of Latvia (CPL), headed by Boris Pugo since 1984, was strongly opposed to these movements. Pugo was transferred to Moscow in September 1988, and replaced by Jan Vigris. The Popular Front of Latvia (PFL), one of the most influential groups in the Latvian transition, was founded by the leaders of opposition groups and some radical members of the CPL in October 1988. The PFL was the victor in elections to the Supreme Soviet of Latvia held in March and April 1989. The candidates, who were members of the PFL, won 131 seats out of 201. On 4 May 1989 the Supreme Soviet, which was renamed the Supreme Council, issued a resolution declaring the incorporation of Latvia into the USSR on 21 July 1940 illegal. It also declared the beginning of a transition period which would end with the achievement of full economic and political independence. With the same declaration, four articles of the Constitution of 1922, Article 1,2,3 and 6, were restored. This meant that Latvia had no complete constitution in the beginning of its transition.127 On 14 May 1990 Moscow announced that the Latvian Declaration of Independence was unconstitutional and sent Soviet troops to Latvia, but it was hardly possible to stop Latvia's growing nationalism. The Latvians refused to take part in the referendum on the preservation of the Union in a renewed form. Instead, together with five other Soviet republics, they held a nation-wide referendum on independence on 3 March 1990. 74% of the 126."Constitution Watch: Lithuania",1 EECR 1992 No. 3, 7. 127. See Dzintra Bungs, "Drafting New Constitutions: Latvia", 1 RFE/RL Research Report 3 July 1992 No.27, 62-66.

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electorate supported independence. On 21 August 1991 the Supreme Council declared the full independence of Latvia.128 The partial restoration of the Constitution of 1922 brought about a peculiar constitutional dualism in the country. The old document gradually proved to be inadequate to meet the needs of the emerging republic. That is why the communist Constitution of Latvia remained in effect, insofar as it was not at variance with the Constitution of 1922. Thus, for some time, Latvia was governed by two obsolete constitutions.129 The underlying cause of this dualism was that, in fact, the current Parliament, which had been elected before independence, was inclined to leave the task of drawing up a new constitution to a new parliament.130 On 5 and 6 June 1993 parliamentary elections were held. Latvian Way, a moderate nationalist party, emerged as the strongest party from the elections. The newly-elected Parliament voted for full restoration of the Constitution of 1922. It is important, however, to note that this decision was taken by a parliament whose representativeness was somewhat controversial. Under the Electoral Law, only pre-1940 citizens of Latvia and their descendants had the right to vote. As a result, 27% (mostly ethnic Russians) of the population were excluded from the June elections. Nevertheless, the Constitution of 1922 became the post-communist Constitution of the Latvian Republic. The full restoration of the pre-communist constitution ended constitutional dualism in Latvia.131 The Constitution of 1922 has been amended several times since it was reinstated as the new Constitution of Latvia. On 27 January 1994 Article 8 of the Constitutions was amended in a way to reduce the voting age from 21 to 18. On 4 December 1997 comprehensive changes were introduced concerning the relations between the executive and legislative branches of government. The following articles were amended: Art. 10, 11, 13, 30, 35, 37, 39, 45, 81, 84. Recently, Art. 85 of the Constitution regulating the powers and duties of the Constitutional court was amended on 5 June 1996. One may expect to see more changes in the Latvian Constitution in the near future aiming to adapt the document to contemporary conditions.

128. For more details, see Andrejs Plakans, "Democratization and Political Participation in Postcommunist Socities: the Case of Latvia", in The Consolidation of Democracy in East-Central Europe, (Karen Dawisha and Bruce Parrott, eds.), Cambridge University Press, Cambridge 1997, 255-261. 129. "Constitution Watch: Latvia", 1 EECR 1992 No. 2, 4. 130. "Constitution Watch: Latvia", 1 EECR 1992 No. 3, 6. 131. "Constitution Watch: Latvia", 2 EECR 1993 No. 3,11.


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3.6.4. Ukraine In 1973, Petr Shelest, First Secretary of the Communist Party of Ukraine (CPU), was replaced by Vladimir Shcherbitsky. Shelest had been accused by hard-line communists of tolerating growing dissident movements. Shcherbitsky and the CPU maintained the totalitarian characteristics of the regime until its collapse in 1989. Thus glasnost, which shook communist regimes in most of the former Soviet republics, had little impact on Ukraine. A major explosion occurred in the Chernobyl nuclear power station on 26 April 1986. This was a veritable environmental disaster and generated widespread lethal effects. Communist authorities informed the public neither about the accident, nor its possible consequences. This precipitated public demonstrations which were not tolerated by the CPU. In the meantime, the rise of opposition movements in other Soviet republics, demanding more freedom and autonomy, provided an example for the Ukrainian opposition. Although the communist leadership had entered a dialogue with these groups in some of the former Soviet republics (such as the Baltic republics), and even to a certain extent in Russia, the CPU leadership never recognized them. In spite of growing public disillusion, therefore, the CPU never compromised with the opposition and tried to keep matters under control. Increasingly, the CPU appeared as an obstacle to the democratization and independence of Ukraine. There were, however, some moderates in the Party and they gradually cooperated with more liberal groups, such as the Ukrainian People's Movement for Perestroika (RUKH) which was founded by prominent writers and intellectuals in Kiev in November 1988. In the meantime, miners in the Donbass region formed an independent labor movement. These independent groups were joined by religious groups organized around the Catholic and Orthodox Churches. Since Shcherbitsky proved to be unable to stop RUKH and appease labor unrest, he was replaced by Volodymyr Ivashko. The new leadership denounced the power monopoly of the CPU and entered into negotiations with RUKH on the legalization of the movement. It was too late, however, for RUKH and other independent groups to be registered for the upcoming local and republican elections on 4 March 1990. As a result, the CPU won 373 seats out of 450 in the elections. Yet, when the dissidents in the CPU were subtracted, it appeared that only 239 deputies actually supported the CPU. Thus, the opposition, namely the Democratic Bloc (a coalition consisting of RUKH and other opposition groups), acquired considerable power in Parliament. In June 1990 Ivashko was elected Chairman of the Supreme Soviet, but the deputies of the Democratic Bloc claimed that this official could not be the leader of the CPU at the same time. Thus Ivashko resigned as First Secretary

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of the Communist Party. On 16 July 1990 the Ukrainian Supreme Soviet adopted a declaration of sovereignty. Ivashko was appointed Deputy General Secretary of the Communist Party of the Soviet Union, and Leonid Kravchuk became First Secretary of the Communist Party.132 There were some efforts to prepare a new constitution for Ukraine even before the declaration of independence, but basically the latter provided the basis of the new basic law. In October 1990 Parliament appointed a commission to prepare the "concept" of the new constitution. It was presided over by Kravchuk and half of its members were from the Democratic Bloc. In March 1991 the Commission submitted the constitutional concept to Parliament. The debates focused on two issues. First, the CPU insisted that the Constitution should embody the socialist choice of the Ukrainian people as had been made in 1917. They wanted to retain the status of Ukraine as a "socialist state" and some other Soviet-type provisions. Second, the powers of the President were the subject of discussions. Kravchuk and Leonid Yuzkov, Head of the Working Group of the Constitutional Commission, were in favor of a strong presidency, whereas the CPU was not.133 In the meantime, popular unrest escalated. Vitaliy Masol, Chairman of the Council of Ministers, resigned in the face of growing student protests in October 1990. The Supreme Soviet accepted most of the demands of the students and elected Vitold Fokin Chairman of the Council of Ministers in November. On 17 March 1991 an All-Union referendum was held on the future of the USSR, but the Ukrainian authorities added another question on the ballot paper: "Should the declaration of sovereignty of 1990 be the basis of joining in a renewed federation?" 84% of eligible voters took part in the referendum, and 70% of them supported Gorbachev's renewed federation. On the other hand, 90% of the voters voted in favor of the second question. As Ukraine was moving towards independence, the work on the new constitution progressed. A "Conference on the Concept and Principles of a New Constitution", was convened between 19 and 20 April 1991 in Kiev.134 After further discussion in Parliament, the parties reached an agreement and a conceptual document on the new constitution was approved on 19 June 1991. The concept embodied liberal democratic principles and introduced a well-balanced relationship between the legislature and the executive. 132. For more details, see Ilya Prizel, "Ukraine between Proto-democracy and 'Soft' Authoritarianism", in Democratic Changes and Authoritarian Reactions in Russia, Ukraine, Belarus and Moldova", (Karen Dawisha and Bruce Parrott, eds.), Cambridge University Press, Cambridge 1997, 335-339. 133."Constitution Watch: Ukraine",1 EECR 1992 No. 1, 5-6. 134. Roman Solchanyk, "New Ukrainian Constitution Discussed", RFE/RL 22 April 1991, Internet version (http://www.omri.cz/).


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After the August Coup in Moscow, the Ukrainian Supreme Soviet adopted a declaration of independence on 24 August 1991, pending its confirmation by a referendum which would be held at the same time as direct presidential elections on 1 December 1991. On 31 August 1991 Kravchuk suspended the activities of the CPU, and on 4 September 1991 the Party voted to dissolve. Thus communist rule in Ukraine ended officially. On 1 December 1991 the declaration of independence was overwhelmingly adopted in the referendum, and Kravchuk was elected President of Ukraine. On 8 December 1991 Ukraine was among the countries signing the Minsk Agreement, and on 21 December 1991, it appeared as one of the founding members of the CIS. On 29 January 1992 the first version of the new constitution was unveiled. The draft, as opposed to the "concept", introduced a strong presidency and a generous catalogue of positive rights. By mid-1992, the Constitutional Commission completed its work on the draft. Kravchuk, as Head of the Constitutional Commission, submitted the last version of the draft to Parliament on 30 June 1992. In November 1992 the draft was open to public discussion resulting in the submission of 46,000 proposals to the Commission by the people. The draft was revised extensively in the light of these proposals.135 External and internal problems hampered constitution-making during 1993. The current Constitution, on the other hand, proved to be insufficient to solve certain governing problems deriving particularly from the peculiar conditions of a triple transition process. Most importantly, a constitutional crisis broke out between President Kravchuk and Prime Minister Kuchma in May 1993. Since the Supreme Council was against the government's economic austerity program, it refused to renew special powers granted to Prime Minister Kuchma in November 1992. Kuchma declared that he could not implement economic reforms without these powers and tendered his resignation on 9 September 1993. The President demanded special constitutional powers from Parliament, but the latter refused to grant these powers. Members of Parliament were well aware that the increase in the powers of the President would be tantamount to a decrease in their own powers. The crisis deepened with the strike of 2 million miners in the Donbass region protesting against pressing economic conditions. Apart from economic improvement, the strikers also demanded a referendum which would confirm confidence in the President and Parliament. The Supreme Council accepted the strikers' demands and scheduled a referendum for 26 September 1993. Nevertheless, 135. "Constitution Watch: Ukraine", 2 EECR 1993 No. 3,14. For an evaluation of the draft, see David Lempert, "The Proposed Constitution of Ukraine: Continuity Under the Banner of Change", Demokratizatsiya Spring 1994, 268-296.

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Kravchuk annulled the planned referendum and called for early elections which would be held on 27 March 1994.136 The electoral system used in the March elections was majoritarian and served the interests of the incumbent nomenklatura as well as of independent candidates. The latter won the majority of the seats, 170 out of 338. The leftist parties, in turn, won 118 seats and became the dominant group in Parliament with the support of some independent deputies. On the other hand, liberal and national democrats secured 42 seats, whereas radical nationalists acquired only 7 seats. As a result, the elections created a fragmented legislature. Although communists won the largest number of seats, nationalist democrats and other left-wing parties acquired sufficient power to bring Parliament to a standstill.137 In June 1994 Vitaliy Masol was appointed as the new Prime Minister and Kuchma was elected President. When Parliament reconvened in the fall of 1994, Oleksandr Moroz, Chairman of the Supreme Council and the leader of the Socialist Party of Ukraine, declared that a new draft constitution was to be prepared and adopted by the end of the year. According to this plan, a new 40member constitutional commission was set up in October 1994. Kuchma and Moroz were members of the Commission. Along with them, there were 15 members representing Parliament and 15 members representing the President. The rest were representatives of the judiciary. There was also a member from the Crimean Parliament. In December 1994, President Kuchma proposed a draft bill, known also as the "Little Constitution", reminiscent of the "Little Constitution" of Poland proposed by Lech Walesa. The aim of the document was to regulate the relationships between the executive and the legislature until the adoption of the new constitution. The bill came under criticism on the grounds that it conferred too much power on the President. Upon this, Oleksandr Moroz proposed another bill. A two-thirds majority in Parliament was needed, however, for the passage of any of these bills. Given the fragmented structure of Parliament, it was hardly possible to secure such a majority. The result was that constitution-making was again dead-locked. Finally, Kuchma compromised, and the amended version of the bill was adopted on 18 May 1995 by 219 votes in favor and 104 against.138 The passage of this so-called "power-bill" created several legal problems. Since many of its provisions were at variance with the current constitution, it was necessary to make some amendments to the latter in order to apply the new bill. It soon became apparent that the left-wing majority in 136. "Constitution Watch: Ukraine", 2/3 EECR 1993/1994 No. 4/1, 21-22. 137.Prizel, op.cit. note 132, 351-356. 138. "Constitution Watch: Ukraine", 1 EECR 1995 No. 1, 34-35.


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Parliament was not willing to do that. On 31 May 1995 the President issued a decree with the aim of breaking the deadlock. He scheduled a referendum for 28 June 1995 in which people were to be asked to express their confidence in the President and Parliament. The latter responded to the President's maneuver by declaring his act unconstitutional on the ground that only the legislature could call for a referendum under current laws. Nevertheless, since public opinion surveys revealed that the President would emerge as the victor from the referendum, Parliament retreated and a "constitutional agreement" was signed between Kuchma and Moroz. The Law "On State Power and Local Self-Government in Ukraine" canceled the referendum and it suspended the incompatible articles of the current constitution.139 On 23 November 1995 a "Working Group on the Constitution", an informal committee, submitted a draft constitution, introducing a strong presidency, to the Constitutional Commission. The Group had convened on the joint request of Moroz and Kuchma and comprised members of all major parliamentary factions. The 40-member Constitutional Commission approved the draft constitution on 11 March 1996 with 26 votes in favor.140 Then the draft came before Parliament. The latter also approved the document and sent it back to the Commission to incorporate several amendments proposed by the deputies. The final document gained the support of most groups in Parliament, except the communists who were in favor of a strong parliament.141 The adoption method of the new constitution was also the subject of discussions. According to Article 17 of the Law "On State Power and Local Self-Government in Ukraine", a two-thirds majority in Parliament was needed for the ratification of the Constitution. Given the fragmented composition of Parliament, it was hardly possible to muster such a majority. Some deputies proposed a "simple majority + referendum" formula, but only less than two-thirds of the deputies supported this proposal. As the deadline determined by the "Constitutional Agreement" of 1995 was approaching, there were still a number of unsolved problems in constitution-making in Ukraine.142 On 26 June 1996 President Kuchma took a crucial step towards the finalization of the whole process. He made some concessions to the Communist Party, particularly on a unicameral legislature, but announced at the same time that he would forward the Commission's draft to a referendum in its 139. "Constitution Watch: Ukraine", 4 EECR 1995 No. 3, 32-33. 140. "Constitution Watch: Ukraine", 4 EECR 1995 No. 4, 32-34. 141. "Constitution Watch: Ukraine", 5 EECR 1996 No. 1, 29-30. Also see Ustina Markus, 'The Constitutional Debate in Ukraine", OMRI Daily Digest, Analytical Brief 24 April 1996, Internet version (http://www.omri.cz/). 142. Ustina Markus, "Rivals Compromise on Constitution", Transition 26 July 1996, 36-37.

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original wording.143 This meant that the amendments proposed by Parliament would be put aside. Getting the message correctly, all deputies worked on the draft during an all-night session and adopted it on 28 June 1996. The adoption of the Constitution was welcomed by all major political forces. Moroz described the vote as a "historic step in consensus in Ukrainian society". Kuchma, in turn, admitted that his decree on a referendum on the adoption of the Constitution had not been an "entirely correct way of prompting approval for the Constitution".144 Consequently, the Ukrainian Constitution emerged from the power struggle between the President and Parliament, but, as opposed to the Russian Constitution, it appeared as a compromise between rival forces.

3.6.5. Transcaucasia In all three republics in the region, Armenia, Azerbaijan and Georgia, nationalism played a crucial role in the transition to democracy. In Armenia and Azerbaijan the failure of Soviet authorities in resolving the NagornyKarabakh problem alienated people from Moscow. In Georgia, in turn, there had always been a strong national sentiment among the population. So, independent groups rapidly gained a great deal of popular support. The Armenian National Movement, the Popular Front of Azerbaijan and the Round Table-Free Georgia coalition were the most important ones among various independent groups. Of the three, only the Armenian National Movement survived post-transition politics, but it turned into an authoritarian party with its autocratic leader Levon Ter-Petrossian. As a result, charismatic nationalist leaders played a far more crucial role than independent groups in transition politics in Transcaucasia, including constitution-making. Armenia Although the initial impact of glasnost was limited in Armenia, some dissident voices came to be heard in the course of time. At this early stage, environmental issues became the focus of emerging opposition movements. Gradually, ethno-national issues took the place of ecological problems in public discussions and mass demonstrations. In early 1987 and late 1988 the 143. For these developments, see Chrystyna Lapychak, "Ukrainian Parliament Preliminarily Approves Draft Constitution", OMRI Daily Digest, Analytical Brief 6 June 1996, Internet version (http://www.omri.cz/); "September Referendum on Draft Ukrainian Constitution Should Test Kuchma's Popularity", OMRI Daily Digest, Analytical Brief 27 June 1996, Internet version (http://www.omri.cz/). 144.Ustina Markus, "Ukrainian Parliament Approves New Constitution", OMRI Daily Digest, Analytical Brief 28 June 1996, Internet version (http://www.omri.cz/).


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status of Nagorny-Karabakh was the most important item on the Armenian political agenda. This problem became a unifying factor for several unofficial groups managing to garner a great deal of popular support. Thus, as the Armenian people were taking to the streets to vent their grievances particularly about the Nagorny-Karabakh problem, nationalism became the convergence point of opposition movements. A number of unofficial groups joined into an umbrella organization, the Armenian National Movement (ANM), in summer 1988. The ANM, together with the Karabakh Committee (an unofficial group formed by Yerevan intellectuals) played a crucial role in the Armenian independence movement and its transition to democracy. The popularity of the ANM kept rising in 1989, and it became a power to be reckoned with.145 The ANM emerged as the strongest political group from the elections to the Supreme Soviet of the USSR held in May-July 1990. This marked a turning point in the Armenian struggle for independence and democracy. Before long, the Supreme Soviet adopted a "Declaration on the Independence of Armenia" on 23 August 1990. The Declaration was intentionally ambiguous. It was not a declaration "of independence, but "on" independence and did not mention an exact date for Armenia's secession from the USSR. It emphasized, however, not only the independent status of Armenia, but also its liberal democratic aspirations, including the protection of human rights, separation of powers and a multi-party system. The Declaration, proclaiming the superior force of the Armenian Constitution over Soviet laws, was to serve as the basis of the new constitution and function as the Constitution of Armenia until the adoption of the new one.146 Armenia did not participate in new union negotiations. Having officially boycotted the All-Union referendum, the Supreme Soviet put the issue of secession from the USSR to a nation-wide referendum held on 21 September 1991: 94% of the Armenian people took part and 99% of them voted for independence. The full independence of Armenia was declared on 23 September 1991. Presidential elections were held in Armenia on 16 October 1991. There were six candidates running for the office of presidency, but Ter-Petrossian won the elections with an overwhelming majority. Thereafter, he began to play a key role in Armenian politics and particularly in constitution-making. On 29 November 1991, the "Law of the Republic of Armenia on the Supreme Soviet of the Republic of Armenia" was adopted. Article 10 (1) of the Law 145. See Shireen T. Hunter, The Transcaucausus in Transition, Nation-Building and Conflict, The Center for Strategic & International Studies, Washington, DC 1994, 22-57. 146. Elizabeth F. Defeis, "Constitution Building in Armenia: A Nation Once Again", 2 Parker School Journal of East European Law 1995 No.2, 1995, 160-162.

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granted the Supreme Soviet the power to adopt the new constitution. However, neither the Declaration on Independence, nor this Law determined the procedure of making and adopting the new basic law. Throughout the constitution-making process heated discussions erupted over these procedural issues. Soon after the declaration of independence, a constitutional commission was set up to draw up a new constitution. It was composed of members of the government and Parliament and presided over by the President. It is interesting to note that members of the Commission had been chosen by the latter.147 Throughout 1992 economic conditions continued to worsen in Armenia and the Nagorny-Karabakh problem remained unresolved. Despite these negative developments, work on the new constitution progressed. In June 1993 the Constitutional Commission completed a draft constitution and submitted it to Parliament. The draft was published in major Armenian newspapers in July. The Commission's draft, known also as the presidential draft, was criticized by the opposition on the ground that it was imposed by the ruling forces. Ruben Akopyan, a member of the Central Committee of the Armenian Revolutionary Federation, claimed that the draft bore the stamp of the ANM. The opposition groups criticized in particular the disproportionate powers of the President, and its failure to incorporate references to the socalled 1915 genocide and the international recognition of Armenian territorial aspirations. Thus six opposition parties (the Agrarian Democratic Party, the Armenian Democratic Party, the Armenian Republican Party, the Armenian Revolutionary Federation, the National Democratic Union and the Union for Constitutional Rights), known also as the Council for National Accord, prepared an alternative draft. By mid-1994, there were two main constitutional drafts in Armenia, the presidential draft, prepared by the Constitutional Commission, and the opposition draft prepared by the Council for National Accord.148 One of the most debated issues in Armenian constitution-making was the method of adoption of the new constitution. Most opposition groups were in favor of the convening of a constituent assembly. They staged demonstrations in March 1992 and in February 1993 for the election of an ad hoc assembly. While the President advocated a referendum on the adoption of the new constitution, the Communist Party defended its approval by the current Parliament. In April 1994 Parliament discussed the three alternative procedures for the adoption of the constitution and decided to put the draft to a 147. Ibid, 165-175. 148. Elizabeth Fuller, "Armenia' s Constitutional Debate", 3 RFE/RL Research Report 27 May 1994 No.21, 7-9. For a comparative evaluation of these drafts, see Defeis, op.cit. note 146, 175-197.


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referendum which would be held on the same day as the parliamentary elections. This decision, however, taken by a simple majority, violated the current Armenian Constitution requiring a two-thirds majority of the total number of members of Parliament for any amendment to the constitution.149 At the same time, Parliament amended Article 31 (9) of the "Referendum Law" stipulating that a two-thirds majority of the total electorate was needed to pass a law on an extra-ordinary issue. According to the new version of the Article in question: "The decision on an issue put to a referendum is considered accepted, if one-half of those voting, but not less than one-third of the citizens included on voter lists cast a 'yes' vote." In short, one-third of the whole electorate was to be sufficient for the adoption of the new Armenian Constitution.150 These legal stratagems made the legitimacy of the new constitution controversial. Ruling authorities conducted an intense campaign through state-controlled media for the adoption of the Constitution. President Ter-Petrossian, just one day before the referendum, made a speech about the new constitution on state television. He argued that if the Armenian people would not approve the new constitution in the referendum, Armenia would succumb to civil war and lose its credit as a democratic country at international platforms.151 People, however, had limited knowledge about the new constitution. According to a survey, carried out just before the referendum by the Armenian State Television and Radio Ministry, 51% of the Armenian people said that they had no idea about the new constitution because they had not enough information about it. Only 32% of the respondents said that they were going to vote in favor of the constitution. 56% of eligible voters took part in the referendum held on 5 June 1995, and 68% of them voted in favor of the Constitution. Thus the new Armenian Constitution was adopted by only 37% of the entire electorate. The opposition, claiming several irregularities in the referendum, objected to the results. International observers, monitoring the July 1995 Referendum and the accompanying parliamentary elections, described the voting as "free but not fair".152 The opposition also criticized the Constitution on the grounds of the relationships between executive and legislative agencies. Ruben Akopyan, a member of the Central Committee of the ARF, asserted that the Constitution 149. Fuller, op.cit. note 148, 9. 150. Hrair Balian, "Draft Constitution Proposed by the President", OMRI Daily Digest, Analytical Briefs 31 May 1995, Internet version (http://www.omri.cz/). 151. For more details, see Nora Dudwick, "Political Transformations in Post-Communist Armenia: Images and Realities", in Conflict, Cleavage, and Change in Central Asia and the Caucasus, (Karen Dawisha and Bruce Parrott, eds.), Cambridge University Press, Cambridge 1997, 92-94. 152. Ian Bremmer and Cory Welt, "Armenia's New Autocrats", 8 Journal of Democracy 1997 No.3, 87-89.

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conferred on the President "unlimited powers, greater than in any other country with a presidential system", without providing any real counterweight to these powers. Akopyan qualified the document as "the constitution of a dictatorship".153 After its adoption, the Constitution continued to be criticized by the opposition. On 13 June 1997 more than 15,000 people, staging a demonstration in Yerevan, demanded the holding of new (presidential, parliamentary and local) elections and the adoption of a new constitution.154 Presidential candidates in 1998 elections promised their supporters constitutional change. For example, Vazgen Manukyan said during his campaign that if elected, he would hold early parliamentary elections and amend the Constitution of 1995.155 Robert Kocharyan, Prime Minister and acting President at the time, called for constitutional change to strike a balance between the powers of the Assembly and the President which had been regulated by the Constitution of 1995 in favor of the President. He particularly criticized the President's power to dissolve the Assembly and proposed to grant the latter the right to dissolve itself.156 Having been elected President, Kocharyan appointed a commission by a decree on 19 May 1998 to draft amendments to the Constitution.157 The work of the Commission on the constitutional amendments was still continuing at the time of writing. Azerbaijan Thousands of Azeris occupied the Lenin square (renamed by them "Freedom Square") in Baku for ten days in November 1988 to protest against Moscow's inactivity to solve in particular the Nagorny-Karabakh problem. This was the spark that set off subsequent events. The demonstrators were dispersed by security forces and their leaders were arrested. After the release of the leaders of the Freedom Square demonstrations, a nationalist group, the Azerbaijan Popular Front (APF), was formed in July 1989. The activities of this group were not limited to the Nagorny-Karabakh problem. The Front rapidly grew stronger and managed to get certain concessions from the Communist Party of Azerbaijan (CPA), including official recognition. As the APF began to threaten the authority of Moscow in the republic, Moscow intervened and 153. Liz Fuller, "Ruling Party Strengthens Its Hold on Power", Transition 20 October 1995, 56-59. 154. "Demonstrations in Yerevan", RFE/RL16 July 1997, Internet version (http://www.rferl.org). 155. Liz Fuller, "Manukyan Calls for New Constitution, Parliamentary Elections", RFE/RL 13 February 1998, Internet version (http://www.rferl.org/). 156. Liz Fuller, "Kocharyan Proposes Changes to Armenian Constitution", RFE/RL 26 March 1998, Internet version (http://www.rferl.org/). 157. "Armenian President Appoints Commission on Constitutional Reform", RFE/RL 20 May 1998, Internet version (http://www.rferl.org/).


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sent Soviet troops to Azerbaijan. Martial law was proclaimed and a curfew was imposed. The main target of Moscow was, in fact, the APF. Its leaders were immediately arrested and the First Secretary of the CPA, Abdul Vezirov, was replaced by Ayaz Mutalibov. Order was temporarily restored by the end of January 1990. Continuing popular unrest led to the postponement of the upcoming republican Supreme Soviet elections. When elections were held on 30 September and 14 October 1990, the CPA won the majority. According to international observers and the APF, the elections were neither free, nor fair. When the Supreme Soviet convened, 80% of the deputies were members of the CPA. A small opposition group organized itself as the Democratic Bloc of Azerbaijan.158 75.1 % of voters participated in the Ail-Union referendum, held in March 1991, and 93% of them voted for the renewed federation. In Nakhichevan, however, only 20% of people said "yes" to the preservation of the Union. The opposition claimed that, contrary to official figures, only 15-20% of the electorate had participated in the referendum. On 30 August 1991 the government led by President Mutalibov proclaimed the "Constitutional Act of State Independence of the Republic of Azerbaijan". This 32-article document confirmed the struggle of the Azerbaijan people for independence and democracy. According to Article 4 of the Act, the current Azerbaijan Constitution of 1978 was to remain in effect except where it would contradict the provisions of the Constitutional Act. According to Article 32, the Act was also to serve as the basis for working out a new constitution.159 In spite of the opposition of the APF, presidential elections were held on 3 September 1991. Mutalibov was the only candidate and won 84% of the votes cast. Throughout 1992 clashes over Nagorny-Karabakh escalated. On 6 March 1992 Mutalibov was forced to resign due to his failure to solve the immediate problems of the country. Under the current constitution, Speaker of the Supreme Soviet, Yagup Mamadov, became the acting President. Mamadov, however, rapidly lost his credit. He was removed as President in May 1992 and Mutalibov's presidency was restored. Mutalibov, having come back to power, canceled the presidential elections, which had been scheduled for 7 June 1992, suspended the political activities of opposition parties, proclaimed a state of emergency, and imposed a curfew. These were naturally unacceptable for the APF whose members took to the streets to show their grievances. As the leaders of the Front seized control of the 158. See generally Hunter, op.cit. note 145, 58-96. 159. For the English translation of the Act, see Gisbert H. Flanz, "Azerbaijan, Introductory Notes", in Constitutions of the Countries of the World, Azerbaijan Republic, Booklet 1, (Gisbert H. Flanz, ed.), Oceana Publications, Inc., Dobbs Ferry, New York 1996, ix-xix.

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Presidential Palace and the Parliament Building, Mutalibov fled the country. Isa Gambar, one of the leaders of the APF, became Speaker of Parliament and acting President. He approved the holding of presidential elections on 7 June 1992. Abulfaz Elchibey, the leader of the APF, was elected President with 57% of the votes cast, but could not hold this position long. He was overthrown by a coup led by colonel Surat Husseinov. Haydar Aliyev, returning to the country upon the invitation of Elchibey, was elected Chairman of the Milli Majlis (legislature), as Elchibey fled the capital. Aliyev announced that he assumed the duties and responsibilities of the Presidency of Azerbaijan and appointed Husseinov to head a new government. However, Elchibey, who took refuge in Nakhichevan, continued to claim the presidency. Thus a referendum was held on the matter of confidence in Elchibey in August 1993. 92% of the Azerbaijani people participated in the referendum and 97.5% of them voted against Elchibey. The legislature approved the results and scheduled direct presidential elections for 3 October 1993. Aliyev defeated the other two candidates by securing 98.8% of the votes cast.160 Apart from the resolving of the internal power struggle in such a way, the Armenian-Azeri conflict came also to a halt thanks to a cease-fire signed in May 1994. Such a relatively peaceful atmosphere enabled the Azerbaijani authorities to focus on constitution-making. Work on the new Constitution of Azerbaijan began in January 1995. The draft was prepared by "lawyers of the President's Office", and elaborated in a 35-member Commission, comprising scholars, lawyers, deputies and intellectuals. Members of the opposition argued that they had no say in the Commission. They also criticized the draft on the ground that it had conferred disproportionate powers on the President.161 Aliyev had been very influential in the preparation of the Constitution and made a special effort to get it adopted. He pointed out in a meeting of the Constitutional Commission that: ".. .there can be no grosser violation of the law than boycotting the referendum." He urged even opponents of the Constitution to cast their votes.162 The new basic law of Azebaijan was adopted in a nation-wide referendum by the support of 92% of the electorate on 12 November 1995, on the same day with legislative elections.163 The 160. For more details, see Audrey L. Altstadt, "Azerbaijan's Struggle Toward Democracy", in Conflict, Cleavage, and Change in Central Asia and the Caucasus, (Karen Dawisha and Bruce Parrott, eds.), Cambridge University Press, Cambridge 1997,124-131. 161. See Elmira Amiraqizi, 'The Making of A Democracy: Azerbaijan to Adopt Its First Constitution in Nov. 1995", Azerbaijan International Magazine, Autumn 1995, Internet version (http://www.azer.com/). 162. "President Aliyev Urges Citizens to Vote for New Constitution", SWB, (BBC Summary of World Broadcasts), SU/2459 F/l 13 November 1995. 163. "Central Electoral Commission Reports Over 90 per cent of Voters Backed Constitution", SWB, SU/2467 F/2 22 November 1995.


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biggest opposition party, the APF, claimed several irregularities in the elections and referendum, maintaining that "no" options on ballot papers had been crossed out.164 Not only opposition parties, but also international observers reported several irregularities.165 These allegations undoubtedly crippled the legitimacy of the Azerbaijani Constitution from the very beginning. Georgia Opposition movements began to increase in Georgia in 1989 and 1990, particularly after the violent dispersal of a peaceful demonstration by Soviet security forces on 9 April 1989. As the opposition grew stronger, the Communist Party of Georgia (CPG) felt obliged to take several measures. The opposition, demanding a more liberal election law, began to exert pressure on the Supreme Soviet for the postponement of parliamentary elections scheduled for 25 March 1990. Although there were differences between opposition groups, they managed to make the Supreme Soviet postpone the elections. This decision was the outcome of negotiations between Givi Gumbaridze, First Secretary of the Communist Party, and the opposition leaders. The Law in question was enacted in August 1989. Although the differences between opposition groups became more visible in the course of time and consecutive unification attempts came to naught, a number of opposition groups united in the Round Table-Free Georgia in early 1990. This organization was in favor of achieving independence through parliamentarian methods. So, they were willing to participate in the elections to the republican Supreme Soviet. Two radical groups, in turn—the National Democratic Party (NDP), led by Gia Chanturia, and the National Independence Party (NIP), led by Irakli Tsereteli—refused to participate in the upcoming elections and organized an alternative election for a rival parliament, the National Congress. Yet only 51% of the electorate participated in these elections held on September 1990. The Round TableFree Georgia bloc won 64% of the votes cast in the republican Supreme Soviet elections held on 28 October and 11 November 1990. The new Supreme Soviet elected Zviad Gamsakhurdia as its Chairman. Consequently, the new legislature was dominated by the nationalists and began to take steps towards full independence.166 As a first step, the Georgian leadership officially boycotted the AilUnion referendum held in March 1991. Yet the people in South Ossetia and Abkhazia cast their votes and voted for the preservation of the Union. The 164. "Opposition Party Alleges Vote Rigging", SWB, SU/2549 F/2 13 November 1995. 165."Voting Irregularities Reported in Azeri Elections", SWB, SU/2460 F/l 14 November 1995. 166. See generally Hunter, op.cit. note 145, 110-141.

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Georgian authorities refused to negotiate for a new union and organized a nation-wide referendum on independence. 95% of the electorate turned out, and 93% of them voted for independence. On 9 April 1991 the Supreme Soviet adopted a declaration of independence. Like many other Soviet republics, Georgia put democracy and independence in the same box. That is to say, to speak approvingly of "democracy" was another way of saying: "independent Georgia belongs among the ranks of civilized Western states."167 After the achievement of independence, however, democracy became a second-rank goal for the Georgian authorities. They justified their semiauthoritarian practices by the need for strong rule during a painful transition period. Direct presidential elections were held on 26 May 1991. Gamsakhurdia secured 85% of the votes cast. Despite this result, most opposition parties and groups were against Gamsakhurdia. Increasingly erratic behavior of Gamsakhurdia led to growing tension between his supporters and opponents, which gradually turned into civil war. As a result, Gamsakhurdia and his allies left the country and a Military Council was formed in January 1992. One of the most important decisions of the Council was the restoration of the Georgian Constitution of 1922. Like the Baltic republics, Georgia experienced a brief period of independence before becoming a part of the USSR and the Constitution of 1922 was the product of this period. To reinstate this Constitution was another way of saying that the 70-year period of Soviet domination had been unlawful. However, given the changed conditions, the Council restored the Constitution of 1922 with certain reservations. Thus the reinstatement of the pre-communist Constitution appeared as a political gesture, rather than a constitutional amendment.168 As Georgia was taking significant steps towards democracy, Eduard Shevardnadze returned to the country. The State Council, consisting mainly of anti-Gamsakhurdia forces, replaced the Military Council. Shevardnadze became Chairman of the State Council in March 1992. Parliamentary elections were held in October 1992, but none of the political parties could win an overall majority. The centrist Peace Bloc, comprising former communists as well as intellectuals, emerged as the biggest party from the elections with 29 seats. At the same time, Shevardnadze was elected Chairman of the Supreme Soviet, a post equal to the office of presidency. There was, therefore, no real opposition in Georgia or it was very weak after the convocation of the 1990 Parliament. The absence of an effective opposition, on the one hand, and intimate relations between the parliamentary majority and the President, on the other, created an extraordinarily strong executive.169 167.Ghia Nodia, "Georgia's Identity Crisis", 6 Journal of Democracy No. 1, 1995, 107. 168.F.J.M. Feldbrugge, "The Law of the Republic of Georgia", 18 Reviewof Centraland East European Law 1992 No.4, 371-372.

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The parliamentary elections, held in October 1992, created a fragmented legislature. In the meantime, economic and political crises paralyzed the governmental machinery. As a result, Georgia came to be an ungovernable country. Then, Gamsakhurdia re-appeared on the stage. His supporters gained a substantial military success against government forces. As Shevardnadze persuaded Parliament to enter the CIS as a last chance to save the country, Russian troops were dispatched to Georgia in late October 1993. With the help of the latter, government forces regained the territories they had lost. After the restoration of peace and order, Parliament appointed a constitutional commission headed by President Shevardnadze. The Commission met on 25 March 1993. Along with representatives of political groups, economists, historians, philologists, philosophers and psychologists, people of different nationalities and faiths took part in the constitution-making process. At every stage of the process, the public was informed. Finally, the draft was adopted by Parliament on 24 August 1995.170 The post-communist Georgian Constitution, unlike the constitutions of most other Soviet republics, was accepted by the major political forces. Negotiations and compromises during constitution-making imparted the Constitution a consensual character. According to Vakhtang Khmaladze, one of the leaders of the opposition Republican Party's faction: "...completion of the constitutional process in Parliament signifies the victory of all democratic forces in Georgia."171

3.6.6. Moldova In May 1989 one of the most important unofficial groups in Moldova, the Popular Front of Moldova (PFM), was formed. In June the PFM organized several demonstrations to protest against the sovietization of Moldova, focusing in particular on the language issue. Elections to the republican Supreme Soviet were held on 25 February 1990. Although 80% of the newlyelected deputies were members of the Communist Party of Moldova (CPM), most of them were sympathetic to the policies of the PFM. In April 1990, Mircea Snegur, who was supported by the PFM, was elected Chairman of the Supreme Soviet. In May, Mircea Druc, a member of the PFM with proRomanian tendencies, was appointed Chairman of the Council of Ministers. 169. For more details, see Darrell Slider, "Democratization in Georgia", in Conflict, Cleavage, and Change in Central Asia and the Caucasus, (Karen Dawisha and Bruce Parrott, eds.), Cambridge University Press, Cambridge 1997,156-198. 170. G.Z. Intskirveli, "The Constitution of Independent Georgia", 22 Review of Central and East European Law 1996 No.l, 3. 171. "Parliament Completes Discussion of Draft Constitution", SWB, SU/2389 F/2 23 August 1995.

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Upon the election of Snegur as President in September, the opposition became the dominant political force in Moldova. The growing domination of the Romanian-speaking community in Moldovan politics, however, prompted a reaction of other ethnic groups, particularly the Russians and the Gagauz. In January 1990 the Russianspeaking eastern population arranged a referendum for more autonomy for the Dnestr region. The majority of those participating in the referendum voted for autonomy. In August 1990 the Gagauz proclaimed a separate "Gagauz SSR" in the southern part of the country. The following month, the Russian minority founded the "Transdnestrian SSR". Both newly-established entities held elections to their own Supreme Soviets. These developments fanned ethnic friction in Moldova. The Moldovan leadership boycotted Gorbachev's referendum on a renewed union. This led to the CPM's split-up, and a group of dissidents founded an Independent Communist Party on a Democratic Platform. In May 1991 the Supreme Soviet passed a vote of non-confidence against Prime Minister Druc. He was replaced by Valeriu Muravski. This marked the end of the heavy pro-Romanian influence of the PFM in the government. Thereafter, President Snegur took a pro-independence and anti-Moscow position. On 23 August 1991 he banned the CPM, and on 27 August the Supreme Soviet declared the independence of the republic from the USSR. On 8 December 1991 presidential elections were held, and Snegur won 98.2% of the votes cast.172 During the first half of 1992, Moldovan politics revolved around ethnonational problems, particularly around the armed conflict in Transdnestria and the possible unification with Romania. In March an ethnic conflict erupted again in the Dnestr region. President Snegur offered a special economic status to the Dnestr separatists, but rejected the idea of a separate republic. In June 1992 Prime Minister Muravski tendered his resignation due to his failure to resolve the immediate economic and ethnic problems of the country. Andrei Sangheli, a Deputy Prime Minister and the Food Industry Minister in the outgoing government, was named to head a new "national accord" government. This government was led by the Agrarian Democratic Party (ADP) and composed mainly of former communists. At the end of 1992, discussions about the unification with Romania came to the fore in Moldovan politics. The PFM, changing its name to the Christian Democratic Popular Front (CDPF) in February 1992, had been advocating unification 172. For more details, see William Crowther, "The Politics of Democratization in Postcommunist Moldova", in Democratic Changes and Authoritarian Reactions in Russia, Ukraine, Belarus, and Moldova, (Karen Dawisha and Bruce Parrott, eds.), Cambridge University Press, Cambridge 1997, 288-295.


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from the very beginning. The ADP, in turn, was in favor of independence. President Snegur, taking the side of the ADP, declared that this problem could only be solved through a referendum. He was sure that people would vote against unification. However, the referendum proposal was rejected by a margin of one vote. The first multi-party election, held on 27 February 1994, changed the political landscape of Moldova to a great extent. With the decline of proRomanian forces, former communists appeared as the dominant force in Parliament. The ADP emerged as the largest party from the election and acquired an overall majority. The election results also confirmed that the majority of Moldovan people rejected the PFM and other pan-Romanian groups and embraced those favoring a Moldovan identity and ethnic accommodation. Moreover, a referendum was held on independence in March 1994. Of 75% of voters participating in the referendum, 95% voted for independence. This undoubtedly solidified the pro-independence position of the majority of Moldovans.173 All these problems delayed constitution-making. Although a draft constitution had been ready at the time of the former Parliament in 1993, the new constitution was adopted by the newly-elected Parliament on 29 July 1994.174 The Constitution generally reflected the "Moldovan" tendencies of the ADP majority in Parliament. The ADP had promised to follow a path favoring a Moldovan way during the election campaign and kept its promise in drawing up the Constitution. Then, it was not surprising that the dissensual characteristics of the new basic law prompted criticism from the side of the opposition. Immediately after the adoption of the Constitution, pro-Romanian deputies announced that they would begin a campaign to review certain aspects of it. The CDPF, in turn, explicitly called for a protest against the new basic law. In response, 3000 people staged an anti-constitution demonstration in Chisinau.175 More interestingly, the opposition to the Constitution exceeded the border of Moldova. Romania's government issued a statement and criticized the Moldovan Constitution on the ground that it termed the country's language "Moldovan" rather than Romanian, "against historic and scientific truth ...aiming in fact to deny Moldova's character as a Romanian state" and continuing earlier [Soviet] attempts to "invent a new [Moldovan] nation". Moreover, targeting the Constitution's provisions on territorial autonomies as "encouraging separatism" and even "possible federalization", Romania's government asked Moldova to guarantee "the rights of the majority popula173.Ibid., 307-311. 174.For a comment on Moldova's draft constitution, see Andrew W. Lester, "Moldova's Flawed Constitution", Demokratizatsiya Spring 1994, 297-308. 175. "New Constitution Adopted; Opposition Objects", SWB, SU/2061 D/5 30 July 1994.

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tion, the Moldovan Romanians." Ultimately, Romania's government declared that "[it] will continue working with...those political forces in Moldova who call for special relations with Romania and for national emancipation."176

3.6.7. Belarus Belorussia was one of the most prosperous republics in the former USSR. Partly because of this, the Communist Party of Belorussia (CPB) could resist Gorbachev's political and economic reforms sweeping the Union in the beginning. Nevertheless, the Party could not hold its firm position against the opposition long. The Party edifice was shaken by growing popular demands for more freedom and national autonomy. Two important independent groups, the "Belorussian Language Association" and the "Belorussian Ecological Union", came into existence at the end of the 1980's. In October 1988, another important group, the "Belorussia Popular Front" (BPF), was formed. As the BPF grew stronger, the CPB felt obliged to take measures to preserve its declining popularity. Accordingly, the Supreme Soviet passed a law on 26 January 1990 envisaging a transition from Russian to Belorussian as the state language after 1 September 1990. Even though the BPF gained a significant success by the enactment of the Language Law, it was not allowed to participate in the Supreme Soviet elections held on 4 March 1990. As a tactical move, its members joined in the reformist Belorussian Democratic Bloc (BDB) and managed to secure one-fourth of the seats in Parliament. The newly-elected Parliament began to work on a new constitution. A 74member constitutional commission was set up in June 1990. On 27 July 1990, the Supreme Soviet adopted a declaration of sovereignty. After the August coup of 1991, the CPB was suspended and a declaration of independence was proclaimed on 25 August 1991. In September 1991 Stanislau Shushkevich was appointed Chairman of the Supreme Soviet. In the meantime, the republic changed its name to Belarus, and the Supreme Soviet granted a constitutional status to the Declaration of State Sovereignty of July 1990.177 In November 1991, the Constitutional Commission submitted a draft constitution to the Supreme Soviet. The latter approved the text after a first reading and presented it for public discussion. On 3 December 1991, the draft 176. Vladimir Socor, "Romania Attacks Moldova's Constitution", RFE/RL 8 February 1994, Internet version (http://www.omri.cz/). 177. For more details, see Kathleen J. Mihalisko, "Belarus: Retreat to Authoritarianism", in Democratic Changes and Authoritarian Reactions in Russia, Ukraine, Belarus, and Moldova, (Karen Dawisha and Bruce Parrott, eds.), Cambridge University Press, Cambridge 1997, 237-242.


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was published in major newspapers. More than 6000 additions, amendments and corrections were sent in by the people. The Commission also asked the opinion of academics and foreign experts.178 Work on the new constitution continued during 1992 and speeded up in 1993. The debates focused on the relationships between the executive and the legislature. The emerging draft was criticized by Shushkevich on the ground of disproportionate powers of the presidency.179 By the end of 1993, there were still some differences among deputies over what kind of powers the executive should have.180 On 15 March 1994, however, the new constitution was adopted by Parliament. The Constitution, in fact, mirrored the authoritarian tendencies of the parliamentary majority. They saw a strong executive as a panacea for the problems ensuing from the triple transition of Belarus. Liberal democratic groups, in turn, compromised on many issues because they saw the Constitution as a legal barrier which would protect independent statehood against the proRussian parliamentary majority. Zyanon Paznyak, leader of the opposition BPF, criticized the Constitution for not introducing a proper balance of power and argued that it was tailored to help Prime Minister Vyacheslau Kebich become a presidential candidate.181 On 23 June 1994 presidential elections were held in Belarus and Aleksander Lukashenka was elected President. This was a turning point in post-communist Belarusian constitutional politics. Lukashenka repeatedly revealed his intention to amend the Constitution to strengthen his powers. In a referendum on 14 May 1995 people were asked four questions. Of these questions, three of them were concerned with the relations with Russia: "Do you agree that the Russian language should be granted equal status with the Belarusian language?" "Do you support the introduction of a new flag and a new state emblem?" "Do you support the President's action aimed at achieving economic integration with Russia?". One of them, however, was about the powers of the President: "Do you agree that it is necessary to introduce amendments to the Constitution that will make it possible for the President to dissolve Parliament before its term ends when it violates the fundamental law?"182 The referendum came under strong criticism. When the issue had been brought before Parliament by Lukashenka on 11 April 1995, a group of 178. See Alexander Lukashuk, "Belarusian Draft Constitution: A Controversial Step Forward", 1 RFE/RL Research Report 30 October 1992 No. 43,43-48. 179. Kathy Mihalisko, "Shushkevic Calls for Weak Belarusian Presidency", RFE/RL 2 April 1993, Internet version (http://www.omri.cz/). 180.Ustina Markus, "Belarusian Constitution Still Debated", RFE/RL 3 December 1993, Internet version (http://www.omri.cz/). 181. Ustina Markus, "Belarus Adopts Constitution", RFE/RL 16 March 1994, Internet version (http://www.omri.cz/). 182. Constitution Watch, "Belarus", 4 EECR 1995 No.2, 4.

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18 opposition deputies had staged a hunger strike. The strike, however, lasted very short, as the deputies were removed by the police on Lukashenka's order.183 All the questions were overwhelmingly approved in the referendum, thanks particularly to Lukashenka's huge propaganda campaign and the suppression of the opposition forces. Although the answer to the last question concerning the powers of the presidency had been advisory only, the President's interpretation was that 77.6% of "Yes" votes meant that the people had granted him the right to dissolve Parliament whenever he would think it necessary.184 He scheduled another referendum for November 1996, this time on the adoption of a new constitution. He said that the new constitution would establish a bicameral parliament and introduce "real separation of powers".185 It is interesting to note that Lukashenka disclosed his understanding of "separation of powers" as follows: .. .[t]he three branches of government—legislative, judicial and executive—all grow on the tree of the presidency and, therefore, must be controlled and trimmed by the President himself.186 Although opposition parties in Parliament and the Constitutional Court united against the President, the new constitution, establishing a semiauthoritarian regime, was adopted on 24 November 1996 by a nation-wide referendum. Not surprisingly, the new basic law was harshly criticized by the opposition and international organizations.187

3.6.8. Central Asia In Central Asia the effects of Sovietization were strongly felt in every sphere of life. The most important legacy of the USSR in Central Asia was the absence of a national identity which had already been weak in pre-Soviet times. This made independence the essential goal of ruling authorities in the transition period. Even after achievement of independence, democracy remained as a second-rank goal.188 Current political regimes in these countries can be described as "secular authoritarianism with a free market flavor". Most Central Asian leaders believe that, given the pressing conditions of post-communism, an authoritarian period is necessary in the transition to 183.Ustina Markus, "Lukashenka's Victory", Transition 11 August 1995, 75-78. 184.Constitution Watch, "Belarus", 4 EECR 1995 No.3, 4. 185.Ustina Markus, "Belarusian President Proposes a New Constitution", OMRI Daily Digest, 23 July 1996, Internet version (htt//www.omri.cz/). 186. Constitution Watch, "Belarus", 4 EECR 1995 No.4, 4. 187. Constitution Watch, "Belarus", 6 EECR 1997 No.1, 5-7. Constitution Watch, "Belarus", 6 EECR, 1997 No.2/3, 5-6.


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democracy. Nazarbayev, Kazakh leader, summed up the general view of the Central Asian leaders as follows: "...the path from totalitarianism to democracy lies through enlightened authoritarianism."189 Kazakhstan A clean-up operation by Gorbachev brought about significant changes in Kazakhstan. Dinmukhamed Kunayev, First Secretary of the Communist Party of Kazakhstan (CPK), was replaced by Gennadii Kolbin. Kunayev was allegedly corrupt, but Kazakh in origin. Kolbin, in turn, was an ethnic Russian. Kolbin's appointment prompted huge demonstrations in Alma-Ata in December 1986. This was the first glamost-era popular demonstration in the whole of Central Asia. In spite of such a popular reaction, Kolbin retained his position and dismissed most of Kunayev's allies. This was the first sign of increasing Kazakh-Russian conflict in the republic. In the meantime, cultural and environmental issues became central to public discussions in Kazakhstan. Several independent groups, such as Nevada-Semipalatinsk, Alash, Azat and Zheltoqsan, focused on these issues. In June 1989 Kolbin was transferred to Moscow. An ethnic Kazakh, Nursultan Nazarbayev, Chairman of the Republic's Council of Ministers since 1984, was appointed First Secretary of the CPK. Elections to the Supreme Soviet of Kazakhstan were held on 25 March 1990. Most candidates ran unopposed. Moreover, some seats were reserved for CPK-affiliated organizations. As a consequence, the communists emerged as the dominant force in Parliament. On 24 April 1990 the Supreme Soviet elected Nazarbayev as President, and on 25 October 1990 it adopted a declaration of sovereignty. Although, in an All-Union referendum on 17 March 1991, 94% of the Kazakh people approved the replacement of the USSR by a renewed federation, Nazarbayev condemned the conspirators of the August 1991 Coup in Moscow. He resigned from the Politburo and the Central Committee of the Communist Party of the Soviet Union. In September 1991 the CPK declared its independence from the CPSU and reconstituted itself as the Independent Socialist Party of Kazakhstan (SPK). On 1 December 1991, Nazarbayev, the only candidate in the elections, was reelected President with the 98.8% of votes of the Kazakh people. Finally, the 188. Generally see Bess A. Brown, Authoritarianism in the New States of Central Asia: An Overview of Post-Independence Politics, Berichte des Bundesinstituts fur ostwissenschaftliche und internationale Studien, 46-1996. Also see Patricia Carley, "The Legacy of the Soviet Political System and the Prospects for Developing Civil Society in Central Asia", in Political Culture and Civil Society in Russia and the New States in Eurasia, (Vladimir Tismaneanu, ed.), M.E. Sharpe, New York 1995, 292-317. 189. Quoted by Shireen T. Hunter, Central Asia since Independence, The Washington Papers: 168, The Center for Strategic and International Studies, Washington, DC 1996, 39.

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Supreme Soviet of Kazakhstan adopted a declaration of independence on 16 December 1991.190 There were several implications of the achievement of independence on constitution-making. First, Kazakh independence was not the outcome of a broad-based social movement or a revolutionary upheaval. Kazakhstan, as it were, reluctantly became independent. That is why reformist elites, as happened in most former Soviet republics, were caught unprepared. They had no revolutionary political program or social agenda which would embody the principles and strategy of their revolutionary struggle. This was one of the reasons for the drawing up of the post-communist constitution by a small group of elites. Second, Kazakhstan was the last republic proclaiming its independence from the USSR. This was not surprising, given the threat of the northern population—largely Russian—to merge with the USSR. This led the rulers, particularly President Nazarbayev, to pursue more moderate policies towards the Russian population in Kazakhstan. During the constitution-making process, one of the intractable problems was to strike a reasonable balance between Russian and Kazakh interests.191 The government set up a working group, headed by L. Fedotova, ViceChair of the Supreme Soviet, to prepare a draft constitution. The Group consisted of jurists, academics, officials from the Ministry of Justice and members of the Supreme Soviet, as well as two judges from the Supreme Court of Kazakhstan and the State Arbitration Court respectively. The Group completed a draft constitution on 25 March 1992. On 2 June 1992 the Supreme Soviet adopted the draft in a first reading. Nazarbayev commented that the draft had been adopted thanks to the compromise on the language issue reached by major groups in Parliament.192 The document was published and submitted to public discussion. Moreover, Nazarbayev discussed it with local leaders in November 1992. In his report, Nazarbayev emphasized again the importance of the language issue, which had been central to debates in constitution-making, by saying: "...we need a constitution which will unite people."193 190. For more details, see Martha Brill Olcott, "Democratization and Growth of Political Participation in Kazakstan", in Conflict, Cleavage, and Change in Central Asia and the Caucasus, (Karen Dawisha and Bruce Parrott, eds.), Cambridge University Press, Cambridge 1997, 204-214. And Gregory Gleason, The Central Asian States, Discovering Independence, Westview Press, Boulder, Colorado 1997, 51-57. 191. See Ian Bremmer and Cory Welt, "Kazakstan's Quandary", 6 Journal of Democracy 1995 No.3, 139-154. 192. Bess Brown, "Kazakstan Adopts Draft Constitution", RFE/RL 3 June 1992, Internet version (http://www.omri.cz/). 193. "Nazarbayev Discusses Draft Constitution with Local Leaders", SWB, SU/1549 B/9-10 27 November 1992.


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What is interesting is that the Constitution's fate had been sealed even before its promulgation. During the debates in the Supreme Soviet, several opposition parties argued that the current Assembly did not reflect the actual configuration of political forces in Kazakhstan. Thus constitution-making should be postponed until the election of a new parliament. On the other hand, they voiced their fears about a strong presidency.194 Thus opposition groups appeared to be against the Constitution from the very beginning. More interestingly, however, Nazarbayev, one of the prominent figures in constitution-making, saw the Constitution as a temporary one. In a Supreme Soviet session in December 1992 he said: "...it is not worth seeking today to create a constitution designed to last centuries. This is not the task. The new constitution must be the firm basis of our progress under conditions of a difficult and painful transitional period."195 Apart from this, the Kazakh people appeared to be indifferent to the constitution-making process. Public officials, academics and the representatives of political parties were ready to discuss the draft enthusiastically, but the Kazakh people were almost ignorant of the subject. An academic from the Law Faculty of the Kazakh State University, Marat Sarasenbayev, reflected on the atmosphere of constitutionmaking in Kazakhstan: ...during the period of perestroika, there was a great deal of enthusiasm and active engagement in political issues. However, there were many promises, many words, but the quality of life of ordinary people continues to deteriorate. We do not even know what to do tomorrow. The Constitution, therefore, is not the one that will be an eternal document. We all expect it to change in five years.196 The Constitution was adopted on 28 January 1993 by the Supreme Soviet of Kazakhstan, but, as had been predicted, it was replaced by another one in 1995. After the adoption of the Constitution of 1993, the first post-independence elections were held in Kazakhstan on 7 March 1994. These elections came under strong criticism. National as well as international (OSCE) observers asserted that they were neither free, nor fair. One of the candidates, Tatyana Kvyatkovskaya, failing to win a seat in the March elections, claimed the unconstitutionality of two of the resolutions of the Central Electoral 194. Bess Brown, "Constitutional Debate in Kazakstan", RFE/RL 26 January 1993, Internet version (http://www.omri.cz/). 195. "Supreme Soviet Day One: Nazarbayev Speech; Discussion on Constitution", SWB, SU/ 1567 B/14 18 December 1992. 196. Quoted in Neelan Tiruchelvam, "Constitutional Transition in Kazakstan", in Constitutionalism and Politics, (Irena Grudzinska Gross, ed.), Slovak Committee of the European Cultural Foundation, Bratislava 1994, 314.

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Committee, one of them concerning expatriate voters, the other about the division of districts. She held these resolutions responsible for her defeat and applied to the Committee. Her application sparked off the events which culminated in constitutional changes in Kazakhstan. The Central Electoral Committee put off dealing with the problem. However, Kvyatkovskaya managed to bring her case before the Constitutional Court. On 6 March 1995 the Court found the resolutions established by the Central Electoral Committee unconstitutional and proclaimed the elections illegitimate.197 According to the ruling of the Constitutional Court, the new Parliament ceased to exist, and all its legislation was retroactively annulled, while the final law of the old Parliament (the Law on Delegation) remained in effect. The Delegation Law was enacted by the Soviet-era Parliament just before its dissolution in December 1993. This Law enabled the President to enact laws on urgent social and economic problems. It fixed the specific powers of Parliament, including the power to enact a "constitutional law", which would govern referendums. It did not, however, mention any other "constitutional laws". Most importantly, it did not mention the power to amend or replace the Constitution. Given the ambiguity of the Law, the ruling of the Constitutional Court was highly controversial. First, the Court decided that Nazarbayev had—and had never lost—the powers delegated to him by the 1993 Delegation Law, including the power to issue a "constitutional law" on referendums. Second, and more importantly, the Court ruled that the Delegation Law granted the President the power to enact "constitutional laws" in general.198 Nazarbayev, saying he had been surprised by the decision of the Court, used his veto power on 10 March 1995, but the Court overrode his veto and declared that the ruling was already in force. Nazarbayev, this time took advantage of the situation and, allegedly, used this as a pretext for dissolving Parliament.199 He had been confident that the March 1994 elections would create a "pocket parliament", but it happened otherwise. That is why he did not hesitate to dissolve the Parliament in March 1995.200

197. Bruce Pannier, "A Step Back for Democracy", Transition 30 June 1995, 62-66. Also see Bhavna Dave, "A New Parliament Consolidates Presidential Authority", Transition 22 March 1996, 33-37. 198. For interesting comments on constitutional situation in Kazakstan, see Barnabas Johnson, "The Role of the United States in the Erosion and Collapse of Constitutional Governance in Kazakstan", 6 Central Asia Monitor 1995, 14-19. Lowry Wyman, "What the 1995 Constitution Means to the People of Kazakstan", and Evgeniy Zhovtis, "Commentary on Lowry Wyman's Article", 5 Central Asia Monitor 1996, 21-26. 199.Pannier, op.cit. note 197, 64. 200. Bremmer and Welt, op.cit. note 191, 139-154.

ChapterS. Constitution-Making

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During the parliamentary interregnum, Nazarbayev ruled the country by decree. On 24 March 1995 a group known as the Assembly of the Peoples of Kazakhstan, submitted a proposal to Nazarbayev, calling for a referendum on extending his presidency to the year 2000 instead of 1996. On 26 March 1995 Nazarbayev said he needed time to inquire into the legal basis for such a referendum. On 27 March 1995, however, he announced that the referendum would be held on 29 April 1995. 91.3% of eligible voters turned out and 95.4% of them approved the extension of the term of the President. Soon after, Nazarbayev prepared a new constitution. He, as mentioned above, had articulated his intention to change the Constitution of 1993 long before the April 1995 Referendum. In approving the main provisions of the new constitution, he said: "...the current constitution is obsolete and an obstacle to progress."201 Nazarbayev's draft was published on 1 August 1995. Several opposition parties and intellectuals harshly criticized the document. The judges of the Constitutional Court commented on the Constitution that "...[i]t would curtail human rights and civil liberties [and] distort the principle of balance of powers."202 Some opposition groups, including the Kazakh National Patriots and members of the Slavic movements, also maintained that the Constitution would be conducive to establishing an authoritarian regime by introducing a strong presidency, setting up a submissive parliament and restricting rights and liberties.203 One of the Slavic movements, cooperating with the regional Communist Party, distributed leaflets against the Constitution in the North Kazakhstan Region.204 However, the new constitution was approved overwhelmingly in a referendum held on 30 August 1995.205 90% of the 8.8 million eligible voters participated in the referendum and 89% of them cast their votes in favor of the new constitution. The referendum was tainted by allegations of rigging. According to opposition party leaders, for example, less than half the electorate voted in Alma-Ata, not 90% as officially reported. A leader of the Slavic movement Lad from eastern Kazakhstan went even further by claiming that the voting figures had been "officially falsified".206 Other opposition groups, including 201. Bruce Pannier, "Kazakstan to Have New Constitution", OMRI Daily Digest 15 June 1995, Internet version (http://www.omri.cz/). 202. Bhavna Dave, "Nazarbaev Predict Victory in Referandum", OMRI Daily Digest 28 August 1995, Internet version (http://www.omri.cz/). 203. Bhavna Dave, "Kazakh Opposition Leaders Protest the Constitution", OMRI Daily Digest 18 August 1995, Internet version (http://www.omri.cz/). 204. "No Violation Reported in Referendum so far", SWB, SU/2396 G/l 31 August 1995. 205. Bhavna Dave, "Nazarbaev Wins Referendum by a Big Margin", OMRI Daily Digest 31 August 1995, Internet version (http://www.omri.cz/). 206. Bhavna Dave, "Nazarbaev Hails Victory, Dismisses Criticisim", OMRI Daily Digest 1 September 1995, Internet version (http://www.omri.cz/).

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the Communist Party, the Human Rights Committee and the Russian Community Organization asserted that voter turnout had been 34 %, not 90.5% as proclaimed by the government.207 Constitutional change continued in Kazakhstan even after the adoption of the 1995 Constitution. The latter was amended recently. Although the term of the President was extended until 2000, four deputies proposed to hold presidential elections earlier (in 1999) on the grounds that the elections, which had been originally scheduled for 2000, would be overshadowed by the Russian presidential elections, which were to be held at the same time, and that pre-term elections were necessary to cope with social and economic instability in the country. President Nazarbayev initially rejected the proposal of the deputies,208 but he later met with deputies behind closed doors. Deputies wanted not only to bring forward the presidential elections, but also to change the President's term of office from five to seven years as well as abolish the constitutional provision prohibiting the election of a person to the office of president for more than two terms.209 After negotiations and compromises, the Kazakh Parliament passed several amendments to the Constitution on 7 October 1998.210 Accordingly, the terms of office of the lower and upper houses of Parliament were changed from four to five and five to six years respectively. The term of office of the President, in turn, was changed from five to seven years. The provision regulating the election of the President was amended in a way to allow a person to serve more than two terms in office. Apart from these, parliamentary and presidential elections were scheduled for January 1999, one year earlier than planned. Kyrgyzstan By 1989, several independent groups came into existence in Kyrgyzstan. The essential aim of these groups, such as Ashar and Osh Aymaghi, was to solve the problem of accommodation shortage by seizing vacant lands and building new houses on them. This led to violent clashes throughout 1990 between the Kyrgyz and the Uzbeks in Fergana Valley, where mostly ethnic Uzbeks had been settled. The ethnic Uzbeks, on the other hand, demanded the establishment of an autonomous region in Osh. Although several independent groups grew stronger, the candidates of the Kyrgyzstan Communist Party (KCP) ran 207. "Opposition Says Referendum Turnout 34 percent, Result Invalid", SWB, SU/2399 G/3 4 September 1995. 208.Liz Fuller, "...Rules out Preterm Presidential Poll...", RFE/RL 1 October 1998, Internet version (http://www.rferl.org/). 209. Bruce Pannier, "Kazakh Deputies Want Early Presidential Elections", RFE/RL 6 October 1998, Internet version (http://www.rferl.org/). 210. "Kazakh Parliament Approves Amendments", RFE/RL 8 October 1998, Internet version (http://www.rferl.org/).


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unopposed in the elections to the Kyrgyz Supreme Soviet in February 1990. Not surprisingly, they won the majority of the seats. The Supreme Soviet then elected Absamat Masaliyev as its Chairman. Masaliyev, favoring the introduction of an executive presidency, calculated that he could easily be elected by the KCP-dominated Supreme Soviet. Yet when the Supreme Soviet convened in an extraordinary session to elect the first executive President of Kyrgyzstan, Masaliyev was discredited owing to the incidents in the Osh region. On the other hand, the opposition, organized as the Democratic Movement of Kyrgyzstan, was strong enough to thwart Masaliyev's plan. As a result, Masaliyev could not muster the required majority in the first round of the elections, and his nomination as a candidate in the second round was rejected. Thus Askar Akayev, President of the Kyrgyz Academy of Sciences, was elected as President. Having come to power, Akayev launched several reforms against which some groups within the KCP and the security forces took a critical position. As a consequence, to topple Akayev, a coup was staged in Kyrgyzstan at the same time as the August 1991 Coup in Moscow. The KCP did not hesitate to declare that it supported the conspirators in Moscow. Yet Akayev and his allies survived the coup and the Supreme Soviet adopted a declaration of independence on 31 August 1991,211 On 12 October 1991 Akayev was re-elected President and resumed his economic and political reforms. Although he had popular backing, nationalists and communists were against him. One of his most important opponents, the KCP, was reconstituted as the Party of Communists of Kyrgyzstan (PCK) in mid-1992. During 1992, there were significant developments in constitution-making as a part of ongoing reforms. The Constitutional Commission in Parliament completed a draft constitution in October 1992.212 The relationships between executive and legislative agencies, along with some other issues, such as property rights, were the subject of heated discussions. Akayev maintained that the balance of power had already been in favor of the legislature. He pointed out that if Parliament approved the Commission's draft, the government of the republic would be turned into a "puppet" government.213 This version of the Constitution, however, was rejected through the disagreement between Parliament and the President. A new version of the 211. For more details, see Eugene Huskey, "Kyrgyzstan: The Fate of Political Liberalization", in Conflict, Cleavage, and Change in Central Asia and the Caucasus, (Karen Dawisha and Bruce Parrott, eds.), Cambridge University Press, Cambridge 1997, 250-254, and Gleason, op.cit. note 190, 357-61. 212. Bess Brown, "Kyrgyz Constitutional Commission Completes Work", RFE/RL 19 October 1992, Internet version (http://www.omri.cz/). 213. "Kyrgyz President Criticizes Republic's New Draft Constitution", SWB, SU/1548 B/9-10 26 November 1992.

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draft was discussed in the December 1992 session of Parliament.214 One of the most important discussion points in this session was the reference to Islamic values. In the earlier version, there was a statement reading: "Kyrgyzstan is in the process of a spiritual rebirth oriented toward Islamic values." This was deleted from the draft in the Commission, even before it had been discussed. President Akayev said that retaining such a statement would be important for moral purification and respect towards any religion.215 As the economic situation deteriorated, the debate on the new constitution continued in the first half of 1993. Akayev asked Parliament and the government to cooperate to complete the Constitution as the legal and political framework of the newly-independent republic and to turn to the economic problems of the country.216 As Parliament spent some more time discussing property and language issues, Akayev became more impatient.217 Consequently Parliament, owing to a great extent to Akayev's efforts, completed the draft constitution. On 15 April 1993 in a second reading of the draft, the Supreme Soviet stripped the President of some of his powers which had been approved in the first reading. In response, Akayev threatened Parliament either to create a constituent assembly to approve the Constitution or to call early presidential and parliamentary elections in the fall.218 This proposal, particularly the creation of a constituent assembly, appealed to the liberal democratic opposition which had already criticized the approval of the Constitution by a parliament elected in the communist period.219 During discussions, the opposition forces also criticized the draft on the grounds that it granted too much power to the President and weakened the legislature. Ethnic Russians, in turn, articulated their demands concerning dual citizenship and granting Russian the same status as Kyrgyz. Yet, thanks to the efforts of nationalist deputies, Kyrgyz was adopted as the official language of the Kyrgyz Republic. There was no reference to Russian in the draft even as "a means of inter-ethnic communication". Then, Akayev tried to persuade Parliament to review its decision in order to prevent probable ethnic friction. He was successful in persuading Parliament to change its decision and recognize Russian as a means of inter-ethnic communication. 214. Bess Brown, "Dipute Over Constitution in Kyrgyzstan", RFE/RL 8 December 1992, Internet version (http://www.omri.cz/). 215. "Kyrgyz President Supports Islamic Element in Constitution", SWB, SU/1558 i 8 December 1992. 216. Bess Brown, "Akaev Appeals for Cooperation Between Legislature and Government", OMRI Daily Digest 17 February 1993, Internet version (http://www.omri.cz/). 217. Bess Brown, "Constitutional Debate in Kyrgyzstan", OMRI Daily Digest 14 April 1993, Internet version (http://www.omri.cz/). 218. Bess Brown, "Akaev Proposes Elections in Fall", RFE/RL 16 April 1993, Internet version (http://www.omri.cz/). 219. Bess Brown, "Congress of Democratic Forces in Kyrgyzstan", RFE/RL 2 March 1993, Internet version (http://www.omri.cz/).


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The Supreme Soviet approved the draft constitution unanimously on 5 May 1993. This approval was the outcome of a compromise between the President and Parliament. He, for example, gave up the title of Head of Government, and in exchange the Supreme Soviet accepted to delete a reference to Islamic values.220 More importantly, Akayev accepted that the new Constitution would not enter into effect until the end of the current Supreme Soviet's term. However, he claimed after the approval that the compromise had only concerned the terms of office of the country's top leaders, not the timing of the Constitution's inauguration.221 He declared that his, the current Vice-President's and the Supreme Soviet Chairman's terms of office would end in 1995, but that the Constitution would come into effect immediately. So, the Constitution came into effect on 5 May 1993 and the Supreme Soviet was dissolved. Some important amendments were made to the Constitution of 1993 after its inauguration. In a constitutional conference in December 1994, President Askar Akayev argued that "...a constitution must reflect ongoing changes in society and not be used as a canonical text like the Koran or the Bible."222 Having won the 24 December 1994 presidential elections overwhelmingly, the President called for a referendum which would be held on 10 February 1995. He complained that there is "a vacuum of power and responsibility"223 and added that he was little more than a figurehead comparing himself to Queen Elizabeth.224 In a referendum on 10 February 1995, the Kyrgyz people overwhelmingly approved about 50 amendments to the 97-clause Constitution of 1993. The new version of the Constitution granted more powers to the executive, and tipped the balance of power in favor of the President. Recent amendments to the Kyrgyz Constitution were made in 1998 again through a nation-wide referendum. President Askar Akayev announced a referendum on the amendment to the Constitution in early September 1998.225 The amendments proposed by Akayev provided for the legalization of private land ownership, modification of the structure of Parliament, and the restriction of Parliament's role in the legislative process, including the 220. Bess Brown, "Constitution Adopted in Kyrgyzstan", RFE/RL 6 May 1993, Internet version (http://www.omri.cz/). 221. Bess Brown, "Kyrgyzstan's Constitution Has Gone into Effect", RFE/RL 7 May 1993, Internet version (http://www.omri.cz/). 222. Bess Brown, "Constitutional Conference in Kyrgyzstan", RFE/RL 8 December 1994, Internet version (http://www.omri.cz/). 223. Bruce Pannier, "Referendum Called for Amendments to Constitution in Kyrgyzstan", OMRI Daily Digest 4 January 1996, Internet version (http://www.omri.cz/). 224. Bruce Pannier, "Kyrgyzstan Set for Referendum on Akayev's Powers", OMRI Daily Digest 9 February 1996, Internet version (http://www.omri.cz/). 225. "Kyrgyz President Calls for Changes to Constitution", RFE/RL 3 September 1998, Internet version (http://www.rferl.org/).

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drafting of the budget. The deputies in the Kyrgyz Parliament rejected most of the President's proposals.226 The opposition and the bulk of the population particularly criticized the draft amendment introducing private land ownership, and called for the cancellation of the referendum.227 Akayev, in turn, defended this amendment by saying that "farmers should feel themselves masters of the land they cultivate."228 In the end, the Kyrgyz people went to the poll on 17 October 1998 to decide on the amendments proposed by the President. 96.26% of the voters participated in the voting and 90.92% of them voted in favor of the amendments. These were the changes made to the Constitution of 1993: (1) private ownership of land was introduced; (2) the approval of the government was required before Parliament's discussion of budget spending; (3) the number of deputies in the Legislative Assembly was changed from 35 to 67, and in the People's Assembly from 70 to 38. Apart from these, several regulations were made concerning the immunity of deputies and their freedom of speech.229 Tajikistan Rakhmon Nabiyev, First Secretary of the Communist Party of Tajikistan (CPT) since 1982, was replaced by Kakhar Makhkamov in 1985 who accused his predecessor of corruption and nepotism. Makhkamov's rule brought a relatively free atmosphere in the republic. Censorship over the press, for example, was loosened and this allowed people to discuss several issues concerning Tajik culture and language. In the meantime, there was a growing interest in Iranian culture, although the relationships between Iran and Tajikistan were limited since the Iranian Revolution of 1979. In 1989 Tajik was proclaimed as official language. Thereafter, the Arabic alphabet, the pre-Soviet alphabet of Tajikistan, came to be taught at schools. These were the first signs of growing concern about ethno-national issues in Tajikistan. In February 1990 popular unrest broke out in the country. The reason for the demonstrations was ostensibly the rumor that Armenian refugees would be settled in the Dushanbe region, but people actually protested against CPT rule. They demanded economic and political reforms. The communist authorities, in turn, responded by proclaiming martial law and imposing a 226. "Kyrgyz Parliament Opposes President", RFE/RL 9 September 1998, Internet version (http://www.rferl.org/). 227. "Kyrgyz Opposition Calls for Cancellation of Planned Referendum", RFE/RL 29 September 1998, Internet version (http://www.rferl.org/). 228."Kygyz President Pledges Not to Dissolve Parliament", RFE/RL 30 September 1998, Internet version (http://www.rferl.org/). 229. "Kyrgyz Citizens Vote in Referendum", RFE/RL 19 October 1998, Internet version (http://www.rferl.org/).


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curfew in Dushanbe. The incidents in February 1990 alarmed the communist leadership and led them to take more oppressive measures against the opposition. Martial law continued during 1990. Nevertheless, this did not prevent the formation of some independent groups and political parties. Two of them, Rastokhez (Rebirth) and the Democratic Party of Tajikistan (DPT), were not officially registered. The Islamic Renaissance Party (IRP), was not even allowed to hold its founding congress. In spite of these obstacles, the popularity of all these three parties kept growing. Not surprisingly, the opposition parties were not allowed to participate in the March 1990 elections to the Supreme Soviet. 94% of the elected deputies were members of the CPT. On 9 September 1991 a declaration of independence was promulgated. The declaration described Tajikistan as a sovereign state based on liberal democratic principles and the rule of law. The name of the republic was changed to the "Republic of Tajikistan". Yet this did not satisfy the opposition. They demanded the dissolution of the CPT and the holding of new, multi-party elections. Kadriddin Aslanov, Chairman of the Supreme Soviet and acting President, issued a decree banning the CPT and nationalizing its properties. In response, the communist majority in the Supreme Soviet demanded the resignation of Aslanov and removed the ban on the CPT. Aslanov resigned and he was succeeded by the former CPT leader, Rakhmon Nabiyev. Nabiyev made several concessions to the opposition. Finally, the Supreme Soviet lifted martial law, suspended the CPT and legalized the IRP in November 1991. All these developments were a victory for the opposition.230 A series of anti-government demonstrations took place in Dushanbe in March 1992. The reason for the demonstrations was the dismissal of the Interior Minister Mamadayez Nauzhuvanov by President Nabiyev. He was, in fact, a Badakhshani (Pamiri) and the demonstrations were led by Lale Badakhshan, a group campaigning for more autonomy for the Pamiri people living in the Gorny Badakhshan autonomous region. The other three opposition groups, Rastokhez, the IRP and the DPT, also participated in the demonstrations. The government, in response, cooperated with the procommunists. Consequently, a confrontation broke out between the government and the opposition. The clashes between these groups soon turned into civil war. In May 1992 the violence temporarily ended with a peace agreement between Nabiyev and the opposition leaders. A new "Government of National Reconciliation" was set up with eight out of twenty-four ministries 230. For more details, see Muriel Atkin, "Thwarted Democratization in Tajikistan", in Conflict, Cleavage, and Change in Central Asia and the Caucasus, (Karen Dawisha and Bruce Parrott, eds.), Cambridge University Press, Cambridge 1997,277-311, and Gleason, op.cit. note 190, 61-64.

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belonging to the opposition. In the meantime, a draft constitution was unveiled. The Tajik version of the document was published during the unrest in Dushanbe. The Russian version appeared in the press on 31 May 1992, after the creation of the new government.231 Despite the truce, Tajikistan plunged into civil war, which continued for more than two years. As a result, constitution making was interrupted for a long time. In the beginning of 1994, work on the first post-independence constitution was resumed. On 19 April 1994 the draft constitution was distributed for public discussion.232 After the two-year bloody civil war, on 6 November 1994 presidential elections and a referendum on the new constitution were held at the same time. The elections and referendum were boycotted by the DPT and Islamic opposition groups. Nevertheless, Rakhmanov was elected President with 58% of the votes cast, and the Constitution was adopted by more than 90% of the affirmative votes of those taking part in the referendum. The other presidential candidate, Abdulmalik Abdullojonov, maintained that there had been irregularities in the elections. As this brief survey suggests, the Constitution of Tajikistan was drawn up and adopted under extraordinary conditions. So, it could be expected that those groups who had no opportunity to express their expectations during the constitution-making process would push for constitutional change after returning to normal politics. Indeed, the Constitution of 1994 has been in the process of change since the signature of a peace agreement between the Tajik Government and the United Tajik Opposition (UTO) aiming to end the fiveyear civil war in the country. According to the Agreement, signed on 27 June 1997, the supporters of the opposition were to return to Tajikistan, opposition parties were to be legalized, and the armed forces of both the government and UTO were to be integrated. Apart from that, the UTO was to be given 30% of government posts and, more importantly, a national reconciliation commission was to be set up.233 The Commission, which was to be in charge of amending the Constitution, was to consist of a total of 26 members, 13 from the government and 13 from the UTO. According to the plan, members of the Commission were appointed in July 1997 and they immediately began to work on constitutional amendments.234 During the amending process, the UTO revealed its intention to change the secular characteristics of the Constitution by repeatedly calling for a nation-wide referendum on the 231. Bess Brown, "Draft Constitution Published in Tajikistan", RFE/RL 1 June 1992, Internet version (http://www.omri.cz/). 232. Bess Brown, "Draft Constitution Appears in Tajikistan", RFE/RL 21 April 1994, Internet version (http://www.omri.cz/). 233. "Tajik Peace Agreement Signed", RFE/RL 21 June 1997, Internet version (http:// www.omri.cz/). 234. "Members of Tajik Reconciliation Council Appointed", RFE/RL 3 July 1997, Internet version (http://www.omri.cz/).


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revision of the provision laying down that the Republic of Tajikistan is a secular state (Art. I).235 The work of the Council progressed very slowly. However, presidential and parliamentary elections as well as a referendum on the amendments to the Constitution were scheduled for 1999.236 Turkmenistan

At the end of the 1980's, there were several economic, environmental and cultural problems in Turkmenistan. First, Turkmenistan was the provider of raw material, especially natural gas and cotton, to other more developed republics in the Union. Thus economic relationships between Turkmenistan and other republics came under criticism. Second, there were some discussions about environmental problems ensuing from the over-intensification of agriculture. Third, certain cultural issues surfaced in the republic. Despite such daunting problems, for which Moscow was mainly responsible, opposition was almost non-existent in Turkmenistan at the end of the 1980's. The most important reason was that the republic was geographically too remote from the center and communication channels were too weak to catch up with the developments in other republics, as well as in Moscow. Moreover, since Turkmenistan had not achieved its national unity before the Soviet era, the nationalist sentiments of the people were quite weak. In 1989 the Communist Party of Turkmenistan (CPT) was the dominant group in the elections to the Ail-Union Congress of People's Deputies. In September 1989 Turkmen intellectuals established Agzybirlik, an informal group focusing initially on language, economic and environmental issues. It gradually transformed itself into an opposition movement enjoying a great deal of popular support. This alarmed communist authorities and, although the group was officially registered, it was banned in January 1990. Thus only the CPT and its approved organizations participated in the elections to the Supreme Soviet on 7 January 1990. The CPT won the majority of the seats in the 175-seat Supreme Soviet. When the Supreme Soviet convened, Saparmurad Niyazov, First Secretary of the CPT since 1985, was elected Chairman of the Supreme Soviet. On 22 August 1991 the Supreme Soviet adopted a declaration of sovereignty. On 27 October 1991 Niyazov was elected President. He was the only candidate and received 98% of the votes cast. In the Ail-Union referendum on the future of the USSR, held on 17 March 1991,96% of Turkmen people voted in favor of a renewed federation. Interestingly enough, in the whole Union, the largest amount of "yes" votes were cast in Turkmenistan. 235. "Tajik Opposition Calls for Referendum Again", RFE/RL 17 August 1998, Internet version (http://www.omri.cz/). 236. "Elections, Referendum Planned in Tajikistan in 1999", RFE/RL 1 April 1999, Internet version (http://www.omri.cz/).

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Turkmen authorities displayed neither a positive, nor a negative official reaction to the August 1991 coup in Moscow. Yet, after the coup, Niyazov retained his position as President and declared that the CPT would remain as the ruling party, although in most other republics communist parties had either been suspended or dissolved at that time. In August 1991 the CPT changed its name to the Democratic Party of Turkmenistan (DPT) and Niyazov became its Chairman. The Turkmen people overwhelmingly approved the independence of the republic in a nation-wide referendum on 26 October 1991. On 27 October 1991 the Supreme Soviet proclaimed the independence of Turkmenistan.237 Throughout 1992 there was no significant change in the political landscape of Turkmenistan. There was no opposition party, and President Saparmurad Niyazov took all power in his hands. The Turkmen Constitution of 1992 was adopted by the Supreme Soviet on 18 May 1992 in such a political atmosphere. Needless to say, it was hardly a consensual document. Uzbekistan The first important independent group in Uzbekistan was Birlik which initially focused on environmental and cultural issues and gradually turned into a genuine opposition movement. Although it was not officially registered and its candidates could not participate in the elections to the USSR's Congress of People's Deputies in 1989, it gradually became a rival of the Communist Party of Uzbekistan (CPU). On 18 February 1990 elections were held for the Supreme Soviet of Uzbekistan. Birlik members again were not allowed to participate in the elections. CPU members easily secured the majority of the seats. The new Supreme Soviet convened in March 1990 and elected Islam Karimov President. On 31 August 1991 it adopted a declaration of independence. The CPU also declared its independence from the CPSU and took the name of People's Democratic Party of Uzbekistan (PDPU). Karimov, remaining as the leader of the Party, was re-elected President on 29 December 1991. His only rival was Muhammed Solikh from the Erk which was an opposition party established in 1990 as an offshoot of Birlik. At the same time, a referendum was held on the independence of the republic in which 98.2% of the Uzbek people voted for independence.238 237. For more details, see Michael Ochs, "Turkmenistan: the Quest for Stability and Control", in Conflict, Cleavage, and Change in Central Asia and the Caucasus, (Karen Dawisha and Bruce Parrott, eds.), Cambridge University Press, Cambridge 1997, 312-359, and Gleason, op.cit. note 190, 64-66. 238. For more details, see William Fierman, "Political Development in Uzbekistan: Democratization?" in Conflict, Cleavage, and Change in Central Asia and the Caucasus, (Karen Dawisha and Bruce Parrott, eds.), Cambridge University Press, Cambridge 1997, 360408, and Gleason, op.cit. note 190, 66-72.


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During 1992, as the dominant position of the PDPU continued, Karimov's rule became more authoritarian. The opposition, particularly Birlik, lost its influential position in Uzbek politics. On 8 December 1992 the post-communist Constitution of Uzbekistan was adopted by the Supreme Soviet unanimously after a token discussion. The Constitution was not the product of a deliberative constitution-making process. It was drawn up under the supervision of the President and the PDPU. Most importantly, there was no genuine opposition party at the time in Uzbekistan to voice the constitutional expectations of several portions of the society. As a result, the Constitution appeared as a highly dissensual document.

3.7. Conclusions Transition to democracy in the former USSR was a regime-initiated transition. Gorbachev's reforms were the spark that set off the subsequent events in the entire Union leading to a transition to democracy which was mainly controlled from above. Constitution-making, on the other hand, reflected the power struggle at the peak of the state ensuing after such regime-initiated transition. At the level of the republics, however, the struggle for independence was more important than the transition to democracy in many cases. This produced two significant results. First, constitution-making processes progressed very slowly or could not continue owing to ethnic or religious conflicts. Such an atmosphere affected the legitimacy of new constitutions negatively, even in those republics where constitutions had been drawn up relatively early. Second, in most republics independence and democracy were put in the same box. Until the dissolution of the Union, the struggle of independent groups and nationalist leaders was against Sovietization and Soviet totalitarianism. After the achievement of independence, some republics took significant steps towards consolidation of democracy, but others made little progress, even went backward. This found expression in the documents that emerged. Apart from these, there were some common characteristics in the constitution-making processes of the former Soviet republics. In this regard, one may point to the central position of the leaders in the creation of new constitutions. Most constitutions in the former Soviet republics appeared as "leader constitutions". That is to say, charismatic leaders in the republics not only directly influenced the constitution-making process, but also spent considerable effort to adopt new constitutions which usually established strong presidential systems. The Russian, Ukrainian, Azerbaijani, Armenian and Central Asian constitutions can be given as examples of leader constitutions. For the purpose of this study, the most important implication of such

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leader domination in constitution-making would be the uncertainty of the future of these documents after the disappearance of the leaders who have tailored them to their needs. As an overall conclusion, it can be said that post-communist constitutionmaking produced dissensual documents both in Eastern Europe and the former USSR. New constitutions were generally imposed by a dominant group or a leader on other political actors. Either major political groups could not participate in constitution-making to voice their opinions freely, or the mass of the people was indifferent to new constitutions, or both. Although there were some exceptions, constitution-making processes left many problems unsolved. Two sets of birth defects emerged in post-communist constitution-making: ethno-national problems and the distribution of power among state agencies. Generally, ethno-national problems could not be solved to the satisfaction of the groups concerned. The relationships between the executive and legislative organs came also under criticism in most post-communist countries. Lastly, it is important to note that certain cases (such as Belarus, Kazakhstan and Kyrgyzstan) demonstrated that constitutional changes may produce negative effects in those transition societies where the norms and principles are not firmly supported, particularly at the elite level. Accordingly, it can safely be argued now that constitutional change contributes to consolidation of democracy in transition societies, if there is sufficient popular support for democratic norms and principles.

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CHAPTER 4 EFFECTIVENESS 4.1. Introduction In the previous chapters we have studied two sources of the legitimacy of constitutions, culture and constitution-making. First, we have found that although post-communist constitutions reflect post-communist political culture to a certain extent, this political culture is mixed and fluid in nature. Thus favorable outcomes of new constitutions may bolster a relative congruency between political culture and political institutions. Second, we have observed that, although there has been support for democratic norms and principles in the countries concerned at the abstract level, serious problems arose during the constitution-making process when applying these norms and principles at the national level. These problems, which may be regarded as "birth defects", crippled the legitimacy of new constitutions from the very beginning. If they perform effectively, they may cure these birth defects in the course of time. The German example may help us to understand the relative importance of effectiveness in comparison with other legitimacy sources, namely political culture and constitution-making, in establishing the legitimacy of new constitutions. According to a survey, carried out six years after the foundation of the Federal Republic of Germany, 52 % of people said "Don't know anything about the Constitution", 14% of them were undecided and 5% negative. Only 30% of the people were positive towards the Constitution. Some people were in favor of the restoration of the monarchy, but the dominant attitude towards the Constitution was ignorance or indecision among the populace. On the basis of these findings, it has been argued that there was rather weak or no supportive political culture in Germany after the Second World War. The legitimacy of the German Constitution was also crippled in terms of inauguration legitimacy. The Constitution, drawn up under the supervision of foreign powers, was hardly the expression of the German people's or its representatives' preferences. Nevertheless, in the course of time, the positive performance of the Constitution, particularly in terms of providing governmental stability, facilitating economic progress, protecting human rights and restoring national self-respect, filled the gaps left by the absence of other legitimacy sources. By 1972,52% of the German people evaluated their Constitution positively. In 1978 the percentage of these positive evaluations was 71%^ These findings demonstrate that effectiveness really matters as far as the legitimacy of constitutions is concerned.

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4.2. Definition of Effectiveness Seymour Martin Lipset defined the concept of effectiveness of a political system as follows: .. .actual performance, the extent to which the [political] system satisfies the basic functions of government as most of the population and such powerful groups within it as big business or the armed forces see them.2 Juan J. Linz, in the same vein, made a distinction between "efficacy" and "effectiveness" when analyzing the performance of a given political system. He defined efficacy as .. .the capacity of a regime to find solutions to the basic problems facing any political system (and those become salient in any historical moment) that are perceived as more satisfactory than unsatisfactory by aware citizens.3 Effectiveness, in turn, is "...the capacity actually to implement the policies formulated, with desired results".4 In these definitions two points deserve attention. First, they take into account functional effectiveness, i.e., a political system or a regime is considered effective, if it fulfills its functions. Second, what matters in evaluating the performance of a given political system or a regime is what its members think. Here it is important to note that although certain functions, such as the maintenance of civil order, personal security, adjudication and arbitration of conflicts, and the offering of a minimum predictability in the making and implementation of decisions, are expected to be fulfilled by any political system or regime, it is hardly possible to make a list of functions which would provide a set of criteria to evaluate the performance of a particular political system or regime. However, it can be said that, since political systems and regimes are set up with various expectations, a given political system or a regime can be considered effective by its members so 1.

2. 3. 4.

David Conradt, "West Germany: A Remade Political Culture? Some Evidence from Survey Archives", 7 Comparative Political Studies 1974 No. 2,222-238; David Conradt, "Changing German Political Culture", in The Civic Culture Revisited, (Gabriel A. Almond and Sidney Verba, eds.), Sage Publications, London, 1980,212-272; David Conradt, "Political Culture, Legitimacy, and Participation", 4 West European Politics 1981 No. 2, 18-34. Seymour Martin Lipset, Political Man: The Social Basis of Politics, Doubleday, New York 1959, 77. Juan J. Linz, "Introduction", in The Breakdown of Democratic Regimes, (Juan J. Linz and Alfred Stepan, eds.), The Johns Hopkins University Press, Baltimore/London 1978, 2021,22. Ibid.

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long as it meets their expectations. These observations are generally true also for constitutions; i.e., on the one hand, an effective constitution is the one fulfilling its functions, on the other, the effectiveness of a constitution can only be evaluated by taking into account people's expectations. However, one should always bear in mind that functions of a constitution are more limited than those of a political system or a regime. As we have mentioned above, the terms of political system and regime are more comprehensive than the term of constitution. A constitution is the formal structure of the regime. Accordingly, the main function of a constitution is to provide an institutional framework within which interaction between individual actors, i.e., state agencies, political parties, interest groups and other elements of the political system, takes place in order to produce desired outcomes for the political community. For example, providing physical security for its citizens has been considered one of the most important functions of a political system or a regime. In this respect, the function of a constitution is limited only to entrenching the rights and liberties concerning the physical security of citizens, and to introducing suitable mechanisms for their proper protection. The actual protection of these rights and liberties is effected by security forces, administrative agencies, courts and other related elements of the political system. Functions of Constitutions As implied above, in this study the concept of effectiveness is defined in connection with people's expectations. Henc van Maarseveen and Ger van der Tang emphasized the importance of the latter in the evaluation of the effectiveness of a constitution. According to them, as far as the problem of the effectiveness of constitutions is concerned the incongruity between a constitution in operation and a constitution in reality is usually equated with ineffectiveness. They argued that: .. .this inference is incorrect; the problem can be put quite differently if a different standpoint is adopted, namely whether the expectations nurtured by society or by the political system as regards the effects of the rules are fulfilled. Then it is a question of determining what those expectations were and the extent to which they have been fulfilled, either by observance or even by non-observance of the rules. Complete observance of the rules—total effectiveness according to one set of criteria may therefore lead to complete frustration of expectations—total ineffectiveness according to another set of criteria.5 5.

Henc van Maarseveen and Ger van der Tang, Written Constitutions, Oceana Publications, Inc., Dobbs Ferry, New York 1978, 281.

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Thus, bearing in mind that the actual application of a given constitution is vital, even a precondition for its effectiveness, we can generally define the effectiveness of a constitution as its capacity to meet the expectations of the people. This being so, we need to know what these expectations are. These may display great variety depending on the characteristics and conditions of the political system in question, but, fortunately, the nature of democratic regimes allows us to divide people into groups and generalize their expectations. Groups, "structures of all kinds, formal and informal, linking members of a society", are the key elements of modern political systems. These elements interact with each other and carry out their activities within the system. Groups can roughly be categorized into communal and associational groups. In communal groups (such as family, tribe, ethnic, religious, or occupational groups), what keeps members of the group together is their common characteristics. These groups embody the inherent traits of their members. In associational groups, on the other hand, members get together to pursue certain goals. These groups can also be subdivided into two, as protective (such as trade unions) and promotional associations (such as social movements). Political parties, one of the most important types of groups in modern democratic political systems, can be considered associational groups aiming particularly at affecting the political process.6 In democracies various groups, having different interests and values, compete with each other to come to power. In this competition some groups periodically win, others lose. It is certain that there will always be winners and losers in democracies, but it is not certain which group will be the winner, which one the loser. In this sense, democracy can be defined as a system of "organized uncertainty".7 While winning groups become rulers, losers turn into ruled. The latter accept the authority of the former and continue their struggle to come to power within the framework of the democratic regime. These two broad categories of groups, therefore, can always be found in democracies, winners and losers, or rulers and ruled. Winners, i.e., the majority, most likely expect the constitution to facilitate, or at least not to obstruct, the implementation of their program thanks to which they were elected. Since voters vote for a political party by taking into account what it offers to them, re-election of a party depends to a great extent on its adherence to the promises it has made in its program. This requires the introduction of certain mechanisms to resolve crises which would arise during the process of policy formulation and policy implementation. Losers, 6. 7.

Jean Blondel, Comparative Government, Second edition, Prentice Hall/Harvester Wheatsheaf, London 1995, 95. Adam Przeworski, Democracy and the Market: Political and Economic Reforms in Eastern Europe and Latin America, Cambridge University Press, Cambridge 1991, 13.


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i.e., the minority, in turn, most likely expect the constitution to protect them against the tyranny of the majority because a ruling party may threat the vital interests of minority groups when taking decisions in order to promote its supporters' interests and values. These two functions of constitutions, in fact, correspond to two elements of modern liberal democratic regimes, demo-protection and demo-power, repeating the terms coined by Giovanni Sartori whose accounts on liberal democracy have been studied in the First Chapter. To define the functions of a constitution on the basis of the characteristics of liberal democratic regimes is also consistent with the definition of constitutionalism which has been introduced at the beginning of this study. Accordingly, constitutionalism is not only seen negatively, but also positively. That is to say constitutions are not only disabling, but also enabling documents. The demo-protection and demo-power functions of constitutions constitute their negative and positive aspects respectively. So, how do constitutions meet the constitutional expectations of various groups in liberal democratic systems? Put in another way, how do constitutions fulfill their demo-protection and demo-power functions? Let us start with the demo-protection function. What kind of measures can a constitution provide to protect minority groups, be they ethnic or political, against the tyranny of a majority? As mentioned above, constitutionalism has two main devices, or techniques, to protect minorities from the tyranny of a majority, the rule of law and separation of powers. Most commonly, to guarantee the rule of law, certain rights and liberties are enshrined in written constitutions whose supremacy is guaranteed by a constitutional court or an equivalent court. The tyranny of a majority can also be prevented by the distribution of power among various state agencies, namely the executive, the legislature and the judiciary. Today the division between the executive and the legislature has lost a great deal of its meaning, due to the fact that the parliamentary majority and the executive, both deriving from the same party, act in concert. But the division between the executive, the legislature and the judiciary still constitutes a powerful guarantee against the tyranny of a majority. Apart from that, state agencies can check and balance each other thanks to several constitutional mechanisms.8 Adding to these guarantees at the national level, there may be some international mechanisms to protect rights and liberties. Today, international human rights conventions and courts play a crucial role in providing effective devices to guarantee fundamental rights and liberties. In this respect, the relationships between international law and domestic law as regulated in the constitution assumes paramount importance. 8.

Jon Elster, "Majority Rule and Individual Rights", in On Human Rights, (S. Shute, ed.), Basic Books, New York, 1993, 175-216.

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As for the demo-power function of constitutions, hypothetically one may conceive three stages in the implementation of popular rule. The formation of popular opinion is the first phase. In this phase, those who want to compete for power must be allowed to organize themselves into political parties or interest groups and express their programs freely. Voters, on the other hand, must have alternative information sources from which they can learn about the programs of competing parties. In this respect, freedom of association, freedom of expression, and the right to information play a significant role in the formation of popular opinion. In the second phase, voters make a choice between competing parties thanks to free and fair elections. The right to elect and the right to be elected must be guaranteed in this phase. In the third phase, those parties coming to power implement their programs by wielding political power through state agencies, i.e., the executive and the legislature. Constitutions provide a framework in which these agencies fulfill their functions orderly. In this regard, constitutional engineering offers various alternatives, such as parliamentarism and presidentialism, in arranging the relationships between executive and legislative agencies. To sum up, in all these three phases, the constitution plays a crucial role. Not only provisions concerning various rights and liberties, such as the right to vote, the right to run for office, and freedom of expression, information, and association, but also provisions organizing the relationships between the state agencies serve the implementation of popular rule. Apart from these, another device, the referendum, may also bolster the latter under certain circumstances. So far, we have been dealing with the constitutional expectations of groups in liberal democracies. We have made a distinction between ruling and non-ruling groups and tried to identify their constitutional expectations. In modern polities, however, we may see this problem from a different angle. The political community, one of the most significant elements of the political system, may be homogeneous or heterogeneous. In the former, constitutional expectations of the community can be explained by the ruling/non-ruling dichotomy, whereas in the latter, one should also consider the constitutional expectations of ethnic or national groups. In such communities constitutions must regulate the relations between the major ethnic groups in a way to satisfy all parties. It is important to stress "regulation", not "protection". For ethnic groups may naturally expect to be protected by the constitution as a result of its demo-protection function. Regulation of the relations between these groups rather refers to the creation of such mechanisms which would allow to keep them together within a common state framework. Robert Goodin remarked that: The problem of a liberal commonwealth is how to control the abuse of power. The problem of a mixed common wealth... is how to incorporate


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radically diverse social groupings in a way that proves satisfactory to them all.9 To sum up, one can speak of three functions of constitutions in liberal democratic political systems: (1) the demo-protection function; (2) the demo-power function; (3) the function concerning ethno-national minorities. We shall study these functions respectively. It is important to note that, since it might be too early to evaluate the performance of post-communist constitutions which have been adopted very recently, we shall mainly dwell on institutional alternatives which can be resorted to in case of poor performance of constitutions in question. As we know now to a great extent the possible effects of various institutions under different conditions, we shall assess institutional preferences and alternatives of post-communist countries in the light of these comparative considerations. However, if a given constitution is old enough, we may also refer to its actual performance in evaluating effectiveness problems. Lastly, we shall speculate at the end of every section about probable constitutional changes in post-communist countries.

4.3. Rights and Liberties in Post-Communist Constitutions Although the idea of the protection of people from tyranny harks back to ancient times, the use of constitutions in demo-protection is a relatively recent practice. In the beginning, human rights were introduced into national legal systems through bills of rights and human rights declarations. The English Bill of Rights of 1689, the French Declaration of the Rights of Man and the Citizen of 1789 and the American Bill of Rights of 1791 can be given as examples. Later, rights and liberties came to be incorporated directly into constitutions, particularly after the Second World War. In this respect, the Italian Constitution of 1948 and the German Constitution of 1949 were two examples. As a rule, post-war constitutions included civil liberties and political rights in their bills of rights, but some of them contained also economic and social rights. After the example of the USSR Constitution of 1936, the post-1945 constitutions in Eastern Europe put particular emphasis on the latter. More recent constitutions in Europe, e.g., the Spanish and Portuguese constitutions of 1978 and 1982, followed suit and included a human rights section. Today, one can find in almost every modern constitution a bill of rights entrenching civil liberties and political rights, as well as economic and social rights. Post-communist constitutions, with the excep9.

Robert E. Goodin, "Designing Constitutions: The Political Constitution of a Mixed Commonwealth", 44 Political Studies 1996, 635.

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tion of those of the Czech Republic and Latvia,10 contain bills of rights. Certain rights, for example full private property, are totally new to postcommunist constitutional systems. Others are not completely new, such as most civil liberties and political rights, but they are no longer fictional, i.e., they can be enforced through various legal and constitutional mechanisms, at least in theory. Lastly, certain rights are similar to those in communist constitutions. Most social and economic rights fall into this category. In this section we shall analyze the rights and liberties in post-communist constitutions from a comparative perspective. Rights, Human Rights, Legal Rights and Constitutional Rights Since there is still a great deal of confusion about the concepts of rights, human rights and constitutional rights, it would be appropriate to clear up the content and the meaning of these concepts before proceeding. The concept of rights basically refers to legally or morally recognized choices or interests. The precondition of the existence and exercise of rights is, therefore, their recognition by the legal or moral order depending on their nature. Accordingly, human rights differ from legal and constitutional rights. While the latter derive from the law, the source of human rights is the needs and capacity of human beings. Human rights, therefore, appear as "moral rights of the highest order".11 Legal rights can be categorized on the basis of the legal document in which they are enshrined or the legal relationship in which they are applied. Legal rights derive basically from contracts, statutes and constitutions in modern legal systems. As a rule, constitutions are located at the peak of the legal system, and the rights deriving from contracts and statutes cannot contradict the rights recognized in the constitution. Given the importance and supremacy of the rights in the constitution, they are generally known as "fundamental constitutional rights". These rights are legal rights recognized and protected by the state at the highest level within the framework of a national legal system. Theoretically, constitutional rights may be identical with human rights, i.e., human rights may be perfectly and completely incorporated in the constitution, but one can hardly find such an example in reality. There would always be differences or contradictions between constitutional rights and human rights. 10. The Czech Republic incorporated the "Charter of Fundamental Rights and Freedoms", adopted by the Czechoslovak Parliament on 9 January 1991. According to Article 3 and 112.1 of the Czech constitution, the charter is a part of the constitutional order of the Czech Republic. See for the evaluation of this charter, Jiri Pehe, "Bill of Fundamental Rights and Liberties Adopted", Report on Eastern Europe, 25 January 1991,1-4. Latvia, in turn, reinstated its pre-communist constitution which does not include a bill of rights. 11. Jack Donnelly, Universal Human Rights in Theory and Practice, Cornell University Press, Ithaca/London 1989, 12.


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Generally accepted standards of human rights can be found in international human rights documents. The rights and liberties recognized in such documents as the Universal Declaration of Human Rights of 1948 (UDHR), the European Convention on Human Rights of 1950 (ECHR), the International Covenant on Civil and Political Rights of 1966 (ICCPR) may be equal to constitutional rights or they may occur above or below them depending on the system (i.e., the dualist or monist system) accepted by the constitution in terms of the relationships between international law and domestic law. Consequently, international human rights documents, constitutions and statutes are the basic sources of human rights in modern liberal-democratic legal systems. In this section we shall particularly focus on fundamental constitutional rights, but, since most post-communist countries have already signed such important human rights documents as the ICCPR and the ECHR, we shall also make reference to these documents and to the jurisprudence of the courts established by them.12 We shall analyze fundamental constitutional rights in three categories: civil liberties, political rights and social and economic rights.13 Although this categorization has been criticized on several grounds and different categorizations have been proposed by several authors, since most post-communist constitutions follow international human rights documents in arranging human rights provisions, we shall mainly employ the system accepted by these documents. Civil liberties are those liberties enabling people to express their opinions and develop their personal autonomy. Political rights, in turn, are those rights enabling people to participate freely in the political process. Civil liberties and political rights are usually called "negative rights" to 12. As of October 1998, following post-communist countries ratified the ECHR: Albania (2 October 1996); Bulgaria (7 September 1992); the Czech Republic (18 March 1992); Estonia (16 April 1996); Hungary (5 November 1992); Latvia (27 June 1997); Lithuania (20 June 1995); Moldova (12 September 1997); Poland (19 January 1993); Romania (20 June 1994); Russia (5 May 1998); Slovakia (18 March 1992); Ukraine (11 September 1997). Source: Council of Europe, European Treaties, Chart of Signatures and Ratifications (http://www.coe.fr/tablconv). As of April 1999, following post-communist countries ratified the ICCPR: Albania (4 October 1991); Armenia (23 June 1993); Azerbaijan (13 August 1992); Belarus (12 November 1973); Bulgaria (21 September 1970); the Czech Republic (22 February 1993); Estonia (21 October 1991); Georgia (3 May 1994); Hungary (17 January 1974); Kyrgyzstan (17 October 1994); Latvia (14 April 1992); Lithuania (20 November 1991); Moldova (26 January 1993); Poland (18 March 1977); Romania (9 December 1974); Russia (16 October 1973); Slovakia (28 May 1993); Tajikistan (4 January 1999); Turkmenistan (1 May 1997); Ukraine (12 November 1973); Uzbekistan (28 September 1995). Source: United Nations, United Nations Treaty Collection, (http://www.un.org/depts/treaty). 13. We prefer to use the term "civil liberties" to distinguish them from civil rights which come to be used, particularly in the Anglo-American literature, to refer to the rights held by citizens by virtue of being a citizen. Thus we deviate to a certain extent from the language used by international human rights documents (e.g., the ICCPR).

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emphasize their function to create a protected area for the individual which is immune to the unauthorized interference of state authorities. In this sense, social and economic rights considerably differ from civil liberties and political rights. They impose positive duties on the state in order to improve particularly the socio-economic conditions of individuals. The term of "positive rights" underline these characteristics of social and economic rights. Liberal and Socialist Conceptions of Human Rights The philosophical foundations of the liberal conception of human rights can be found in natural law theories. From the Stoics to Cicero, from St. Thomas Aquinas to Hugo Grotius, these theories were based on the natural conditions of human existence. Particularly, the theory of natural rights, the offspring of the natural law theories, laid the foundations for the conception of human rights accepted by established or emerging liberal democratic regimes. In this regard, the most developed natural law theory was formulated by John Locke in the 17th century. According to Locke, men and women possessed certain natural rights in the state of nature which was a state of perfect freedom and a state of equality. These natural rights included the rights to life, liberty and property. The natural law stipulated that human beings should seek to preserve themselves as well as other human beings. The enforcement of the law of nature required an authority who would punish those encroaching it. Since everybody was equal in the state of nature, everybody was granted the right to punish or what Locke called the "Executive Power of the Law of Nature". This, however, creates certain inconveniences. Thus men and women organized themselves into a political community and created a common higher authority through a social contract in order to better protect their rights. They surrendered their natural powers to the state, but they retained their natural rights. According to Locke's theory, in the event that state authorities fail to protect the natural rights or they violate them, they would lose their legitimacy, thus their claim to obedience.14 The theory of natural rights has had a great impact on the concept of human rights in a modern sense. Human rights or fundamental rights are those rights belonging to everybody by virtue of being human. They attach equally to every individual irrespective of his or her race, sex, nationality or his or her affiliation with a social or political group. Human rights, in this 14. For the Liberal conception of human rights, see Imre Szabo, "Historical Foundations of Human Rights and Subsequent Developments", in The International Dimensions of Human Rights, Vol. 1, (Karel Vasak, ed.), (Revised and edited for the English edition by Philip Alston), Greenwood Press, Westport 1982, 11-40. Also see Jerome J. Shestack, "The Philosophical Foundations of Human Rights", 20 Human Rights Quarterly 1998, 201-234.


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sense, appear as inalienable rights, i.e., they cannot be taken away by any authority. This conception of human rights, constituting a foundation of modern liberal-democratic regimes, diverges significantly from the socialist conception of human rights. We may find the intellectual sources of the socialist conception of human rights in Marxism-Leninism. According to the latter, genuine rights and liberties could only flourish in a classless society where there was no exploitation of working classes. Accordingly the abolition of exploitation appeared as the precondition of the existence and maintenance of genuine freedoms. The construction of a classless society was the ultimate goal for Marxists. The status of human rights under communist regimes, therefore, can better be understood by studying the meaning and content of the concept of exploitation. The basic premise of the Marxist theory was that since human nature had been shaped by socio-economic conditions, it could be explained in materialistic terms. The history of mankind, in this way of thinking, was the history of class warfare. In every society, with the exception of primitive ones where there was no private property, there had always been exploiting and exploited classes. These classes were antagonistic in nature, and there had always been a conflict between them appearing in various forms in history. The struggle between masters and slaves or lords and serfs were the different versions of the same story. According to Marx, this struggle existed in modern capitalist societies too, between the "bourgeoisie" (i.e., the class of property owners) and "the proletariat" (i.e., the class of laborers). Private property was the source of exploitation in capitalist societies. The capitalist owned the means of production which were used to produce goods by the laborer who had nothing to sell but his labor. The capitalist kept a portion of the product of the laborer as surplus-value. This led to the exploitation of the proletariat (the only producer in a capitalist society) by the bourgeoisie (producing nothing, but aiming at maximizing the surplus-value). Thus one could not speak of rights and liberties in such societies built on inequalities between economic classes. Marxists saw rights and liberties prevailing in capitalist societies as merely illusory, serving the protection of bourgeois interests. Marxism refused the concept of human rights as developed by Western liberal thinkers. Moreover the Leninist interpretation of the original Marxist principles, particularly its interpretation of the concept of the "dictatorship of the proletariat", made human rights more insecure in socialist systems particularly at the level of theory. According to Marxist theory, a proletarian revolution was to abolish private property to prevent exploitation and class struggle, then capitalist society was to be replaced by a classless society in which individuals would enjoy genuine freedoms equally. Before reaching this stage, however, a transition period, called the "dictatorship of the

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proletariat", was necessary for the consolidation of the revolution. This period was inevitable to eliminate the class enemies, prevent a counterrevolution and collectivize the means of production. According to Lenin, it was the Communist Party as the "vanguard of the proletariat", who was to prepare the conditions for full communism in this transition period. Consequently, according to the Leninist interpretation of Marxist doctrine, the building of a classless society was the ultimate goal which could be realized by the Communist Party as a fully-competent agent. The latter could take the necessary measures as it saw fit to carry society to the ultimate stage including the curtailment of the rights and liberties of the "defeated" classes. The USSR Constitution of 1977 declared that the supreme goal of the Soviet state was the building of a classless communist society. None of the communist countries, however, could even come close to this ultimate goal. Consequently, as bourgeois rights and liberties were seen as illusory, it was only possible to speak of genuine freedoms in a classless society. It follows that the proletariat should have to wait until the building of such a society. On the other hand, to strip the defeated classes of their rights and liberties was justifiable on the road to full communism. So, human rights completely failed to be recognized, either for the "victorious" class (namely the proletariat), or for the "defeated" classes (namely the capitalist elements in the society, such as landowners, bankers, clerics, etc.) by Marxists-Leninists.15 In spite of this Marxists-Leninist position on rights and liberties, all communist constitutions included a catalogue of rights and liberties. Feldbrugge succinctly explained the reason for this: A totalitarian state cannot afford to recognize genuine fundamental rights, because it cannot tolerate effective restrictions on its freedom of operation. On the other hand, fundamental rights have become such a prominent topic in modern legal and political thought that their open negation by a state would entail a great loss of prestige.16 As a result, communist regimes in Eastern Europe and the former USSR found a way out of this dilemma by recognizing certain rights and liberties to the extent that they would not pose a threat to the authority of the one-party state, and that they would not contradict the original precepts of Marxism15. For the Socialist conception of human rights, see Valery Chalidze, To Defend These Rights, Human Rights and the Soviet Union, (Translated by Guy Daniels), Random House, New York 1974, particularly see 3-41. Also see Wim Albert Timmermans, "Human Rights in Socialist Constitutions: A Comparative Study", in The Distinctiveness of Soviet Law, No. 34 Law in Eastern Europe, (F.J.M. Feldbrugge, ed.), Dordrecht/Boston/ London 1987, 35-59. 16. F.J.M. Feldbrugge, Russian Law: The End of the Soviet System and the Role of Law, Martinus Nijhoff Publishers, Dordrecht 1993, 214-215.


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Leninism. Thus we may list the characteristics of the socialist conception of human rights as follows: First, the possession and enjoyment of rights and liberties must not obstruct the realization of the ultimate goal. In other words, rights and liberties could only be recognized in so far as they would facilitate the building of a classless society. Freedom of association provided a typical example of this attitude. According to the USSR Constitution of 1977: "In accordance with the aims of building communism, citizens of the USSR have the right to associate in public organizations that promote their political activity and initiative and satisfaction of their various interests." (Art. 51) Second, the socialist conception of human rights gave prominence not to the individual but to the state. This provided the state full control over the creation and application of rights and liberties. Two aspects of the centrality of the state in human rights should be emphasized. On the one hand, the state was the only source of human rights. It follows that rights and liberties were granted by the state and could be taken away by it. Rights and liberties, therefore, were not inalienable in communist regimes in contrast with liberal democratic ones. On the other hand, the state played an active role in providing socio-economic conditions for the implementation of constitutional rights and liberties. The citizens of the USSR, for example, were guaranteed freedom of speech, freedom of the press, and freedom of Assembly. However, according to the USSR Constitution of 1977: "Exercise of these freedoms is ensured by putting public buildings, streets and squares at the disposal of the working people and their organizations, by broad dissemination of information, and by the opportunity to use the press, television, and radio." (Art. 50) This being so, the state could and did deny to provide these conditions to those criticizing or challenging state authorities. Third, the socialist conception of human rights was also compatible with the socio-economic premises of Marxism-Leninism. The fusion of rights and duties, the primacy of economic and social rights over civil liberties and political rights, the prohibition of private ownership of the means of production, the importance of the right to work and the emphasis on equal rights were the reflection of Marxist-Leninist principles. Particularly, the fusion of rights and duties was a distinguishing characteristic of the socialist conception of human rights. The USSR Constitution of 1977 put this point clearly by stating that: "Citizens' exercise of their rights and freedoms is inseparable from the performance of their duties and obligations." (Art. 59). Accordingly, if a person had not actively participated in and contributed to the socialist system, he or she could be deprived of the benefits produced by the system. Post-communist countries have been experiencing a double transformation since the collapse of communist regimes in terms of human rights theory

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and practice. On the one hand, today most of these countries abandoned the socialist conception of human rights to which they had subscribed with varying degrees during the communist period. On the other hand, and more importantly, today most newly-born liberal democracies made good progress in upholding their citizens' rights in contrast with the communist regimes in Eastern Europe and the former USSR which had trampled on constitutional rights of citizens with impunity.17 Although many post-communist countries have made great strides in the effective protection of human rights since the collapse of communist regimes, this does not necessarily mean that there are no human rights problems in these countries. Today, constitutional and legal institutions in some countries fail to live up to international human rights standards. Moreover, one may still observe a gap between words and deeds in terms of the application of human rights in certain countries. We shall study these theoretical and practical problems respectively. We shall first study the rights and liberties, including civil liberties and political rights as well as social and economic rights, in post-communist constitutions. Then we shall dwell on the mechanisms for the protection of human rights at the national level. In this respect, we shall put particular emphasis on the role of constitutional courts. Then we shall turn to the gap between constitutional statements and reality. We shall evaluate the positive and negative aspects of human rights records of post-communist countries. The last part of this section will be devoted to the international mechanisms for the protection of human rights. In this respect, we shall mainly focus on the relations between international law and domestic law to determine the potential effects of international human rights conventions on the protection of human rights in post-communist countries.

4.3.1. Civil Liberties One of the most important civil liberties, may be the most important one, is undoubtedly the right to life. Its effective protection is fundamental to all other rights and freedoms. But life, even when adequately protected, would be hard to bear unless the security and privacy of individuals are guaranteed. In this respect, freedom from torture and inhuman treatment, freedom from slavery and forced labor, the right to move around freely and the right to privacy assume paramount importance. Let us focus on the right to life as an 17. For a study comparing rights and liberties in post-communist constitutions with those in communist constitutions, see Alexander Blankenagel, "New Rights and Old Rights, New Symbols and Old Meanings: Re-Designing Liberties and Freedoms in Post-Socialist and Post-Soviet Constitutions", in Western Rights? Post-Communist Application, (Andras Sajo, ed.), Kluwer, Dordrecht 1996, 57-79.


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example to understand and explain the approach of post-communist constitutions to civil liberties. An Example: The Right to Life The right to life is guaranteed by all basic international human rights conventions.18 Although it is also explicitly recognized by all post-communist constitutions,19 the ambiguous formulation of the articles concerned in these constitutions call for further investigation. We shall focus on three important problems closely related with the right to life: abortion, euthanasia and the death penalty. The content and the application of the right to life is problematic as to the determination of its subjects. What is protected by provisions guaranteeing the right to life? The ECHR and the ICCPR, for example, protects the "right" to life of human beings. So does the Lithuanian Constitution. According to the latter, the right to life of individuals shall be protected by law (Art. 19). Some post-communist constitutions simply declare that everybody or every person has the right to life without mentioning that this right is protected by law (Armenian, Belarussian, Bulgarian, Czech, Estonian, Kazakh, Russian, Slovak, Tajik, Turkmen and Ukrainian constitutions), yet it is obvious that enshrining a right in the constitution entails its legal protection. The Georgian and Albanian constitutions contain similar provisions, but they state that "life", not the "right to life" of individuals is protected (Albania, Art. 21; Georgia, Art. 15.1). Although this may seem to be a small detail, one may claim that there is a difference between the protection of life and the protection of the right to life. If, theoretically, we assume that what is protected by constitutions is the life of every person, this may create many problems in practice. This, for example, may impose the duty to prevent every potential threat to individuals' lives. The protection of the right to life, therefore, requires the criminalization of certain acts threatening the life individuals. These provisions should be understood in a way that the protection of the life of individuals means basically their protection against arbitrary deprivation of their lives. Indeed, the ECHR and the ICCPR underline the latter point: "No one shall be deprived of his life intentionally..." (ECHR, Art. 2); "No one shall be arbitrarily deprived of his life." (Art. 6). Some post-communist constitutions provide that "everybody" or "everyone" has the right to life (Armenian, Azerbaijani, Bulgarian, Estonian, 18. UDHR (Art. 3), ICCPR (Art. 6), ECHR (Art. 2). 19. Albania (Art. 21), Armenia (Art. 17), Azerbaijan (Art. 27), Belarus (Art. 24), Bulgaria (Art. 28), Estonia (Art. 16), Georgia (Art. 15), Hungary (Art. 54.1), Kazakhstan (Art. 15), Kyrgyzstan (Art. 16.2), Lithuania (Art. 19), Moldova (Art. 24), Poland (Art. 38), Romania (Art. 22), Russia (Art. 20), Slovakia (Art. 15), Tajikistan (Art. 18), Turkmenistan (Art. 20), Ukraine (Art. 27), Uzbekistan (Art. 24).

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Hungarian, Kazakh, Moldovan, Russian and Slovak constitutions). Other constitutions use the terms of "every person" or "persons" to refer to the subject of the right to life (Albanian, Belarussian, Georgian, Kyrgyz, Romanian, Tajik, Turkmen, Ukrainian and Uzbek constitutions). At first glance, these provisions may seem clear in terms of the subject of the right to life (i.e., one may assume that the life of every human being is under the protection of the constitution), yet further investigation would show that one cannot easily give a satisfactory answer to the question whether the right to life of the unborn child is protected by post-communist constitutions by merely making reference to the text of these constitutions. Do post-communist constitutions allow or prohibit abortus provocatus, i.e., abortion? If one interprets the terms of "everybody", "everyone", "every person", "persons", etc. broadly in a way to cover the unborn child, one may claim that postcommunist constitutions prohibit abortion. Yet this interpretation can always be criticized on the ground that if constitution-makers had wanted to prohibit abortion, they would have introduced provisions explicitly prohibiting it. These provisions, in fact, resemble Article 2 of the ECHR which reads as follows: "Everyone's right to life shall be protected by law." The European Commission on Human Rights distinguished three possibilities with regard to the question whether the protection of the right to life of the unborn child falls under the protection of Article 2: (1) Article 2 is not applicable to the fetus at all; (2) Article 2 recognizes the right to life of the fetus with specific implied restrictions; (3) Article 2 recognizes an unqualified right to life for fetus.20 The Commission rejected the third possibility, yet it did not pronounce an opinion about the first and second possibilities. Rather it stated that in such a delicate area the Contracting States must have some discretion.21 Indeed, such a critical problem should be solved by the legislature and the judiciary by taking into account the socio-cultural and particularly religious characteristics of a given country. Nevertheless, the second possibility, formulated by the Commission, may throw light on the discussions about the issue, particularly in the absence of unequivocal legal and constitutional regulations. Article 6 of the ICCPR may also contribute to the solution of this problem. According to the article in question: "Every human being has the inherent right to life." Manfred Nowak, commenting on this article, reminded us that: "...abortions do not effect the right to life when they are 20. Appl. 8416/79, X v. United Kingdom. See P. van Dijk and G.J.H. van Hoof, Theory and Practice of the European Convention on Human Rights, Second edition, Kluwer, Deventer 1990,218-221. 21. Appl. 17004/90, H. v. Norway. See R.A. Lawson and H.G. Schermers, (compiled, edited, and annotated), Leading Cases of the European Court of Human Rights, Ars Aequi Libri, Leiden 1997, 268, 478.


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performed prior to [the] fetal stage, i.e., up until the end of the first trimester."22 The abortion issue, in fact, is not very problematic for post-communist constitutions. The Lithuanian Constitution, for example, used less ambiguous language when regulating the right to life. According to the Constitution: "The right to life of individuals shall be protected by law." (Art. 19) Since the term "individual" basically means living human beings, one may claim that the Lithuanian Constitution allows abortion, or at least it does not prohibit it. The best solution to this problem, however, would be to prohibit or allow abortion unequivocally in the constitution. The Czech Charter of Human Rights and the Slovak Constitution adopt this solution by stipulating that human life deserves to be protected already before birth (Czech Charter, Art. 6; Slovak Constitution, Art. 15). The abortion issue may cause controversy in conservative societies. The Polish example may illustrate this point. The abortion issue had been fervently discussed during Polish constitution-making, and it had constituted one of the most insurmountable obstacles to the finalization of the draft. The final document, failing to ban abortion at the constitutional level, was harshly criticized by right-wing parties and by the Catholic Church in particular. The current Polish Constitution hardly provides a solution to the problem by simply declaring that: "The Republic of Poland shall ensure the legal protection of the life of every human being." (Art. 38) Another important issue concerning the right to life is whether individuals have the right to end their own lives particularly if they suffer from an incurable disease. This right, known as euthanasia, has been one of the most debated problems in many countries. None of the post-communist constitutions address this issue, but we may try to infer the approach taken by these constitutions from their general provisions. In legal theory it is generally accepted that a general or framework provision can be applied in the absence of a more specific provision. Accordingly, one may find in almost every postcommunist constitution such a general provision stipulating that human rights are inalienable rights. If euthanasia means the termination of human life even with the consent of the person concerned, such an operation would contradict the inalienable nature of human rights in general and of the right to life in particular. So, although they do not contain any provision directly related to this issue, one may argue on the basis of this interpretation that post-communist constitutions do not allow euthanasia. This interpretation can more easily be applied to Ukrainian and Uzbek constitutions, for the latter not only recognize the inalienable nature of human rights in general, 22. Manfred Nowak, U.N. Covenant on Civil and Political Rights, CCPR Commentary, N.P. Engel Publishers, KehyStrasbourg/Arlington 1993, 124.

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but they also emphasize the inalienable character of the right to life in particular. According to the Ukrainian Constitution, every person has the inalienable right to life (Art. 27). According to the Uzbek Constitution, the right to life is an inalienable right of every person (Art. 24). So, we may conclude that a law allowing for euthanasia would be unconstitutional under these provisions of the Ukrainian and Uzbek constitutions. Lastly, the restriction of the right to life deserves particular attention. Although the right to life is the most fundamental right of human beings, it is not guaranteed unconditionally. Certain qualifications are attached to it by international human rights documents. According to the ECHR: "Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defense of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection. These qualifications should be applicable in those countries ratifying these documents as well as accepting the supremacy of international treaties over the national legislation." (Art. 2) Adding to the latter, the most important exception envisaged by international human rights documents is the death penalty. According to the ECHR, no one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law (Art. 2). The Czech Charter of Human Rights (Art.6.3), the Romanian (Art. 22.3) and Slovak (Art. 14.3) constitutions prohibit the death penalty, whereas other post-communist constitutions allow its imposition. One may observe certain common characteristics of provisions regulating the death penalty in postcommunist constitutions. First, most of these constitutions consider the death penalty as an exceptional or an extraordinary punishment for grave or very serious crimes (e.g., the Kazakh Constitution, Art. 15.2). However, constitutions define grave or very serious crimes differently. The Russian and Azerbaijani constitutions exemplify two different definitions of grave or very serious crimes. While the Russian Constitution mentions only grave crimes against life (Art. 20. 2), the Azerbaijani Constitution considers also crimes against the state as grave crimes (Art. 27. III). Second, post-communist constitutions require that the death penalty is to be prescribed by law and imposed by a court decision. Some constitutions even require a special procedure for its prescription and imposition. According to the Georgian Constitution, for example, the death penalty may only be envisaged by an organic law and imposed by the Supreme Court (Art. 15.2). The Russian Constitution, in turn, provides an extra protection by granting the accused the right to have his case considered in a law court by jury (Art. 20.2). Third,


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most post-communist constitutions set the abolition or final prohibition of the death penalty as the ultimate goal (e.g., the Moldovan Constitution, Art. 24.3, the Armenian Constitution, Art. 17.2). Fourth, some constitutions grant the sentenced person the right to appeal for pardon (e.g., the Kazakh Constitution, Art. 15.2 and the Kyrgyz Constitution, Art. 18.4). These provisions of Kazakh and Kyrgyz constitutions are parallel to the related provision of the ICCPR which stipulates that: "Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases." (Art. 6.4). Although the death penalty is retained by the majority of post-communist countries in their constitutions, one may observe a general trend towards its gradual abolition. First of all, most East European countries have ratified the 6th Protocol to the ECHR concerning the abolition of the death penalty.23 On the other hand, there have been positive developments in certain former Soviet republics. Georgia, for example, amended its criminal code to abolish the death penalty for several offences. Azerbaijan went further; first it reduced the number of capital crimes, then abolished the death penalty. More importantly, in some countries, despite the fact that the death penalty continued to be imposed by courts, no execution has taken place in recent years. Even a moratorium was placed on executions by competent authorities in some post-communist countries. Despite these positive developments, one should admit that some countries remain deliberately outside this trend. The new Kazakh Criminal Code of 1997 expanded the scope of the death penalty. In Ukraine the moratorium placed on the death penalty was violated several times in 1995. In Belarus 30 people had been executed in the same year. Moreover, President Lukashenka issued a decree "On Urgent Measures for Combating Terrorism and Other Particularly Dangerous and Violent Crimes" on 21 October 1997 increasing the number of crimes for which capital punishment could be applied.24 Other Civil Liberties in Post-Communist Constitutions So far, we have studied the right to life as an example of the regulation of civil liberties in post-communist constitutions. Now, we wish to examine briefly 23. As of January 1999, following East European countries ratified Protocol No.6 to the ECHR concerning the abolition of the death penalty: The Czech Republic (18 March 1992); Estonia (17 April 1998); Hungary (5 November 1992); Moldova (12 September 1997); Romania (20 June 1994); Slovakia (18 March 1992). Latvia, Lithuania, Russia and Ukriane signed Protocol No.6, but have not ratified yet. Albania, Bulgaria and Poland have not signed the document. Source: Council of Europe, European Treaties, Chart of Signatures and Ratifications (http://www.coe.fr/tablconv/). 24. For these developments, see Annual Reports, International Helsinki Federation for Human Rights, Internet version (http://www.ihf-hr.org).

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other civil liberties recognized by the constitutions under survey to complete our analysis. Another right, which is closely related to the right to life, is the freedom from torture and inhuman treatment. Everyone has the right to live without his personal integrity and human dignity being violated. This right, as the right to life, is guaranteed by all basic international human rights conventions.25 Most post-communist constitutions explicitly prohibit torture and inhuman or degrading treatment or punishment.26 Most constitutions also provide that no one is to be subjected to medical or scientific experimentation without his or her consent. In this context, the Bulgarian Constitution contains an interesting provision. The Constitution prohibits forcible assimilation, along with torture, cruel, inhuman or degrading treatment (Art. 29.1). Given the Bulgarian assimilation policy in the communist period, particularly with regard to the Turkish minority, this provision could play a crucial role in preventing the repetition of such practices. Another right, protected by basic international human rights conventions,27 is freedom from slavery and forced labor. Accordingly, no one can be held in slavery or servitude, no one can be forced to work. Most postcommunist constitutions acknowledge this freedom, but they also attach, in parallel with international treaties, certain qualifications, such as service in military forces, emergency matters, or normal civic obligations.28 The right to privacy complements the above mentioned rights in guaranteeing the autonomy of individuals. Most post-communist constitutions,29 as well as basic international human rights conventions,30 recognize this right. Under post-communist constitutions, everyone is entitled to the protection of his private and family life, his home and correspondence. This right is particularly important for post-communist societies, given the severe viola25. UDHR (Art. 5), ICCPR (Art. 7), ECHR (Art. 3). 26. Albania (Art. 25), Armenia (Art. 19), Belarus (Art. 25), Bulgaria (Art. 29.1), Estonia (Art. 18), Georgia (Art. 17), Hungary (Art. 54.2), Kazakhstan (Art. 17), Kyrgyzstan (Art. 18.1), Lithuania (Art. 21.3), Moldova (Art. 24.2), Poland (Art. 40), Romania (Art. 22.2), Russia (Art. 21), Slovakia (Art. 16.2), Tajikistan (Art. 18), Turkmenistan (Art. 21), Ukraine (Art. 28), Uzbekistan (Art. 26). 27. UDHR (Art. 4), ICCPR (Art. 8), ECHR (Art. 4). 28. Albania (Art. 26), Azerbaijan (Art. 35.111), Belarus (Art. 41), Bulgaria (Art. 48.4), Estonia (Art. 29.2), Kazakhstan (Art. 24.1), Kyrgyzstan (Art. 28.3), Lithuania (Art. 48.3), Moldova (Art. 44), Poland (Art. 65.2), Romania (Art. 39), Russia (Art. 37.2), Slovakia (Art. 18), Tajikistan (Art. 35), Turkmenistan (Art. 31), Ukraine (Art. 43), Uzbekistan (Art. 37). 29. Albania (Art. 35-37), Armenia (Art. 20, 21), Azerbaijan (Art. 32-33), Belarus (Art. 28), Bulgaria (Art. 32-34), Estonia (Art. 26, 33, 43), Georgia (Art. 20), Hungary (Art. 59), Kazakhstan (Art. 18), Kyrgyzstan (Art. 39.2), Lithuania (Art. 22-24), Moldova (Art. 29, 30), Poland (Art. 47, 49-51), Romania (Art. 26-28), Russia (Art. 23-25), Slovakia (Art. 16.1, 19, 21, 22), Tajikistan (Art. 22, 23), Turkmenistan (Art. 22, 23), Ukraine (Art. 3032), Uzbekistan (Art. 27). 30. UDHR (Art. 12), ICCPR (Art. 17), ECHR (Art. 8).


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tions of people's privacy by state authorities in the communist period. Although most post-communist constitutions declare that individuals have the right to privacy, they attach certain qualifications, as do international human rights conventions, concerning the protection of national security, the maintenance of public order, the prevention of disorders or crime, the protection of health or morals, or the protection of the rights and freedoms of others. These liberties may protect individuals against unauthorized state intervention, but individual autonomy may not only be violated by the state, but also by other individuals. Thus the prevention of crime, and, in case of the commission of a crime, the capture, trial, and prosecution of criminals in accordance with the procedures laid down in the law, constitute one of the most fundamental functions of a given political system. All these activities of the system, however, should be carried out in accordance with the principle of impartial justice in liberal democratic regimes. Impartial justice, first of all, requires the independence of judges, a subject we shall return to when studying judicial review. Apart from this, it entails fair trial. Certain pre-trial and post-trial guarantees reinforce the entire process. Certain criminal law principles, such as the precise definition of criminal offenses by a duly enacted and published law prior to the commission of a crime and the presumption of innocence constitute a precondition for the impartiality of the judicial process. These principles are guaranteed by post-communist constitutions in the same manner as international human rights documents. Other rights, such as the right to be informed of the nature and the cause of the accusation, protection against self-incrimination, and the right to have legal assistance ensure the fairness of trials. These rights find their expression in most post-communist constitutions,31 as well as in basic international human rights conventions.32 As for pre-trial guarantees,33 the right to liberty is included in all post-communist constitutions.34 Accordingly, respective constitutions prohibit the unlawful arrest and detention of a person. Moreover, constitutions stipulate that persons, arrested 31. Albania (Art.28-34,42-44), Armenia (Art. 39-42), Azerbaijan (Art. 61-66), Belarus (Art. 26-27), Bulgaria (Art. 5.3,31), Estonia (Art. 22-25), Georgia (Art. 40-42), Hungary (Art. 57), Kyrgyzstan (Art. 38-40), Lithuania (Art. 31), Moldova (Art. 26), Poland (Art. 42, 45), Romania (Art. 24), Russia (Art. 45, 54), Slovakia (Art. 46-50), Tajikistan (Art. 1921), Turkmenistan (Art. 40-43), Ukraine (Art. 55-63), Uzbekistan (Art. 26). 32. UDHR (Art. 10), ICCPR (Art. 14), ECHR (Art. 6). 33. UDHR (Art. 3), ICCPR (Art. 9), ECHR (Art. 5). 34. Albania (Art. 27), Armenia (Art. 18), Azerbaijan (Art. 28/1, II, 67,68), Belarus (Art. 25), Bulgaria (Art. 30), Estonia (Art. 20,21), Georgia (Art. 18), Hungary (Art. 55), Kazakhstan (Art. 16), Kyrgyzstan (Art. 18.3), Lithuania (Art. 20), Moldova (Art. 25), Poland (Art.41), Romania (Art. 23), Russia (Art. 22), Slovakia (Art. 17), Tajikistan (Art. 19), Turkmenistan (Art. 21), Ukraine (Art. 29), Uzbekistan (Art. 25).

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or detained in accordance with legal procedures, are to be brought before a judge who is to take a decision on whether to take them into custody or to set them free. In this process the duration of detention is of great importance. The European Convention of Human Rights, for example, does not set a minimum standard for detention. According to Article 5.3 of the Convention, those arrested or detained in accordance with the provisions of the Convention shall be brought "promptly" before a judge or other officer authorized by law to exercise judicial power. Most post-communist constitutions are clear on this issue and introduce different durations of detention ranging from 24 hours (e.g., Slovak Constitution) to 72 hours (e.g., Ukrainian Constitution). Lastly, one should consider freedom of thought, conscience and religion. Given the fact that the human person is a thinking animal, these freedoms help him or her to understand, explain and give meaning to his or her life. Freedom of thought, conscience and religion is closely related to the principle of secularism. All post-communist countries adhere to this principle, but the regulation of the relationships between temporal and spiritual authorities is different in countries concerned. One may speak of three main religions in the post-communist context, Catholicism, Orthodoxy and Islam. Although there are a few exceptions, particularly in Muslim countries in Central Asia, it can generally be said that religion does not pose a threat to nascent liberal democratic regimes in post-communist countries. This, however, does not necessarily mean that the relationships between governments and religious authorities are far from being problematic. The obvious example among Christian countries is Poland. In this country there is an ongoing discussion about church-state relations. The Catholic Church has traditionally been very influential in Polish society. The crucial role played by the Church as a civil society organization before and during the transition to democracy has reinforced its privileged position. This de facto privilege has already found its de jure expression in the new Polish Constitution. One example would be sufficient to indicate the importance of the Catholic Church in the Polish politico-legal system. Uniquely in the post-communist context, Article 191.1 of the new Polish Constitution allows churches and religious organizations to make an application to the Constitutional Court. In Orthodox countries, particularly in Russia, there is increasing concern about the status of the Orthodox Church and its relationship with other religions. As for Muslim countries, all constitutions adhere to the principle of secularism, but there is growing tension between religious and state authorities in some countries. Tajikistan is the most obvious example. According to Article 8 of the Tajik Constitution, public life in Tajikistan is to develop on the basis of political and ideological diversity. No ideology, including religious ideology, is granted the status of state ideology, and religious organizations are


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separate from the state and cannot interfere with state affairs. Nevertheless, there is an ongoing civil war being fought in Tajikistan between fundamental Islamists and the government. Religious groups and parties have grown stronger also in other Central Asian countries. The events in neighboring Afghanistan have underlined the potential danger of Islamic fundamentalism. All these developments have alarmed many Western countries and led many observers to express their concern about the resurgence of radical Islam in Central Asia. Nevertheless, given the peculiar conditions of these countries, the establishment of Iran-style theocratic states in the region seems very difficult, at least in the short run.35 But it is quite conceivable that the prevalence of Islamic values may cause certain changes in these highly secular constitutions. Generally, to believe in a certain religion is generally considered a personal choice of the individual under post-communist constitutions. Everyone can choose or change his religion freely. As long as the beliefs of the individual remain within the sphere of his inner world, they have nothing to do with law, but when he wants to practice his religion, this may require certain legal guarantees. All basic international human rights conventions provide such guarantees.36 Most post-communist constitutions acknowledge the freedom of thought, conscience and religion, and guarantee its practice and manifestation too.37 Some constitutions, such as the Lithuanian, Polish and Romanian constitutions, also guarantee the parents' right to provide for their children a religious education in accordance with their convictions. Article 85.3 of the new Polish Constitution, in line with the German Constitution,38 protects conscientious objectors by providing that "Any citizen whose religious convictions or moral principles do not allow him to perform military service may be obliged to perform substitute service in accordance with principles specified by statute." Similar provisions can be found in the Russian (Art. 59) and the Ukrainian (Art. 35) constitutions. On the other hand, the Kazakh Constitution does not acknowledge such a right by stipulating that the exercise of this right must not condition or limit not only general human and civil rights, but also obligations to the state (Art. 22.2). 35. Shireen T. Hunter, Central Asia Since Independence, The Washington Papers 168, The Center for Strategic Studies, Washington, DC 1996, 35-37. 36. UDHR (Art. 18), ICCPR (Art. 18), ECHR (Art. 9). 37. Albania (Art. 10,24), Armenia (Art. 23), Azerbaijan (Art. 48), Belarus (Art. 31), Bulgaria (Art. 37), Estonia (Art. 40), Georgia (Art. 9), Hungary (Art. 60), Kazakhstan (Art. 22), Kyrgyzstan (Art. 16), Lithuania (Art. 26), Moldova (Art. 31), Poland (Art. 53), Romania (Art. 29), Russia (Art. 28), Slovakia (Art. 24), Tajikistan (Art. 26), Turkmenistan (Art. 11), Ukraine (Art. 35), Uzbekistan (Art. 31). 38. According to article 4.3 of German Constitution: "No one may be compelled against his conscience to render war service as an armed combatant."

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Most post-communist constitutions do not bestow the freedom of thought, conscience, and religion upon citizens unconditionally, e.g., the constitutions of Albania, Azerbaijan, Bulgaria, Estonia, Lithuania, Poland, Slovakia and Ukraine. Mostly they accept the limitation of this right on the grounds of public security and order, health or morals and the rights and freedoms of others. It is important to note that the constitutional treatment of some minority religions hardly lives up to international standards. We shall return to this issue when studying the rights of minorities. The freedom of movement means that everyone can move about freely within the territory of a given state, choose his or her residence, leave the country and return to the country.39 All post-communist constitutions acknowledge this right.40 Yet they allow its limitation on the grounds of public security and order, health or morals and the rights and freedoms of others. So far, we have studied the rights concerning physical integrity, spiritual autonomy, and impartial justice. These rights undoubtedly secure to a great extent the autonomy of the individual. Yet they are not enough to ensure the free development of the personality. The individual must have the right to own property in order to provide him the necessary material conditions for human development. Some authors count property rights among social and economic rights, but in view of the negative action (duty to refrain) imposed by this right on state authorities, we shall study it together with other negative rights. The right of the individual to own property had not been recognized by communist constitutions. This was one of the most important differences between these regimes and liberal-capitalist ones. Thus the transition from collective property and central planning to private property and market economy is a revolutionary change for these countries. Certain authors emphasize the importance of the constitutional protection of private property and economic markets for economic growth, as well as for democratic selfgovernment.41 In most countries the right to property was the subject of heated discussions during the constitution-making process. Conservative groups in the respective countries advocated the retention of collective property to a certain extent. The relevant provisions in post-communist constitutions reflect these discussions and embody compromises between conservative and progressive forces. Most of these provisions introduce a 39. UDHR (Art. 13), ICCPR (Art. 12). 40. Albania (Art. 22), Armenia (Art. 22), Azerbaijan (Art. 28.111), Belarus (Art. 30), Bulgaria (Art. 35), Estonia (Art. 34), Georgia (Art. 22), Hungary (Art. 58), Kazakhstan (Art. 21), Kyrgyzstan (Art. 16.2), Lithuania (Art. 32), Moldova (Art. 27), Poland (Art. 52), Romania (Art. 25), Russia (Art. 27), Slovakia (Art. 23), Tajikistan (Art. 24), Turkmenistan (Art. 24), Ukraine (Art. 33), Uzbekistan (Art. 28). 41. Cass R. Sunstein, Free Markets and Social Justice, Oxford University Press, Oxford 1997, 203-222.


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mixed property regime consisting of private and state property, putting the emphasis generally on the latter.42

4.3.2. Political Rights One of the most important political rights is the right to vote. This right plays a double-edged role in the democratic process. On the one hand, it entitles people to elect their representatives, on the other, it enables them to make the latter responsible for the creation and implementation of public policies, and, if necessary to replace them by new cadres. The right to vote, in fact, constitutes only one part of the democratic process. The right to be elected complements the right to vote. Those, who meet the criteria laid down in constitutions or electoral laws, can be candidates and compete with other candidates in regular elections. Thus the right to vote and the right to run for office appear as a precondition for the democratic process. All post-communist constitutions guarantee the right to vote.43 In this respect, the voting age is sometimes discussed by scholars and politicians. Although this age can be determined in accordance with the specific conditions of a given country, the age of eighteen is accepted as the minimum voting age by post-communist constitutions. Latvia was an exception in this respect. The country reinstated its pre-communist Constitution providing a voting age of twenty-one. However, the Constitution was amended on 27 January 1994 in a way to reduce the voting age from twenty-one to eighteen. The Slovak and Azerbaijani constitutions, on the other hand, although recognizing the right to vote, do not mention the voting age. This may not be seen as an important deficiency by many, but, in fact, leaving the determination of the voting age to the legislature may produce negative results in the future. A parliamentary majority, considering the political tendencies of potentially eligible voters, may attempt to change the voting age through law in the wake of a given election. As for the right to be elected, post-communist constitutions acknowledge this right, but they understandably introduce various age criteria for different offices. 42. Albania (Art. 11,41), Armenia (Art. 8, 28), Azerbaijan (Art. 13), Belarus (Art. 13,44), Bulgaria (Art. 17), Estonia (Art. 32), Georgia (Art. 21), Hungary (Art. 13), Kazakhstan (Art. 6, 26), Kyrgyzstan (Art. 4, 19), Lithuania (Art. 23), Moldova (Art. 9, 46), Poland (Art. 46,64), Romania (Art. 41), Russia (Art. 8.2,35), Slovakia (Art. 20), Tajikistan (Art. 32), Turkmenistan (Art. 9), Ukraine (Art. 41), Uzbekistan (Art. 36). 43. Albania (Art. 45), Armenia (Art. 27), Azerbaijan (Art. 56), Belarus (Art. 38), Bulgaria (Art. 42), The Czech Republic (Art. 18), Estonia (Art. 57.1) , Georgia (Art. 28.1), Hungary (Art. 70), Kazakhstan (Art. 33), Kyrgyzstan (Art. 1), Latvia (Art. 8), Lithuania (Art. 34), Moldova (Art. 38), Poland (Art. 62), Romania (Art. 34), Russia (Art. 32.2), Slovakia (Art. 30.3), Tajikistan (Art. 27), Turkmenistan (Art. 30), Ukraine (Art. 70), Uzbekistan (Art. 32).

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The right to vote makes the translation of the popular will into a parliamentary majority possible, whereas other political rights, presently to be examined, play a crucial role in the creation of the popular will. In this respect, all post-communist constitutions, as well as basic international human rights conventions,44 recognize the freedom of expression and the right to information as one of the core elements in the democratic process.45 Let us look closer at these rights as an example of the position of postcommunist constitutions on political rights. An Example: Freedom of Expression and Right to Information Generally speaking, the subject of the freedom of expression and the right to information is broadly defined in post-communist constitutions. Most constitutions state that "everybody", "everyone" or "every person" has the right to express freely his or her ideas or right to seek, receive and disseminate information. However, some constitutions grant these rights only to citizens (e.g., the Belarussian, Lithuanian and Tajik constitutions). One may justify these provisions by claiming that the openness and accountability of a government concern first and foremost its citizens. However, one should note that such provisions might be detrimental to the consolidation of democracy in two senses. First, there may be non-citizens living in the countries concerned having an interest in getting information about the activities of the governments concerned. To define the subject of the right to information so narrowly may harm their interests. This is particularly true for post-communist countries where there are many persistent problems concerning citizenship. Indeed, the Estonian constitution-makers foresaw the problem and tried to find a solution. According to the Estonian Constitution, Estonian citizens may request authorities to provide information on their work (Art. 44). Moreover, Estonian citizens have the right to become acquainted with information about themselves held by authorities. It is interesting to note that the Constitution lays down that these rights exist equally for Estonian citizens and citizens of other states and stateless persons present in Estonia. This provision can be seen as an exemplary one. Second, the human rights records of these countries have been under close scrutiny by several international and non-governmental organizations since the collapse of communist regimes. So, granting the freedom of information only to 44. UDHR (Art. 19), ICCPR (Art. 19), ECHR (Art. 10). 45. Albania (Art. 22), Armenia (Art. 24), Azerbaijan (Art. 47-50), Belarus (Art. 33), Bulgaria (Art. 39-41), Estonia (Art. 44,45), Georgia (Art. 19,24), Hungary (Art. 61), Kazakhstan (Art. 20), Kyrgyzstan (Art. 16.2), Lithuania (Art. 25,44), Moldova (Art. 32-34), Poland (Art. 54), Romania (Art. 30,31), Russia (Art. 29), Slovakia (Art. 26), Tajikistan (Art. 30), Turkmenistan (Art. 26), Ukraine (Art. 34), Uzbekistan (Art. 29, 67).


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citizens may cripple these monitoring activities which seem vital for the consolidation of democracy. With regard to the freedom of expression, generally post-communist constitutions recognize this freedom for "everybody". The Moldovan (Art. 32) and Turkmen (Art. 26) constitutions are exceptions. These constitutions grant freedom of expression and right to information only to Moldovan and Turkmen citizens. To narrow the scope of the freedom of expression can also be criticized on the grounds of the reasons explained above when studying the right to information. The freedom of expression entails that individuals can freely develop their thoughts and hold different opinions which they are entitled to disseminate freely through various media. Within the framework of this definition, the first question we should deal with is: What kind of expressions fall within the scope of the protection of this freedom? Postcommunist constitutions are not clear on this point. They either simply declare that "freedom of expression is guaranteed" (e.g., Albania, Art. 22) or they contain such inclusive terms as "opinions" (e.g., Poland, Art. 54). Accordingly, it is not as easy as it seems to define the scope of the freedom of expression. Again the jurisprudence of the ECHR may help us. The Court stated in one of its frequently quoted decisions that: "Freedom of expression constitutes one of the most essential foundations of such a society, one of the basic conditions for its progress and for the development of every man... It is applicable not only to "information" or "ideas" that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State of any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no democratic society."46 We can easily apply this criterion to postcommunist constitutions in determining the scope of the freedom of expression. Undoubtedly, this definition covers first and foremost political speech which is vital for the function and maintenance of a democratic system. It also covers artistic expressions. Some constitutions already put artistic expression under the protection of articles guaranteeing the freedom of expression (e.g., the Kyrgyz and Moldovan constitutions). However, it is not so easy to determine the status of commercial expressions, given their peculiar characteristics in relation with the freedom of expression. The Dutch Constitution of 1983, for example, excludes "commercial advertising" from the protection of Art. 7 providing the freedom of speech. Accordingly, it 46. Handyside v. United Kingdom, 1976. Although the Court noted that Art. 10 of the Convention does not distinguish between the various forms of expression (Mutter, A133), it granted a higher level of protection especially to political (Castells, A-236) and artistic expressions (Otto Preminger v. Austria, A-295-A) than commercial expressions (Groperra, A-165).

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would be appropriate to leave the determination of this issue to the legislature or the judiciary. Post-communist constitutions enumerate oral, written and pictorial mediums among the channels through which one's opinions can be expressed, but most of them also allow the use of "other" mediums for expressing opinions. According to the Bulgarian Constitution, for example, everyone is entitled to express an opinion or to publicize it through words, written or oral, sound, or image, or in any other way (Art. 39). This kind of regulation is particularly useful for the adaptation of the constitutions concerned to changing conditions, given the rapid developments in the field of information technology.47 Most likely a number of new mediums will appear in the near future. Thanks to the broad definition of the mediums of the freedom of expression, the scope of this freedom can easily be expanded to new channels without constitutional change. So far, we have emphasized the central role of the freedom of expression in the democratic process. But there is one more problem to consider. Should this freedom be absolute or should it be limited under certain conditions? Some advocate that the freedom of speech should be absolute. According to them, the state can by no means restrict people's right to receive and disseminate their opinions. Others make a distinction between political expressions and non-political expressions and accept only exceptional limitations to the latter. Most modern constitutions, as well as basic international human rights conventions, acknowledge this right, but attach various qualifications to it. According to the ICCPR, for example, this right can be subject to certain restrictions when they are necessary for the respect of the rights or reputations of others and for the protection of national security or of public order, or of public health or morals (Art. 19.3). The ECHR stipulates that this right may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interest of national security, territorial integrity or public safety, for the prevention of disorders or crime, for the protection of health or morals, for the protection of the reputation of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary (Art. 10.2). Most post-communist constitutions introduce similar qualifications, but they establish more complex systems. Some constitutions envisage different qualifications for the freedom of expression and the right to information. The protection of the rights and interests of other persons is one of the most important grounds for restriction of the freedom of expression (the Bulgar47. The most recent example of this would be the Internet. In some post-communist countries, Internet has already been the most important medium for the freedom of expression.


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ian, Estonian, Lithuanian, Moldovan and Romanian constitutions). The Estonian Constitution also adds to the latter the protection of public order and morals (Art. 45). Some constitutions forbid inciting propaganda, whereas others merely mention incitement. The Azerbaijani Constitution forbids propaganda inciting racial, ethnic or religious animosity or hostility (Art. 47). The Kazakh Constitution adds agitation to propaganda: "Propaganda of, or agitation for, the forcible change of the constitutional system, violation of the integrity of the Republic, undermining of state security, and advocating war, social, racial, national, religious, class and clannish superiority, as well as the cult of cruelty and violence shall not be allowed." (Kazakhstan, Art. 20.3). Here, one should always bear in mind that sometimes it would be very difficult to draw a line between an expression of an opinion and incitement or agitation. This difficulty may be exploited by ruling authorities to curtail the freedom of expression. A solution to this problem may be to state that only expressions containing the elements of a crime will be limited or punished. According to the Lithuanian Constitution, for example: "Freedom to express convictions or impart information shall be incompatible with criminal actions - the instigation of national, racial, religious, or social hatred, violence, or discrimination, the dissemination of slander, or misinformation." (Art. 25.4). If constitutions use very vague (as the Uzbek Constitution does) or broad (as the Moldovan Constitution does) terms or intend to punish merely propaganda (as the Russian Constitution does), the freedom of expression may become meaningless. According to the Uzbek Constitution: "Freedom of opinion and the expression of opinion may be limited by law in order to safeguard state or other secrets." (Art. 29) Here, one may criticize first the broadness and ambiguity of the term of "other secrets". According to the Moldovan Constitution: "The law shall forbid and prosecute all actions aimed at denying and slandering the State or the people. Likewise shall be forbidden and prosecuted the instigation to sedition, war, aggression, ethnic, racial or religious hatred, the incitement to discrimination, territorial separatism, public violence, or other actions threatening constitutional order." (Art. 32.3) According to the Russian Constitution: "Propaganda or campaigning inciting social, racial, national or religious hatred and strife is impermissible. The propaganda of social, racial, national, religious or language superiority is forbidden." (Russia, 29.2). Here, the Constitution does not permit even mere propaganda. As for the right to information, some constitutions forbid to divulge certain types of information, particularly state secrets. The Kazakh and Tajik constitutions leave the determination of state secrets to the legislature. According to the Kazakh Constitution: "Everyone shall have the right to freely receive and disseminate information by any means not prohibited by law. The list of items constituting state secrets of the Republic of Kazakhstan

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shall be determined by law." (Art. 20.2). According to the Tajik Constitution: "Each person is guaranteed the freedoms of speech and the press, as well as the right to use information media... A list of information considered secrets of the state is determined by law." (Art. 30). The Russian Constitution requires a federal law, which is passed by a different procedure, for the determination of state secrets. According to the Russian Constitution: "Everyone shall have the right to seek, get, transfer, produce and disseminate information by any lawful means. The list of information constituting a state secret shall be established by the federal law." (Art. 29.4). The Turkmen Constitution, on the other hand, counts commercial secrets among the forbidden information: "Citizens of Turkmenistan have the right to freedom of conviction and the free expression of those convictions. They also have the right to receive information unless such information is a governmental, official, or commercial secret." (Art. 26). The concept of state secret would be acceptable in a democratic society, yet one should always be cautious in determining what a state secret is. It is always conceivable that state authorities may abuse such provisions to hide certain facts from the public. Some constitutions attach certain qualifications to the right to information. We have seen that the rights and interests of others is one of the most important limits to the freedom of expression. This is also true for the right to information. According to the Belarussian Constitution, for example: "The use of information may be restricted by legislation with the purpose to safeguard the honor, dignity, personal and family life of the citizens and the full implementation of their rights." (Art. 34). Other constitutions also consider the national security as a limit to the right to information with certain additions. According to the Romanian Constitution, for example: "The right to information shall not be prejudicial to the protection of the young or to national security." (Art. 31.3). The Moldovan Constitution, in turn, contains a very ambiguous term along with the term of national security: The right of access to information may not prejudice either the "measures taken to protect the citizens" or the "national security." (Art. 34.3) The Uzbek Constitution introduces the term of "constitutional order", yet it also contains again a very vague term ("other limitations") which could be abused by the legislature: "Each person has the right to seek, receive, and disseminate any information, with the exception of information directed against the existing constitutional order and of other limitations established by law." (Art. 29). The Bulgarian Constitution introduces a complex limitation system by combining a secrets clause and certain qualifications. First, it counts the rights of others as a limitation clause along with state or official secrets. According to the Constitution: "Citizens shall be entitled to obtain informa-


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tion from state bodies and agencies on any matter of legitimate interest to them which is not a state or official secret and does not affect the rights of others." (Art. 41.2). Second, it states that: "Everyone is entitled to seek, obtain, and disseminate information. This right shall not be exercised to the detriment of the rights and reputation of others, or to the detriment of national security, public order, public health, and morality." (Art. 41.1). Some constitutions envisage common qualifications both for the freedom of expression and the right to information (the Czech Charter, the Georgian, Lithuanian, Slovak and Ukrainian constitutions). First of all, all these constitutions allow the restriction of these rights only by law. Second, the Czech Charter, the Georgian and Slovak constitutions include certain arrangements similar to those in the ECHR. According to the latter: "The exercise of [the right to freedom of expression and freedom information], since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary." (Art. 10.2). Accordingly we may list the qualifications attached to these rights in the post-communist constitutions as follows: — prescribed by law (Czech, Georgia, Lithuania, Slovakia, Ukraine); — necessary in a democratic society (Czech, Georgia, Slovakia); — in the interest of national security (Czech, Georgia, Lithuania, Ukraine), (the Czech Charter, the Georgian and Slovak constitutions also mentions the security of the state). — in the interest of territorial integrity (Georgia, Ukraine) or public safety (Czech [public security], Georgia [public security]); — for the prevention of disorder (Slovakia [public order], Ukraine [public order], Lithuania [constitutional order]) or crime (Georgia) (Ukraine), — for the protection of health (Czech, Slovak, Ukraine) or morals (Czech, Slovak); — for the protection of the reputation or rights of others (Czech, Georgia, Lithuania, Ukraine); — for preventing the disclosure of information received in confidence (Georgia, Ukraine); — for maintaining the authority and impartiality of the judiciary (Georgia, Ukraine).

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Lastly, we may mention that the Estonian Constitution differ from other constitutions in regulating the freedom of expression and the right to information. According to the Estonian Constitution: "Everyone shall have the right to freely circulate ideas, opinions, persuasions, and other information by word, print, picture and other means. This right may be restricted by law for the purpose of protecting public order or morals, or the rights and liberties, health, honor and reputation of others. The law may likewise restrict this right for state and local government officials, for the purpose of protecting state or business secrets or confidential communication, which due to their service the officials have access to, as well as of protecting the family life and privacy of other persons, and in the interests of justice." (Art. 45.1). "Estonian citizens shall have the right to become acquainted with information about themselves held by state and local government authorities and in state and local government archives, in accordance with procedures determined by law. This right may be restricted by law in order to protect the rights and liberties of other persons, and the secrecy of children's ancestry, as well as to prevent a crime, or in the interests of apprehending a criminal or to clarify the truth for a court case." (Art. 44.3) Before finishing, we should dwell briefly on a very important freedom closely related with or included by the freedom of expression: the freedom of the press. Two important issues come to the fore as far as the freedom of the press is concerned: monopolization of the media and censorship. Let us begin with monopolization. Most post-communist constitutions do not address this issue directly. Exceptions are the Belarussian, Georgian and Lithuanian constitutions. Accordingly, the Belarussian Constitution: "No monopolization of the mass media by the State, public associations or individual citizens and no censorship shall be permitted." (Art. 33); the Georgian Constitution: "Monopolization of the mass media or the means of dissemination of information by the state or natural persons is prohibited." (Art. 24.3); the Lithuanian Constitution: "The State, political parties, political and public organizations, and other institutions or persons may not monopolize means of mass media." (Art. 44.2) Although these constitutions aim at preventing the monopolization of the media, they do not introduce a proper mechanism to ensure the autonomy of the private and particularly public media. It is obvious that their autonomy depends to great extent on the protection of the media from political influences coming particularly from the ruling majority. The Hungarian and Romanian constitutions attempt to solve this problem partially by requiring more than a simple majority for passing the related legislation. According to the Hungarian Constitution: "A majority of twothirds of the votes of members of Parliament present is required to pass the law on the supervision of public radio, television and the public news agency,


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as well as the appointment of the directors thereof, on the licensing of commercial radio and television, and on the prevention of monopolies in the media sector." (Art. 61.4). According to the Romanian Constitution: "Public radio and television services shall be autonomous. They must guarantee for any important social and political group the exercise of the right to be on the air. The organization of these services and the Parliamentary control over their activity shall be regulated by an organic law." (Art. 31.5). The Polish Constitution goes further by establishing a "National Council of Radio Broadcasting and Television" to safeguard the freedom of expression, the right to information, as well as the public interest regarding radio broadcasting and television (Art. 213), it stipulates that a member of the Council shall not belong to a political party, a trade union or perform public activities incompatible with the dignity of his function (Art. 214). Although this solution seems reasonable, one cannot say that it is adequate to ensure the autonomy of the media. According to the second paragraph of Article 214 of the Polish Constitution, members of the National Council of Radio Broadcasting and Television are appointed by the Sejm, the Senate, and the President of the Republic. Thus this provision makes the Council susceptible to partisan influences. Ideally, the impartial character of the Council could be reinforced by granting civil society organizations, particularly those of media professionals, a say in the election of Council members. Another important issue, perhaps the most important one concerning the freedom of the media, is censorship. Almost all post-communist constitutions forbid censorship (Albania, Azerbaijan, Belarus, Bulgaria, the Czech Republic, Estonia, Kazakhstan, Lithuania, Moldova, Poland, Romania, Russia, Slovakia, Tajikistan and Uzbekistan). It is true that the media enjoys much greater freedom than it did in the communist period, but there is still a big gap between words and deeds in most of these countries. Closely related with the issue of censorship, is the right of issuing state licenses in certain post-communist countries. The ECHR states that states may require the licensing of broadcasting, television or cinema enterprises (Art. 10.1). Here, the state cannot require licensing for the printed media. The Polish and Slovak constitutions introduce parallel arrangements. According to the Polish Constitution: "Preventive censorship of the means of social communication and the licensing of the press shall be forbidden. Statutes may require the receipt of a permit for the operation of a radio or television station." (Art. 54.2). According to the Slovak Constitution: "Everyone has the right to express his views in word, writing, print, picture, or other means as well as the right to freely seek out, receive, and spread ideas and information without regard for state borders. The issuing of printed documents is not subject to licensing procedures. Enterprise in the fields of radio and televi-

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sion may be pegged to the awarding of an authorization from the state. The conditions will be specified by law." (Art. 26.2) The Hungarian Constitution strengthened this guarantee by requiring a qualified majority for the passage of the related law: "A majority of two-thirds of the votes of the members of Parliament present is required to pass the law on the supervision of public radio, television and the public news agency, as well as the appointment of the directors thereof, on the licensing of commercial radio and television, and on the prevention of monopolies in the media sector." (Art. 61.4) Other Political Rights in Post-Communist Constitutions So far, we have studied the freedom of expression and the right to information in post-communist constitutions. Now, we may turn to other political rights recognized by these constitutions. Another political right, guaranteed by international human rights conventions,48 as well as by post-communist constitutions,49 is the right to assemble peacefully. This right is also of great importance in the functioning of a democracy. Through peaceful demonstrations and protests, people may have a chance to influence state authorities. As other political rights, however, the freedom of assembly can be restricted under certain conditions, such as to protect state security, public order, health, rights and freedoms of others. Under basic international human rights conventions, people have also the right to freely form political parties and other public associations.50 The constitution-makers of the 18th and 19th centuries, in fact, did not look on political parties sympathetically. There was widespread antipathy towards parties at that time deriving from the consideration that the existence of different factions defending particular interests might be detrimental to the general well-being of the nation. Nevertheless, political parties gradually made their way into politics. The 20th century saw the rise of National Socialist, Fascist and Communist parties culminating in the suffocation of democracy in various parts of the world. While the constitutions of Eastern Europe and the former USSR aimed at justifying and legitimizing the hegemony of the Communist Party, the post-1945 constitutions in Western Europe introduced several restrictions to the right to form associations as a reaction to National Socialist and Fascist experiences. The German Constitution of 1949 stipulates that parties which, according to their aims and the 48. UDHR (Art. 20), ICCPR (Art. 21), ECHR (Art. 11). 49. Albania (Art. 47), Armenia (Art. 26), Azerbaijan (Art. 49), Belarus (Art. 35), Bulgaria (Art. 43), Estonia (Art. 47), Georgia (Art. 25), Hungary (Art. 62), Kazakhstan (Art. 32), Kyrgyzstan (Art. 16.2), Lithuania (Art. 36), Moldova (Art. 40), Poland (Art. 57), Romania (Art. 36), Russia (Art. 31), Slovakia (Art. 28), Tajikistan (Art. 29), Turkmenistan (Art. 27), Ukraine (Art. 39), Uzbekistan (Art. 33). 50. UDHR (Art. 20), ICCPR (Art. 22), ECHR (Art. 11).


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conduct of their members, seek to impair or abolish the liberal democratic basic order or to jeopardize the existence of the Federal Republic of Germany are unconstitutional (Art. 21.2). According to the Italian Constitution of 1947, all citizens have the right to freely form parties in order to contribute by democratic means to national policy (Art. 49). Yet the same Constitution provides that secret associations and those which pursue political aims, even indirectly, by means of organizations of a military character are forbidden (Art. 17). All post-communist constitutions acknowledge the freedom of association, including the right to form trade unions,51 but they also contain some reactionary provisions, particularly concerning political parties. One problem concerning political parties in post-communist countries is the separation of the party and the state. In this respect, the Albanian Constitution provides for the depolitization of state institutions. According to the Constitution, the activity of political parties in military units and institutions of the Ministry of Defense and Ministry of Interior, the Ministry of Foreign Affairs and diplomatic representations abroad, the General Prosecutor's Office, investigation offices and courts, is forbidden (Art. 6). The Hungarian Constitution even goes further: "Parties may not exercise public power directly. Accordingly, no party may control or direct any state organ. In order to ensure the effective separation of the parties from state power, the law determines the social and public offices that cannot be filled by any member or officer of any party." (Art. 3.3). Another problem, in this respect, in post-communist countries relates, not to their past experiences, but to the future practices of parties. That is to say, these countries aim not only to eradicate the vestiges of the one-party state, but also to prevent the repetition of such experiences in the future. To this end, several constitutions introduce restrictions of the freedom of association. According to the Polish Constitution, for example, political parties and other organizations whose programs are based upon totalitarian methods and upon the operational practices of nazism, fascism, and communism, as well as those whose programs or activities sanction racial or national hatred, the application of violence for the purpose of obtaining power or influencing state policy, or provide for the secrecy of their own structure or membership, shall be forbidden (Art. 13). 51. Albania (Art. 9,46, 50), Armenia (Art. 25, 29), Azerbaijan (Art. 35), Belarus (Art. 36), Bulgaria (Art. 11,44,49), Estonia (Art. 29.5,48), Georgia (Art. 26), Hungary (Art. 3,4, 63,70/C. 1), Kazakhstan (Art. 24), Kyrgyzstan (Art. 28), Lithuania (Art. 35,50), Moldova (Art. 41, 42), Poland (Art. 11, 12, 13, 58, 59), Romania (Art. 8, 9, 37), Russia (Art. 13, 30), Slovakia (Art. 29,37), Tajikistan (Art. 35), Turkmenistan (Art. 31), Ukraine (Art. 36, 43), Uzbekistan (Art. 34, 37).

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The restrictions on political parties in post-communist countries, however, are not only aimed at overseeing the "enemies of the regime", but also "the enemies of the state". That is, most post-communist constitutions impose restrictions on ethnic and religious parties. A typical example is provided by Article 11.4 of the Bulgarian Constitution: "There shall be no political parties on ethnic, racial or religious lines, nor parties which seek the violent usurpation of state power." This article has been used occasionally against the Turkish minority in Bulgaria.

4.3.3. Conclusions The brief survey we have been making so far, as well as the examples (right to life, freedom of expression and right to information) we have analyzed above in detail, suggest that provisions concerning civil liberties and political rights in most post-communist constitutions generally meet international standards. Of course, there are many things to do in certain countries to improve the demo-protection functions of constitutions, e.g., the abolition of the death penalty, the reduction of the detention period, the granting of autonomy to state media, the representation of ethnic and religious minorities through political parties, but generally current arrangements in post-communist constitutions can be considered sufficient for the protection of civil liberties and political rights of people in post-communist countries, irrespective of whether these rights are actually applied in reality. It is important to note that certain provisions in some constitutions have a potential to bring about constitutional changes. The abortion issue provides a typical example. It seems that this problem will not disappear from the Polish constitutional agenda for some time, and most likely values will prevail over rules in the end. Another example is property rights. Current regulation of these rights still bears the scars of a statist mentality. As a bourgeois-capitalist middle class grows stronger, it may activate constitutional change mechanisms to clear the statist relics on the way to a genuine capitalist economy. Lastly, one may expect to see a continuous tension between eager minorities, demanding improvements in political rights, and reluctant majorities, trying to justify their policies on the grounds of the integrity of the state. The restrictions on the creation and activities of minority parties seem to remain on the constitutional agenda in these countries in the foreseeable future. Consequently, although one may expect to see changes in provisions regulating civil liberties and political rights in certain post-communist constitutions, one should always bear in mind that these rights and liberties are so fundamental to liberal democratic regimes that one cannot conceive of an alternative to them. They impart liberal democratic


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regimes their definitive characteristics. Thus to abolish or restrict these rights may be tantamount to destroying the norms and principles of such regimes.

4.3.4. Social and Economic Rights Although most authors agree on the usefulness of the incorporation of a bill of rights into a constitution, they tend to disagree on the content of such bills. It is generally accepted that civil and political, or negative rights, should be included in constitutional charters, but the consensus is lost when it comes down to the inclusion of social and economic, or positive rights. Most postcommunist constitutions contain such positive rights as the right to work,52 to social security,53 to free health care54 and to free education.55 Some constitutions include the right to housing56 and to a healthy environment.57 Today there is an ongoing discussion in the legal and political science literature as to whether a constitution should include social and economic rights. This discussion, in fact, concerns two different models of democracy, "procedural" and "substantive" democracies, and two corresponding types of constitutions, "procedural" and "substantive" constitutions. The procedural democracy model concerns the procedures followed by authorities in taking decisions on governmental policies. The substantive 52. Albania (Art. 49), Armenia (Art. 29), Azerbaijan (Art. 35), Belarus (Art. 41), Bulgaria (Art. 16,48), Estonia (Art. 29), Georgia (Art. 30), Hungary (Art. 70/B), Kazakhstan (Art. 24), Kyrgyzstan (Art. 28), Lithuania (Art. 48), Moldova (Art. 43), Poland (Art. 24, 65, 66), Romania (Art. 38), Russia (Art. 37.1), Slovakia (Art. 35), Tajikistan (Art. 35), Turkmenistan (Art. 31), Ukraine (Art. 43), Uzbekistan (Art. 37). 53. Albania (Art. 52), Armenia (Art. 33), Azerbaijan (Art. 38), Belarus (Art. 47), Bulgaria (Art. 51), Estonia (Art. 28), Hungary (Art. 70/E), Kazakhstan (Art. 28), Kyrgyzstan (Art. 26), Lithuania (Art. 52), Moldova (Art. 47), Poland (Art. 67), Romania (Art. 43), Russia (Art. 39), Slovakia (Art. 39), Tajikistan (Art. 39), Turkmenistan (Art. 34), Ukraine (Art. 46), Uzbekistan (Art. 39). 54. Albania (Art. 55), Armenia (Art. 34), Azerbaijan (Art. 41), Belarus (Art. 45), Bulgaria (Art. 52), Estonia (Art. 28), Georgia (Art. 37), Hungary (Art. 70/D), Kazakhstan (Art. 29), Kyrgyzstan (Art. 34), Lithuania (Art. 53), Moldova (Art. 36), Poland (Art. 68), Romania (Art. 33), Russia (Art. 41), Slovakia (Art. 40), Tajikistan (Art. 38), Turkmenistan (Art. 33), Ukraine (Art. 49), Uzbekistan (Art. 40). 55. Albania (Art. 57), Armenia (Art. 35), Azerbaijan (Art. 42), Belarus (Art. 49), Bulgaria (Art. 53), Estonia (Art. 37), Georgia (Art. 35), Hungary (Art. 70/F), Kazakhstan (Art. 30), Kyrgyzstan (Art. 32), Lithuania (Art. 41), Moldova (Art. 35), Poland (Art. 70), Romania (Art. 32), Russia (Art. 43), Slovakia (Art. 42), Tajikistan (Art. 41), Turkmenistan (Art. 35), Ukraine (Art. 53), Uzbekistan (Art. 41). 56. Azerbaijan (Art. 43), Belarus (Art. 48), Kazakhstan (Art. 25.2), Kyrgyzstan (Art. 33), Poland (Art. 75), Russia (Art. 40), Tajikistan (Art. 36), Turkmenistan (Art. 22), Ukraine (Art. 47). 57. Albania (Art. 56), Azerbaijan (Art. 39), Bulgaria (Art. 15, 55), The Czech Republic (Art. 9), Georgia (Art. 37. 3,4,5), Hungary (Art. 18,70/D), Kazakhstan (Art. 31), Kyrgyzstan (Art. 35), Lithuania (Art. 54), Moldova (Art. 37), Poland (Art. 74), Russia (Art. 42), Slovakia (Art. 44), Ukraine (Art. 50).

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democracy model, in turn, relates to the contents of these policies, not the procedures. Accordingly, substantive democracies are supposed to produce outcomes conducive not only to the protection of civil liberties and political rights, but also to the promotion of the material well-being of citizens.58 It follows that the substantive model calls for the constitutionalization of various socio-economic policy preferences through social and economic rights. Procedural constitutions, on the other hand, are supposed to create an open-ended framework in which the democratic process can take place and leaves the policy preferences to the outcome of this procedure.59 Most West European countries have preferred a substantive model of democracy. The Italian, Spanish and Portuguese constitutions include several social and economic rights, the French Constitution of 1958 also incorporated these rights by making reference to the preamble of the Constitution of 1946. Only the American Constitution, and to a certain extent the American-influenced German Constitution, seem to exclude such positive rights. As for post-communist constitutions, all of them have preferred the substantive model of democracy with generous social and economic rights even reminiscent of similar rights in communist constitutions. Whatever the political discussions on the social and economic rights, lawyers evaluate this issue from a different perspective. Some authors have advocated the exclusion of these rights from constitutions. First, these rights are legally unenforceable because, on the one hand, courts lack the bureaucratic tools for implementation and for monitoring enforcement, and, on the other, the rights in question usually contain vaguely defined entitlements. This may undermine the legitimacy of post-communist constitutions in general by aggravating the communist legacy of distrust in institutions. Second, positive rights establish state interference with economic markets as a constitutional obligation. This could produce devastating effects in postcommunist countries which attempt to make a transition from central planning to a market economy. Third, positive rights encourage statist sentiments and discourage individual initiatives. This could also damage an emerging bourgeoisie mentality in these countries. Other authors have maintained that it is not so important whether such socio-economic policy preferences are included in constitutions because they may be regulated by statutes which would again impose positive duties on state authorities. What is important, they claim, is that one appreciates the socio-economic goals which ultimately benefit all the members of a given polity.60 58. See Kenneth Janda, "New Constitutions and Models of Democracy: The Problem of the Majority", in Constitutionalism and Politics, International Symposium, (Irena Grudzinska Gross, ed.), Slovak Committee of the European Cultural Foundation, Bratislava 1994, 128-141. 59. Przeworski, op.cit. note 7, 34-37. Also see Adam Przeworski et al, Sustainable Democracy, Cambridge University Press, Cambridge 1995, 42-43.


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These criticisms should be taken seriously. Social and economic rights may impede the creation of free markets, choke incentives to private enterpreneurship and, more importantly, they may, as unenforceable rights, undermine the legitimacy of new constitutions by damaging their credibility. If one reads provisions concerning social and economic rights in postcommunist constitutions, one may find some evidence which would confirm such views. First of all, the language of these rights is highly ambiguous. Consider Article 17 of the Hungarian Constitution as an illustration. According to the Article: "The Republic of Hungary sees to the wants of the needy through a long line of social measures." What would people actually claim in courts on the ground of this article? Furthermore, some constitutions make matters even worse by providing direct applicability of their provisions. The Ukrainian Constitution, for example, stipulates that: "Norms found in the Constitution of Ukraine are norms of direct action. Appeals to the court based directly on the Constitution in the defense of the constitutional rights and freedoms of individuals and citizens are guaranteed." (Art. 8). Accordingly, under such provisions, citizens can apply to courts with a claim about an infringement of one of their social and economic rights laid down in the Constitution. Given the limited fiscal capacity of most post-communist countries, governments may be unable to keep their constitutional promises. This, in turn, would severely damage the credibility of the Constitution. A concrete example can be given from Lithuanian constitutional practice. The Lithuanian Constitution, as some other post-communist constitutions, contains a direct applicability clause (Art. 6). On the other hand, it provides in its Article 53 that: "The State shall take care of people's health and shall guarantee medical aid and services in the event of sickness." The East European Constitutional Review observed that, in an address to Parliament on 20 June 1995, the Lithuanian Minister of Health Antanas Vinkus announced that: "...due to insufficient funding of the health care system, free medical care can no longer be provided adequately, thereby mocking Art. 53 of the Constitution, which guarantees free medical care to all citizens."61 Accordingly, Lithuanian citizens applying to courts with a claim about violation of Article 53 will most likely be disappointed. It will not be surprising that such citizens would then question the utility of the Constitution. This scenario is also quite conceivable in other post-communist countries. 60. For the debate between Sunstein (as an opponent of the inclusion of positive rights in constitutions), and Schwartz (as a proponent of the inclusion of positive rights in constitutions), see Cass R. Sunstein, "Something Old, Something New", 1 EECR 1992 No.l, 18-21. Herman Schwartz, "In Defense of Aiming High", 1 EECR 1992 No.3,25-28. Cass R. Sunstein, "Against Positive Rights", 2 EECR 1993 No.l, 35-38. 61. Constitution Watch, "Lithuania",4 EECR 1995 No.3,15.

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So, what can be done? How can these rights be constitutionalized without damaging the progress of post-communist transitions? Sunstein has proposed three things. First, these rights could be removed from constitutions. The negative effect of these rights on the establishment of the legitimacy of new constitutions is obvious, but their total abandonment may also be detrimental to the legitimacy of these documents. As mentioned above, the more a constitution reflects the prevalent beliefs and values of a given society, the easier to establish its legitimacy. Given the fact that statism is one of the most enduring legacies of communist political culture, these rights may increase the legitimacy of post-communist constitutions at least in the short run. Second, these rights could be placed in a different chapter of the constitution in order to stress that they are unenforceable and hortatory. This seems a reasonable solution. By doing so, the probable negative impact of these rights can be minimized without compromising their legitimizing effect. A more sophisticated version of this solution has been adopted by the Albanian (Art. 59), Slovak (Art. 51) and Polish (Art. 81) constitutions. They provide that certain social and economic rights can only be claimed within the limits of specific implementing laws. Third, judges and lawyers may develop a practice to enhance the utility of these rights. This also seems a plausible way, but the practice of most constitutional courts in post-communist countries is not very promising in this sense. Constitutional courts in Eastern Europe, particularly the Polish and Hungarian courts, attribute great importance to social and economic rights, more than political parties do. They tend to assume the role of the protector of the poor by decisions which annul laws on economic reforms.62 To sum up, although some authors criticize the inclusion of social and economic rights in constitutions, they play an important role in post-communist countries. They provide a bridge between communist and post-communist political culture. Even though they cannot be enforced through the courts, they reinforce the popular backing of constitutions.

4.3.5. Protection of Rights and Liberties at the National Level As our analysis so far suggests, post-communist constitutions entrench, although not perfectly, basic civil liberties and political rights. Moreover, they include a number of social and economic rights. These rights, however, mean nothing, unless constitutions introduce certain mechanisms to protect them. In this section we shall study these mechanisms. But to know how 62. See Andras Sajo, "How the Rule of Law Killed Hungarian Welfare Reform", 5 EECR 1996 No. 1, 31-41. Also see Andras Sajo, "Reading the Invisible Constitution: Judicial Review in Hungary", 15 Oxford Journal of Legal Studies 1995, 253-267.


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rights and liberties are protected by post-communist constitutions, one should first know how they are restricted. No constitution acknowledges rights and freedoms unconditionally. Every constitution introduces some qualifications to individual liberties in several ways. Sometimes, restrictions are attached to the articles recognizing a given liberty. According to the first paragraph of Article 29 of the Russian Constitution, for example, everyone is entitled to freedom of thought and speech. The second paragraph of the same article, however, provides that propaganda or agitation inciting social, racial, national or religious hatred and hostility is not permitted. The propaganda of social, racial, national or linguistic superiority is prohibited. Sometimes, restrictions may be imposed by law. These restrictions can be broken down into two sub-categories, general and specific restrictions. Specific restrictions attached to constitutional provisions have already been mentioned in discussing the respective civil liberties and political rights. To mention a typical example, the first paragraph of Article 53 of the Polish Constitution states that freedom of faith and religion shall be ensured to everyone. Yet the fifth paragraph of the same article reads: "The freedom to publicly express religion may be limited only by means of statute and only where this is necessary for the defense of State security, public order, health, morals or the freedoms and rights of others." Some constitutions leave a discretionary area to the legislature in specifying the content of restrictions. For example, Article 57 of the new Polish Constitution reads: "The freedom of peaceful assembly and participation in such assemblies shall be ensured to everyone. Limitations upon such freedoms may be imposed by statute." To restrict rights and freedoms only by law provides an important guarantee for individual liberties. Yet this may not always be the case. Consider Article 29 of the Uzbek Constitution as an example. According to this article: "Everyone shall be guaranteed freedom of thought, speech and convictions. Everyone shall have the right to seek, obtain and disseminate any information, except that which is directed against the existing constitutional system and in some other instances specified by law." The last part of this article grants a discretionary power to a parliamentary majority in the restriction of rights and freedoms by allowing it to create new qualifications. Apart from such specific restrictions attached to individual provisions, constitutions may introduce general limitation clauses which can be applied to all provisions of rights and freedoms. Accordingly, legislatures can also limit individual liberties on the grounds of these general clauses. According to Article 55 of the Russian Constitution, for example, rights and freedoms of man and citizens can be restricted by a federal law. This article can generally be applied to human rights provisions included in the constitution. There are,

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however, some limits to these limitations. One may distinguish three additional guarantees enshrined in post-communist constitutions. First, these restrictions should be necessary to a democratic society. Second, they should be proportionate to the situation requiring them. Third, they should not violate the substance of rights and freedoms. Some of these guarantees, or all of them, may be found in most post-communist constitutions. In this respect, the arrangements introduced by post-communist constitutions are generally consistent with international standards. All the above mentioned provisions concern the restriction of individual liberties under normal conditions. Limitation of rights and freedoms is generally regulated in a different manner in times of extraordinary measures, i.e., martial law, a state of emergency and a state of natural disaster. The latter involve the suspension or limitation of rights and freedoms. What is important in liberal democratic regimes is that even under such conditions certain liberties are not supposed to be restricted, such as the right to life and to liberty, and rights concerning impartial justice. In this respect, most postcommunist constitutions enumerate several rights and liberties which cannot be restricted even under such extraordinary situations. Constitutional Review When rights and liberties are limited by law, a serious problem arises. As we have seen, constitutions leave a discretionary area to legislatures in restriction of liberties. Within the limits drawn by constitutions, Parliament, or more correctly the majority in the Parliament, can enact restrictive laws. What happens if the majority does not observe limitations laid down in a given constitution? Put differently, what happens if the rights and freedoms of individuals are encroached by the majority through the enactment of restrictive laws? A mechanism is needed to control the conformity of laws with the constitution, and in case of inconsistency to annul the law in question. This task is fulfilled in liberal democratic regimes usually by constitutional review. One may trace the forerunners of constitutional review in a modern sense to early 19th-century American judicial practice. Justice Marshall laid the foundation for the principle of the supremacy of the constitution and the review of the constitutionality of laws by his interpretation of Article VI, paragraph II of the American Constitution of 1787 in Marbury v. Madison in 1803.63 The emergence of constitutional review in a modern sense in Western Europe was a relatively recent development. In continental legal tradition 63. For a summary and evaluation of Marbury v. Madison, see Walter F. Murphy and Joseph Tanenhaus, Comparative Constitutional Law, St. Martin's Press Inc., New York 1977, 108-110.


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law was seen as the embodiment of the general will or of state sovereignty. Since judicial review would limit the latter, it was rejected in Western Europe. The French Constitution of 1791 even went further and explicitly prohibited the judicial interpretation of laws. However, things began to change in inter-war years. Hans Kelsen, the Austrian jurist and political theorist, developed the pure theory of law. According to him, a constitution constitutes the highest rank of a given positive legal system and must be supreme with regard to other legal norms. The problem was how to ensure the supremacy of the constitution. Since Kelsen realized that the idea of judicial review, i.e., the control of the constitutionality of laws by courts, would be rejected by continental lawyers, he developed another device, a constitutional court, a court whose duty would only be resolving constitutional conflicts. The Austrian Constitutional Court, established in 1920, was the first example of such a court. The Austrian Constitutional Court was followed by others in Western Europe.64 In this way, constitutional review also emerged in Europe. The European model, based on Kelsen's ideas, however, developed quite differently from the American model. Most importantly, in the European model, known also as a "centralized" model, constitutional review is carried out by a special court, a constitutional court or a constitutional tribunal, whereas in the American model, also known as a "decentralized" model, ordinary courts can fulfill this task.65 Generally, post-communist countries have accepted the European, i.e., the centralized, model of constitutional review.66 The Turkmen and Latvian constitutions are exceptions. They do not address the issue of constitutional review. The Estonian Constitution, in turn, establishes a basically decentralized system, but it also differs from this model in certain aspects. According to the Estonian Constitution of 1992, the National Court is the highest court in the Estonian legal system and it reviews appellate court judgments. As in other decentralized systems, it also functions as the court for constitutional review (Art. 149.3). If any law or other legal act contradicts the Constitution, it cannot be applied by the courts; the National Court declares it null and void (Art. 152). Apart from this, the Estonian Constitu64. Alec Stone, "The Birth and Development of Abstract Review: Constitutional Courts and Policy-making in Western Europe", 19 Policy Studies Journal 1990, 81-95. 65. For a comparative analysis of the American and European models, see Louis Favoreau, "Constitutional Review in Europe", in Constitutionalism and Rights, The Influence of the United States Constitution Abroad, (Louis Henkin and Albert Rosenthal, eds.), Columbia University Press, New York 1990, 38-62. 66. See Herman Schwartz, "The New Courts: An Overview", 2 EECR 1993 No. 2, 28-32. Herman Schwartz, 'The New East European Constitutional Courts", in Constitution Making in Eastern Europe, (A.E. Dick Howard, ed.), The Woodrow Wilson Center Press, Washington, DC 1993,163-207. Also see Herman Schwartz, "Eastern Europe's Constitutional Courts", 9 Journal of Democracy 1998 No. 4, 100-114.

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tion establishes an interesting institution, the Legal Chancellor. According to the Constitution, the latter is an independent official appointed by the Riigikogu (Parliament), on the proposal of the President, removable from office only by a court decision (Art. 140). His main duty is to monitor whether the legislative acts adopted by the state legislature or the executive and by local governments are in accordance with the Constitution and the law (Art. 139). If he finds that an act contradicts the Constitution or the law, he proposes the body adopting that act to bring it in accordance with the Constitution or the law within 20 days. If the body fails to do so, the Chancellor proposes to the National Court to declare the act null and void (Art. 142). Structure and Authority of Constitutional Courts Although one can speak of a European model of constitutional review, it does not mean that all European constitutional courts are similar in terms of their structure and authority. They differ first in terms of their reviewing authority. In this respect, one can speak of two modes of constitutional review, "abstract" and "concrete" review. In concrete review a court solves a constitutional conflict when dealing with a concrete dispute between competing parties. Such a conflict derives from the actual application of a specific law in a concrete litigation. The court decides on both the dispute and the constitutional conflict. The American model is based on concrete review. That is to say, any judge in America can deal with the question of the constitutionality of a specific law. In abstract review, however, the existence of a concrete case and dispute is not required. The court reviews the text of laws, decrees and international treaties only, not because of, or in connection with a particular lawsuit. In the European model some constitutional courts perform their review function both at concrete and abstract levels, such as the German and Spanish constitutional courts, whereas the French Constitutional Council cannot review laws concretely. In post-communist countries most courts perform their review function both abstractly and concretely. Concrete review mainly derives from referrals by the courts. Another distinction concerning the review authority of constitutional courts is the timing of review. Courts perform their review function ex ante (e.g., France) or ex post (e.g., Spain and Germany), i.e., before or after the promulgation of laws. Some courts, such as the Portuguese Court, hold both ex ante and ex post review authority. Post-communist courts, as a rule, review laws after their promulgation. Yet some courts also exercise their review authority ex ante, particularly for international treaties. The Hungarian Constitutional Court, on the other hand, carries out its review function both ex ante (both for laws and international treaties) and ex post.


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In the literature, the pros and cons of abstract/concrete and ex post/ex ante review are discussed. No doubt, all these modes have certain advantages and disadvantages, but what is important is institutionalizing constitutional review in a given country. If people are not willing to apply to the courts, and if constitutional judges are not qualified or sufficiently independent to perform the review task, the choice of a proper model becomes irrelevant. This depends mainly on the legal and political cultures of the countries concerned. Another difference between various European constitutional courts concerns the authorities who can initiate the constitutional review process. Generally, most regime authorities, i.e., the President, the government and members of Parliament, may initiate the process. Referring laws to the Constitutional Court is a task which is usually entrusted to the judiciary. In most post-communist constitutions the list of the agencies who can initiate a review procedure is quite long. The Polish Constitution is probably the most generous one in granting the right to trigger constitutional review. According to Article 191 of the Constitution, the President, the Marshall of the Sejm, the Prime Minister, 50 deputies, 30 Senators, the First President of the Supreme Court, the President of the Chief Administrative Court, the Public-Prosecutor General, the President of the Supreme Chamber of Control and the Commissioner for Citizens' Rights, the National Council of Judiciary, the constitutive organs of units of local self-government, the national organs of trade unions, the national authorities of employers' organizations and occupational organizations, churches and religious organizations can make an application to the Constitutional Tribunal. Apart from all these, the Polish Constitution stipulates that everyone whose constitutional freedom or rights have been infringed, has the right to appeal to the Constitutional Tribunal (Art. 79.1). In this respect, the Polish system comes closer to some West European systems, such as the German and Spanish systems. Apart from Poland, this right exists in a few post-communist countries, such as Hungary, the Czech Republic, Slovakia, Georgia and, in a limited form, in Russia. It does not exist in Bulgaria and Romania. Granting individuals the right to apply to constitutional courts may be opposed on the grounds that it would increase the work of the courts, but it will also reinforce the protection of individual liberties. Lastly, the composition of courts may vary. In France, for example, three members of the Constitutional Council are appointed by the President, three by the President of the National Assembly and three by the President of the Senate. Members of the German Constitutional Court are appointed by the Bundestag (8) and the Bundesrat (8) in par. In Spain the Congress (4), the Senate (4), the government (2) and the judiciary (2) appoint the members of the Constitutional Court. To give the appointment authority to the President,

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in particular, may pose a danger to the separation of powers. In postcommunist countries parliaments and presidents generally share this power. On paper, the independence of constitutional judges in most post-communist countries can generally be said to be guaranteed. Table 3 summarizes the composition of post-communist constitutional courts. But the same thing cannot be said in reality. This is what we shall address in the rest of this section. Constitutional Courts and Other State Agencies Do constitutional courts in post-communist countries fulfill their rights protection function properly? To answer this question, one should make a distinction in terms of the powers of new constitutional courts in postcommunist countries. In other words, one should evaluate the powers of the courts on paper and in reality. Some constitutions confer broad powers on constitutional courts. The Hungarian Court, for example, can initiate the review procedure by itself. The Russian Court has the right to initiate laws. The Kyrgyz Court may even demand the dissolution of the Legislative Assembly (lower house) in case of continuous adoption of laws violating the Constitution and human rights (Art. 65.1). Such broad powers may give rise to some problems in terms of the principle of the separation of powers. For example, who will review the constitutionality of laws initiated by the Russian Court? Other constitutions, on the contrary, contain arrangements which could undermine the effective protection of constitutional rights. The decisions of the Romanian Constitutional Court, for example, can be overridden by Parliament. This arrangement can be used by a parliamentary majority for "backdoor constitutional amendment."67 These different regulations aside, one can generally say that most postcommunist constitutional courts are well equipped to fulfill their rights protection function. What is important is whether they use these broad powers to fulfill their task. One of the bitter legacies of communist legal culture was that judges under communist rule were mostly timid, even subservient, toward other state agencies. Many people called attention at the beginning of post-communist transitions to the probable negative effects of this legacy on the creation of effective constitutional review. Nevertheless, otherwise then expected by many, judges in post-communist countries have generally proved to be steadfast. In most post-communist countries constitutional judges in particular have already become powerful actors. In response, executive and legislative agencies have attempted to put pressure on consti67. Jon Elster and Stephen Holmes, "New Constitutions Adopted in Bulgaria and Romania", \EECR 1992 No. 1,12.


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Table 3. The Composition of Post-Communist Constitutional Courts Country/Republic

*

Number of judges Appointing authorities

Albania

9 President, with consent of Parliament

Armenia

9 President (4), Parliament (5)

Azerbaijan

9 Parliament, upon nomination of President

Belarus

12 President (4), Parliament (4), Judiciary (4)

Bulgaria

12 Presient (4), Parliament (4), Judiciary (4)

Czech Republic

15 President, with consent of Senate

Georgia

9

President (3), Parliament (3), Supreme Court (3)

Hungary

15 Parliament

Kazakhstan

President (2); Chairman of Senate (2), 7 Chairman of Mejlis (2); former presidents are life members of the Court

Kyrgyzstan

* Parliament, upon nomination of President

Lithuania

Parliament, upon nomination of President 9 (3), Chairman of Parliament (3), Chairman of Supreme Court (3)

Moldova

6

President (2), Parliament (2), Higher Magistrates Council (2)

Poland

15 Parliament

Romania

9

President (3), Upper House of Parliament (3), Lower House of Parliament (3)

Russia

19

Council of the Federation, upon nomination by President

Slovakia

10 President, upon nomination by Parliament

Tajikistan

7 Parliament, upon nomination by President

Ukraine

9

Uzbekistan

* Parliament

President (3), Parliament (3), Assembly of Judges (3)

The number of judges is not mentioned in the Constitution.

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tutional courts. The result is an ongoing struggle between constitutional courts and other state agencies, sometimes culminating in the curbing of the powers of the courts.68 In some countries constitutional courts are hyper-active, but this has not led to amendments to the constitution or of constitutional court laws. The Hungarian and Polish courts, for example, have taken a number of decisions which have been resented by the parliaments concerned. Yet ruling authorities have not attempted to attack constitutional courts so far. Some constitutional courts, in turn, seem to yield to other state agencies. The Romanian Court is already weak, but the parliamentary majority still wants to curb its powers. The court recently proclaimed much of the legislation of Parliament unconstitutional, such as the "Law on Social Security", the "Law Regarding the Status of Deputies and Senators", the "Law on Empowering the Government to Issue Orders" and the "Education Law." As a last straw, it found some of the provisions of "The Standing Orders of the Chamber of Deputies" unconstitutional. According to Article 145 of the current Constitution, the ruling of the court can be overridden by a two-thirds majority of both chambers, but deputies could not muster this majority in these specific cases. The deputies of the ruling party proposed a constitutional amendment maintaining that a two-thirds majority was too much to override the court's rulings.69 Although their effort remained fruitless, this set a typical example of what the consequences of a parliamentary majority/ constitutional court confrontation might be. In some countries executive agencies have been successful in taming constitutional courts, even through constitutional amendments. Kazakhstan and Belarus can be cited as two typical examples. In Belarus President Lukashenka went so far as to accuse the Constitutional Court of organizing a conspiracy in favor of the opposition. On 12 January 1996, in a speech delivered in Parliament, he said: "We should consider whether we need such a body as the Constitutional Court." He referred to a "conspiracy" allegedly hatched between the former Internal Affairs Minister, Yuryy Zakharanka, the Chairman of the Constitutional Court, Valeryy Tsikhinya, and the former Speaker, Myacheslaw Gryb.70 The new Belarus Constitution, adopted in a referendum in November 1996, weakened the powers of the Constitutional Court. In Kazakhstan, after the March 1994 elections, the Constitutional Court found some resolutions of the Central Electoral Committee unconstitutional and declared the elections illegitimate. President Nazarbayev vetoed the 68. See Herman Schwartz, "Defending the Defenders of Democracy", Transitions July 1997, 80-85. 69. Constitution Watch, "Romania", 4 EECR 1995 No.3, 22.


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decision of the court, but it overrode his veto and stated that the ruling was already in force. Nazarbayev dissolved the Parliament and ruled the country by decree in the meantime. In March 1995 the term of the President was extended until 2000 in a nation-wide referendum. Then, Nazarbayev prepared a new constitution. One of the most important innovations introduced by the new Constitution was that the Constitutional Court was replaced by a constitutional council. Interestingly enough, according to the transitional provision of the new Constitution regulating the first composition of the council, the President is to be one of its members and appoints its Chairman (Art. 97). A similar scenario was seen in Russia before the promulgation of the Constitution of 1993. There was an open confrontation between the Constitutional Court and the President. As a result of a long-standing power struggle, President Yeltsin suspended Parliament by decree in September 1993. The Constitutional Court found this decree unconstitutional and took the side of the Parliament. Yeltsin, in response, withdrew the powers of the court by a presidential decree dated 7 November 1993. This was, in fact, also unconstitutional because the Russian Constitution (as amended) did not grant the President the right to suspend the activities of the Constitutional Court. This crisis ended with the tragic events discussed above. All these developments fed the expectation that the 1993 Constitution would replace the current court by a weaker one. But, contrary to what had been expected, the new Constitution established a powerful constitutional court.71 In some countries the confrontation between constitutional courts and other state agencies is still continuing and this leads to demands for constitutional change to curb the powers of the courts. Bulgaria and Slovakia fall into this category. In Bulgaria, for example, the Bulgarian Socialist Party had been in favor of a constitutional court which could play a decisive role in Bulgarian politics,72 but after coming to power they began to view the Constitutional Court as a hindrance. A political struggle emerged between the parliamentary majority and the Constitutional Court. According to the BSP, no institutions could be above the Parliament, duly elected by the people.73 Also in Slovakia relations between the parliamentary majority and the Constitutional Court went sour. The Slovak Constitutional Court, turning 70. "President Lukashenka Makes 'Confrontational Speech' in Parliament", SWB, SU/2511 D/l 17 January 1996. 71. Antti Korkeakivi, "The Russian Constitutional Court and Human Rights", 1 Parker School Journal of East European Law 1994, 591-617. 72. Engelbrekt, op.cit. note 79, 7. 73. Constitution Watch, "Bulgaria", 4 EECR 1995 No.4, 5-8.

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down a parliamentary decision annulling certain privatization cases, and finding a law designed to maintain state influence in strategic privatized firms unconstitutional, became the target of the ruling Movement for a Democratic Slovakia, and its leader Vladimir Meciar. They repeatedly proposed to amend the articles of the Constitution concerning the court's decision-making procedures.74 The deputies of the Movement proposed a 4/ 5 majority of constitutional judges to declare a law unconstitutional. The comments of a former justice minister and a member of the opposition Christian Democratic Movement, Ivan Simko, on these efforts perhaps summarizes not only the situation in Slovakia, but also in Eastern Europe generally concerning the disputes between parliamentary majorities and constitutional courts: "They [the ruling Movement for a Democratic Slovakia and its leader Vladimir Meciar] feel they are limited by the Constitution, so they would like to destroy the mechanism of constitutional protection... They see that the Constitutional Court articulates the limits of their power."75 In some cases constitutional courts may indeed be seen as hyper-active, but in some cases they appear as the real defenders of human rights. How can we evaluate the legitimacy of the decisions of constitutional courts? Sunstein has made a distinction between ambiguous and unambiguous constitutional provisions. If a judge is in a position to apply the latter kind of provision, he has to apply it as it is for the sake of the rule of law. He should annul the act of the authorities contravening the unambiguous constitutional provision in question. As for ambiguous provisions, judges may be criticized by politicians on the grounds that their interpretation is incorrect, or that it involves personal judgments. The safest way for a constitutional judge to fend off such criticisms is to interpret the ambiguous provision by making reference to democratic ideals.76 The Hungarian Constitutional Court, for example, developed the doctrine of the "invisible constitution". According to this doctrine, certain basic constitutional values, principles and precedents constitute the essence of liberal democratic constitutional government. These principles serve as a guideline in reading the Constitution, and they cannot be changed by Parliament.77 The relationships between constitutional courts and other state agencies have always been problematic even in Western democracies. When elites 74. Sharon Fisher, "Slovakia Celebrates Constitution Day", OMRI Daily Digest 1 September 1995, Internet version, (http://www.omri.cz/). 75. Quoted by Genevieve Zalatorius, "Slovak Democracy, Under Siege", 5 Business Central Europe May 1996 No.31, 22-23. 76. Cass R. Sunstein, "Introduction, The Legitimacy of Constitutional Courts: Notes on Theory and Practice", 6 EECR 1997 No. 1, 61-63. 77. Spencer Zifcak, "Hungary's Remarkable, Radical, Constitution Court", 3 Journal of Constitutional Law in Eastern and Central Europe, 1996, 1-56.


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come to power, they seek to implement their policies in order to ensure their re-election. If they cannot implement their policies because of constitutional courts, it is inevitable that this provokes a political confrontation between the parliamentary majority and constitutional judges. One of the most important differences between Western and Eastern constitutionalism in terms of the relationships between constitutional courts and other state agencies is that a tension between them never reaches the point of rejection or elimination of constitutional courts in Western democracies. As Shapiro and Stone put it: ...the central position of constitutional courts in an ongoing (even constitutionally required) discourse on rights provides these courts with the materials of political autonomy and legitimacy. One of the reasons that judicial-legislative confrontations have been so rare in Europe is that the idea that both human rights and constitutional review are constituent components of modern democracy has been successfully propagated and manipulated by constitutional courts and their supporters. It is potentially extremely dangerous for a governing political party to attack constitutional courts on rights issues; at the same time, adjudicating rights issues is what most of these courts do most of the time.78 When we compare West European courts with East European ones, we see that the latter have to deal with the conflicts concerning the separation of powers. This necessity derives partly from the fact that the constitutions are very new, partly from the fact that many institutions imported from the West need to be adapted to national conditions. On the other hand, constitutional review is very new to post-communist countries. Neither this institution, nor the concept of human rights in a Western sense is part of the legal and political cultures of these countries. Thus, as these deficiencies remain, one may expect to see more confrontations between constitutional courts and other state agencies. And this will most likely produce some demands for constitutional change until post-communist countries manage to strike a balance between constitutionalism and democracy. Ombudsman

In some countries apart from courts and constitutional courts, another institution, known as ombudsman, is established for the protection of human rights. An ombudsman, or people's defender, considers the applications of citizens who claim their rights and freedoms have been violated or he may act 78. Martin Shapiro and Alec Stone, 'The New Constitutional Politics of Europe", 26 Comparative Political Studies 1994,397-420, quotation from 410. Also see Mary L. Volcansek, "Judges, Courts and Policy-Making in Western Europe", 15 West European Politics, 1-

260


ex officio. Although sometimes it is argued that other means of rights protection, such as application to courts or constitutional courts, should be adequate, an ombudsman has been established in several post-communist countries to provide an extra guarantee for human rights. In Albania, the ombudsman, who is called the people's advocate, is independent in the exercise of his duties (Art. 60). He is elected by threefifths of all the members of the Assembly for a five-year period. A person can be re-elected people's advocate (Art. 61). The people's advocate can make recommendations and propose measures concerning violations of human rights by the state authorities (Art. 63). In Poland the ombudsman, or the "Commissioner for Citizen's Rights", is appointed by the Sejm, with the consent of the Senate (Art. 209). He is independent in his activities and responsible only to the Sejm (Art. 210). The Commissioner annually informs the Sejm and the Senate about his activities and submits a report on the situation of human rights in the country (Art. 212). In Romania the ombudsman, or the "Advocate of the People", is appointed by the Senate to defend the citizen's rights and freedoms (Art. 55). The Advocate may exercise his powers ex officio or upon the request of individuals claiming that their rights have been infringed. Public authorities give all necessary support to the Advocate in carrying out his duties (Art. 56). The Advocate submits an annual report on his activities to the upper and lower houses of Parliament. He also prepares such reports at their request (Art. 57). According to the Georgian Constitution, the ombudsman, or the "People's Defender", is elected by a majority of all the members of the Parliament of Georgia. The Defender investigates human rights violations in the country and informs appropriate agencies and persons. Anybody who obstructs the Defender in the fulfillment of his task is punished by law (Art. 43). The Russian Constitution does not regulate the powers and duties of the ombudsman in detail, but stipulates that he is appointed and removed by the State Duma (Art. 103.e). Lastly, the Hungarian Constitution establishes two ombudsmen for the protection of rights of citizens generally and the protection of the rights of national and ethnic minorities in particular (Art. 32/B). The ombudsmen, upon the nomination of the President, are elected by Parliament (Art. 19.3/k and 32/B.4). Apart from the latter, the Constitution allows Parliament to elect separate ombudsmen for the protection of certain constitutional rights (Art. 32/B.4). Each ombudsman reports on his activities and experience annually to Parliament (Art. 32/B.6). Ombudsmen could be an important additional mechanism for the protection of human rights in post-communist countries. The Hungarian model, in particular, could provide an effective protection of minority rights in multi-


261

national polities. The good performance of current ombudsmen may encourage other countries to establish similar institutions.

4.3.6. The Gap Between the Constitution on Paper and Reality As constitutional history suggests, the recognition of liberties on paper does not necessarily mean that they are exercised by individuals, or fully observed by state authorities in reality. In every polity the powers that be may disregard the paper guarantees of constitutions and encroach upon the rights and liberties of the people. Does reality conform to constitutional provisions on the protection of civil liberties and political rights in post-communist countries? To answer this question, one may consult data provided by Freedom House, surveying the upholding of civil liberties and political rights in the world. As Tables 4 and 5 suggest, civil liberties and political rights are not safeguarded as firmly as promised by the constitutions. Not only Freedom House surveys, but also certain other reports, prepared by other international human rights organizations, suggest that most post-communist countries made good progress in terms of their human rights records in comparison with communist practice, but there still are serious problems in many countries. The progress in Eastern Europe and the Baltics is stunning, but, in the former Soviet republics, particularly in Central Asia and Transcaucasia, there still is a wide gap between constitutional provisions and reality. This is, in fact, not only the problem of post-communist countries. Today, all around the world, one can find such discrepancies between constitutional promises and their actual application.79 Nevertheless, such incongruities are highly important in the post-communist context. Along with the future of post-communist constitutions, the prospects for constitutionalism in Eastern Europe and the former USSR are discussed in this study. We have pointed out that culture and effectiveness provide the sources of the legitimacy of constitutions. We have defined the effectiveness of constitutions as their capacity to meet people's expectations. If constitutions are not effectively applied, how can people evaluate their performance? Putting it differently, if people are not protected properly, how can they appreciate the pros and cons of liberal democratic institutions? Most people in the countries under consideration have no experience with full-blown human rights. Thus the application of constitutions in conformity with constitutional promises is of great importance to demonstrate the advantages of individual autonomy 79. See Christian A. Davenport, '"Constitutional Promises' and Repressive Reality: A CrossNational Time-Series Investigation of Why Political and Civil Liberties are Suppressed", 58 The Journal of Politics 1996, 627-654.

Table 4. Upholding Civil Liberties and Political Rights, Central and Eastern Europe Political rights

Civil liberties

1988-89

1993-94

1994-95

1995-96

1996-97

1997-98

1998-99

1988-89

1993-94

1994-95

1995-96

1996-97

1997-98

1998-99

Albania

7

2

3

3

4

4

4

7

4

4

4

4

4

5

Bulgaria

7

2

2

2

2

2

2

7

2

2

2

3

3

3

Czech Republic

7

1

1

1

1

1

1

6

2

2

2

2

2

2

Hungary

5

1

1

1

1

1

1

4

2

2

2

2

2

2

Poland

5

2

2

1

1

1

1

5

2

2

2

2

2

2

Romania

7

4

4

4

2

2

2

7

4

3

3

3

2

2

Slovakia

7

3

2

2

2

2

2

6

4

3

3

4

4

2

1 = Free 7 = Not free

Sources: Freedom House, Nations in Transit: Civil Society, Democracy, and Markets in East-Central Europe and Newly Independent States, Freedom House, New York 1995, quoted in Charles Gati, "The Mirage of Democracy", Transition 22 March 1996, 7-8; "The Comparative Survey of Freedom", Freedom House, internet version (http://www.freedomhouse.org).

Table 5. Upholding Civil Liberties and Political Rights, Former Soviet Union Political rights

Civil liberties

1991-92

1993-94

1994-95

1995-96

1996-97

1997-98

1998-99

1991-92

1993-94

1994-95

1995-96

1997-98

1998-99

Armenia

5

3

3

4

5

5

4

5

4

4

4

4

4

Azerbaijan

5

6

6

6

6

6

6

5

6

6

6

4

4

Belarus

4

5

4

5

6

6

6

4

4

4

5

6

6

Estonia

2

3

3

2

1

1

1

3

2

2

2

2

2

Georgia

6

5

5

4

4

3

3

5

5

5

5

4

4

Kazakhstan

5

6

6

6

6

6

6

4

4

5

5

5

5

Kyrgyzslan

5

5

4

4

4

4

5

4

3

3

4

4

5

Latvia

2

3

3

2

2

1

1

2

3

2

2

2

2

Lithuania

2

1

1

1

1

1

1

3

3

3

2

2

2

Moldova

5

5

4

4

3

3

2

4

5

4

4

4

4

Russia

3

3

3

3

3

3

4

3

4

4

4

4

4

Tajikistan

5

7

7

7

7

6

6

5

7

7

7

6

6

Turkmenistan

6

7

7

7

7

7

7

7

5

7

7

7

7

Ukraine

3

4

3

3

3

3

3

3

4

4

4

4

4

Uzbekistan

6

7

7

7

7

7

7

5

7

7

7

6

6

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and the importance of constitutions in its protection. The application of provisions concerning rights will also most likely increase the overall legitimacy of the respective political systems. As public opinion surveys suggest, people are already appreciating the good performance of certain post-communist regimes in protecting individual liberties, and this increases the legitimacy of these regimes.

4.3.7. International Mechanisms to Protect Individual Liberties Today the protection of individual liberties is not only a national matter. After the Second World War, in particular, there has been growing international concern about human rights issues. Several international conventions, and international courts established by these conventions, play a crucial role in the protection of individual liberties. The mechanisms established under the auspices of the United Nations and European Union, particularly the latter, have filled the gap left by national protection mechanisms. These conventions and courts are also important for the protection of the rights and freedoms in Eastern Europe and the former USSR. Most of the countries in this area have already signed basic international human rights conventions. The mere signing of these documents, however, does not guarantee human rights. Effective protection depends on the proper application of these conventions in domestic law. In this respect, the relationships between international and domestic law assume great importance. If international law has no direct effect and supremacy over national legal norms, these documents cannot produce the intended results. Most modern constitutions attach special importance to international law. Some constitutions, such as the Italian Constitution (Art. 10), contain provisions which proclaim the adherence of the state to generally recognized principles of international law. Some of them, such as the American Constitution (Art. VI/II), consider international treaties as a part of domestic law. Other constitutions, in turn, recognize the supremacy of international treaties over national legal norms. According to Article 55 of the French Constitution, for example, treaties or agreements duly ratified or approved shall, upon their publication, prevail over legislation, subject, for each agreement or treaty, to reciprocal application by the other party. With few exceptions, all post-communist constitutions contain certain provisions concerning international law, and they introduce different arrangements in terms of the relationships between international treaties and domestic law. Most constitutions state that the countries in question respect, accept or recognize the general principles of international law, but the emphasis put on the importance of international law varies.80 The Turkmen Constitution, for example, provides that: "Turkmenistan acknowledges the


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priority of generally recognized norms of international law" (Art. 6). This article, undoubtedly, opens the Turkmen legal system to international law, but if one compares the language of this article with the similar article of the Hungarian Constitution, one can see the different attitudes of different countries toward international law. According to paragraph 1 of Article 7 of the Hungarian Constitution: "The legal system of the Republic of Hungary accepts the universally recognized rules and regulations of international law, and harmonizes the internal laws and statutes of the country with the obligations assumed under international law." Here, the Constitution imposes on state authorities the duty to take action, to harmonize domestic law with international law. Some constitutions consider international treaties as a part of domestic law.81 The Estonian Constitution accepts only the generally recognized principles of international law as an inseparable part of the Estonian legal system (Art. 3.1). The Russian Constitution, on the contrary, grants this status both to principles and treaties. According to Article 15.4. of the Constitution: "Generally recognized principles and norms of international law and the international agreements of the Russian Federation are a constituent part of its legal system." The Russian Constitution not only recognizes the norms and principles of international law, but also gives international treaties supremacy over national legislation. Article 15.4 continues: "If an international agreement of the Russian Federation establishes rules other than those stipulated by law, the rules of the international agreement apply." Many post-communist constitutions contain similar provisions.82 Most of them also put emphasis on international law in connection with human rights. For example, Article 10 of the Czech Constitution stipulates that: "Ratified and promulgated international accords on human rights and fundamental freedoms, to which the Czech Republic has committed itself, are immediately binding and are superior to law." The Slovak Constitution recognizes the supremacy of international human rights agreements with a caveat. According to Article 11 of the Constitution: "The international agreements on human rights and basic freedoms which were ratified by the Slovak Republic and which have been 80. Albania (Art. 8), Armenia (Art. 4), Azerbaijan (Art. 12), Belarus (Art. 8), Georgia (Art. 6.2), Hungary (Art. 7.1), Kazakhstan (Art. 8), Kyrgyzstan (Art. 9.4), Poland (Art. 9), Turkmenistan (Art. 6). 81. Armenia (Art. 6), Kyrgyzstan (Art. 12.3), Romania (Art. 11), Tajikistan (Art. 10), Ukraine (Art. 9). 82. Albania (Art. 122), Armenia (Art. 6), Azerbaijan (Art. 151), Bulgaria (Art. 5.4), The Czech Republic (Art. 10), Georgia (Art. 6.2), Kazakhstan (Art. 4.3), Kyrgyzstan (Art. 12.3), Moldova (Art. 4.2), Poland (Art. 87.1,91), Romania (Art. 20), Slovakia (Art. 11), Tajikistan (Art. 10).

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declared legal, take precedence over its laws whenever they guarantee a wider scope of constitutional rights and freedoms." Some constitutions, on the other hand, enumerate particularly international human rights law among the legal sources involving the protection of rights and freedoms. For example, Article 4 of the Armenian Constitution reads: "The state guarantees the protection of human rights and freedoms based on the Constitution and the laws, in accordance with the principles and norms of international law." In the same vein, the Azerbaijani Constitution provides that, human rights and freedoms enumerated in the Constitution are to be exercised in accordance with international agreements to which the Azerbaijan Republic is a party (Art. 12.11). The first paragraph of Article 16 of the Kyrgyz Constitution runs as follows: "In the Kyrgyz Republic the basic rights and freedoms shall be recognized and guaranteed in accordance with universally accepted norms and principles of international law, international treaties and agreements on the issues of human rights which have been ratified by the Kyrgyz Republic." Lastly, according to Article 14 of the Tajik Constitution: "The freedoms and rights of individuals and citizens are protected by the Constitution, the laws of the republic and international documents recognized by Tajikistan." The Moldovan (Art. 4.1) and Romanian (Art. 20.1) constitutions introduce similar arrangements and make special reference to the Universal Declaration of Human Rights. Both constitutions envisage that constitutional provisions concerning human rights and freedoms are understood and implemented in conformity with the Universal Declaration of Human Rights, and with other conventions and treaties endorsed by the republics. Although international law has been very important in many countries surveyed, as a rule, it has not been accorded a supreme status over postcommunist constitutions. Some constitutions, however, such as the Armenian (Art. 6), Moldovan (Art. 8.2) and Ukrainian (Art. 9) constitutions, provide that international treaties form part of domestic legislation, but the ratification of international treaties which are at variance with the Constitution requires constitutional amendment. The Belarussian Constitution, in turn, does not permit the conclusion of international treaties which are contrary to the Constitution (Art. 8). All these regulations, undoubtedly, are highly important for the protection of human rights. First, international conventions and mechanisms may fill the gaps left by national constitutions in terms of the protection of human rights. Second, being a party to an international convention imposes certain duties and responsibilities on the countries concerned. Thus the countries ratifying these agreements can be expected to be more attentive in protecting individual liberties under the monitoring, scrutiny, or even pressure of international actors and other states.


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Today, one can speak of a global trend toward the internationalization of human rights issues. Human rights issues are no longer domestic affairs of the respective countries. There is growing international pressure on states to observe international human rights standards. Thus one may expect to see that more post-communist states would recognize the supremacy of international law over internal law. On the other hand, some post-communist countries aspire to join international organizations, such as the European Union. The legislation of such organizations generally require their direct application in, and supremacy over the legal systems of member states. Thus one may also expect that countries will adopt amendments to their constitutions to satisfy the requirements of the membership of such organizations. Some countries have already prepared themselves for such a move. According to the third paragraph of Article 91 of the new Polish Constitution, for example: "If an agreement, ratified by the Republic of Poland, establishing an international organization so provides, the laws established by it shall be applied directly and have precedence in the event of a conflict of laws." The Albanian Constitution also contains a similar provision (Art. 122).

4.3.8. Constitutional Conditions of Effective Demo-Protection As many examples in constitutional history suggest, merely including rights and liberties in constitutions hardly provides effective demo-protection. Undoubtedly, to recognize these rights and liberties at the constitutional level is the first, maybe the most important step to guarantee them in a given constitutional system, but one may still list several conditions to reinforce their protection by constitutional means. First, most modern constitutions treat citizens and non-citizens differently as far as rights and liberties are concerned. This means that, although most rights and liberties are recognized for "everybody", some of them are only granted to citizens. Citizenship, therefore, appears as the precondition of the possession and exercise of such rights and liberties. This would be acceptable for political rights, but to confine civil liberties to citizens only may cripple the demo-protection function of constitutions. Given the fact that there are still many unsolved citizenship problems in post-communist countries, constitutions ought to give prominence to the "individual", rather than the "citizen" when recognizing rights and liberties. Second, constitutions ought to allow the application of rights and liberties both horizontally and vertically. Historically, constitutional rights and liberties arose from the need to protect individuals against arbitrary state power. As a result, provisions in constitutions or international human rights conventions guaranteeing individuals' rights and liberties have imposed positive or negative

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obligations chiefly on the state. Such provisions, therefore, have been applied vertically, i.e., in the relationships between the state and individuals. However, effective demo-protection requires the horizontal application of rights and liberties, i.e., in the relationships between individuals themselves, where possible. Constitutions ought to formulate the provisions concerning rights and liberties in a way to allow their horizontal application. Third, the direct application of constitutions, may bolster the protection of rights and liberties at the constitutional level. Sometimes the language of the human rights provisions allow their direct application in individual cases. Judges, in these cases, ought to choose an interpretation in favor of the direct application of human rights provisions where possible. Sometimes, however, they may prescribe enactment of supplementary legislation or taking administrative action for the application of a certain right or liberty. Then, the solution would be to include a provision to that effect in the constitution. Fourth, the following points in restricting rights and liberties might be important for effective demo-protection: (a) rights and liberties ought to be restricted only by law; (b) constitutions ought to specify grounds for restriction according to which law-makers restrict rights and liberties; (c) the meaning and the content of grounds for restricting rights and liberties ought to be clear; (d) constitutions ought to prohibit the abolition of certain rights and liberties under emergency measures. These measures taken together may make rights and liberties safer. Fifth, constitutions ought to envisage effective remedies against violations of rights and liberties by state agencies. In particular, granting citizens the right to apply directly to the Constitutional Court may reinforce the protection of their rights and liberties against excesses by the legislature. Sixth, given the dynamic character of human rights, constitutions ought to be open to new rights and liberties. Here, Article 10 of the Estonian Constitution may be given an example: "The rights, liberties, and duties enumerated in the present Chapter shall not preclude other rights, liberties or duties which ensue from the spirit of the Constitution or are in accordance therewith and are compatible with human dignity and the principles of a society based on social justice, democracy and the rule of law." Lastly, for effective demo-protection, constitutions ought to recognize the supremacy of international law, at least the supremacy of international human rights conventions. For international mechanisms may compensate the deficiencies of national mechanisms.


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4.4. Executive-Legislative Relations in Post-Communist Constitutions As we have mentioned above, Marxist-Leninist theory and practice rejected the principle of the separation of powers and devised certain constitutional mechanisms to ensure the concentration of powers in the hands of communist authorities. However, although there was no separation of powers in communist constitutional systems, there was separation of functions. As put by Vishinsky: "In the USSR authority has its beginning in the genuine popular sovereignty personified by the Supreme Soviet of the USSR. This is not incompatible with limiting the jurisdiction of authority as between separate organs. Such limitation flows out of the extraordinarily complex functions of the Soviet state machinery governing both people and economy."83 The relationships between rule-making, rule-applying and rule-adjudicating institutions in communist constitutional systems were designed in accordance with such a functional separation. From Communist Constitutional Systems to Post-Communist Constitutional Systems

All communist constitutions established two main organs along with the Parliament: a "council of ministers" (or the "government") and a "presidium" (or "standing committee"). Georg Brunner developed a typology to explain the differences between communist constitutional systems. He distinguished two basic models of communist constitutions: the "Council of Ministers Model" and the "Council of State Model". While the government, the highest organ of state administration with limited power to formulate and implement state policy, was the most important power-holder in the former, in the latter the locus of power was a collective body, substituting Parliament when it was not in session. Apart from these models, Brunner reminded us that the office of President, although completely different from what can be found in liberal democratic regimes, was not alien to communist constitutional systems. He categorized and studied those systems in which the President was the center of the executive power under the rubric of the "Presidential Model". The Stalin Constitution of 1936 provided a typical example of the Council of Ministers Model. The Albanian Constitution of 1946, the Bulgarian Constitution of 1947, the Romanian Constitution of 1948, the Hungarian Constitution of 1949 and the Polish Constitution of 1952 also exemplified this model. The Council of State Model was preferred by Romania (the Constitution of 1961) and Bulgaria (the Constitution of 83. Andrei Y. Vyshinski, The Law of the Soviet State, (Translated by Hugh W. Babb), MacMillan, New York 1948, 318.

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1971). Among the communist countries under consideration, only two of them, Czechoslovakia and Romania adopted the Presidential Model. These two countries, however, applied the latter in different ways. Brunner placed the Romanian system in the category of a "Strong" or "Tyrannical Presidential Model" and the Czechoslovak system in the category of a "Weak" or "Open Presidential Model".84 After the collapse of communist regimes, the countries under survey adopted new constitutional models based on the separation of powers. As a rule, these newly-adopted models fall into one of the three broad categories in terms of the relations between legislative and executive agencies: presidential, parliamentary and mixed or hybrid systems. Post-communist constitution-makers are inspired by the constitutional models which have been developed by established liberal democratic regimes since the Age of Enlightenment. Before starting to analyze the application of these models within the context of post-communism, it would be appropriate to define their basic characteristics. Defining the Types of Liberal Democratic Constitutional Systems One of the early attempts at defining the main patterns of government was made by D.V. Verney. He listed eleven criteria to distinguish presidential systems from parliamentary ones: 1) The Assembly is transformed into a Parliament in parliamentary systems, whereas it remains an Assembly only in presidential systems; 2) The executive is divided into Head of State and government in parliamentary systems, whereas it resides in a President elected by the people for a definite term in presidential systems; 3) The Head of Government is appointed by the Head of State in parliamentary systems, whereas he is also the Head of State in presidential systems; 4) The Head of Government appoints the ministers in parliamentary systems, whereas the President appoints heads of departments who are subordinates in presidential systems; 5) The government is a collective body in parliamentary systems, whereas the President is sole executive in presidential systems; 6) Ministers are usually members of Parliament in parliamentary systems, whereas members of the Assembly may not hold office in the administration and vice versa in presidential systems;

84. Georg Brunner, "Constitutional Models in Communist States: A Typological Overview", in The Distinctiveness of Soviet Law, (F.J.M. Feldbrugge, ed.), No. 34 Law in Eastern Europe, Dordrecht/Boston/London 1987, 3-33.


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7) The government is responsible politically to the Assembly in parliamentary systems, whereas the executive is responsible legally to the constitution in presidential systems; 8) The Head of Government may advise the Head of State to dissolve Parliament in parliamentary systems, whereas the President cannot dissolve or coerce the Assembly in presidential systems; 9) Parliament as a whole is supreme over its constituent parts, government and Assembly, neither of which dominate the other in parliamentary systems, whereas the Assembly is ultimately supreme over the other branches of government, and there is no fusion of executive and legislative branches in a Parliament in presidential systems; 10) The government as a whole is only indirectly responsible to the electorate in parliamentary systems, whereas the executive is directly responsible to the electorate in presidential systems; 11) Parliament is the focus of power in parliamentary systems, whereas there is no focus in presidential systems.85 Although Verney' s analysis has been very helpful in identifying the basic features of presidential and parliamentarian systems, it can be criticized on the grounds of its ambiguity and overlap among its criteria.86 Accordingly, Arend Lijphart, in his seminal work, Democracies, proposed two essential criteria to distinguish parliamentary governments from presidential ones: "First, in a parliamentary system, the chief executive—who may have different official titles such as Prime Minister, premier, chancellor, MinisterPresident, or taoiseach, but to whom we shall generically refer as the Prime Minister—and his or her Cabinet are responsible to the legislature in the sense that they are dependent on the legislature's confidence and that they can be dismissed from office by a legislative vote of no-confidence or censure. In a presidential system the chief executive—the President—is elected for a constitutionally prescribed period and in normal circumstances cannot be forced to resign by a legislative vote of no-confidence (although it may be possible to remove a President for criminal wrongdoing by the process of impeachment)... The second difference between presidential and parliamentary governments is that presidents are popularly elected, either directly or via an electoral college, and that Prime Ministers are selected by the legislature."87 Lijphart later added another essential criterion that he had 85. D.V. Verney, The Analysis of Political Systems,Routledge & Kegan Paul, London 1959, 75-77. 86. Matthew Soberg Shugart, and John M. Carey, Presidents and Assemblies: Constitutional Design and Electoral Dynamics, Cambridge University Press, Cambridge 1992,20, fn. 3. 87. Arend Lijphart, Democracies: Patterns of Majoritarian and Consensus Government in Twenty-One Countries, Yale University Press, New Haven/London 1984, 68.

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seen as an "additional contrast" in Democracies:88 "...parliamentary systems have collective or collegial executives, whereas presidential systems have one-person, non-collegial executives... The Prime Minister's position in the Cabinet can vary from pre-eminence to virtual equality with the other ministers, but there is always a relatively high degree of collegiality in decision-making; in contrast, the members of presidential cabinets are mere advisers and subordinates of the President."89 He repeated these three criteria in another essay, yet he also listed several non-essential but frequent attributes of presidentialism including: the President does not have the power to dissolve the legislature; the President has a veto power over legislation, and the presidential veto can be overridden only by extraordinary legislative majorities; the President can appoint members of the Cabinet without legislative interference; the President is not only the Head of Government, but also the Head of State; the President can serve no more than two elected terms of office; the President cannot simultaneously be a member of the legislature.90 Giovanni Sartori generally concurred with Lijphart and proposed similar criteria, yet he differed from Lijphart as far as the third criterion was concerned. He noted that the criterion of a one-person executive is too narrow. It implies that the Head of State must also be the Head of Government. Although he accepted that this would generally be the case, he preferred a looser formulation based on the observation that the line of authority is neatly streamlined from the President down in presidential systems. Thus, according to Sartori: "...a system is presidential if, only if, the Head of State (the President) (1) receives office by popular election, (2) during his pre-established tenure cannot be discharged by parliamentary vote, and (3) heads the government or governments, which he appoints."91 Indeed, Sartori was right when pointing out that the presidency is not necessarily a one-person office. Lijphart's one-person executive criterion fails to cover certain examples such as Bosnia-Herzegovina where a directly elected tripartite presidency was introduced by the Constitution of 1995. Nevertheless, bearing in mind that Sartori's comments complements Lijphart's analysis, we may employ Lijphart's criteria for a preliminary inquiry. Table 6 shows the application of these criteria to the post-communist constitutional systems. 88. Ibid., 73-74. 89. Arend Lijphart, "Introduction", in Parliamentary versus Presidential Government, (Arend Lijphart, ed.), Oxford University Press, Oxford 1992, 3. 90. Arend Lijphart, "Presidentialism and Majoritarian Democracy", in The Failure of Presidential Democracy, (Juan J. Linz and Arturo Valenzuela, eds.), The Johns Hopkins University Press, Baltimore/London 1994, 99-101. 91. Giovanni Sartori, "Neither Presidentialism nor Parliamentarism", in The Failure of Presidential Democracy, (Juan J. Linz and Arturo Valenzuela, eds.), The Johns Hopkins University Press, Baltimore/London 1994, 106.


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Table 6. A Typology of Parliamentary and Presidential Forms of Democracy in Eastern Europe and the Former USSR Collegial executive

Executive selected by legislature

Executive selected by voters

One-person executive

Dependent on legislative confidence

Not dependent on legislative confidence

Dependent on legislative confidence

Not dependent on legislative confidence

Pure Parliamentarism: Albania Czech Republic Estonia Hungary Latvia

No empirical examples






Pure Presidentialism: Azerbaijan Belarus Georgia Kazakhstan Tajikistan Turkmenistan Uzbekistan

Sources: Arend Lijphart, Democracies: Patterns ofMajoritarian and Consensus Government in Twenty-One Countries, Yale University Press, New Haven and London 1984; Idem, "Introduction", in Parliamentary versus Presidential Government, (Arend Lijphart, ed.), Oxford University Press, Oxford 1992; Idem, "Presidentialism and Majoritarian Democracy", in The Failure of Presidential Democracy, (Juan J. Linz and Arturo Valenzuela, eds.), The Johns Hopkins University Press, Baltimore and London 1994.

Although most countries in Eastern Europe and the former USSR fit Lijphart's criteria, his scheme seems inadequate to explain the constitutional systems in all post-communist countries. For example, there are the dual executives in such countries as Lithuania, Moldova, Poland and Romania consisting of a President elected by the people along with a Cabinet elected by the Assembly, or, putting it in another way, a President not dependent on legislative confidence and a Cabinet dependent on legislative confidence. In fact, this problem is not new for the students of comparative politics. Lijphart himself had difficulties in classifying the French Fifth Republic instituting such a dual governmental structure. In his book Democracies, published in 1984, Lijphart proposed an additional criterion to study such cases. According to the author, we have to ask who is the more powerful of the two: Who

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really is the chief executive? Having applied this criterion, he classified the French Fifth Republic as a presidential system.92 In a later essay he made reference to the French political scientist Maurice Duverger, who had developed the concept of "semi-presidentialism" to depict the French constitutional system. Duverger called attention to the fact that, under certain conditions, those systems (with a President elected by the people and a Prime Minister and Cabinet accountable to the Assembly) might operate in accordance with the mechanics of presidential or parliamentary systems. Lijphart echoed Duverger's accounts: "...French semi-presidentialism does not mean either a synthesis of the parliamentary and presidential types or an intermediate category more or less halfway between them. Rather, it entails an alternation of parliamentary and presidential phases, depending on whether or not the President's party has a majority in the legislature."93 It is interesting to note that this essay was published in 1992, i.e., after the "cohabitation" period (1986-1988) in France. It is also interesting to note that although Lijphart admitted that Duverger had grasped the actual working of the French system under cohabitation conditions even before the cohabitation of Mitterand and Chirac, he preferred to classify the French Fifth Republic as a presidential system in this essay. In a recent essay, published in 1994, he revised his classification and put the French Fifth Republic between 1986 and 1988 in "pure parliamentarism" and the French Fifth Republic except 1986-88 in "pure presidentialism" boxes on the basis of the alternation thesis.94 Although Lijphart's typology, supplemented by Duverger's alternation thesis, would be useful in explaining the nature of systems with dual executives, it seems that even this version would not serve the purpose of the current study. Since our analysis concerns mainly constitutions, we tend to focus more on constitutional powers of the executive and legislative branches, rather than their strength or weakness within the context of emerging party systems. This, of course, does not mean that we shall exclude this dimension of emerging constitutional systems from our analysis, but now we need a more elaborate set of criteria to identify the constitutional positions of presidents and assemblies to continue our analysis. In this regard, the criteria proposed by Matthew Soberg Shugart are particularly relevant.95 Shugart distinguished five basic types of constitutional systems: 92. 93. 94. 95.

Lijphart, op.cit. note 87, 70. Lijphart, op.cit. note 89, 8. Lijphart, op.cit. note 90, 94. Shugart introduced his typology originally in a book co-authored by John M. Carey: Shugart and Carey, op.cit. note 86. The author—occasionally with his colleagues— developed this typology later in other works: Matthew Soberg Shugart, "ExecutiveLegislative Relations in Post-Communist Europe", Transition 13 December 1996,6-11; Matthew Soberg Shugart and Scott Mainwaring, "Presidentialism and Democracy in Latin America: Rethinking the Terms of the Debate", in Presidentialism and Democracy

Chapter 4. Effectiveness — — — — —

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Pure presidential systems, Premier-presidential systems, President-parliamentary systems, Parliamentary "with" President systems, Pure parliamentary systems.

Three categories in this typology are hardly new. The features of "pure" systems are similar to the features of those of systems labeled "presidential" and "parliamentary" systems by Lijphart and Sartori. Among post-communist countries, the constitutional systems of Azerbaijan, Georgia, Tajikistan and Uzbekistan fall into the category of pure presidential systems. Albania, the Czech Republic, Estonia, Latvia and Hungary, on the other hand, are post-communist countries adopting a pure parliamentary system. The premier-presidential system, in turn, is the system labeled "semi-presidential" by Duverger. The Polish, Lithuanian, Romanian and Moldovan constitutional systems are post-communist premier-presidential or semi-presidential systems. What is new in Shugart's typology is President-parliamentary and parliamentary "with" President systems. In parliamentary "with" President systems the President is elected by the people, but his powers are much more limited than the powers of a President serving under a semi-presidential, or in Shugart's terminology, under a premier-presidential constitution. Shugart pointed out that since parliamentary and parliamentary "with" President systems mainly show similar characteristics, they both can be studied under the rubric of parliamentary systems. However, we shall study the latter separate from the former to provide a clear distinction between these resembling systems in terms of their constitutional characteristics. Of post-communist constitutional systems, the Bulgarian system bears the features of a parliamentary "with" President system. After the adoption of a constitutional amendment allowing the election of the President by the people, the Slovak constitutional system also became a parliamentary "with" President system. President-parliamentary systems, which are sometimes studied under the category of semi-presidential systems, can be summarized as "pure presidenin Latin America, (Scott Mainwaring and Matthew Soberg Shugart, eds.), Cambridge University Press, Cambridge 1997, 12-54; Matthew Soberg Shugart, "Politicians, Parties, and Presidents: An Exploration of Post-Authoritarian Institutional Design", in Liberalization and Leninist Legacies: Comparative Perspectives on Democratic Transitions, (Beverly Crawford and Arend Lijphart, eds.), International and Area Studies, Research Series, Number 96., University of California at Berkeley 1997,40-90; Matthew Soberg Shugart, "Institutions and Public Policy in Presidential Systems" in Political Institutions and the Determinants of Public Policy, When Do Institutions Matter?, (Stephan Haggard and Mathew D. McCubbins, eds.), Center for the Study of Democracy, Research Papers, Internet version 1997, (http://hypatia.ss.uci.edU/democ//papers). However, we shall mainly draw on one of his short essays on post-communist constitutional systems: Matthew S. Shugart, "Of Presidents and Parliaments", 2 EECR 1993 No.l, 30.

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tial system + Cabinet's dependence on legislative confidence" or "premierpresidential system + Cabinet's accountability to the President". In these systems a popularly elected President appoints and dismisses a Cabinet depending on legislative confidence. Moreover, the President holds the power to dissolve the Assembly or enjoys significant legislative powers or both. The Armenian, Belarussian, Kazakh, Kyrgyz, Russian, Turkmen and Ukrainian systems fall into this category. To compare the President-parliamentary system with the premier-presidential system, one may point out that members of the Cabinet may be dismissed by the President or brought down by the Assembly in President-parliamentary systems, whereas in premierpresidential systems the Cabinet is accountable to Parliament, which cannot be dismissed by the President before the expiration of its term. Consequently, we shall mainly use Shugart's typology in our analysis which will enable us to study emerging governmental patterns in Eastern Europe and the former USSR on the basis of their constitutional characteristics. More importantly, this typology will allow us to focus not only on the election method of the President and Cabinet accountability, but also on the constitutional powers of the President. In this regard, Shugart put emphasis on non-legislative (e.g., powers over Cabinet formation and dismissal) and legislative (e.g., decree and veto powers) powers of presidents, but, when necessary, we shall also make reference to other presidential powers, such as their appointive and emergency powers. We shall, therefore, break the postcommunist constitutional systems into five categories, namely "pure" presidential, President-parliamentary, premier-presidential, parliamentary "with" President and "pure" parliamentary systems on the basis of the following criteria: the election method of the President (i.e., whether he is elected by the people), terms of the President and the Assembly (i.e., whether the executive and legislature can shorten each other's term), Cabinet accountability (i.e., whether it is accountable to the parliamentary majority), and the legislative, appointive and emergency powers of the President. Defining Constitutional Powers of Presidents Before starting to analyze post-communist constitutional systems in detail, it would be appropriate to define clearly constitutional powers of the respective presidents. We shall focus on the powers of the post-communist presidents over Cabinet formation and dismissal when studying Cabinet accountability in these constitutional systems. Here, we rather wish to devote our attention to other constitutional powers of the presidents including legislative (i.e., the right to initiate laws, the right to call referenda, decree and veto powers and the right to apply to the Constitutional Court for the review of the constitutionality of laws), appointive and emergency powers.


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Right to Initiate Laws: The introduction of a bill is the first and maybe most important step in the legislative process. A bill is introduced into the legislature to be enacted into law. Constitutional systems differ considerably as far as the actors having the right to introduce a bill are concerned. In America, for example, the chief executive (i.e., the President) has no right to initiate laws directly; he can propose a bill only through a Congressman. Whereas the right to legislative initiation belongs exclusively to the executive branch of government in the UK. Here, what is important is whether the President has an exclusive right to initiate laws in a certain area, for example in the area of budgetary laws. If the President has such right, this may make him relatively stronger vis-a-vis Parliament in terms of the formulation of public policies. No doubt, even though the President has an exclusive right to introduction of bills, the legislature may always introduce changes to these bills before their enactment, but this right potentially strengthens the President's control over policy issues. On the other hand, some constitutions may restrict the power of Parliament to introduce changes to exclusive presidential bills. Needless to say, such a regulation may weaken further the control of the legislature over exclusive policy issues. Right to Call Referenda: A referendum allows the electorate to decide on a certain issue, i.e., to approve or disapprove of a proposal. Presidents in presidential systems usually have the right to call referenda, whereas presidents in parliamentary systems have generally the right to put only such issues as constitutional issues, which are of particular importance for the politics of a given country. In some cases the constitution lists the matters which must be put to a referendum (i.e., mandatory referendum), in other cases the President—within the framework of his constitutional powers— may decide freely whether to submit a matter to a referendum (i.e., discretionary referendum). If the President has a discretionary power to determine the subject of a referendum, this gives him an opportunity to change or preserve the status quo. For example, the French President Charles de Gaulle frequently exercised his right to call referenda to bolster his powers. The recent amendments to the French Constitution of 1958 even expanded the scope of this power of the President. One should always bear in mind that if a President has a charismatic authority, the right to call referenda may enable the President to bypass a hostile or a non-supportive legislature particularly in introducing a new policy or policy changes in certain areas. Of course, the legislature may always restore the status quo by enacting a subsequent law in the same area, but some constitutions may even prohibit this by elevating those laws passed by a referendum to the level of constitutional law. Decree Power: A decree can generally be defined as an order of the executive branch of government. Presidents in presidential systems, as chief

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executives, usually have the right to issue decrees. In some cases the President may not exercise this power without the authorization of the legislature, yet in other cases the President may wield this power at his discretion. Needless to say, the President holding discretionary decree power has an opportunity to change or preserve the status quo. However, what is more important is whether the decrees issued by the President have the force of law on the day of their publication. Those constitutions providing for presidential decrees which need the approval of the legislature or have no force of law on the day of their publication make presidents less powerful in the process of policy formulation. In this regard, the scope of the decrees of the President is also important. If the President is able to issue decrees in any policy area, this may make his position very advantageous in determining the direction of public policies. Sometimes, presidential decrees may be provisional in character. This, of course, limits the President's control over policymaking. On the other hand, it is always conceivable that the legislature may enact a law to supersede the decree of the President. In this case, the question of whether the President has the right to veto laws assumes paramount importance. Veto Power. Veto power enables the President to block legislation passed by the legislature. As a rule, laws passed by the legislature are submitted to the President for signature and promulgation. At this stage, the President may refuse to sign and promulgate the law in question and send it back to the legislature. In some cases the President has the right to veto specific part of the legislation and promulgates the remainder. This is known as "item veto". No doubt, this type of veto gives the President an opportunity to influence the policy formulations of the legislature to a great extent. However, the President's veto does not stop the legislative process once and for all in many cases. As a rule, the veto can be overridden by the legislature. On the basis of the majority required for the override of the veto, one may distinguish two types of veto. If the legislature is able to re-pass the vetoed law by the same majority, this may be called a "weak" veto. Whereas if the vetoed law can only be re-passed by a qualified majority (e.g., two-thirds, three-fifths, etc.) of the legislature, this may be called a "strong" veto. Undoubtedly, a strong veto makes the President more powerful in his relations with the legislature. Particularly, if a President has both strong veto powers and unqualified decree power, he may easily control the policy-making process. Decree and veto powers together may locate the President in the center of the policy process. However, this always runs the risk of causing a deadlock between the President and the Assembly. Right to Apply to the Constitutional Court: Presidents both in parliamentary and presidential systems may apply to the Constitutional Court for the


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review of the constitutionality of laws. In fact, this may be seen as a duty of the President, rather than his right, given his obligation to ensure the upholding of the constitution and laws as well as to protect the rights and liberties of citizens. However, in some cases, application to the Constitutional Court may become the President's trump card in the policy-making process depending particularly on the composition and the competence of the court. Moreover, it is always conceivable that the President may apply to the Constitutional Court as a tactical move just to delay the promulgation of a certain piece of legislation. Thus the President may trigger this mechanism to persuade or threaten the legislature to negotiate and compromise with him in formulating public policies. Apart from these legislative powers, presidents in modern liberal democratic regimes hold significant appointive powers. The appointment process can be broken down into three phases. In the "nomination" phase a candidate for an elective office is proposed; in the "confirmation" phase, appointment of the candidate in question is approved; and in the "formal appointment" phase, the appointed person receives a formal appointment document empowering him to act legitimately in an official capacity. The executive and legislative branches of government play different roles in these phases in different constitutional systems. In presidential systems, as a rule, the President nominates a candidate for an elective office. Sometimes, the confirmation of the Assembly is needed for the appointment of the candidate. Mostly, however, the candidate is appointed upon the signature of the formal appointment document by the President. Here, although the Assembly plays a crucial role in the appointment process thanks to its confirmation power, the President still has the initiative. In fact, the right to nominate would be more important than the right to appoint or the right to confirm in many cases. Nomination entails the determination of alternative candidates among whom the confirmation or appointing authority chooses the most appropriate one. The nomination authority, therefore, is able to influence the choices of the confirmation or appointing authority to a great extent. In other words, the latter is free to choose only within the limits set by the former. Of course, the confirmation or appointing authority may always reject the candidate proposed by the nomination authority, but it can never impose its candidate on it. In parliamentary systems, as a rule, the Assembly plays the most important role in the appointment process through its nomination power and the President holds only formal appointment power. Above all, it should be noted that the appointive powers of the presidents both in parliamentary and presidential systems may assume great importance in certain cases, particularly given the fact that the President may fill key governmental positions with loyal followers to control the implementation of policies.

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Lastly, we wish to dwell briefly on the emergency powers of the presidents in liberal democratic regimes. Emergency powers are those powers granted by the constitution to the executive and legislative branches of government to cope with extraordinary situations or threats, which cannot be dealt with through ordinary governmental mechanisms. Most modern constitutions allow the President to declare a state of emergency and martial law with the subsequent consent of the Assembly. If the President is able to exercise emergency powers without the approval of Parliament, this may always lead to arbitrary rule during times of emergency. What is more important here is whether competent authorities (the President or the Assembly) have the right to suspend the rights and liberties of citizens during the state of emergency or martial law. The exigencies of the situation, resulting in the imposition of extraordinary measures, may require the suspension of certain rights and liberties, such as the freedom of movement, the freedom of assembly and the freedom of association. However, the broader the scope of the rights and liberties which can be suspended during the implementation of extraordinary measures, the more the demo-protection function of constitutions is undermined.

4.4.1. Post-Communist Pure Presidential Systems: Azerbaijan, Georgia, Tajikistan and Uzbekistan The constitutional system of the USA provides a typical example of a presidential system. The American Constitution of 1787 stipulates that: "The executive power shall be vested in a President of the United States." (Art. II., Sec. I). Although the actual powers of the President may vary with the conditions of the country and the personality of the incumbent, the constitutional powers of the President alone make him potentially powerful. The American President is Commander-in-Chief of the US Army and Navy, and of state militias (when called to national service); has oversight of the executive departments; (with the advice and consent of the Senate) makes treaties; (with the advice and consent of the Senate) appoints senior officials. The post-communist presidents serving under pure presidential constitutions have all these powers, even more. The executive function concerns not only the implementation of domestic policy, but also the determination of the foreign policy of the state. The Georgian Constitution expresses this point clearly: "The President of Georgia is responsible for and exercises the domestic and foreign policy of the state." (Art. 69) Closely related to the executive function, post-communist presidents usually represent the state within the country and in international relations (e.g., the Uzbek Constitution, Art. 93). Moreover, in some cases they appear as an arbiter ensuring the co-ordinated functioning and co-


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operation of state agencies (e.g., the Tajik Constitution, Art. 64). Apart from these functions, most post-communist presidents assume the role of the guarantor of the state (i.e., its sovereignty, security and territorial integrity) and the regime (i.e., constitution and laws), as well as the protector of the rights and liberties of citizens (e.g., the Uzbek Constitution, Art. 93; the Tajik Constitution, Art. 64). One should note that such provisions, imposing broadly defined duties on presidents, might serve to justify their extraconstitutional aspirations. That is to say, presidents may always demand more powers than those granted them by the constitution to fulfil their broadly defined duties. This is particularly conceivable in such countries as Tajikistan and Uzbekistan where presidents appear as strong charismatic leaders. The Azerbaijani Constitution comes to the fore among other post-communist presidential constitutions with its overemphasis on the presidency. According to the Constitution, the President represents the Azerbaijan State in internal and external policies; embodies the unity of the Azerbaijan people; ensures the continuity of the Azerbaijan State; guarantees independence, territorial integrity and observance of international agreements; and ensures the independence of the judiciary (Art. 8). Interestingly enough, this provision occurs in Chapter II, titled "Foundation of the State." Thus, the Azerbaijani Constitution almost identifies the state with the presidency. Needless to say, this may create problems in the future in the relations between the executive and legislative agencies. Popular Election of the President The Azerbaijani, Georgian, Tajik and Uzbek presidents are elected by the people for a five-year term. The Uzbek Constitution leaves the determination of the procedure for the election of the President to the legislature (Art. 90), whereas other constitutions under survey introduce different procedures. According to the Georgian Constitution, political associations or initiative groups, whose propositions are confirmed by the signatures of not less than 50,000 voters, may nominate a candidate for the presidency (Art. 70.3). The latter regulation can be seen from a positive point of view in that it may create incentives among the people for creating and joining civil society organizations. This, in turn, may encourage the emergence of an active civil society organized and mobilized by political associations or initiative groups. The Tajik Constitution allows the electorate to nominate a candidate for the presidency without the interference of such associations or groups. Not less than 5% of the voters have the right to present a candidate in Tajikistan (Art. 65). The Azerbaijani Constitution, unlike the Georgian and Tajik constitutions, contains no provision on who has the right to present a candidate for the presidency.

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As far as the majority required for the election of the President, the Tajik Constitution stipulates that a candidate, mustering the support of the majority of the voters, is elected President, providing that at least more than half of the voters have taken part in the voting (Art. 66). The Tajik Constitution is silent on the procedure to be followed in the event that no candidate receives the necessary number of votes in the election, whereas the Azerbaijani Constitution envisages a second round of voting in such cases. According to the Constitution, to be elected President, a candidate must secure the support of the majority of two-thirds of the voters participating in the election. If this majority cannot be reached, then a second round is held between the two candidates receiving the greatest number of votes in the first round. The candidate, supported by the majority of the voters, is elected President (Art. 101). The Georgian Constitution, like the Azerbaijani Constitution, provides for a majority run-off for the election of the President. Accordingly, a candidate is considered elected, if he or she receives the absolute majority of votes of the participants. If none of the candidates receives the necessary votes, then the second round of the elections is held within two weeks. The second round is held between the two candidates who had the best results in the first round. The candidate receiving more votes in this round is elected President. In addition, the Georgian Constitution takes several measures to guarantee minimum popular support for the President. First, the majority of the total number of voters must participate in the elections to be considered valid in the first round. Second, the candidate receiving the greatest number of votes in the second round is elected President only on condition that at least one-third of the total number of voters have participated in the voting. More importantly, the candidate must receive the affirmative votes of at least a majority of one-fifth of all the voters in the second round (Art. 70). Fixed Terms for Both the President and the Assembly The terms of the Azerbaijani, Georgian and Tajik parliaments and presidents are fixed; i.e., while the respective presidents cannot be removed from office by a parliamentary vote of no-confidence for merely political reasons, the parliaments concerned cannot be dissolved prematurely by the presidents. A President in a pure presidential system can only be removed from office by way of impeachment, a highly unusual and exceptional process. For example, the American President may be impeached by the Congress on the grounds of "treason, bribery or other high crimes and misdemeanors". According to the Georgian Constitution, one-third of all the members of Parliament may initiate the impeachment process on the grounds of the violation of the Constitution or high treason or other capital crimes (Art.


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75.2). The case is submitted for judgement to the Supreme Court (for high treason or other capital crimes) or to the Constitutional Court (for violation of the Constitution). Parliament, taking into account the conclusions of the respective higher courts, decides by a simple majority whether to put the issue to a vote. If Parliament decides to vote on the issue, the affirmative votes of not less than two-thirds of all the members of Parliament is required for the impeachment of the President. If a decision cannot be reached within 30 days, the issue is removed from the agenda, and no accusation on the same ground can be made for one year (Art. 63). In constitutional systems with bicameral legislatures the lower and upper houses of the legislature usually play different roles during the impeachment process. In the USA, for example, the House of Representatives and the Senate fulfil the function of indictment and the function of trial and sentence respectively. None of the post-communist countries adopting a pure presidential model have bicameral legislatures. However, Georgia is a special case. The Georgian Constitution of 1995 lays down that: "When conditions are appropriate and self-government bodies have been established throughout the territory of Georgia, Parliament shall be formed with two chambers: the Council of the Republic and the Senate." (Art. 4.1). Accordingly, in Georgia it may be necessary to re-define the role of the respective houses in the impeachment process in the near future. The Tajik Constitution requires the same majority as required by the Constitution of Georgia (one-third) for the initiation of the impeachment procedure, but, along with the commission of a crime, the President's violation of his oath also serves as a ground for impeachment (Art. 72). Here, one should note that it would be very difficult to establish that the President has violated his oath. The Tajik President takes the following oath before assuming office: "As President, I swear to defend the Constitution and laws of the Republic, to guarantee the rights, freedoms, honor, and integrity of citizens, to defend the territorial integrity and political, economic, and cultural independence of Tajikistan, and to serve the people with devotion." (Art. 67) For example, how one can establish that the President has not served the people with devotion? Such a provision is prone to cause controversy in a future impeachment process. The Chair of the Supreme Court chairs a special session of Parliament to consider the charges against the President in Tajikistan. The people's deputies take an oath that they would act according to their own conscience, and within the framework of law and justice in reviewing this issue. Consequently, they decide on the impeachment of the President by not less than two-thirds of affirmative votes on the basis of the conclusions drawn by the Constitutional Court and a special parliamentary commission (Art. 72).

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The Azerbaijani Constitution establishes a slightly different mechanism for the impeachment of the President. What makes the Azerbaijani system different is that the impeachment process is initiated by the Constitutional Court on the basis of the conclusions drawn by the Supreme Court. This provision of the Azerbaijani Constitution seems to be inconsistent with the principle of checks and balances. According to the latter, in its original form, the legislature checks and balances the executive thanks to several procedures, impeachment of the President being one of the most important ones. Vesting the power to initiate the impeachment procedure in the judiciary may violate this principle. More importantly, such a mechanism may directly involve the Constitutional Court in the political struggle between the executive and legislature. The decision concerning the removal of the President from office is passed by the votes of at least 95 deputies (i.e., two-thirds of all the deputies) and signed by the Constitutional Court. The Constitution gives only the commission of a grave crime as a ground for impeachment. The decision on the impeachment of the President comes into effect with its signature by the Constitutional Court. The decision must be signed by the latter within one week and passed by Parliament within two months from the day of the Constitutional Court addressing it. Failure to reach a decision within the appointed time results in the rejection of the accusation (Art. 107). The Uzbek constitutional system diverges significantly from the pure presidential model by granting the President the right to dissolve the Assembly. According to the Constitution, if any insurmountable differences arise between members of Parliament which endanger its normal functioning or if it repeatedly adopts decisions contrary to the Constitution, the President may dissolve the Parliament by a decision sanctioned by the Constitutional Court (Art. 95). As we shall see later, the President may have the right to dissolve the Assembly under certain circumstances in President-parliamentary, premier-presidential as well as pure parliamentary systems, but in these systems this right of the President is balanced by the power of the Assembly to bring down the Cabinet by a vote of no-confidence. Thus the Uzbek Constitution tips the balance in favor of the President by granting him the right to dissolve the Assembly. More interestingly, the Constitution contains no provision concerning the impeachment of the President. Thus the Uzbek President has not only disproportionate powers vis-a-vis Parliament, but he also seems to be unremovable from office—at least under the terms of the current Constitution—even he commits a grave crime or high treason. The Accountability of the Cabinet to the President As we have mentioned above, the President is the chief executive in presidential systems. However, one can also find a body with different names (e.g.,


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"Cabinet", "Cabinet of ministers", "council of ministers" or "government") in these systems helping the President in fulfilling the executive function. For example, the Cabinet in the US system consists of heads of executive departments carrying out the actual work of administration. Although the US Constitution of 1787 makes no mention of the Cabinet, the latter constitutes one of the most important elements of the American constitutional system. The Cabinet is appointed by the President with the "advice and consent of the Senate". Its members are accountable to the President who may dismiss or reassign them at his discretion. While the President is not bound by the decisions taken by the Cabinet, the latter does not bear the responsibility for the decisions taken by the President. Cabinets in post-communist presidential systems differ from the Cabinet in the US system in two senses: First, post-communist presidential cabinets are more powerful than the US Cabinet, which appears mainly as an advisory body. Second, post-communist presidential constitutions (with the exception of Georgia) establish the office of Prime Minister, whereas there is no Prime Minister in the US system. Cabinet Ministers are appointed by the President in all countries under survey. In addition, the President has the right to appoint the Prime Minister in these countries with the exception of Georgia where there is no post of Prime Minister. In Georgia and Tajikistan these appointments, made by the President, are approved by the legislature. If we apply the principle of the separation of powers strictly, the Assembly should have no power over Cabinet formation, but even in the USA, as an example of a pure presidential system, the appointment of Cabinet members is subject to the approval of Congress. One may reasonably ask whether this is a violation of the basic tenets of the presidential system. No doubt, the requirement of the confirmation of the Assembly in the appointment of the Prime Minister strengthens the position of the Assembly vis-a-vis the President, but this does not necessarily mean that such a system is no longer presidential. Here, one should make a distinction between the nomination and confirmation phases in the appointment process, as we have done above. What is important is whether the President is able to nominate a candidate for the office of Prime Minister. Of course, the President has to choose a person who would be accepted by the parliamentary majority, but he is still free to choose his "team" in the first instance. Moreover, most presidential systems create certain mechanisms enabling the President to prevail in the event of the Assembly' s rejection to confirm his nominee. If the President has no right to nominate a candidate for the office of Prime Minister, i.e., if the Assembly imposes its will on the President by nominating the Prime Minister, then we can no longer speak of a presidential system. Apart from these, we may see the confirmation of the Assembly from a more positive point of view. This

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mechanism may create incentives for negotiation and compromise both for the President and the Assembly during the process of Cabinet formation. Needless to say, development of such an attitude on both sides would make a positive contribution to the smooth working of the system in the future, particularly in the event that the President and the parliamentary majority are of different political parties. The Tajik Constitution remains silent on the procedure to be followed in the event that Parliament fails to confirm a candidate for the office of Prime Minister or of ministers. It only lays down that the organization, operation and powers of the government are determined by constitutional law (Art. 74). The Georgian Constitution envisions this problem. According to the Constitution, the President appoints ministers with the consent of Parliament (Art. 73.1.b). The Georgian Parliament confirms the government by a majority of the total number of deputies. If Parliament does not confirm the composition of the government, the President can submit the same or new candidates again. However, a specific candidate can be submitted only twice. The Constitution is not clear on what happens if even this candidate is not confirmed by Parliament. Thus the Georgian Constitution partially solves the problem of stalemate during the process of Cabinet formation, but leaves the determination of the procedure for a second submission to the legislature (Art. 77). In this regard, it is interesting to note that the Tajik Constitution requires Parliament's approval not only in the appointment of the Prime Minister and Cabinet ministers, but also in their dismissal. The Constitution is not clear on the problem of what happens if the Assembly does not allow to dismiss the Prime Minister or Cabinet ministers, but one may safely assume that this gives an opportunity to the Assembly to keep a government against the will of the President, and this may create serious problems in the working of the system. This problem can be solved by a constitutional law determining the organization, operation, and powers of the government, as stipulated by the Constitution. The Uzbek Constitution simply states that the President, with subsequent approval of the Assembly, appoints and dismisses the Prime Minister, the first deputy Prime Minister, deputies to the Prime Minister and Cabinet ministers. The Cabinet of Ministers is formed by the President and approved by Parliament (Art. 93). What happens if Parliament does not approve the appointment or dismissal of Cabinet members? The Uzbek Constitution, like the Tajik and Georgian constitutions, provide no solution for such deadlock. Thus the ambiguity of the Constitution seems to create a great deal of confusion unless the above mentioned provision is clarified or fleshed out by supplementary legislation or judicial interpretation. The Azerbaijani Constitution deserves special attention in terms of the relationships between the executive and legislative branches. The following


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provisions seem to qualify the Azerbaijani constitutional system as a pure presidential system. According to the Constitution, the executive power is vested in the President (Art. 7), and the President is the Head of State (Art. 8). The President submits for discussion to Parliament a proposal on the candidacy to the post of the Prime Minister no later than one month from the day of entering office, or within two weeks since the day of resignation of the Cabinet of ministers. Parliament gives its consent to a candidate no later than one week from the day of the presentation of his candidacy. If this order is violated or consent is refused three times, the President can appoint the Prime Minister without the consent of Parliament (Art. 118). The Constitution also lays down that the Cabinet is subordinate and accountable to the President who determines the order of its activity (Art. 114). Notwithstanding these provisions, Section 14 of Art. 94 of the Azerbaijani Constitution raises questions about its classification as a pure presidential constitution. According to the provision in question, Parliament (Milli Majlis) solves the issue of confidence in the Cabinet of ministers. What would be the meaning of that? Would it mean that the Cabinet is dependent on the confidence of the Assembly? If this is so, it is no longer possible to classify the Azerbaijani system as a pure presidential one in which the Cabinet is exclusively accountable to the President. A similar provision, most likely the inspiration to the Azerbaijani constitution-makers, can be found in the Russian Constitution, but the latter, apart from a provision providing for the subordination of the Cabinet to the President, introduces a parliamentary vote of no-confidence to bring down the Cabinet by the Assembly majority. In the Azerbaijani constitutional system there is no such mechanism. So, even though we assume that the Cabinet is accountable to the Assembly, the Assembly possesses no proper device to hold the Cabinet accountable. It would therefore be desirable to amend the Constitution in a way to clarify the relations between the state agencies, but until then, it would still be appropriate to classify the Azerbaijani system as a pure presidential one, given the fact that the presidential features of the system prevail. Legislative, Appointive and Emergency Powers of Presidents As we have mentioned above, pure presidential systems can be characterized by three features: a popularly elected President, fixed terms for both the Assembly and the President, a Cabinet accountable to the President. Apart from these, presidents in pure presidential systems hold considerable constitutional powers. All post-communist presidents fulfilling their functions under pure presidential constitutions have such powers. First, although they have no exclusive right to introduce laws in certain areas, all the presidents under survey may initiate legislation (Azerbaijan, Art. 96; Georgia, Art. 67; Tajikistan, Art. 60; Uzbekistan, Art. 82). Second, the Azerbaijani and Geor-

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gian presidents have the right to call referenda (Azerbaijan, Art. 109; Georgia, Art. 74). The Georgian President may exercise this right upon the request of not less than 200,000 voters or on his own initiative. While the Tajik Constitution grants no such power to the President, the Uzbek Constitution leaves the determination of the procedure for conducting a referendum to Parliament (Art. 9). Third, all these presidents may issue decrees. The Georgian and Tajik constitutions remain silent on whether presidential decrees need the ratification of Parliament to come into effect, unlike the Azerbaijani and Uzbek constitutions specifying in which cases parliamentary approval is necessary for such decrees. The latter constitutions require the approval of Parliament particularly for the decrees issued by the President when exercising his appointive and emergency powers. The Georgian and Tajik constitutions are not clear whether the decrees of the presidents concerned have the force of law. However, the Uzbek Constitution provides that the presidential decrees have obligatory force over the entire territory of the republic (Art. 94), whereas the Azerbaijani Constitution stipulates that the decrees of the President come into effect from the day of their publication (Art. 113). Accordingly, one may assume that these presidents have a capacity to change the status quo by decrees. In this regard, one should always take into account other provisions in these constitutions. For example, the Uzbek Constitution provides that the President issues decrees on the basis of the Constitution and the law (Art. 94). That means that the decrees in question must not contradict not only the Constitution, but also laws. Accordingly, if a policy issue has already been regulated by Parliament in a law, the President has to take into account the parameters set by the Parliament when introducing a policy change in the same area. Yet if there is no such law, this right may equip presidents with a power to introduce a new policy by decree. The Georgian Constitution contains a similar provision (Art. 73.1 .i). The Azerbaijani Constitution defines the scope of the presidential decrees rather broadly. According to the Constitution, the President settles the issues falling outside the scope of the powers of Parliament by exercising his or her legislative powers (Art. 109.32). Thus the Azerbaijani President seems to be less bound by the will of Parliament than the Uzbek and Georgian presidents in exercising his legislative powers. Fourth, the Azerbaijani, Georgian, Tajik and Uzbek presidents have veto powers. The Tajik (Art. 62) and Uzbek (Art. 93.14) presidents may veto laws, which can be overridden by a two-thirds majority of all the members of Parliament. The Azerbaijani President may send a law back to Parliament (Milli Majlis) attaching his objections within 56 days since the day of its submission. If the Milli Majlis passes a law by a majority of 95 votes which has been previously passed by a majority of 83 votes, and a law, previously adopted by a majority of 63 votes, by a majority of 83 votes, it enters into force (Art. 110). Having


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been adopted by Parliament, a law is submitted to the Georgian President within five days. Then the President has two options: he either signs and publishes the law within ten days or he may return it to Parliament with amendments. To be incorporated into the law, these amendments must be supported by a majority of those present at the voting, yet the number of votes should be not less than one-third of all the members of the Assembly. If the President's amendments are adopted, he signs and publishes the law within seven days. If they are not adopted, a new vote is taken on the law in its original wording. Here, the Georgian Constitution makes a distinction between laws, organic laws and constitutional laws. A law or an organic law is considered passed, if it is supported by not less than three-fifths of the total number of deputies A constitutional amendment, in turn, is considered passed, if it is supported by not less than two-thirds of the total number of deputies. If the President refuses to sign the law within the established time, it is signed and published by the Chairman of Parliament. The law becomes effective only on the fifteenth day after its official publication, unless otherwise stipulated by the Constitution and laws (Art. 68). Lastly, the Azerbaijani and Georgian presidents may apply to the Constitutional Court for the review of the constitutionality of laws (Azerbaijan; Art. 130; Georgia, Art. 89). While the Uzbek Constitution leaves the determination of the organization of the work of and procedures for the Constitutional Court to Parliament (Art. 109), there is no provision concerning who has the right to appeal to the Constitutional Court in the Tajik Constitution. Post-communist presidents fulfilling their functions under pure presidential constitutions have significant appointive powers. The Azerbaijani President proposes to the Assembly the appointment and removal of the judges of the Constitutional Court, the Supreme Court and the Economic Court; appoints judges of other courts; (upon consent of the Assembly) appoints and removes the General Prosecutor; proposes to the Assembly the appointment and removal of members of the Board of the National Bank; appoints and removes higher commanders of the Armed Forces; appoints and recalls diplomatic representatives of the Azerbaijan Republic; appoints and removes heads of local executive power (Art. 109). The Georgian President appoints three judges of the Constitutional Court (Art. 88.2); nominates the Chairman and judges of the Supreme Court (Art. 90); nominates the Procurator General (Art. 91); appoints members of the National Security Council (Art. 73.4); appoints and removes senior commanders (Art. 73.4); (upon the nomination of the Board of the National Bank) appoints and removes the President of the National Bank (Art. 96.2); appoints and recalls diplomatic representatives (Art. 73.1.a). The Tajik President proposes to the Assembly appointment or removal of the president, vice-presidents, and judges of the Constitutional Court, the Supreme Court, and the High Economic Court; (on

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the recommendation of the Minister of Justice) appoints and dismisses the judges of military courts, the court of the Gorno-Badakhshan Autonomous Region, and regional, Dushanbe city, city, and district courts; (with the consent of Parliament) appoints and dismisses the Procurator General; appoints and removes the Chair of the National Bank; appoints and removes the chairs of the Gorno-Badakhshan Autonomous Region, regions, the city of Dushanbe, cities, and districts; (with the consent of the Presidium of Parliament) appoints diplomatic representatives; appoints and dismisses senior commanders (Art. 69). The Uzbek President nominates the president and members of the Constitutional Court, president and members of the Supreme Court, president and members of the High Commercial Court, president of the Board of the Central Bank, and president of the State Committee of the Republic of Uzbekistan for Nature Protection; appoints and removes judges of regional, district, city, and commercial courts; (with subsequent approval by Parliament) appoints and dismisses the Procurator General; (with subsequent approval from the corresponding Council of People's Deputies) appoints and removes governors (khakims) of regions and Tashkent city; appoints and removes the high command of the Armed Forces; appoints and recalls diplomatic representatives; appoints and dismisses the managers of national security and state monitoring services (Art. 93). As we have mentioned above, the appointment procedure consists of the nomination, confirmation and formal appointment phases. If a President has the right both to nominate and formally appoint a public official, this may give him an opportunity to influence the implementation of policy in a certain area. If he has no right to nominate, but only the right to appoint formally, this may reduce his control over the area in question. As a general observation, one may point out that the respective presidents are not as powerful as they seem, particularly in terms of the appointments to judicial posts. For example, none of the presidents can appoint Supreme Court judges. Nor can they appoint members of the Constitutional Court with the exception of the Georgian President who has the right to appoint three judges of the Constitutional Court. These presidents seem to have broader powers over the appointment of military and diplomatic posts; all presidents under survey can appoint and dismiss senior commanders and diplomatic representatives. This, however, does not mean that they are not influential in the appointments of high officials, particularly in the appointment of the judges of higher courts. In most of these countries presidents have the right to nominate judges. Most importantly, the Uzbek President appoints and dismisses judges of the lower courts without the interference of any other agency. Needless to say, this seriously undermines the principle of the independence of judiciary.


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Emergency powers of the presidents operating under pure presidential constitutions are no less impressive than their legislative and appointive powers. The Azerbaijani (Art. 112), Georgian (Art. 73) and Tajik (Art. 49) presidents may declare a state of emergency or martial law, subject to the subsequent approval of Parliament. It is interesting to note that having declared extraordinary measures, the Tajik President also notifies the United Nations (Art. 68). The Uzbek Constitution gives as an extraordinary measure only the state of emergency. According to the Constitution, the President, in exceptional circumstances (actual external threat, mass disorders, large catastrophes, natural disasters, and epidemics), in the interests of ensuring the security of citizens, declares a state of emergency for the whole territory or parts of the Republic of Uzbekistan, and, within three days, submits this decision to Parliament for approval (Art. 93). Unlike other constitutions under survey, the Georgian Constitution grants the President the right to restrict the exercise of rights and liberties including the right to liberty (Art. 18), right to privacy (Art. 20), right to property (Art. 21), freedom of movement (Art. 22), freedom of expression (Art. 24), right to assemble peacefully (Art. 25), right to labor (Art. 30), right to strike (Art. 33), right to information (Art. 41) during a state of emergency or martial law. Moreover, in the case of a state of emergency, the President may issue decrees with the power of law, which are submitted to Parliament when it convenes. He may also take special measures, which apply only in the territory where the state of emergency was declared (Art. 73). These provisions make the Georgian President quite powerful in comparison with other Presidents serving under pure presidential constitutions in times of crises.

4.4.2. Post-Communist President-Parliamentary Systems: Armenia, Belarus, Kazakhstan, Kyrgyzstan, Russia, Turkmenistan and Ukraine Some countries preferred, the "President-parliamentary" system, a notoriously unstable form of government. In this system the President is elected popularly and has the right to appoint and dismiss Cabinet ministers who also need the confidence of Parliament. The President appears as the dominant figure in these systems. He usually has the power to dissolve Parliament or possesses legislative powers, or both. This system contains the features of the pure presidential system as well as the parliamentary vote of no-confidence against the Cabinet, or putting it in another way, the features of the premierpresidential system as well as the presidential power to dismiss ministers. The President may be influential in the formation of the Cabinet both in presidential and semi-presidential systems, but when it comes to the dismissal of its members, this power is exercised by the President in the former,

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and by the Assembly in the latter system. The President-parliamentary system differ from the latter in that the Cabinet comes under double pressure both from the Assembly and the President. Typically, the Weimar Republic provided an example of this system. The President in the Weimar Republic was popularly elected. He had the right to nominate and dismiss the chancellor (i.e., Prime Minister), and upon the recommendation of the latter he had the right to nominate Cabinet ministers. The Reichstag (i.e., legislature) could always bring down the Cabinet by a vote of no-confidence for political reasons. Apart from these, the President had the right to dissolve the Reichstag without any serious restriction. The President-parliamentary system, despite of its disadvantages, is preferred by several post-communist countries, such as Armenia, Belarus, Kazakhstan, Kyrgyzstan, Russia, Turkmenistan and Ukraine. The President appears as the most important political actor in Presidentparliamentary systems, just as he does in pure presidential systems. On the one hand, all presidents fulfilling their functions under President-parliamentary constitutions bear the title of Head of State (Armenia, Art. 79; Kazakhstan, Art. 40; Kyrgyzstan, Art. 42; Russia; Art. 80; Turkmenistan, Art 54; Ukraine, Art. 112). On the other hand, the Kazakh, Kyrgyz and Turkmen constitutions provide that the President is the highest official of the land. Although other constitutions (i.e., Armenian, Russian and Ukrainian constitutions) do not contain such a provision, the powers held by the presidents concerned elevate them to the level of the highest official. For example, most of these presidents determine external and internal policy guidelines, ensure concerted functioning and interaction of state agencies, guarantee territorial integrity and national security, etc. Most importantly, most of these President are the guarantor of the Constitution and laws and the protector of the rights and liberties of citizens. The Turkmen President even ensures the observance of not only the Constitution, but also international agreements (Art. 54). Such provisions ought to be seen as framework provisions, defining the nature of the office of presidency, rather than as pretexts serving to justify presidents' attempts at by-passing or ignoring constitutional limitations. Presidents must fulfil these broadly-defined duties within the framework of the powers specified in the related articles of the Constitution. In this regard, it should be pointed out that the Kyrgyz and Russian constitutions, however, contain certain provisions which may be abused by the presidents. According to the Russian Constitution, the President takes measures to protect the sovereignty of the Russian Federation, its independence and state integrity (Art. 80). Similarly, according to the Kyrgyz Constitution, the President takes measures to guard the sovereignty and territorial integrity of the Kyrgyz Republic (Art. 42). These provisions seem to provide the respective presidents dispro-


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portionate powers particularly in times of crises, unless the meaning and content of the term of "measures" is clarified by supplementary legislation or judicial interpretation. The Popular Election of the President The Armenian, Belarussian, Kazakh, Kyrgyz, Turkmen and Ukrainian presidents are popularly elected by universal, equal and secret ballot for a fiveyear term. The Russian President, on the other hand, is elected in the same manner for a period of four years. Of the constitutions under survey, only the Belarussian and Kyrgyz constitutions contain provisions concerning the procedure for the nomination of presidential candidates. The candidates for the office of the presidency in Belarus and Kyrgyzstan must collect the signatures of not less than 100,000 and 50,000 voters respectively to participate in the elections (Belarus, Art. 81; Kyrgyzstan, Art. 44). According to the Belarussian, Kazakh and Kyrgyz constitutions, at least more than half of the voters must take part in the presidential elections to be considered valid. This is to the credit of these constitutions because, given the fact that the presidents in President-parliamentary systems have such important powers, they ought to enjoy substantial popular support in exercising these powers. All presidents under survey are elected by the method of majority runoff. Accordingly, the candidate mustering the support of more than half of the voters is elected President. If no candidate obtains the necessary number of votes, a second round is held between the two candidates receiving the largest number of votes in the first round. The candidate receiving the largest number of votes in the second round is elected President. Although all these constitutions basically adopt this method, they differ as far as the method of the calculation of the votes in the second round is concerned. According to the Belarussian and Kyrgyz constitutions, the presidential candidate obtaining more than half the votes of those taking part in the second round is considered elected (Belarus, Art. 82; Kyrgyzstan, Art. 44), whereas the Armenian and Kazakh constitutions provide that the presidential candidate receiving the largest number of votes of the electorate in the second round is considered elected (Armenia, Art. 51; Kazakhstan, Art. 41). Accordingly, under the condition that the invalid or blank ballots are counted in the elections, the presidents in Belarus and Kyrgyzstan need a larger number of votes than those in Armenia and Kazakhstan. This may become important in such countries where people have no knowledge about the voting process or where people go to the poll stations and cast invalid or blank ballots in protest. None of the constitutions under survey envisage a minimum popular participation to consider the second round of elections valid with the exception of the Kyrgyz Constitution. According to the latter, a candidate obtain-

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ing more than half of the votes cast in the second round is considered elected providing that not less than 50% of all voters take part in the second ballot (Art. 44). Only the Armenian Constitution determines the procedure to be followed in the event that none of the candidates is able to secure the support of the majority of the electorate in the second round. If a President is not elected, new elections are held on the fortieth day after the first round of the elections (Art. 51). Moreover, the Armenian Constitution envisions the circumstances in which one of the presidential candidates faces insurmountable obstacles. In such a case the presidential elections are postponed for two weeks. If these obstacles cannot be removed or in case of the demise of one of the candidates prior to election day, new elections are held on the fortieth day following the determination of the obstacles to be insurmountable (Art. 52). Lastly, in Russia, Turkmenistan and Ukraine the procedure for electing the President is determined by law (Russia, Art. 81; Turkmenistan, Art. 56, Ukraine, Art. 103). Fixed Term for the President, No Fixed Term for the Assembly In President-parliamentary systems, just as in pure presidential systems, the Assembly cannot shorten the President's term of office. All presidents under survey can only be removed from office prematurely under exceptional circumstances such as the commission of high treason or other grave crimes. The Kyrgyz Constitution remains silent on the issue of the impeachment of the President, but other constitutions contain quite complex provisions concerning the issue. For example, the Russian and Ukrainian constitutions introduce similar mechanisms to impeach the respective presidents, but the Russian system differs from the Ukrainian one, partly because of the bicameral structure of the legislature in Russia. The impeachment procedure is initiated by the majority of all the members of the Verkhovna Rada (Parliament) in Ukraine. The Verkhovna Rada establishes a special temporary commission to conduct the investigation. The conclusions and proposals of the Commission are considered at a meeting of the Verkhovna Rada. The latter, by not less than two-thirds of all its members, adopts a decision on the accusation of the President. The decision on the removal of the President is adopted by not less than three-quarters of all the members of the Verkhovna Rada, after the review of the case by the Constitutional Court and the receipt of its opinion on the observance of the constitutional procedure of investigation and consideration of the case of impeachment, and the receipt of the opinion of the Supreme Court to the effect that the acts, of which the President of Ukraine is accused, contain elements of state treason or another crime (Art. 111). An investigation commission is set up also in the Russian State Duma. The Commission sends its report both to the Supreme Court and


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the Constitutional Court. While the Supreme Court confirms the presence of indicia of a crime in the President's actions, the Constitutional Court confirms that the procedure for bringing charges against the President has been observed. The ruling of the State Duma on putting forward charges and the decision of the Federation Council on impeachment of the President is passed by the votes of two-thirds of the total number of deputies in each of the chambers at the initiative of at least one-third of the deputies of the State Duma and in the presence of the opinion of a special commission formed by the latter. The decision of the Federation Council on impeaching the President is passed within three months. The charges against the President are considered to be rejected, if a final decision cannot be reached by the Federation Council within the appointed time (Art. 93). The Belarussian system resembles the Russian one. The majority of the House of Representatives (lower house of Parliament) may introduce charges against the President. The investigation of the charges is carried out by the Council of the Republic (upper house of Parliament), and a decision, supported by not less than two-thirds of all the members of each houses, is necessary to remove the President from office. The failure to take a decision within a month connotes the rejection of the charges against the President (Art. 88). As we have seen, the Constitutional Court plays an important role in the impeachment procedure in Russia and Ukraine. So it does in Armenia, but the Armenian Constitutional Court is involved more directly in the impeachment procedure in the beginning. The Constitutional Court, upon the request of the majority of the deputies of the National Assembly, determines whether there are grounds for the removal of the President from office. A decision to remove the President is taken by the National Assembly by a minimum twothirds majority vote of the total number of deputies taking into account the decision of the Constitutional Court (Art. 57). In Kazakhstan the decision to bring an accusation against the President and conduct its investigation is adopted by the majority of the deputies of the Majlis (Parliament) at the initiative of not less than one-third of the total number of its deputies. The Senate organizes the investigation and decides on the issue by a majority of votes of the total number of deputies. By a majority of not less than three-fourths of deputies of each chamber, the results are submitted for consideration to Parliament at a joint session on the basis of the findings of the Supreme Court and the Constitutional Court on the validity of the accusation and the observation of the constitutional procedures respectively. If Parliament fails to take a decision within two months, the accusation against the President is considered rejected. Rejection of a treason indictment against the President at any stage results in the early termination of members

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of the Majlis who initiated the consideration of this issue (Art. 47). In this regard, it can be argued that, the Kazakh Constitution introduces the most cumbersome impeachment mechanism which makes the removal of the Kazakh President almost impossible. On the one hand, it would be very difficult to muster a three-fourth majority of both chambers to bring the issue before Parliament. On the other hand, such a mechanism as the early termination of members of the Majlis triggering the impeachment process most likely discourages deputies to bring charges against the President. The Turkmen Constitution envisages a quite different impeachment procedure. The competent organ in the procedure is the Khalk Maslakhaty (the People's Council), the supreme representative body comprising the President, parliamentary deputies, people's deputies elected on the basis of one from each etrap (district), the presidents of the Supreme Court and Economic Court, the general procurator, members of the Cabinet of ministers and presidential prefects (khakims) in the regions. The Council may express "no-confidence" in the President on the ground of unconstitutionality by a two-thirds majority of its members upon the initiative of a majority of a onethird of the latter. The Council may also put the issue of the removal of the President to popular vote (Art. 60). Here, it is interesting to note that the Constitution uses the term of "confidence". However, it is not possible to speak of the confidence of the Assembly in a President-parliamentary system in which the President is elected by the people and accountable solely to the electorate at the end of his term. As we have mentioned above, the President may dissolve the Assembly in President-parliamentary systems. The Armenian Constitution does not specify the grounds for the dissolution of the Assembly, but it only stipulates that the President may dissolve it and schedule special elections after consultations with the President of the National Assembly and the Prime Minister (Art. 55.3). The Belarussian, Kazakh, Kyrgyz and Russian constitutions, in turn, introduce different mechanisms for the dissolution of bicameral legislatures. The Kyrgyz President can dissolve both chambers of Parliament, whereas the Russian President can only dissolve one of its chambers. While the Kazakh Constitution allows the dissolution of the Assembly as a whole, the Belarussian Constitution envisages two different mechanisms for the dissolution of the respective chambers. According to the Belarussian Constitution, the House of Representatives (lower house of Parliament) can be dissolved by the President, if lack of confidence or no-confidence is expressed in the government or if it fails two times to confirm the candidate for the office of Prime Minister proposed by the President. Adding to this, the Belarussian Constitution envisages another mechanism which is applicable both to the dissolution of the House of Representatives and of the Council of


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the Republic. Accordingly, each chamber can be dissolved on the basis of the findings of the Constitutional Court regarding their systematic and gross violation of the Constitution. The President consults with the chairs of the chambers before taking such a decision (Art. 94). The Kazakh President may dissolve Parliament in the following cases: (1) if Parliament passes a vote of no-confidence in the government; (2) if Parliament refuses two times to give consent to the appointment of the Prime Minister; (3) in the case of a political crisis resulting from insurmountable differences between the chambers of Parliament or between Parliament and other branches of state power (Art. 63). In Kyrgyzstan a three-time refusal to approve the appointment of the Prime Minister or a crisis caused by insurmountable differences between the houses of Parliament or between one or both houses of Parliament and other branches of state power results in the dissolution of the Legislative Assembly or the Assembly of People's Representatives or both houses simultaneously by the President who first puts the issue to a referendum (Art. 63.2). The Russian President may also dissolve the State Duma and call new elections in the following cases: (1) if the State Duma rejects three times the President's candidates for the Prime Minister (Art. 111); (2) if the State Duma two times votes for no-confidence in the government within three months (Art. 117). The Turkmen Parliament may be dissolved by the President if it fails to form parliamentary leadership organs within 6 months or if it expresses a lack of confidence two times within an 18 month period. The Parliament can be dissolved as a result of a referendum (Art. 64). The President of Ukraine seems the weakest of all presidents under survey in terms of the power to dissolve the Assembly. He may dissolve the Verkhovna Rada, only if within 30 days of a single regular session the plenary meetings fail to commence (Art. 90). Thanks to these provisions, presidents in President-parliamentary systems appear more powerful than presidents in pure presidential systems in terms of Cabinet formation. Since the threat of dissolution may force the Assembly to approve the candidate proposed by the President, the President is always in an advantageous position to dictate his will to the Assembly. Accountability of the Cabinet Both to the President and the Assembly The President and the Assembly share power over Cabinet formation in President-parliamentary systems. While the Cabinet usually needs the confirmation of the Assembly of its composition, the President has the right to appoint the Prime Minister and/or Cabinet ministers. The Kazakh, Kyrgyz, Russian and Ukrainian presidents appoint the Prime Minister (with the consent of Parliament) and Cabinet ministers (upon the recommendation of the Prime Minister). The Belarussian President needs the confirmation of the Assembly in the appointment of the Prime Minister who has no say in the

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appointment of Cabinet ministers. The Armenian President, in turn, appoints at discretion the Prime Minister and, upon the latter's recommendation, Cabinet ministers. The Kazakh and Ukrainian constitutions remain silent on the procedure to be followed in case of the refusal of the President's candidate for the office of Prime Minister by the Assembly. The Belarussian, Russian and Kyrgyz constitutions, on the other hand, create mechanisms which would allow the respective presidents to prevail in the end. In Russia and Kyrgyzstan, if the candidate for the office of Prime Minister is rejected three times, the President may dissolve the Assembly. These constitutions mention the refusal of "candidates." Accordingly, one may argue that even the refusal of different candidates for the office of Prime Minister three times fulfills the condition set by the Constitution for the dissolution of the Assembly. To be more exact, in this respect, it does not matter whether the President has presented the same person as a candidate. The Belarussian Constitution is not clear on the latter issue but it provides that if the House of Representatives rejects the submitted nomination of the Prime Minister twice, the President appoints an acting Prime Minister on his own, dissolves the House of Representatives and calls new elections (Art. 106). The Armenian Constitution deserves to be mentioned separately in terms of the powers of the Assembly over Cabinet formation. While the constitutions surveyed above require the approval of the Assembly only in Cabinet formation, the Armenian Constitution envisages also a vote of investiture in the inauguration of the government. Within 20 days of the formation of a newly-elected National Assembly or of its own formation, the government requests a vote of confidence from the National Assembly by presenting its program for parliamentary approval. A draft resolution expressing a vote of no-confidence towards the government may be proposed within 24 hours by not less than one-third of the total number of deputies. The proposal for a vote of no-confidence is voted on no sooner than 48 hours and no later than 72 hours from its initial submission. A majority vote of the total number of deputies is needed to pass the proposal. If a vote of no-confidence against the government is not proposed, or such a proposal is not passed, the government's program is considered to have been approved by the National Assembly. If a vote of no-confidence is passed, the Prime Minister submits the resignation of the government to the President (Art. 74). Undoubtedly, this strengthens the Assembly in the process of Cabinet formation. In President-parliamentary systems the Cabinet needs the confidence of the Assembly not only to enter into office, but also to stay in office. In other words, the Cabinet is always under the threat of a parliamentary vote of noconfidence in these systems. The Armenian and Ukrainian constitutions


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require the majority of the Assembly deputies to pass a vote of no-confidence against the government. The Kyrgyz and Russian constitutions make the proposal of a vote of no-confidence risky for members of the Assembly because the President may dissolve the Assembly as a response. In Kyrgyzstan, after an expression of no-confidence in the Prime Minister, the President has two options: either he announces the resignation of the Prime Minister or he rejects the decision of the Assembly of People's Representatives. If the Assembly expresses no-confidence in the Prime Minister a second time within three months, the President again has two options: either he announces the resignation of the Prime Minister or dissolves the Assembly (Art. 71). In Russia, if the State Duma expresses no-confidence in the government within three months, the President announces the resignation of the government or dissolves the State Duma. According to the Kazakh Constitution, the Assembly expresses a vote of no-confidence in the government by a majority of two-thirds of votes of the total number of deputies of each chamber at the initiative of not less that one-fifth of the total number of Parliament's deputies (Art. 53.7). The Russian Constitution, just as the Kazakh Constitution, does not make a distinction between the dismissal of the Prime Minister and of Cabinet ministers. It mentions the dismissal of the entire Cabinet. Lastly, it should be pointed out that the Belarussian Constitution gives a totally free hand to the President in the dismissal of the Cabinet ministers by simply stating that the President dismisses ministers unilaterally. (Art. 84.6). The Belarussian Constitution envisages a similar procedure to those introduced by the other constitution in this category, but it does not mention a time limit or a special majority for bringing down the government. It is a credit to the Constitution, however, that the Cabinet may always request a vote of confidence from the Assembly. This makes the position of the Cabinet firmer before the Assembly, particularly in the presence of incoherent majority coalitions. A similar provision can also be found in the Russian Constitution. The Russian Prime Minister may always request a vote of confidence from the State Duma. If the State Duma votes no-confidence, the President, within 7 days, makes a decision about the resignation of the government or about the dissolution of the State Duma and calls a new election (Art. 117). Of course, such an arrangement does not make the government immune against parliamentary censure, but it may alleviate the difficulties deriving from the position of the government under double pressure of the President and Parliament. In a President-parliamentary system, as a rule, the President has the right to dismiss the Prime Minister and/or Cabinet ministers. The Kyrgyz President can only dismiss Cabinet ministers; so does the Ukrainian President. However, the latter can only exercise this right upon the recommendation of

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the Prime Minister. The Armenian and Kazakh presidents can dismiss Cabinet ministers upon the recommendation of the Prime Minister. The Armenian President has also full control over the Prime Minister by exercising his dismissal power at discretion. The Kazakh Constitution requires the approval of Parliament of the dismissal of Cabinet ministers. Needless to say, this provision may cause deadlock if the President insists on dismissing a Prime Minister supported by Parliament. Legislative, Appointive and Emergency Powers of Presidents Presidents serving under President-parliamentary constitutions, like those serving under pure-presidential constitutions, have significant legislative powers. First, the Kyrgyz (Art. 46), Russian (Art. 104) and Turkmen (Art. 68) presidents have the right to initiate legislation. The President of Ukraine also has the right to legislative initiative. In addition, the draft laws qualified by the President as urgent are considered out of turn by the Verkhovna Rada (Art. 93). The Armenian President has no such power. Nor the Kazakh President, but the Kazakh government which is directly accountable to the President may initiate laws. Moreover, the Kazakh President has the right to determine priority consideration of draft laws as well as to declare consideration of such laws urgent. Parliament must consider these urgent drafts within a month from the day of their submission. If Parliament does not meet this requirement, the President has the right to issue a decree having the force of law which would be in effect until the Parliament adopts a new law (Art. 61). The Belarussian President, on the other hand, seems the strongest of all in terms of the right to initiate laws because 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 through his assignment to the government. Apart from this, the President, or the government, assigned to do so, has the right to forward proposals in the House of Representatives and the Council of the Republic on the urgency of consideration of a draft law. The House of Representatives and the Council of the Republic consider the latter in the course of 10 days from its submission. If the President or, as the case may be, the government requests so, the House of Representatives and the Council of the Republic take decisions at their sessions, voting in general for the whole draft law or a part of it, forwarded by the President or the government, preserving only those amendments which were forwarded or accepted by the President or the government (Art. 99). Second, all these presidents have the right to call referenda (Armenia [upon the request or agreement of the majority of the deputies of the National Assembly], Art. Ill; Belarus, Art. 84; Kazakhstan, [only for amendments and additions to the Constitution at the proposal of Parliament], Art. 91;


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Kyrgyzstan, Art. 46; Russia, Art. 84; Turkmenistan [subject to the approval by the People's Council], Art. 57; Ukraine, Art. 72). Third, all presidents under consideration may issue decrees (Armenia, Art. 56; Belarus, Art. 85; Kazakhstan, Art. 45; Kyrgyzstan, Art. 46; Russia, Art. 90; Turkmenistan, Art. 66; Ukraine, Art. 106). They exercise this right in accordance with the constitution and laws. That means that they must take into account the policy preferences made by the legislatures. The Belarussian President also issues decrees and orders only on the basis and in accordance with the Constitution (Art. 85), but, at the proposal of the President, the House of Representatives and the Council of the Republic may adopt a law supported by a majority of the full composition of both chambers, which delegates to him legislative powers to issue decrees with the force of law. There can be no delegation of powers to the President to issue such decrees providing alterations and additions to the Constitution and its interpretation; alteration and additions 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 the Parliament; limitation of constitutional rights and liberties of the citizens. The law on delegating legislative powers to the President is not to permit him amendment of the said law, nor is it to permit him to adopt regulations which are retroactive. In case of necessity the President may personally initiate or, on the proposal of the government, may issue temporary decrees which have the power of law. If such decrees are issued on the initiative of the government, they are signed by the Prime Minister. Temporary decrees are submitted for further approval within 3 days of their adoption to the House of Representatives, and then to the Council of the Republic. These decrees are valid if they are not rejected by a majority of no fewer than two-thirds of votes of the full composition of both chambers. The chambers may regulate through legislation issues which have emerged due to decrees which have been abolished (Art. 101). Thus, although the scope of the delegated legislation is limited by the Constitution, this may give the President an extra device to control important policy areas. The Turkmen President issues binding decrees, resolutions, and orders (Art. 58). Adding to this, Parliament may transfer the right to issue laws on certain issues to the President, subject to the approval of the Assembly, except the issues of adopting or amending the Constitution, of criminal or administrative legislation and of legal process (Art. 66). The Kyrgyz Constitution contains a similar provision: "The houses of the Jogorku Kenesh (Parliament) may delegate their legislative power to the President for a period of no more than one year." But the Kyrgyz Constitution goes further by stipulating that legislative power is transferred to the President in the event of dissolution of the houses of the Jogorku Kenesh. Legislative power is exercised by the President by the adoption of

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decrees, which have the force of law. If only one of the houses of the Jogorku Kenesh is dissolved, the President exercises the legislative power of that house (Art. 68). The President of Ukraine seems the weakest so far as his decree powers are concerned. He, on the basis and in the execution of the Constitution and [other] laws, issues binding decrees and directives, but most of these decrees must be co-signed by the Prime Minister and the minister responsible for the act and its execution (Art. 106). Fourth, the Armenian, Belarussian, Kazakh, Kyrgyz, Russian, Turkmen and Ukrainian presidents may veto laws which can be overridden by a two-thirds majority of the respective assemblies. Lastly, the respective presidents have the right to apply to the Constitutional Court for the review of the constitutionality of a given law (Armenia, Art. 101; Belarus, Art. 116; Kyrgyzstan, Art. 46.V; Russia, Art. 125; Ukraine, Art. 150). As we have mentioned above, the Kazakh Constitution of 1995 abolished the Constitutional Court and established a Constitutional Council which has limited powers in reviewing the constitutionality of laws. The Kazakh President can apply to the Council (Art. 72). There is no constitutional court in Turkmenistan. The presidents under consideration have also significant appointive powers. The Armenian President appoints the President and four members of the Constitutional Court (Art 99); (on the basis of a determination by the Constitutional Court) removes any of his appointees to the Court or sanctions the arrest of such a member of the Court, and through the judicial process authorizes the initiation of administrative or criminal proceedings against that member; appoints the President and judges of the Court of Appeals and its chambers, the courts of review, the courts of first instance and other courts, the deputy prosecutors general and prosecutors heading the organizational subdivisions of the office of the Prosecutor General; (upon the recommendation of the Prime Minister) appoints and recalls diplomatic representatives; appoints and removes the Prosecutor General; removes from office any judge, sanctions the arrest of a judge and through the judicial process, authorizes the initiation of administrative or criminal proceedings against a judge and removes the prosecutors whom he has appointed; appoints members of the Judicial Council (Art. 94); proposes a candidate for Chairman of the Central Bank (Art. 83); appoints senior officials in cases prescribed by law; appoints senior commanders; appoints and recalls diplomatic representatives (Art. 55). The Belarussian President appoints six members of the Constitutional Court; appoints other judges; (with the consent of the Council of the Republic) appoints the presidents of the Constitutional, Supreme and Economic Courts from among the judges of these courts; appoints six members of the Central Commission on Elections and National Referenda; (with the consent of the Council of the Republic)


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appoints the judges of the Supreme and Economic Courts, the President of the Central Commission of the Republic of Belarus on Elections and National Referenda, the Procurator-General, the President and members of the Governing Board of the National Bank; removes the presidents and judges of the Constitutional, Supreme and Economic Courts, the President of the Central Commission of the Republic of Belarus on Elections and National Referenda, the Procurator-General, the President and members of the Board of the National Bank in the order and instances determined by the law and with notification of the Council of the Republic; appoints senior officials; appoints and removes the State Secretary of the Security Council; appoints and removes the Supreme Command of the Armed Forces (Art. 84); appoints and removes the heads of local executive and administrative bodies (Art. 119); appoints and recalls diplomatic representatives. The Kazakh President appoints the President and two members of the Constitutional Council (Art. 71); (with the consent of the Senate) appoints the Procurator General and the President of the Committee of National Security of the Republic and removes them from office; (with the consent of Parliament) appoints the President of the National Bank and removes him from office; appoints and removes the State Secretary of the Republic of Kazakhstan; appoints and recalls diplomatic representative (Art. 44). The Kyrgyz President nominates the Presiddent of the Constitutional Court, his deputy, and judges of the Constitutional Court of the Kyrgyz Republic (Art. 58.1.6); appoints the President of the Central Committee on Elections and Conduct of Referenda and one-third of its members; appoints the President of the Counting Board and one-third of its auditors; appoints and removes senior commanders; appoints and recalls diplomatic representatives (Art. 46). The Russian President proposes candidates for appointment to the office of judges of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation as well as the candidate for Prosecutor-General of the Russian Federation; proposes the removal of the Prosecutor-General; appoints the judges of other federal courts; appoints and removes representatives of the President of the Russian Federation; appoints and removes the Supreme Command of the Armed Forces of the Russian Federation; nominates the President of the Central Bank of the Russian Federation and proposes his removal; appoints and recalls (after consultations with the respective committees or commissions of the Federal Assembly) diplomatic representatives (Art. 83). The Turkmen President (with the consent of Parliament) appoints and removes the President of the Supreme Court, the President of the High Commercial Court, and the General Procurator; appoints judges of all courts; appoints senior commanders; appoints and recalls diplomatic representatives (Art. 57). The Ukrainian

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President appoints 6 judges of the Constitutional Court; makes the first appointment of a professional judge to office; appoints the Procurator General (with the consent of Parliament), and removes him from office; appoints one-half of the composition of the Council of the National Bank of Ukraine; appoints one-half of the composition of the National Council of Ukraine on Television and Radio Broadcasting; appoints and removes (with the consent of Parliament) the President of the Antimonopoly Committee of Ukraine, the President of the State Property Fund of Ukraine and the President of the State Committee on Television and Radio Broadcasting of Ukraine; appoints and removes senior commanders; appoints and removes senior officers of central bodies of executive power, and also the heads of local state administrations; appoints and recalls diplomatic representatives (Art. 106). When we look closer at the appointive powers of these presidents, we see that they are more powerful in appointing bureaucrats than in appointing judicial personal, particularly in appointing judges to higher courts. This means that although they almost totally control the executive machinery, this is not true for the judiciary. It is always possible that presidents may clash with independent judges. Indeed, so far serious conflicts have arisen between presidents and constitutional courts in all these countries. The Belarussian and Kazakh presidents managed to eliminate the respective courts through constitutional change. The Russian Constitutional Court, on the other hand, now seems to be more tamed. The Belarussian (Art. 84), Kazakh (Art. 44), Kyrgyz (Art. 46), Russian (Art. 87, Art. 88) and Ukrainian (Art. 106) presidents may declare a state of emergency or martial law. The Belarussian and Ukrainian presidents submit their decisions concerning the declaration of a state of emergency or martial law within 3 and 2 days to parliaments for approval respectively. The approval of the legislature is not necessary for such decisions to become effective in Kazakhstan, Kyrgyzstan and Russia. The Kazakh President only informs the Assembly. So does the Kyrgyz President as far as a state of emergency is concerned, but he promptly submits the declaration of martial law for the consideration of Parliament. The Russian President, in turn, only notifies the Federation Council and the State Duma. The Armenian Constitution defines the emergency powers of the President ambiguously in comparison with the other constitutions under survey. The Constitution simply states that the President may declare martial law. It does not mention any obligation of the President to submit this declaration to the Assembly for approval or information. Adding to this, the Armenian President—in the event of an imminent danger to the constitutional order, and upon consultations with the President of the National Assembly and the Prime Minister—takes measures appropriate to the situation and addresses the people on the subject (Art. 55).


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This provision may be abused, if the meaning of the term of "measures" is not clarified. The Turkmen Constitution does not contain any provision concerning a state of emergency or martial law.

4.4.3. Assessing the Presidential System The presidential system has always had proponents and opponents. Interestingly enough, both its champions and critics have focused on the concepts of stability and effectiveness. Those criticizing the system have argued that it may cause legislative-executive deadlock and eventually democratic breakdown, whereas its supporters have maintained that it may provide a stable and effective government which would be vital for coping with the daunting problems arising after transition to democracy. In this section we shall briefly dwell on these accounts. The presidential system, first and foremost, can be criticized on the ground of the centrality of the office of presidency. It depends heavily on a single person; the regime, as it were, is identified by the President, whose personality and health assume paramount importance for its performance and continuity. Not only the symbolic meaning of the office of presidency, but also the comprehensive powers of the President within the legal and political system make the person holding this office very important. As we have mentioned above, even most post-communist constitutions assign the role of "guarantor" and "protector" to the president. As far as the prospects of emerging presidential systems in post-communist countries are concerned, there are several significant consequences of the centrality of the office of presidency. First, since these regimes invest so much power in a single person, any vacancy in the office may cause serious power struggles in the countries concerned. Incapacity or death of the President in office may even lead to civil unrest in such countries as Russia and Azerbaijan where the balance of powers has not been settled yet. Second, the President controls directly or indirectly significant resources in presidential systems. This may prepare a fertile ground for the development of patron-client relations and eventually corruption. Most of the post-communist countries adopting the presidential system of government have already faced serious corruption problems. Third, the President usually becomes more important than the Assembly in presidential systems. This may be detrimental to the emergence of viable parliaments. In this regard, in some countries, presidents seek to bypass parliaments in the legislative process and rule by decree; in others, parliaments, totally subservient to the presidents, only rubberstamp the presidents' decisions. More importantly, a strong presidency may also discourage the emergence of new political parties. Since parliaments play an insignificant role in the working of the system, political parties, as building

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blocks of parliamentary politics, become less and less attractive for political groups. For example, it would be wiser to establish patron-client relations with the President in order to achieve one's political goals. In most postcommunist countries, adopting the presidential system of government, a coherent political party system is still far away. Presidents either prefer to remain above party politics or they create totally subordinate parties.96 To recapitulate, one may distinguish three essential problems concerning the post-communist presidential systems deriving from the centrality of the office of presidency: the succession problem, the corruption problem and the decline of parliaments and political parties. Certain solutions can be proposed to these problems. As for the succession problem, constitutions ought to be clear on two issues: (1) "Who is to assume the powers of the President in case of incapacity or death?" (2) "What is to be the scope of the powers of the successor of the President?" As for the corruption problem, constitutions may be changed in a way to make the President more accountable or to entrust him fewer powers over the control of resources. As for the decline of parliaments and political parties, parliaments may be granted more powers or the presidents may be granted fewer powers in the legislative process, and the presidents may be encouraged to establish their own parties. Apart form these problems stemming from the nature of the presidential system, there are some other problems related with its actual working.97 First, those criticizing the presidential system have focused on the problem of dual legitimacy. In presidential systems both the President and the Assembly are elected by the people. Thus both agencies, which are separate and independent from each other at the constitutional level, can claim legitimacy deriving directly from a popular mandate. If they both insist that they represent the popular will, a conflict may arise between these two agencies, and this may cause a serious legitimacy problem in the system. Second, the critics of presidentialism have called attention to the rigidity of the system. In presidential systems both the President and the Assembly are elected for fixed terms. Neither the President, nor the Assembly can shorten each other's term. The President cannot be replaced, even though he is inadequate for the job or permanently at odds with Parliament. Impeachment, a highly complex and cumbersome mechanism, hardly appears as a solution in this respect. In a situation where the President and the Assembly majority have different policy preferences and priorities, the problems of dual legitimacy 96. For an article discussing these problems within the context of Russian presidentialism, see M. Steven Fish, "The Pitfalls of Russian Superpresidentialism", Current History, October 1997, 326-330. 97. For these critical remarks, see Juan J. Linz, "The Perils of Presidentialism", 1 Journal of Democracy, 1990 No. 1,51-69; "The Virtues of Parliamentarism", 1 Journal of Democracy 1990 No. 4, 84-91.


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and rigidity together increase the possibility of the eruption of an insoluble conflict between these agencies. One may list the conditions for the emergence of such a conflict as follows: First, the President must have the right to issue decrees which have the force of law and come into effect on the day of their publication. Thanks to these decrees he may introduce new policies or change existing ones. Second, the President must have a strong veto power. If the President has no such power, it is always possible that the Assembly can enact laws superseding the presidential decrees. Veto power enables the President to impose his policies in spite of a coherent parliamentary majority which would attempt to set aside his decrees. Third, the President must not have majority support in the Assembly. If the parliamentary majority backs the President, he will be able to enact his bills into law easily. If the parliamentary majority opposes the President, it will most likely try to prevent the realization of his policy goals. If these three conditions are met, there is a danger of deadlock between the President and the Assembly. The President issues decrees; the Assembly enacts laws to supersede them; then the President vetoes the laws in question. Thus the two agencies claiming to represent the popular will be at loggerheads within the context of a "war of laws", obstructing the implementation of the popular will. This scenario is quite realistic for most post-communist presidential systems because, as we have tried to demonstrate previously, most of these systems generally fulfil the three conditions explained above. Struggles between presidents and assemblies in such countries as Armenia, Russia and Ukraine confirm the relevance of the deadlock scenario for certain post-communist countries adopting the presidential system of government. In case of deadlock, a constitutional court or a supreme court may play an arbitral role so long as the constitution allows the judges to interpret the related provisions in favor of the resolution of the conflict, and the court in question is influential enough to enforce its decisions on the conflicting parties. Needless to say, few constitutional courts are able to play such a role in post-communist countries. In the absence of able and prestigious courts, it is always conceivable that the military may assume this role which may end the conflict between the two agencies at the expense of the regime. It is obvious that this would not be a desirable solution, it is in fact not a solution at all. However, this scenario is still relevant for certain post-communist presidential systems. So, what can be done?98 The solution of the dual legitimacy and rigidity problems lies again in constitutional engineering. First, reducing the legislative powers of the President may contribute to the solution of these problems. 98. See Scott Mainwaring and Matthew S. Shugart, "Juan Linz, Presidentialism, and Democracy, A Critical Appraisal", 29 Comparative Politics 1997, 449-471.

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For example, presidential decrees may be subject to the approval of the Assembly or they may not have the force of law. Again the President may be granted weak, instead of strong veto powers. The fewer legislative powers the President has, the less there is a possibility of the occurrence of a deadlock between him and the Assembly. Second, the constitution may allow the respective agencies to shorten each other's terms under certain conditions. For example, the President and the Assembly may call early elections providing that the agency calling the early elections for the other agency should also stand for re-election. This prevents the domination of one of the agencies and of the violation of the principle of the separation of powers. Third, if none of these measures can prevent legislative-executive deadlock, the term of the President or the Assembly can be shortened by a constitutional change. Thus a continuing struggle between the President and the Assembly may cause less harm to the regime and the political system. So far, we have studied two problems in presidential systems; dual legitimacy and rigidity. Now, we wish to end our discussion by pointing to another problem which is also detrimental to the consolidation of emerging presidential systems. This problem is known as "winner-takes-all". Presidential systems generally display majoritarian tendencies. In presidential elections, even though there can be more than one candidate, there is only one prize at stake (i.e., the office of presidency) won by the victor of the elections. Putting it in another way, the winner takes all, and the loser gets nothing. As a result, the President, representing mainly the majority groups in the society, may not feel compelled to take into account minority interests. This may also find its expression in Cabinet composition in a way that less powerful interests may be deprived of representation at the level of the executive. In this way, minority groups may be excluded from politics. It is important to note that this problem can be particularly perilous in ethnically divided societies. Although solving the "winner-takes-all" problem seems more difficult than solving the dual legitimacy and rigidity problems in such societies, certain remedies can still be conceived at the constitutional level. For example, a ministry in the Cabinet can be reserved for ethnic groups to appease their dissatisfaction with the working of the system.

4.4.4. Post-Communist Premier-Presidential (Semi-Presidential) Systems: Poland, Romania, Lithuania and Moldova In a premier-presidential system the President is elected by the people, but, unlike in the pure presidential system, the Cabinet and the Prime Minister are dependent on the confidence of the Assembly. The President may nominate the Prime Minister, but eventually the latter must obtain a vote of confidence to enter and stay in office. Apart from this, the President may have the right


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to dissolve the Assembly conditionally or unconditionally. Lastly, the President may also have some legislative powers, e.g., veto or decree powers. All these powers, however, do not change the semi-presidential characteristics of the system. The definitive characteristic of the premier-presidential system is that, unlike the President-parliamentary system, the President cannot dismiss a government which retains the confidence of Parliament. Granting such a power to the President would violate one of the most basic tenets of the semipresidential system, i.e., the principle that the government is responsible to Parliament. The French Fifth Republic provides a typical example of this system. Although presidents in premier-presidential systems are not as powerful as presidents in pure presidential or President-parliamentary systems, they still play a crucial role in the working of the system. Post-communist constitutions, adopting a premier-presidential system, underline the latter point in the provisions defining the nature of the office of presidency. For example, the Polish President is the supreme representative of the Republic of Poland and the guarantor of the continuity of state authority. He ensures the observance of the Constitution, safeguards the sovereignty and security of the state as well as the inviolability and integrity of its territory (Art. 126). The Romanian President, on the other hand, represents the Romanian State and safeguards the national independence, unity and territorial integrity of the country. He safeguards the observance of the Constitution and the proper functioning of public authorities. He acts as a mediator between the powers in the state, as well as between the state and society (Art. 80). The Moldovan President represents the state. He is also the guarantor of national sovereignty, independence, and the unity and territorial integrity of the nation (Art. 77). The Lithuanian Constitution does not contain such a general provision defining the duties of the President broadly. It only states that the President represents the state and performs all the duties he is charged with by the Constitution and the laws (Art. 77). This provision of the Lithuanian Constitution may provide an example for other constitutions establishing a pure presidential system, a President-parliamentary or a premier-presidential system. The broader the constitution defines the duties of the President, the more he may attempt to expand his powers to fulfil these duties. Popular Election of the President The Moldovan and Romanian constitutions lay down that the President is elected by the method of majority runoff, i.e., if no candidate musters a majority of votes, a second round is held between the two candidates having the greatest number of votes in the first round. Of the constitutions under survey, the Lithuanian and Polish constitutions introduce detailed provisions

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on the election of the President. In Lithuania a presidential candidate must collect the signatures of at least 20,000 voters to be registered (Art. 79). Regular presidential elections shall be held on the last Sunday two months before the expiration of the term of office of the President of the Republic (Art. 80). The presidential candidate receiving the votes of more than half of all the voters who voted in the election is considered elected President, provided that at least half of the voters participated in the voting. If less than half of the registered voters participated in the election, the candidate receiving the greatest number of votes, but no less than one-third of votes of all the voters, is considered elected President. If, in the first round, no single candidate receives the necessary number of votes, a repeat election is to be held between the two candidates receiving the greatest number of votes in the first round. The candidate who receives more votes in this round is elected President. If no more than two candidates take part in the first round, and not one of them receives the necessary number of votes, a repeat election is to be held (Art. 81). In Poland a candidate for the presidency must be supported by the signatures of at least 100,000 citizens having the right to vote in elections to the Sejm. A candidate receiving more than half of the votes is considered elected President. If none of the candidates has received the necessary number of votes, then a second round is held on the 14th day after the first round. The two candidates who have received the largest number of votes in the first ballot participate in the second round. If one of them withdraws his candidacy, forfeits his electoral rights, or in case of his demise, he is replaced by the candidate receiving the next highest consecutive number of votes in the first round. In this case, the date of the second round of the elections is extended by a further 14 days. The candidate mustering the higher number of votes in the second round is elected President (Art. 127). Fixed Term for the President, No Fixed Term for the Assembly The term of office of the presidents in post-communist premier-presidential systems cannot be shortened by the Assembly. The only exception of this rule is the impeachment of the presidents, entailing their removal from office on the grounds of high treason or grave crimes. The Lithuanian Constitution lays down that the President may be removed from office by a three-fifths majority vote of all the members of Parliament for gross violation of the Constitution, breach of oath, or the commitment of a felony, but it leaves the determination of the impeachment procedure to Parliament (Art. 74). Here, one should note that it would be difficult to establish whether the President has breached his oath. The Romanian and Moldovan constitutions introduce similar mechanisms. Both in Romania and Moldova one-third of the members of Parliament may initiate the impeachment procedure and a referendum


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is required to remove the President, if the proposal is approved by Parliament. While the Romanian Constitution requires a majority of members of each chamber of Parliament for the approval of the impeachment proposal, the Moldovan Constitution requires a two-thirds majority. The Romanian Constitutional Court plays a certain role in the impeachment procedure; the Constitution requires a consultation with the Court before a decision is taken by the Assembly on the removal of the President. The Polish Constitution establishes a slightly different impeachment mechanism. The Polish President may be held accountable before the Tribunal of State only for an infringement of the Constitution or of a statute, or for commission of an offence. An indictment against the President is brought by a resolution of the National Assembly, initiated by at least 140 deputies and passed by a majority of not less than two-thirds of all deputies (Art. 145). Although all the presidents under survey may dissolve the Assembly (by consulting either with the President of Parliament or with major parliamentary groups or both), the grounds of dissolution vary. All the presidents may exercise this right in case of stalemate in the process of Cabinet formation. However, only the Moldovan Constitution allows the dissolution of Parliament in case of legislative-executive deadlock. The Polish Constitution grants such power to the President only if deadlock arises in the passing of the budget. Thus it can be argued that none of the semi-presidential constitutions in post-communist countries, with the exception of the Moldovan Constitution, creates an effective mechanism to resolve potential crises between the President and the Assembly which would erupt during the legislative process. Lastly, it is worth mentioning that the Lithuanian Constitution contains an interesting provision which could balance the powers of the President and Parliament. According to the Lithuanian Constitution, the President may dissolve Parliament in the following cases: (1) if Parliament fails to adopt a decision on the new program of the government within 30 days of its presentation, or if Parliament twice in succession disapproves of the government program within 60 days of its initial presentation; (2) if, on the proposal of the government, Parliament expresses its lack of confidence in the government (Art. 58). The President may not dissolve Parliament, if the term of office of the President expires within less than six months, or if six months have not passed since the pre-term elections to Parliament. The newlyelected Parliament may, by a three-fifths majority vote of all its members and within 30 days of the first sitting, announce a pre-term election of the President. If the President wishes to compete in the election, he is immediately registered as a candidate. In case of re-election, he is considered elected for a second term, provided that more than three years of the first term had

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expired prior to the election. If the expired period of the first term is less than three years, the President is only to be elected for the remainder of the first term, which is not considered a second term. If a pre-term election for the President is called during the President's second term, the current President may only be elected for the remainder of the second term (Art. 87). Thanks to this regulation, on the one hand, the President may avoid facing a hostile parliamentary majority in his mid-term; on the other, he may seek to negotiate and compromise with the majority in Parliament before exercising his dissolution power. Cabinet's Accountability to the Assembly In premier-presidential systems the Cabinet emerges from the parliamentary majority, but this does not necessarily mean that the President has no say in Cabinet formation. In most cases the President nominates and appoints the Prime Minister and Cabinet ministers, but the latter need the vote of investiture of Parliament to be empowered to act. The President and the Assembly share their power over Cabinet formation in two phases: the President nominates, the Assembly approves; the President appoints, the Assembly votes investiture. Consequently, the government is formed by its appointment by the President, but it cannot enter office unless the Assembly expresses its confidence. In all countries under consideration the President nominates and appoints the Prime Minister. The Romanian and Moldovan presidents consult with the majority party in the Assembly, whereas the Lithuanian President exercises this power with the consent of Parliament. Ministers in these countries are appointed by the President upon the recommendation of the Prime Minister. Designated Prime Ministers seek a vote of confidence of Parliament. The Romanian and Moldovan assemblies express their confidence by a majority of their members. The Polish Constitution, in turn, lays down that the President nominates and appoints a Prime Minister together with other members of the council of ministers proposed by the Prime Minister. The latter, within 14 days following the day of his appointment, submits a government program to the Sejm and request a vote of confidence. The Sejm passes such a vote of confidence by an absolute majority of votes in the presence of at least half of all deputies. The Polish Constitution, unlike the Romanian and Moldovan constitutions, envisages a mechanism to resolve the conflict arising from the Parliament's rejection of expressing a vote of confidence. If a government is not appointed or fails to obtain a vote of confidence, the Sejm, again within 14 days, chooses the Prime Minister and members of the council of ministers as proposed by the President by an absolute majority of votes in the presence of at least half of all the deputies


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(Art. 154). If a council of ministers is not appointed, the President, within 14 days, appoints a Prime Minister and, on his application, other members of the Cabinet. The Sejm, within 14 days following the appointment of the council of ministers holds, in the presence of at least half of all the deputies, a vote of confidence. If a vote of confidence is not passed, the President dissolves the Sejm and calls new elections (Art. 155). This procedure seems to be one of the most effective ways to solve potential crises which would arise between the President and the Assembly during the process of Cabinet formation. The Lithuanian Constitution does not employ the term of vote of confidence, but it provides for the approval of the government program which has mainly the same consequences as the vote of confidence. It also provides that a two times rejection of the program of the newly-formed government results in the resignation of the government. The Polish, Romanian and Lithuanian constitutions hold both the Prime Minister and Cabinet ministers collectively and individually responsible before Parliament. The Moldovan Constitution, however, mentions only the responsibility of the government as a whole. A vote of no-confidence may be initiated by a majority of one-fourth of the members of Parliament in Moldova and Romania, and it is passed by a majority of members of Parliament in both countries. The Lithuanian Constitution does not mention the required majority for the initiation of such motion, but it provides that a majority of deputies in Parliament may pass a vote of no-confidence against the government. The Polish Constitution envisages different majorities for the censure of the Prime Minister and Cabinet ministers (46 and 69 deputies of the Sejm respectively). Of all constitutions under survey, only the Polish one allows the Prime Minister to request a vote of confidence from Parliament at his own initiative. This mechanism may strengthen the position of the government vis-a-vis Parliament, particularly when the government has to take important, but unpopular decisions. The Polish Constitution also takes a further step to ensure the effectiveness of the system. The Constitution provides for the German model of a constructive vote of no-confidence, i.e., those who have initiated a vote of no-confidence against the government specify the name of a candidate for Prime Minister. In this context, one should lastly mention a peculiar provision of the Lithuanian Constitution. The Constitution provides that the President appoints and dismisses the Prime Minister with the approval of Parliament (Art. 84.4, 5). Moreover, the government is jointly responsible to Parliament for its general activities. Ministers, in directing the spheres of administration entrusted to them, are also responsible to Parliament, to the President, and directly subordinate to the Prime Minister (Art. 96). The dismissal of the

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Prime Minister by the President is one of the defining characteristics of presidential systems. This mechanism can also be found in President-parliamentary systems. But in these systems, the President does not need the approval of Parliament to dismiss the Prime Minister or Cabinet ministers. The Lithuanian Constitution requires the consent of Parliament for the dismissal of the Prime Minister. That means that the Lithuanian President cannot dismiss a Prime Minister supported by the Assembly. In this regard, the Lithuanian constitutional system comes closer to the President-parliamentary system, but still its premier-presidential features prevail. Legislative, Appointive and Emergency Powers of Presidents Presidents serving under premier-presidential constitutions hold significant constitutional powers. Among the latter, their legislative powers assume importance because these enable them to influence or even control the legislative process. First, all these presidents, except the Romanian President, have the right to initiate laws (Poland, Art. 118; Moldova, Art. 73; Lithuania, Art. 68), but none of them has the right to introduce bills exclusively in certain areas. Second, all of them, except the Lithuanian President, may call referenda (Poland, Art. 125; Romania, Art. 90; Moldova, Art. 88). The President of Romania has to consult with Parliament, whereas the Polish President may exercise this right only with the consent of the Senate. Third, although all these presidents have the right to issue decrees, most of these have to be countersigned by the Prime Minister and ministers who bear the responsibility for these decrees (Poland, Art. 144; Romania, Art. 99; Moldova, Art. 102; Lithuania, Art. 85). Fourth, the Romanian and Moldovan presidents have the right to veto laws, but this is a veto type known as "suspensive" veto, i.e., the Assembly can re-pass a piece of legislation by the vote of a majority of its members. The Polish President is stronger than the Romanian and Moldovan presidents in terms of his veto powers. He signs and promulgates a bill within 21 days of its submission. He may, before signing it, refer it to the Constitutional Tribunal for an adjudication upon its conformity to the Constitution. If the Constitutional Tribunal finds the bill conforming to the Constitution, the President has no choice; he must sign the bill. Otherwise, he has the right to refuse to sign an unconstitutional bill as confirmed by the Constitutional Tribunal. If, however, the non-conformity to the Constitution relates to particular provisions of the bill, and the Tribunal has not judged that they are inseparably connected with the whole bill, then, the President, after seeking the opinion of the Marshal of the Sejm, signs the bill with the omission of those provisions considered as being in non-conformity to the Constitution or returns it to the Sejm to remove the non-conformity. If the President has not made reference to the Constitutional Tribunal, he may refer


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the bill, with reasons given, to the Sejm for reconsideration. If the bill is repassed by the Sejm by a three-fifths majority vote in the presence of at least half of the all deputies, then, the President signs and promulgates it within 7 days. If the bill is re-passed by the Sejm, the President has no right to refer it to the Constitutional Tribunal. Any such reference by the President to the Constitutional Tribunal for an adjudication upon the conformity of a statute to the Constitution, or any application for reconsideration of a bill, suspends the period of time allowed for its signature (Art. 122). The Lithuanian Constitution lacks any provision concerning the required majority for the passage of a bill sent to Parliament for reconsideration. Lastly, we should mention that all these presidents, except the Moldovan President, may apply to the Constitutional Court for the review of the constitutionality of laws (Poland, Art. 191; Romania, Art. 77; Lithuania, Art. 106). When we assess the overall legislative powers of the presidents concerned, we see that their influence on the legislative process through constitutional means is rather limited. This can be seen as a positive feature of these systems because today it is a well-known fact that granting the President fewer legislative powers reduces the risk of deadlock which would arise between the President and the Assembly during the legislative process. The presidents in this category have important appointive powers. The Lithuanian President proposes to Parliament the candidates of three Constitutional Court judges, and (upon appointing all the judges of the Constitutional Court) proposes, from among them, a candidate as Constitutional Court President to Parliament; proposes Supreme Court judge candidates to Parliament, and (upon the appointment of all the Supreme Court judges) recommends from among them a Supreme Court President to the Parliament; (with the approval of Parliament) appoints the judges of the Court of Appeal, and (from among them) the Court of Appeal President; appoints judges and presidents of district and local district courts, and change their places of office; (in cases provided by law) proposes the removal of judges to Parliament; proposes to Parliament candidates for State Controller and President of the Board of the Bank of Lithuania; appoints and removes senior officers; if necessary, proposes to the Parliament to express non-confidence in said officials; (upon the approval of the Parliament) appoints and removes the chief commander of the Army and the Head of the Security Service; (upon the recommendation of the government) appoints and recalls diplomatic representatives (Art. 84). The Moldovan President appoints two judges of the Constitutional Court; (upon the proposal of the Higher Magistrates Council) appoints judges; appoints public officials (Art. 88). The Polish President appoints the President and the Vice-President of the Constitutional Court (Art. 194); appoints the President of the Supreme Court (Art. 144); (upon the

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proposal of the National Council of the Judiciary) appoints judges (Art. 179); requests the Sejm to appoint he President of the National Bank of Poland; appoints members of the Council for Monetary Policy; appoints and removes members of the National Security Council; appoints members of the National Council of Radio Broadcasting and Television (Art. 144). The Romanian President appoints three judges of the Constitutional Court (Art. 140); judges (Art. 124); senior officers (Art. 94); (on the proposal of the government) appoints and recalls diplomatic representatives (Art. 91). Lastly, the Polish, Romanian and Lithuanian presidents may declare a state of emergency and martial law subject to the approval of Parliament (Poland, Art. 229; Romania, Art. 93; Lithuania, Art. 84). The Polish President exercises this power only upon the request of the Cabinet and must submit the concerning decree for the approval to Parliament within 48 hours. The submission of such a decree has to be made within 5 days in Romania. The Moldovan Constitution does not mention the declaration of a state of emergency or martial law, but it states that in order to ensure national security and public order the President can, under the rule of law, also take other steps than the declaration of a partial or general mobilization or a state of war (Art. 87). Accordingly, the Polish, Romanian and Lithuanian constitutions do not allow the respective presidents to rule without the interference of the Assembly under a regime of extraordinary measures. Only the Moldovan Constitution defines somewhat broadly the powers of the President, which could create problems in the application of these powers.

4.4.5. Assessing the Semi-Presidential System Some authors see the semi-presidential system as a half-way house between the presidential and the parliamentary system. First Maurice Duverger, then Arend Lijphart, maintained that this system works like either a parliamentary or a presidential system depending on whether the President's party holds the majority in Parliament. Because of this mixed or hybrid character, some authors have expressed preference for semi-presidentialism which, they have argued, retains the advantages of presidentialism, while alleviating its disadvantages. Let us evaluate this system in the light of the discussion made above about the pros and cons of the presidential system. First of all, we wish to point out that in semi-presidential systems the general problem of the centrality of the office of presidency persists, but it is not as perilous as it is in presidential systems. Since the Prime Minister has many significant powers and plays a crucial role in the political process, the office of presidency may lose its centrality to a certain extent. Even in some cases the center of the system may shift from the President to the Prime


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Minister. But, as we shall try to demonstrate later, this duality may cause other problems. As we have seen above, particularly two problems (dual legitimacy and rigidity) make the presidential system less suitable for newly-emerging regimes. The problem of dual legitimacy arises because the President and the Assembly are elected separately, and each may claim to represent the people's will. The semi-presidential system does not completely solve the problem of competing legitimacies. For as the Prime Minister or Cabinet ministers are accountable to the President in pure presidential systems, they cannot claim independent legitimacy. So it is natural that conflict may arise between the President and the Assembly. In semi-presidential systems the Prime Minister is accountable to the Assembly, and the Cabinet emerges from a parliamentary majority. Accordingly, the Prime Minister may claim legitimacy on the basis of its popular mandate. A dual legitimacy problem, therefore, persists in semi-presidential systems, although this time within the executive and between the President and the Prime Minister. This phenomenon, known as "cohabitation", poses the most significant danger to the effectiveness and stability of semi-presidential systems. Again, however, certain conditions must be present for the occurrence of cohabitation. First, the President and the Assembly majority must have different policy preferences and priorities. Second, the President must appoint a candidate for the office of Prime Minister supported by the Assembly majority. Third, either the constitution must regulate the executive powers of the President and the Prime Minister ambiguously or their power must overlap. If the powers of the two parts of the executive are clearly demarcated by the constitution, the possibility of legislative-executive deadlock decreases. As for the problem of rigidity, the semi-presidential system solves this problem again partially. On the one hand, the Prime Minister and Cabinet ministers can be removed from office in case they lose the confidence of the Assembly. This may give the latter an opportunity to work with a Prime Minister who would be supported by its majority. On the other hand, the Assembly can be dissolved by the President. This does not, however, solve the problem of rigidity completely because the President is elected for a fixed term and cannot be removed for merely political reasons by a parliamentary vote of no-confidence. Then, the solution of the problem depends to a great extent on whether the powers of the President make him the real Head of Government. Lastly, the negative effects of the problem of "winner takes all" can also be mitigated in semipresidential systems. If there is a fragmented legislature, the President will most likely appoint a candidate for the office of Prime Minister who would be supported by as many political parties as possible, represented in the legislature. Moreover, the Cabinet will most likely comprise members of these

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political parties. Consequently, although the semi-presidential system is not a panacea for newly emerging regimes, it would be desirable particularly for those countries experiencing negative effects of the presidential system after transition to democracy.

4.4.6. Post-Communist Parliamentary Systems: Albania, Czech Republic, Estonia, Latvia and Hungary Historically, Britain has been the breeding ground of the parliamentary system. Although the current British constitutional system is not the same as that developed in 18th and 19th centuries, its basic characteristics have been preserved since its creation. Accordingly, the chief executive body in the Britain is the Cabinet which is composed of a Prime Minister and ministers who are accountable to the parliamentary majority and responsible for the day-to-day administration. In the British system the Head of State is the monarch who holds mainly ceremonial powers. Most modern parliamentary systems differ from the British system in this respect. Generally a President, elected by Parliament, bears the title of the Head of State in these systems, and, differing from a figure-head monarch, he may have crucial constitutional powers. In a parliamentary system the Cabinet may always be dismissed by a parliamentary vote of no-confidence; Parliament, in turn, may be dissolved by the President particularly in case of stalemate during the process of Cabinet formation or deadlock in the legislative process. None of the postcommunist countries under survey established a system similar to the British parliamentary monarchy. These countries—i.e., Albania, the Czech Republic, Estonia, Latvia, Hungary—adopted a pure parliamentary system with a President (elected by Parliament), and a Cabinet (accountable to Parliament). The Head of State (President) and the Chief Executive (Prime Minister) are Elected by the Assembly The President is elected by the Assembly in all post-communist countries adopting a pure parliamentary system. However, the method of election of the respective presidents varies. For example, the Latvian Constitution is not clear on who has the right to present a candidate for the presidency. The Czech, Estonian and Hungarian constitutions determine the majority required for the nomination of a candidate for the presidency. This majority is not less than 10 deputies or senators in the Czech Republic (Art. 58.1) (total number of members of the lower and upper houses of Parliament is 81 and 200 respectively); at least 1/5 of members of Parliament in Estonia (Art. 79.2) (total number of the members of Parliament is 101); and not less than 50 members of Parliament in Hungary (Art. 29/B.l) (total number of mem-


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bers of Parliament is 386). In Albania a group of not less than 20 members of the Assembly may nominate a candidate for the presidency (Art. 87.1). In the Czech Republic, to be elected President, a candidate must secure the support of an absolute majority of members of the bicameral Parliament (Art. 58). In Latvia the support of an absolute majority of the deputies is required for the election of the President too (Art. 36). The Albanian (threefifths), Estonian (two-thirds) and Hungarian (two-thirds) constitutions, on the other hand, provide for a qualified majority. The Czech, Hungarian and Estonian constitutions envisage a maximum of three rounds for the election of the President, but they differ in terms of the solution they offer in the event that no presidential candidate can obtain the required majority in the first round. The Hungarian Constitution requires the same majority (two-thirds) in the first and second rounds, but it guarantees the election of the President in the third round in which a simple majority is sufficient for the election of the President. Although this may result in the election of a President with weak parliamentary support, it most likely prevents the arising of a stalemate in the presidential election. The Estonian and Czech constitutions provide the same majority (two-thirds and a simple majority respectively) in the second and third rounds, but they offer different solutions in case of a stalemate. The Czech Constitution stipulates the dissolution of Parliament failing to select a President (Art. 58), whereas the Estonian Constitution envisages the creation of an electoral body to elect the President (Art. 79). The Albanian Constitution, on the other hand, establishes a costly and lengthy mechanism, which would be very difficult to put in practice. It allows a maximum of five rounds of voting for the election of the President. If the required majority is not reached in the fifth round, the Assembly is dissolved and new elections are held. The new Assembly elects the President by a majority of all its members (Art. 87). Although the Prime Minister is appointed by the President in all parliamentary systems in Eastern Europe, the Cabinet emerges from the parliamentary majority (Albania, Art. 96; Estonia, Art. 89.1; the Czech Republic, Art. 68.2; Latvia, Art. 56). The Hungarian President has only the right to recommend a candidate for the office of Prime Minister who is elected by a majority of the votes of the members of Parliament. Thus, eventually, Parliament prevails in the Cabinet formation in Hungary (Art. 33.3). Since the Cabinet needs the vote of confidence of Parliament to enter office, the President, as a rule, appoints the leader of the majority party or the coalition having a majority in Parliament. The Albanian Constitution explicitly states this point: the President, at the beginning of a legislature, as well as in every case of vacancy, names as Prime Minister the candidate presented by the party or

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coalition of parties that have the majority of seats in the Assembly (Art. 96). Although other parliamentary constitutions in this category contain no such provision, the presidents in the respective countries will most likely take into account the position of the majority party or parties in Parliament when appointing the Prime Minister in order to prevent a stalemate in the process of Cabinet formation. Ministers are appointed by the President upon the recommendation of the Prime Minister in Hungary, the Czech Republic and Albania. In Estonia the government is appointed after the authorization of Parliament. The candidate for Prime Minister reports to the Parliament, within fourteen days of being assigned the task of forming a government, the bases for the formation of the new government, after which Parliament decides, without negotiation and by an open vote, on giving the candidate for Prime Minister the authority to form a government. The candidate for Prime Minister who has received authority from Parliament to form a government, presents, within seven days, the composition of the government to the President who appoints the government within three days (Art. 89). The Albanian Constitution also contains a provision granting Parliament considerable power in Cabinet formation. The Constitution lays down that the Assembly reviews the President's decree on the appointment of ministers (Art. 98). However, the Constitution is not clear on the scope and content of the review made by Parliament. The Latvian Constitution leaves the determination of the procedure for the appointment of ministers to Parliament (Art. 57). What happens if the newly-appointed government fails to secure the support of the majority in the Assembly? In the Czech Republic, having been appointed by the President, the government asks for a vote of confidence of the Chamber of Deputies (lower house of Parliament) within 30 days. If a newly appointed government fails to obtain its confidence, the procedure is repeated, i.e., the President appoints a government which asks a vote of confidence again within 30 days. If the government appointed in that way again fails to obtain the confidence of the Chamber of Deputies, the President appoints a Prime Minister upon the proposal of the Chairman of the Chamber of Deputies (Art. 68). In Estonia if the candidate for Prime Minister, nominated by the President, cannot receive the affirmative votes of the majority of the members of Parliament, or it cannot form a government, or abstains, the President has the right to present another candidate for Prime Minister within seven days. If the President does not present another candidate within seven days, or abstains, or if this candidate cannot obtain authority from Parliament, or cannot form a government, or abstains, the right to present a candidate for Prime Minister is transferred to Parliament. If, within fourteen days from the transfer of the right to present a candidate for Prime Minister,


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the composition of the government is not presented to the President, he announces early elections for Parliament (Art. 89). The Albanian Constitution introduces a similar mechanism. If the candidate for Prime Minister is not approved, the Assembly elects a new Prime Minister within 15 days. If the election does not take place within this time period, the Assembly holds a new election of the Prime Minister within the next 7 days. If the candidate elected in this way receives the votes of a majority of all the members of the Assembly, the President appoints him within seven days. If this majority is not achieved, the President dissolves the Assembly within seven days (Art. 97). The Hungarian and Latvian constitutions are not clear on this point. The latter lays down that: "In order to fulfil their duties, it is necessary that the Prime Minister and Ministers receive the confidence of the Saeima and they shall be responsible to the Saeima for their actions." (Art. 59). The Cabinet Is Accountable to the Assembly Most constitutions under survey explicitly recognize the Cabinet's accountability to the Assembly (Czech, Art. 114.1; Hungary, Art. 39.1; Latvia, Art. 59). Actually, even though a constitution does not explicitly state this point, as the Albanian and Estonian constitutions do, the presence of the mechanism of the vote of no-confidence implies such an accountability. Accordingly, the parliamentary majority may always bring down the government by a vote of no-confidence in it (Albania, Art. 105; Czech, Art. 72; Estonia, Art. 97; Hungary, Art. 39.A; Latvia, Art. 59). On the other hand, according to some constitutions, the government may ask a vote of confidence during its mandate (e.g., Albania, Art. 104; Czech, Art. 71). With regard to the Cabinet's accountability to the Assembly, the Estonian Constitution contains an interesting provision. In Estonia, if a no-confidence vote is expressed in the government or the Prime Minister, the President may, on the proposal of the government and within three days, declare early elections (Art 97). This provision may dissuade members of Parliament to bring forward a vote of censure against the Cabinet, even though the latter has already lost the confidence of the former. This seems to be inconsistent with the spirit of the parliamentary system which is based on the idea that an unpopular government is replaced by a new one through the mechanism of the vote of noconfidence. Fixed Term for the President, No Fixed Term for the Cabinet and the Assembly In parliamentary systems, as a rule, the President is not responsible for his acts. To come into effect, his decisions must be countersigned by the Prime Minister and the ministers concerned. It follows that he cannot be held

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accountable for his performance in office. He can only be dismissed because of such reasons as high treason or grave crimes through the procedure of impeachment. All parliamentary constitutions in Eastern Europe introduce such mechanisms (Albania, Art. 90; Czech, Art 65; Estonia, Art. 85; Hungary, Art. 31/A, 32; Latvia, Art. 54). As a rule, the Assembly indicts the President and the Constitutional Court decides on the issue in these countries (e.g., Albania, the Czech Republic, Hungary, Slovakia). However, none of the constitutions under survey determine the required majority for the initiation of the impeachment procedure, except the Albanian (one-fourth of members of Parliament) and the Hungarian (one-fifth of members of Parliament) constitutions. Nor are they clear on the majority required for the passage of the related motion, except the Albanian, Latvian and Hungarian constitutions requiring a two-third majority. The Estonian Constitution differs from other constitutions in that the impeachment of the President is proposed by the Legal Chancellor and the motion is adopted by a majority of the votes of deputies (Art. 85). The Estonian Constitution remains silent on the powers of the President which he may exercise with or without the signature of the Prime Minister or the ministers concerned. The Hungarian Constitution, on the other hand, allows the President to exercise some of his powers (representing the State of Hungary, participating and speaking at sittings of the Parliament and of its committees, petitioning the Parliament to take action, initiating national referenda, appointing and dismissing State Secretaries) without countersignature. The Latvian Constitution introduces a parallel regulation (Art. 53), but it only mentions the right to propose the dissolution of Parliament (Art. 48) and the appointment of the Prime Minister (Art. 56) among the powers which do not need the signature of the Prime Minister or the minister concerned. In fact, even though the Constitution does not enumerate the powers which could be exercised by the President alone, it should be accepted in a parliamentary system that the President may exercise certain powers without co-signature. In this respect, the Czech Constitution contains an interesting provision. The Constitution lists several powers and duties of the President in the fist paragraph of Article 63, including representing the State with respect to other countries; negotiating and ratifying international treaties; delegating the negotiation of international treaties to the government or, with its consent, to its individual members; being the supreme commander of the armed forces; receiving the heads of diplomatic missions; appointing and recalling the heads of diplomatic missions; calling elections to the Chamber of Deputies and the Senate; appointing and promoting generals; awarding and bestowing state decorations; appointing judges; and granting amnesty. The Constitution provides in the second paragraph of the same article that the President exercises authority which is not explicitly


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defined in the Constitution, if the law so provides. Lastly, paragraph 3 of Article 64 stipulates that: "Decisions made by the President pursuant to the provisions of paragraphs 1 and 2 shall be valid, only if countersigned by the Prime Minister or by a member of the government so authorized by the Prime Minister." The wording of this paragraph suggests that all the decisions made by the President in accordance with the first and second paragraphs of the article in question need the signature of the Prime Minister and the ministers concerned. However, it is rather odd to require the signature of the Prime Minister or the ministers concerned for his decisions about, for example, calling elections to the Chamber of Deputies and the Senate. This article may create problems in the future in defining the scope and the content of the power of the President which he can exercise alone. Although in parliamentary systems the Cabinet is principally accountable to the Assembly, the President may have some powers through which he can influence the working of the Cabinet. In the Czech Republic, for example, the President may attend meetings of the government, ask for reports from the government as well as its members, and discuss with it or with its members matters which are under their jurisdiction (Art. 64.2). In Latvia, on the other hand, the President has the right to convene extraordinary meetings of the Cabinet for the discussion of an agenda prepared by him/her, and to preside over such meetings (Art. 46). All post-communist presidents serving under parliamentary constitutions, have the right to dissolve the Assembly under certain conditions. Stalemate during the process of Cabinet formation results in the dissolution of the Assembly in all these countries (Albania, Art. 104.2; Czech, Art. 35a; Estonia, Art. 89; Hungary, Art. 28/3b), with the exception of Latvia. In the Czech Republic, the government may link the passage of a bill to a vote of confidence. If the Chamber of Deputies fails to decide on the bill in question within three months, the President may dissolve it (Art. 35b). Apart from these, the Czech Constitution envisages two more grounds for the dissolution of the Assembly: recess of the session of the Chamber of Deputies for a term longer than admissible and its failure to have a quorum for a period longer than three months (Art. 35c,d). In Estonia, Parliament has the right to put draft legislation to a referendum. If a draft law which has been put to a referendum does not receive a majority of yes-votes, the President declares early parliamentary elections (Art. 105). In Hungary and Estonia the loss of confidence in the government also causes the dissolution of Parliament under certain conditions. The Hungarian Constitution makes the dissolution of the Assembly difficult by requiring the passage of a vote of no-confidence four times within twelve months (Art. 28.3a). The Estonian Constitution envisages no such qualification; it only lays down:

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In the case of no-confidence being expressed in the government or the Prime Minister, the President may, on the proposal of the government and within three days, declare early elections. (Art. 97.4) Lastly, the Latvian Constitution gives the last word to the people in the dissolution of the Assembly. According to the Constitution: The President of State shall have the right to propose the dissolution of the Saeima. This shall be followed by a referendum. If in the referendum more than one-half of the votes are cast in favor of dissolution, the Saeima shall be considered as dissolved and new elections shall be proclaimed. (Art. 48) Legislative, Appointive and Emergency Powers of Presidents All presidents under survey have legislative powers. First, they may veto laws, but this is only a "suspensive" veto, i.e., it can only delay the promulgation of a law with which the President does not agree. No special majority is required by the respective constitutions for the re-adoption of the laws in question. Constitutions under survey are not clear on whether presidents in these countries can return a law to the Assembly more than once. In this respect, the Albanian Constitution is an exception. The Constitution explicitly states that the President has the right to return a law for review only once (Art. 85). What happens if the Assembly amends the law in question? Can we consider it a new law and can we maintain that it can be remanded to Parliament by the President? The Albanian Constitution remains silent on this issue. The Czech Constitution envisions this problem and prohibits the amendment of the law returned to Parliament by the President. The Estonian Constitution allows neither the amendment of a returned law, nor the return of a law for the second time. The Czech and Hungarian constitutions attach certain limitations to the veto rights of the presidents. In Hungary the President ratifies the law subject to national referendum, if such a law is confirmed by the national referendum (Art. 26), whereas in the Czech Republic constitutional laws cannot be vetoed by the President (Art. 50.1). Lastly, we should mention that some constitutions provide the presidents with an extra opportunity to influence the legislative process in case of the defeat of their veto. In Estonia and Hungary presidents may refer laws to the Constitutional Court. In Latvia, in turn, the President has the right to suspend laws for up to two months. The President promulgates laws passed by the Saeima not before the seventh and not later than the twenty-first day after their adoption. Within seven days after the adoption of a law, the President is entitled to ask, by means of an explanatory letter addressed to the Chairman


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of the Saeima, for the review of that law. If the Saeima does not amend the law, the President does not have the right to raise any further objections. The President has the right to suspend the promulgation of a law for a period of two months. He suspends the promulgation at the request of not less than onethird of the members of the Saeima. This right is exercised by the President or by one-third of the members of the Saeima within seven days after the adoption of the law by the Saeima. The law thus suspended is submitted to a referendum, if not less than one-tenth of the electors so request. If such a request is not formulated within a period of two months as mentioned above, the law is promulgated upon the expiration of that period. The referendum is not take place, however, if the Saeima puts this law to a vote once more and if then not less than three-fourths of all the members are in favor of its adoption. The following matters are not submitted to a referendum: the budget, laws concerning loans, taxes, custom's duties, railway tariffs, military service, the declaration and commencement of war, the conclusion of peace, the declaration of a state of emergency and its termination, mobilization, demobilization, foreign treaties. A law, adopted by the Saeima and suspended in the procedure explained, is annulled by a referendum, if the number of voters participating in the referendum is at least half of the number of the electors who participated in the previous Saeima elections and if the majority has voted for the annulment of the law. If the Saeima determine the urgency of a law with a majority of not less than two-thirds, the President may not demand a second review of the law; it may not be submitted to a referendum and is to be promulgated within three days after the President has received the adopted law (Art. 71-75). Another legislative power of presidents is the right to initiate laws (Hungary, Art. 25.1; Latvia, Art. 47, Art. 65). The Estonian Constitution accepts the law-initiation power of the President only for constitutional amendments (Art. 103.1.5). In parliamentary systems presidents may also issue decrees. Although, as a rule, these decrees are signed by the Prime Minister or the ministers concerned, they enable the President to make general regulations. None of the constitutions surveyed above grant this power to the presidents. Only Estonia allows the President to issue decrees by way of extraordinary measures (Art. 78.7, Art. 109, Art. 110). The initiation of a referendum may also give presidents significant legislative power. Of the parliamentary constitutions in post-communist countries, only the Hungarian Constitution grants this power to the President (Art. 30.A). The Albanian Constitution, in turn, requires the people, through 50,000 citizens who have the right to vote, to request the President to hold a referendum about issues of special importance (Art. 150). Lastly, the Hungarian President has the right to refer laws to the Constitutional Court for the review of their constitutionality (Art. 26.4). The Czech Constitution leaves

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the determination of the rules of procedure before the Constitutional Court to the legislature (Art. 88.1), whereas the Estonian Constitution, as we have mentioned above, establishes a different mechanism for constitutional review. The Latvian Constitution, in turn, does not grant this right to the President. The Czech President (upon the confirmation of the Senate) appoints judges of the Constitutional Court, its Chief Justice and Assistant Chief Justices; the Chief Justice and Assistant Chief Justices of the Supreme Court; (on the proposal of the Chamber of Deputies) the President and the Vice President of the Supreme Control Office; members of the Bank Board of the Czech National Bank; senior commanders and judges. The Estonian President appoints and recalls members of the Government, presents proposals to the Parliament for appointments to the offices of the President of the National Court, the President of the Council of the Bank of Estonia, the AuditorGeneral, the Legal Chancellor and the Commander or the Commander-inChief of the Defense Forces; appoints, on the proposal of the Council of the Bank of Estonia, the President of the Bank of Estonia; appoints judges on the proposal of the National Court; appoints and recalls from office the Government of the Republic and, on the proposal of the Commander of the Defense Forces, officers in the Defense Forces. The Hungarian President appoints: (and dismisses) State Secretaries, appoints and dismisses the President and Vice-Presidents of the National Bank of Hungary, and university professors upon the recommendation of persons or organizations specified in a separate law; appoints and dismisses the university rectors; appoints and promotes Generals of the armed forces; confirms the President of the Hungarian Academy of Sciences; judges. The Latvian Constitution does not list the appointive powers of the President as other constitutions do. In Hungary the President exercises his emergency powers in case of the obstruction of Parliament (Art. 19/A, B, C). In Estonia, if Parliament is prevented from convening, the President has the right, in matters of national interest which cannot be postponed, to issue edicts which have the force of law, and which bear the co-signatures of the Speaker of the Parliament and the Prime Minister. When Parliament convenes, the President presents such edicts to Parliament, which immediately adopts a law either confirming or repealing the edicts (Art. 109). In Latvia the President has the right to take steps indispensable to the military defense of the country, if another State has declared war on Latvia, or if an enemy is attacking Latvian frontiers. At the same time, the President immediately convenes the Saeima, which decides upon the declaration of war and the commencement of hostilities (Art. 44).


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4.4.7. Post-Communist Parliamentary "with" President Systems: Bulgaria and Slovakia Although the Bulgarian President is elected by the people, the system works like a parliamentary system. As we have mentioned above, Matthew Soberg Shugart categorized these systems as "parliamentary 'with' President" systems. The latter resemble the presidential systems in respect of the election of the President by the people, but the elements of the parliamentary system prevail: the President has no power in Cabinet formation; he can neither dissolve Parliament, nor exercise legislative powers; his appointive and emergency powers are rather limited. More importantly, the Cabinet is responsible to the Assembly and can be dismissed by the latter. The Irish constitutional system can be given as an example in this respect. Among the post-communist constitutional systems with popularly elected presidents, the Bulgarian one comes closest to the parliamentary "with" President system. The Bulgarian President, embodying the unity of the nation and representing the state in its international relations, is the Head of State (Art. 92). The President is elected by majority run-off elections, but the Constitution provides that a majority of eligible voters must participate in the voting to be considered valid. The President cannot be removed from office by Parliament on political grounds. He can only be impeached on the basis of a motion initiated by one-fourth and adopted by two-thirds of the deputies. The Constitutional Court decides on the issue of his removal. The Prime Minister is nominated by the largest party in the Assembly and appointed by the President. If the Assembly cannot elect a Prime Minister in its repeated voting, the President appoints a caretaker government and dissolves the Assembly. Members of the Cabinet are elected by the Assembly upon the recommendation of the Prime Minister. The Cabinet can be brought down by a vote of no-confidence initiated by one-fifth and adopted by a majority of the members of Parliament. This is not possible for individual ministers and within six months. The government may also request a vote of confidence. In this case, a majority of no-confidence votes is required by the Constitution to dismiss the government. This means that it is relatively easier to form a government than to dismiss it in Bulgaria, as in other East European countries with parliamentary system of government. The Bulgarian President has no important legislative or non-legislative powers. He cannot initiate laws; he cannot call a referendum; he has only suspensive veto power; his decrees are generally countersigned by the Prime Minister or the ministers concerned. He holds only significant appointive powers to the armed forces. He may declare a state of emergency and martial law, but this decision has to be approved subsequently by Parliament.

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The 1992 Slovak Constitution originally established a parliamentary system. According to the Slovak Constitution, the President appoints and dismisses the government (Prime Minister and Cabinet ministers, upon the recommendation of the Prime Minister) (Art. 110.1), but the government emerges from and is accountable to the parliamentary majority which can pass a vote of no-confidence against it at any time (Art. 114). The Slovak President has mainly symbolic powers, but he may dissolve the National Council of the Slovak Republic if the policy statement of the Government of the Slovak Republic is rejected three times within six months after the elections (Art. 102.d). One may think that these provisions may be sufficient to qualify the Slovak system as a pure parliamentary system. However, the regulation of the Constitution concerning the accountability of the President raises doubts about such a classification. The Slovak Constitution lays down that the President is responsible to the National Council of the Slovak Republic for the execution for his office (Art. 101.4). Furthermore, it provides in Paragraph 3 of Art. 84 that the agreement of at least a three-fifths majority of all deputies is required to elect and recall the President. Accordingly, the President, as well as the government, is accountable before the Parliament and can be recalled by the latter for his decisions and actions. This is a rather odd regulation, given the wide range of the powers and the responsibility of the Slovak President. The conditions for recalling the President are determined by Art. 106: "The National Council of the Slovak Republic can recall the President from his post if the President is engaged in activity directed against the sovereignty and territorial integrity of the Slovak Republic or in activity aimed at eliminating the Slovak Republic's democratic constitutional system. In such cases, the motion to recall the President may be tabled by more than one-half of all deputies. The consent of at least a three-fifths majority of all deputies is required for the President to be recalled." Accordingly, it can be said that the Slovak Constitution originally established a parliamentary system, but it deviates from the pure model by introducing the latter regulation. The 1999 amendment to the Slovak Constitution made the nature of the Slovak governmental system more ambiguous. Parliament passed a constitutional amendment on 14 January 1999, which allowed the popular election of the President. The amendment provided a method of a majority run-off for his election." Under this amendment, it is no longer possible to classify the Slovak constitutional system as a pure parliamentary system because, as we have mentioned above, the President is elected by Parliament in these systems. The recent changes in the Slovak Constitution seem to lead to 99. "Slovak Parliament Approves Direct Presidential Elections", RFE/RL, 15 January 1999, Internet version, (http://www.rferl.org.cz).


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additional constitutional changes in the future, given the fact that the whole structure of the Slovak Constitution was originally designed as a system with a President elected by the Assembly.

4.4.8. Assessing the Parliamentary System We have pointed out in the previous section that the presidential system may plunge into crisis under certain conditions. Particularly, the problems of dual legitimacy and rigidity may cause legislative-executive deadlock; this may even threaten the stability of the regime. In this regard, parliamentary systems may have similar problems. The problem of "winner-takes-all" may arise also in parliamentary systems. A political party may totally control both the executive and the legislature branches thanks to strong party discipline. This may result in the permanent exclusion of other parties and groups from the center of power. The problem of dual legitimacy is also relevant for parliamentary systems. If the legislature is bicameral, a conflict may erupt between the lower and upper houses of Parliament controlled by opposing majorities.100 Notwithstanding the inadequacy of the parliamentary system in solving these two problems, it provides an effective solution for the problem of rigidity. The institution of the vote of confidence imparts the system flexibility. If a conflict erupts between the executive and the legislature, the latter may bring down the former by a vote of no-confidence. This prevents the system from running into legislative-executive deadlock which would eventually lead to regime instability. This advantage of the parliamentary system, however, is coupled to an important disadvantage, i.e., Cabinet instability. The latter occurs particularly in the absence of a coherent majority in the Assembly. In the event that parliamentary elections create a fragmented legislature, certain possibilities come to mind as far as Cabinet formation is concerned. At best, certain parties may have similar preferences and priorities. Such parties may form an alliance or, at least, act in concert in Cabinet formation. In this case, a government may emerge from Parliament, but it would not be very durable due to the fragility of the parliamentary majority. Even slight changes in the coalition may threaten its survival. At worst, the parties may have different or contrasting interests. In this case, the emergence of a viable Cabinet from the Assembly becomes very difficult. A minority government appears as the only possibility, which is hardly conducive to the effective working of the parliamentary system. Such crises, common in inter-war Europe, have been seen by many as one of the reasons for the breakdown of liberal democratic regimes in the region at the time. So, what can be done to solve these problems? 100. See Mainwaring and Shugart, op.cit. note 98, 451-456.

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Constitutional engineering offers several solutions.101 These solutions mainly concern making Cabinet formation easier and dismissal harder. First of all, the Constitution may require different majorities for the formation and dismissal of the Cabinet. No doubt, if democracy is the rule of the majority, then a Cabinet enjoying the support of the Assembly majority must enter office and a Cabinet losing the confidence of the Assembly majority must be dismissed. However, this majority may be the majority of those participating in the voting on the vote of investiture (i.e., simple majority), and the majority of all the members of the Assembly in the voting of a vote of noconfidence against the government (i.e., absolute majority). Apart from this, a set of remedies can be proposed for crises which would arise during the process of Cabinet formation. First, although the logic of the parliamentary system dictates that the President must appoint a candidate for the office of Prime Minister who would enjoy the support of the parliamentary majority, in order to reduce the risk of the appointment of a minority government, constitution-makers may include this principal convention of the parliamentary system in constitutions. Second, the Assembly may be allowed to vote on the investiture of Cabinet ministers separately. If the parliamentary majority is against one of the members of the Cabinet, it may express lack of confidence only against this member. If the other Cabinet ministers manage to secure the support of the parliamentary majority, the Cabinet can be formed by leaving the minister in question out. Third, if a government cannot be formed in a relatively long period of time in spite of repeated attempts, the President may be allowed to dissolve the Assembly and call new elections. Having secured the support of the parliamentary majority, the government enters office. However, to stay in office it must maintain this support. In other words, if it loses the confidence of the majority in Parliament, it may always be brought down by a vote of no-confidence. This, in turn, may cause Cabinet instability. To prevent the latter one may again conceive certain mechanisms. First, the number of the deputies, who have the right to propose a vote of no-confidence against the government, may be increased. However, if this number is too high, this may violate one of the most important principles of the parliamentary system: that the Cabinet is accountable to the Assembly. Second, the Constitution may allow the proposal of a vote of noconfidence against the Cabinet only once in a certain period of time, say, within three months, six months or during the same session of Parliament. Here, it should be possible to raise a motion of censure more than once within the established period of time on different grounds because the Assembly may withdraw its confidence for another reason, different from the one 101.See Evgeni Tanchev, "Parliamentarism Rationalized", 2 EECR 1993 No.l, 33-35.


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leading to the previous proposal of censure. Third, the constitution may provide for a vote of no-confidence in individual ministers apart from their collective responsibility. This may enable the parliamentary majority to dismiss an individual minister while allowing the Cabinet to stay in office. Fourth, the constitution may envisage a certain period of time between the proposal of the vote of no-confidence and its consideration by the Assembly. This may give members of the Assembly a chance to reconsider the causes and consequences of their action. More importantly, this may even give another chance to the government and the opposition to negotiate and compromise. Fifth, in some cases the Cabinet may ask a vote of confidence particularly before endeavoring to take significant, but unpopular decisions. Re-confirmation of confidence may make the government more confident in the implementation of such decisions. However, one should note that, if the Cabinet has already lost the confidence of Parliament, such a move may be tantamount to the self-liquidation of the government. Sixth, the constructive vote of no-confidence may partially solve problems deriving from Cabinet instability in parliamentary systems. The German Constitution of 1949 introduced this institution which requires that the House of Representatives can express its lack of confidence in the Chancellor only by electing a successor (Art. 67.1). This mechanism may prevent potential government crises, but it cannot be seen as an ultimate solution. Most importantly, a government losing the support of the majority in the Assembly may continue to stay in office thanks to the mechanism of the constructive vote of noconfidence, but it cannot enact its bills into law due to the opposition of a hostile parliamentary majority. Lastly, the President may be allowed to dissolve the Assembly in case of legislative-executive deadlock. However, if the conditions for the exercise of this right are very difficult to meet, the system may be deprived of an important mechanism to solve such crises; if the President exercises this right unrestrictedly, this may tip the balance between the President and the Assembly in favor of the former.

4.4.9. Republic or Monarchy Both in presidential and parliamentary systems, the President bears the title of Head of State, although in the latter he only exercises certain symbolic powers. In other systems the Head of State may be a monarch. This signifies the different set-up of executive agencies in republican and monarchical systems. A republic is a state in which the Head of State is constitutionally and periodically elected either by the people directly or by the legislature. In the monarchy the Head of State, i.e., the monarch, acquires his position through hereditary succession, not through elections. In the past, the monarchy was

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the dominant form of government in Europe. Today still almost half of Western democracies are monarchies, such as Belgium, Denmark, the Netherlands, Norway, Spain, Sweden and the United Kingdom. Yet today's monarchies are considerably different from their aristocratic or absolutist predecessors. All present monarchies are constitutional monarchies, and monarchs are little more than figureheads. Real executive power resides in the government and the monarch performs a symbolic function. Today, the advocates of the monarchy argue that the monarch, as a non-partisan and impartial figure, may symbolize national unity. Such a Head of State could be desirable particularly in heterogeneous polities.102 What about post-communist countries? Can the monarchy be an alternative for them? Today all post-communist states are republics, but the restoration of the monarchy has been debated from time to time, particularly in Albania, Bulgaria, Romania, and Yugoslavia.103 In Albania, despite the efforts of the monarchist parties and the claimant to the throne, Leka Zogu (son of Ahmed Zogu, a tribal chief who engineered a coup d'etat in 1924, and declared himself king in 1928), the Albanian people voted against the restoration of the monarchy in a referendum held on 29 June 1997 on the same day as the parliamentary elections. On top of this, the electoral victory of the Socialist Party makes the restoration of the monarchy hardly possible. The Party, which intends to draw up a new Constitution for the country, is in favor of a strong Parliament. Also in Romania, there is an ongoing debate on the reaccession of King Michael I. The king visited the country in 1992 and 1997. He was welcomed by the Romanian people enthusiastically on his visit in 1992. East European Constitutional Review observed that, given the enormous popularity of the king, there might be some pressure to change or repeal Article 148.1 of the current Constitution, stipulating that: "The provisions of this Constitution with regard to...the republican form of government...shall not be subject to revision."104 During the campaign of the parliamentary elections of 1992, Emil Constantinescu, then the candidate of the Democratic Convention, advocated the reaccession of the king. He criticized the Constitution of 1991 on the grounds that it defined Romania as a republic, and he suggested that if he was elected, he might step down to make room for the king.105 With the election of Constantinescu as President in November 1996, the issue of the restoration of the monarchy resurfaced. On 21 February 1997 the new 102. See Lijphart, op.cit. note 87, 85-89. 103. For details, see Fabian Schmidt and Anne Nivat, "Betting on Kings", Transitions August 1997, 64-72. 104. "Constitution Watch: Romania", 1 EECR 1992 No.2, 5-6. 105. "Constitution Watch: Romania", 1 EECR 1992 No.3, 8-9.


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government restored citizenship to King Michael.106 Soon after, on 28 February 1997, the king visited the country. Yet this time the reception of the king was less enthusiastic than in 1992. Consequently, in spite of the support of major political forces for King Michael I, the supporters of the monarchy in Romania constitute only 5% of the people. Of all claimants, the Bulgarian King Simeon is perhaps the most respected and popular one. Not only several monarchist parties, but also the ruling Union of Democratic Forces (UDF) supports the restoration of the monarchy. Nevertheless, King Simeon is not in favor of holding a referendum on restoration. He prefers the annulment of the referendum of 1947, which had abolished the monarchy, and the reinstatement of the former monarchical constitution. Some supporters of the king in the Parliament took his side on this issue. Three members of Parliament, Tosho Peykov, Vasil Mihailov, and Zdravko Katsarov, for example, presented a draft resolution for the annulment of the 1947 referendum and the restoration of the Turnovo Constitution of 1879.107 But, as an observer remarked: "If the current government fails, [the king] is the only possibility. Nevertheless, restoration seems impossible, because younger generations have no idea what monarchy represents. It is a luxury poor Bulgarians cannot afford. Even if they like him!"108 To sum up, the restoration of the monarchy, although it has been debated fervently does not seem to be a constitutional alternative in the countries concerned. One should note that the reaction of the people to their communist past feeds to a great extent the public enthusiasm about the monarchy. On the other hand, one should make a distinction between the popularity of the current kings, and the popularity of the monarchy as an institution. The former may not guarantee similar popularity of the successors of these kings. Consequently, although restoration of the monarchy seems an attractive option to several groups in these countries, the gain of restoration would be less than its pain from a constitutional point of view. The demarcation of the powers of the monarch in the Constitution, the adaptation of the entire system to a new order, and the determination of the successors of the would-be kings render the monarchy unattractive as a constitutional option. Thus it would be more realistic to expect to see the current kings as candidates in future republican elections.

4.4.10. Constitutional Conditions of Effective Demo-Power We have pointed out in the introductory section of this chapter, that an effective constitution ought to fulfill the expectations of members of a given 106. "Constitution Watch: Romania", 6 EECR 1997 No.l, 22-24. 107. "Constitution Watch: Bulgaria", 2/3 EECR 1993/1994, No. 4/1,4-5. 108. Quoted in Schmidt and Nivat, op.cit. note 103,70.

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political system particularly in terms of its two main functions, the demopower and demo-protection functions. We have summarized above the constitutional conditions of effective demo-protection. In this section we shall recapitulate the constitutional conditions of effective demo-power. As we have mentioned above, the demo-power function of constitutions mainly concern the implementation of popular rule in a liberal democratic regime and free and fair elections stand at the center of this process. If the elections are the core of the democratic process in these regimes, it would be appropriate to re-consider the demo-power function of constitutions in three phases: pre-election, election and post-election phases. The pre-election phase involves the competition of alternative political programs which are prepared and promoted by political parties and interest groups and offered to the electorate. In this phase the freedom of association ensures the creation of such parties and groups. Constitutions ought to guarantee this freedom for as many parties and groups as possible without endangering democratic norms and principles. That is to say, to ban antisystem parties may be acceptable in a democratic regime, but, to deprive certain parties and groups from participating in the democratic process from the very beginning (for example, to grant discretionary power to ruling authorities over the registration of political parties) may cripple the demopower function of the constitution. So, constitutions ought to strike a balance between the protection of the foundations of the regime and the provision of favorable conditions for the competition of parties and groups within a pluralist setting. Apart from the freedom of association, the freedom of assembly, freedom of expression and right to information also assume importance in the pre-election phase. These freedoms, on the one hand, make possible the dissemination of the views of the competing parties and groups on the problems of the country and the remedies they propose, on the other, the receiving of the latter by the voters. Constitutions ought to guarantee these freedoms in a way to allow the competing parties and groups to express themselves freely and the electorate to have enough information to evaluate the latter properly. For example, financing and conducting of elections campaigns and the opportunity of the competing parties and groups to make use of the private and public media during their campaign may affect the success of these parties and groups in the elections. In the election phase the electorate chooses between the alternatives offered by competing parties and groups. In this phase the demo-power function of constitutions requires them to deal with sets of problems concerning the electorate and the elections. As for the electorate, first, all adult citizens, with the exception of prisoners and the insane, ought to have the right to vote. Generally, modern constitutions accept the age of 18 as the


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voting age. Whatever age is accepted, constitutions ought to specify it in their related provisions. If the determination of the voting age is left to the legislative majority, the latter may always seek to create favorable conditions for its re-election by changing the voting age. Second, although the right to vote is granted in principle only to citizens in most liberal democratic regimes, constitutions ought to address the problems of the voting rights of persons working and living in a given country without having citizenship (aliens) and of persons holding double nationality. This problem is of particular importance in such countries as post-communist ones where there are many unsolved citizenship problems. As for the elections, there must be a body at the national level which would be in charge of the administration and conduct of free and fair elections. Regardless whether this body is a judicial (e.g., the Constitutional Court) or a special body (e.g., the Central Electoral Commission), the constitution ought to provide for measures to ensure its impartiality. At the international level, constitutions ought to lay down provisions which would allow international organizations to monitor the elections. In this respect, if a given country is a party to certain international treaties envisaging such electoral monitoring, the status of these treaties in the domestic legal order is decisive. For example, constitutions may stipulate that international human rights treaties are binding for all national authorities. Or they may give supremacy to these treaties over national statutes. Apart from this, to grant the freedom of expression and right to information to non-citizens may facilitate these monitoring activities. These arrangements may play an important role in post-communist countries in promoting democratic elections. These considerations are relevant both for presidential and parliamentary systems in the election phase. However, apart from this, one may point out special problems arising in these systems respectively. As we have mentioned above, the Assembly is elected by the people in all liberal democratic constitutional systems, be it parliamentary or presidential. The President, on the other hand, is popularly elected only in presidential, President-parliamentary, premier-presidential and parliamentary "with" President systems. Accordingly, we should treat the problems stemming from the popular election of the President in these systems separately. First, constitutions ought to determine the election method of the Vice-President, if there is such an office in a given political system. In a few cases the Vice-President is elected separately from the President. This may increase the possibility of the eruption of an intramural struggle within the executive branch. In most cases, however, the President and the Vice-President are elected together. Even this method may not prevent the arising of a conflict between the President and the Vice-President. For example, the Russian President Yeltsin chose

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Alexander Rutskoi as his running mate in the 1991 Elections, but he— together with Parliamentary Speaker Ruslan Khasbulatov—spearheaded a revolt against Yeltsin. After this bitter experience, the office of VicePresident became unattractive for Russia as well as for other post-communist countries. Today, only Bulgaria retains this office in its constitutional system. Second, constitutions may determine the procedure for the nomination of presidential candidates. The involvement of civil society organizations in the nomination process may bolster the emergence of an active and viable civil society. Third, constitutions usually address the problem arising when no candidate receives the necessary number of votes in the elections by introducing a second round in which the candidates receiving the largest number of votes in the previous voting take part. Constitutions ought to lay down certain rules to ensure the election of the President with at least a minimum of popular support, given the fact that the President is the most central political actor in a presidential system with significant powers. For example, constitutions may provide for a majority run-off for the election of the President, but they may require the participation of a certain number of voters to consider the elections valid in the last round. Fourth, constitutions ought to determine clearly the procedure to be followed in the case of the withdrawal or demise of one of the candidates during the elections. These measures will most likely contribute to the effective fulfillment of the constitution's function of demo-power in a given political system. As for the election of members of the Assembly in presidential and parliamentary systems, the electoral system assumes paramount importance in the election phase. Some modern constitutions specify the system which is to be used in translating votes into seats, e.g., proportional representation or majority systems, whereas others remain silent on the issue or leave its determination to the legislature. Which arrangement may provide more effective demopower: including the electoral system in the constitution or regulating the issue through electoral law? If it is too easy to change electoral rules, this may give the ruling majority an opportunity to influence the election results by adopting a more favorable system for its re-election. However, if it is too hard to change these rules, then it may become impossible to solve certain problems (e.g., today it is well-known that the system of proportional representation usually creates a fragmented legislature) deriving from the election system without constitutional amendment. To solve this problem, constitutions may require that electoral laws must be special laws passed and amended by a majority higher than the one required for the passage of ordinary laws and lower than required for the passage of constitutional amendments. Constitutions perform important functions in the post-election phase, first, when filling executive offices. In presidential systems only members of


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the Cabinet are appointed after the elections. As a rule, the Cabinet (and in most cases the Prime Minister) is nominated and appointed by the President. However, in some cases, the constitution may require the consent of the Assembly in the appointment of the Prime Minister and ministers. Constitutions, therefore, ought to be clear on what will happen if the Assembly rejects to give its consent for the appointment of a member of the Cabinet or the Prime Minister. Usually, if the process of Cabinet formation reaches a stalemate, the President appoints a Prime Minister and calls for early parliamentary elections. In parliamentary systems both parts of the executive, the Cabinet and the President, are appointed after the inauguration of the Assembly. As a rule, the Cabinet is appointed by the President in these systems. However, the President has to take into account the preferences of the parliamentary majority, for the Cabinet and the Prime Minister are dependent on the confidence of the latter. Constitutions may prescribe that the President has to appoint the leader of the political party or parties which command a majority in Parliament in order to make sure that the Cabinet obtains a vote of confidence from the Assembly. If there is no coherent majority in the Assembly, the process of Cabinet formation may result in a stalemate. In this case, constitutions ought to provide solutions to cope with such crises. Generally, having dissolved the Assembly, the President schedules pre-term elections for the Assembly. To reduce the risk of stalemate in this phase, constitutions may simplify the formation of the Cabinet. For example, they may provide for a simple majority for its investiture. The election of the President may also be problematic in a parliamentary system. Constitutions ought to lay down the procedures concerning the nomination of a candidate for the office of president. They also ought to envision the case in which no candidate can receive the necessary number of votes. Lastly, although members of the Assembly enter office in a parliamentary system as soon as they take their oaths, there must be a sanction if the Assembly cannot convene for a long time after the elections. Second, in the post-election phase, constitutions not only determine the procedures to be followed in filling executive offices, but also provide for solutions in case of legislative-executive deadlock. Such crises are peculiar to presidential systems in which the popular election of both the President and the Assembly has always the potential to create a dual legitimacy problem. Constitutions ought to take several measures to break such a deadlock. Most effectively, reducing the legislative powers of the President may prevent the arising of a conflict between the executive and the legislature. If not, the respective agencies may shorten each other's term simultaneously and stand for re-election. Third, constitutions play a crucial role in the post-election phase when filling the office of president in case of vacancy. In presidential systems,

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since the President is elected by the people, as a rule, he stays in office until the next elections. However, the death or incapacity of the incumbent as well as his removal from office by way of impeachment may leave the office vacant. Then, constitutions ought to determine who would succeed the President and which powers would the successor possess. If a constitution remains silent on this issue, this may contribute to the eruption of a serious power struggle in a given country. Some constitutions solve the succession problem through the office of the Vice-President. Accordingly, the VicePresident may assume the powers of the President automatically in case of death or incapacity. Then a person, who has not been elected by the people, may begin to exercise many significant powers. More importantly, as the electorate does not elect the Vice-President by taking into account his program, it is always conceivable that the Vice-President may face a hostile majority or a majority supporting the old President in case he has other preferences and priorities than the Assembly majority. In parliamentary systems, since the Cabinet is dependent on the confidence of the Assembly, it can always be brought down by a vote of no-confidence. Constitutions ought to establish several mechanisms to prevent Cabinet instability and, increasingly, Cabinet crises. Most effectively, constitutions may make the dismissal of the Cabinet harder than its formation. Ultimately, if the Assembly fails to form a Cabinet within an acceptable period of time, the President may dissolve the Assembly and call new parliamentary elections. Consequently, we may conclude this section by pointing out that almost in every country one may find proponents and opponents of presidential and parliamentary forms of government. Post-communist countries are no exceptions. The relationships between executives and legislatures have been the subject of fervent discussions in the countries concerned. Theoretical debates aside,109 when we look closer at the actual working of the two systems, we see that both have their merits and drawbacks. The main problem concerning the actual performance of presidential and parliamentary systems in post-communist countries is that the presidents are generally more powerful than they ought to be. To be more exact, in Eastern Europe, where most of the countries opted for a parliamentary system, the presidents appear to be more powerful than those in Western parliamentary systems. In the former USSR, in turn, presidents are more powerful than those in Western presidential systems. There are two main sources of the 109. Theoretical discussions on presidentialism and parliamentarism have been supplemented by several empirical data in the literature. For a study confirming the arguments of the critics of presidentialism, see Alfred Stepan and Cindy Skach, "Constitutional Frameworks and Democratic Consolidation", 46 World Politics 1993, 1-22. For a counterargument, see Timothy J. Power and Mark J. Gasiorowski, "Institutional Design and Democratic Consolidation in the Third World", 30 Political Studies 1997,123-155.


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extra-constitutional powers of these presidents: a one-person leadership tradition and the exigencies of post-communist transformation. On the other hand, the relative weakness of other agencies—such as a highly fragmented legislature, unstable coalition governments and inexperienced courts—facilitate the emergence of strong presidencies in these countries. The symbolic roles of presidents have also contributed to the increase of their powers. In most countries they symbolize the struggle against repressive communist regimes and for the unity of the nation.110 These extra-constitutional powers of presidents produce different effects on the respective systems in Eastern Europe and the former USSR. In Eastern Europe formal and real powers of presidents are congruent. On paper, prime ministers are more powerful than presidents. Yet, in reality, the latter have a dominant position in politics. This has inevitably brought about a power struggle between presidents and prime ministers. As was rightly observed in a recent work: "In general there is a discrepancy between the visibility and popularity of most East European presidents and their circumscribed constitutional powers... The roots of presidential-prime ministerial conflict are, then, apparent: presidents find that their prestige and popularity vastly outweigh their formal and their actual political influence."111 In the former USSR, as opposed to Eastern Europe, presidents are powerful both on paper and reality. In other words, in most of the former Soviet republics, presidents reinforce their de jure powers with de facto powers and vice versa. This elevates some presidents in the former USSR, particularly in Central Asia, Transcaucausus and Belarus, above other state agencies. So, neither presidentialism, nor parliamentarism alone provides an ultimate solution for governing problems in post-communist countries. It seems that the smooth working of a given political system depends also on factors other than the type of the constitution. In this respect, some authors focus on the political party system, whereas others call attention to the electoral system. It has been argued that presidentialism produces worst results in multi-party systems and best results in two-party systems.112 Seeing the same thing from another end, the best alternative for newly-emerging liberal democratic regimes is "parliamentarism + proportional representation", and the worst one is "presidentialism + proportional representation."113 As an 110. Stephen Holmes, "The Postcommunist Presidency", 2/3 EECR, 1993/1994 No.4/1,3639. 111.Thomas Baylis, "Presidents versus Prime Ministers: Shaping Executive Authority in Eastern Europe", 48 World Politics 1996, 306. 112. See Scott Mainwaring, "Presidentialism, Multipartism, and Democracy", 26 Comparative Political Studies 1993 No. 2, 198-228. 113. See Robert A. Dahl, "Thinking About Democratic Constitutions: Conclusions from Democratic Experience", in Political Order, (Ian Shapiro and Russell Hardin, eds.), New York University Press, New York 1996,175-206.

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overall conclusion, however, one should always bear in mind that the political culture of a given country plays as important a role as vigorous constitutional engineering.114 Thus, although it would be very difficult to actually change a given constitution in a way to move the system from presidentialism to parliamentarism, or vice versa, the debates concerning the alternative systems seem to occupy the constitutional agenda of post-communist countries until they develop a congruent political culture with the existing institutions.

4.5. Legislature The most important institutional problem concerning the regulation of legislative bodies in constitutions is whether Parliament should be unicameral or bicameral. Bicameralism is the fulfillment of the legislative function of the state by two separate assemblies working together. These assemblies may have different names in different regimes, but they are usually known as "upper" and "lower" houses. These chambers check, limit, and control each other by assuming different but complementary roles in the legislative process. The forerunners of such bicameral legislatures can be found in medieval polities, particularly in England. The House of Lords and the House of Commons represented the upper and middle classes for ages. The English model had also been accepted by other monarchies, as well as by republics. Today, several European countries, such as France, Germany, Italy, Belgium and the Netherlands, still retain their bicameral legislatures. The presence of a bicameral legislature can be explained by historical arguments in evolutionary constitutional systems, e.g., in England. It can also be explained in federal states (e.g., the USA) because a second chamber enables the federal subjects to share the creation and implementation of federal policies with the central government. Apart from this, the size of a given country's population can be a factor. Most large countries operate under bicameral legislatures.115 Usually, however, bicameral legislatures appear as the product of deliberate choices of constitution-makers. They create bicameral parliaments with certain expectations. Those who advocate bicameralism chiefly argue that the second chamber may elaborate and even 114. Seymour Martin Lipset, "The Centrality of Political Culture", in The Global Resurgence of Democracy, (Larry Diamond and Marc F. Plattner, eds.), Johns Hopkins University Press, Baltimore 1993, 134-137. 115. Arend Lijphart found a correlation between bicameral legislatures and the size of the population and federalism, yet he noted that there was no strong correlation between the plurality of a given society and bicameralism. Lijphart, op.cit. note 87, 90-105.


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correct hasty decisions taken by the first chamber. Those who criticize bicameralism stress that a unicameral legislature will be more efficient and faster in taking decisions.116 Bicameralism can be applied in various ways. Generally, the second chamber is subordinate to the first one. A negative vote of the second chamber, for example, may be overridden by the first chamber. Moreover, the government derives from and is responsible to the first chamber in parliamentary systems. There may be some exceptional cases in which both chambers have equal powers (e.g., Italy). Members of one chamber are usually elected directly by the people, while members of the other chamber may be appointed (e.g., Canada, Ireland, and the life peers of the House of Lords in the UK) or elected indirectly (e.g., Germany, Austria, and India). As seen in Table 7 and Table 8, most post-communist constitutions establish unicameral legislatures, with the exceptions of Poland, the Czech Republic and Romania in Eastern Europe; and Belarus, Georgia, Kazakhstan, Kyrgyzstan and Russia in the former USSR. The Kazakh Parliament had been unicameral under the Constitution of 1993, but the Constitution of 1995 introduced a bicameral legislature consisting of the Majlis (lower house) and the Senate (upper house). The Kyrgyz Parliament had also been unicameral, but amendments to the Constitution, proposed by the President and adopted by the Kyrgyz people in a nation-wide referendum in 1994, reduced the number of deputies in Parliament and replaced the unicameral legislature by a bicameral one. The number of deputies was again changed in another referendum in 1998. Similar things happened in Belarus. Amendments to the Constitution of 1994, adopted by a very controversial referendum of 27 November 1996, created a bicameral legislature consisting of the Council of the Republic (upper house) and the House of Representatives (lower house). Members of the House of Representatives came from the current Supreme Soviet. The Council of the Republic, on the other hand, was created by a combination of presidential appointments (8 members) and elections by deputies of local councils (56 ). The Georgian Parliament, in turn, was originally unicameral, but the Constitution of 1996 envisaged the establishment of a bicameral legislature as soon as suitable conditions on the entire territory of Georgia has been created and agencies of local self-government had been formed (Art. 4). Lastly, it is interesting to note that the Turkmen Parliament has peculiar characteristics in comparison with other post-communist legislatures. Apart from a unicameral Parliament, there is a unicameral body in Turkmenistan, called Khalk Maslakhaty consisting of the President, parliamentary deputies, people's deputies elected on the basis of 116. See Dennis Mueller, Constitutional Democracy, Oxford University Press, Oxford 1996, 192-208.

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Table 7. Composition of Parliaments in Eastern Europe

*

Country

Unicameral (U)/ Bicameral (B)

Term of office (Upper Chamber, Lower Chamber)

Number of seats (Upper Chamber, Lower Chamber)

Albania

U

4

140

Bulgaria

U

4

240

Czech Republic

B*

6,4

81,200

Hungary

U

4

386

Poland

B

4,4

100, 460

Romania

B

4,4

143, 341

Slovakia

U

4

150

One-third of the senators is elected every second year.

one from each etrap (district), the Presidents of the Supreme Court and the Economic Court, the General Procurator, members of the Cabinet of Ministers and presidential prefects (khakims) in the regions. According to the new Polish Constitution, legislative power in Poland is exercised by the Sejm (the lower house) and the Senate (the upper house) together (Art. 95.1). Both the 460 deputies of the Sejm and the 100 Senators of the Senate are elected directly by the people on the basis of universal, equal and secret ballot for a four-year term of office (Art. 96,97). The Constitution stipulates that the elections to the Sejm, unlike those to the Senate, shall be on the basis of proportional representation (Art. 96.2). The Senate is subordinate to the Sejm in terms of the duration of its office. If the term of the office of the Sejm is shortened for any reason enumerated in the Constitution, this automatically affects the term of the Senate as well (Art. 98.3, 4). As for the power relations between the Sejm and the Senate, the Sejm passes bills by a simple majority (Art. 120). These bills are submitted to the Senate. The latter may act in three ways, within 30 days, either it adopts the bill as it is, or adopts a resolution rejecting or amending it. In case of failure of the Senate to adopt an appropriate resolution on the bill, the latter is considered adopted as it has been submitted by the Sejm. The Constitution provides that a resolution of the Senate rejecting or amending a bill is considered accepted unless the Sejm rejects it by an absolute majority (Art. 121).


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Table 7. Composition of Parliaments in the Former USSR

*

Country

Unicameral (U)/ Bicameral (B)

Term of office (Upper Chamber, Lower Chamber)

Number of seats (Upper Chamber, Lower Chamber)

Armenia

U

4

190

Azerbaijan

U

5

125

Belarus*

B

4,4

64, 110

Estonia

U

4

101

Georgia

U

3

235

Kazakhstan*

B

6,5

47,67

Kyrgyzstan*

B

5,5

67,38

Latvia*

U

4

100

Lithuania

U

4

141

Moldova

U

4

101

Russia

B

4,4

178, 450

Tajikistan

U

5

181

Turkmenistan

U

5

50

Ukraine

U

4

450

Uzbekistan

U

5

250

The Constitution was amended.

The Czech Constitution also establishes a bicameral legislature. The Czech Parliament is composed of the Chamber of Deputies and the Senate (Art. 15). The latter comprises 200 deputies elected for a term of 4 years, whereas the former comprises 81 senators elected for a term of 6 years. Onethird of the senators is elected every second year (Art. 16). The Czech Constitution, like the Polish Constitution, provides that the elections to the Chamber of Deputies and the Senate are to be held according to the principles of proportional representation and the majority system respectively (Art. 18).

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If the Chamber of Deputies is dissolved for the reasons determined in the Constitution, the Senate assumes the responsibility for adopting urgent legislative measures. There are certain limits to this extraordinary power of the Senate. It cannot adopt legislative measures on matters concerning the Constitution, the state budget, the state annual account, the election law and international agreements. Only the government may propose legislative measures to the Senate. To be valid, the measures of the Senate must be approved by the Chamber of Deputies at its first session. After approval these measures are promulgated as laws (Art. 33). In the Czech Republic a peculiar situation occurred after the adoption of the Constitution of 1992. Although the Constitution stipulated that the Assembly of Deputies was responsible for the creation of the Senate, more than two years after the adoption of the Constitution, there was no Senate in the Czech Republic. This was an apparent violation of the Constitution's relevant provision. The bicameral legislature in the Czech Republic was, in fact, not seen as an obligatory institution by many. Most political forces in the country were not willing to create a second chamber.117 The Romanian legislature consists of the Chamber of Deputies and the Senate (Art. 58). Unlike the situation in Poland and the Czech Republic, both chambers are elected in the same way in Romania (Art. 59). The numbers of Deputies and Senators are established by the electoral law, in proportion to the population of Romania (Art. 59.3). Bills or legislative proposals passed by one Chamber are sent to the other chamber. They may be rejected and sent back to the Chamber that has passed them. However, they cannot be rejected more than two times (Art. 75). If one chamber has passed a bill or legislative proposal, in a wording different from the one approved by the other chamber, the presidents of both chambers initiate a mediation procedure, by a parity committee. If there is no agreement in the Committee, or one of the chambers does not approve the report of the Committee, the text in question is submitted for debate to a joint session of the chambers. The latter adopts the final text by a majority vote (Art. 76). Bicameralism in Romania is problematic. As one may expect, such a symmetric bicameralism, i.e., two chambers having parallel powers, may cause a paralysis of the legislative process. This occasionally occurs in Romania and major political forces have already articulated their dissatisfaction with bicameralism. Yet a change of the Constitution may require its reorganization. That is why a change of the Constitution has not been attempted.118 117-Milos Caldo and Mark Gillis, "Parliament by Design, Czech Republic", 4 EECR 1995 No. 2, 67-70. 118. Elena Stefoi-Sava, "Parliament by Design, Romania", 4 EECR 1995 No. 2,78-83.


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The Federal Assembly of Russia consists of the Council of the Federation and the State Duma. The State Duma consists of 450 deputies, whereas the Council of the Federation comprises two representatives from each subject of the Federation (Art. 95). A federal law is normally adopted by the State Duma. A federal law is considered approved by the Council of the Federation, if more than half of the membership of this chamber has voted for it or if it has not been examined by the Council of the Federation within 14 days. If a federal law is rejected by the Council of the Federation, the chambers may form a conciliatory commission. Then the federal law is subject to a second examination by the State Duma. In the event of disagreement by the state Duma, a federal law is considered to have been passed if at least twothirds of the total number of members of the State Duma vote for it in the second vote (Art. 105). Certain federal laws are subject to compulsory examination by the Council of the Federation, if they concern questions of the federal budget, federal taxes and duties, financial, currency, credit and customs regulation and emission of money, ratification and denunciation of international agreements of the Russian Federation, status and protection of the state border of the Russian Federation, and war and peace (Art. 106). There are some problems concerning the regulation of bicameralism in Russia. Two examples would be sufficient. The Council of the Federation convenes with long interruptions and is not in permanent session. The Duma, on the other hand, holds a plenary session two times a week. As a result, if the Duma passes a law during the Council's recess, the latter may have some difficulties in meeting the 14-day requirement envisaged in Article 105 of the Constitution. To mention another problem, there is an ambiguous relationship between Articles 105 and 106. The Constitution is not clear about whether the 14-day requirement should apply to laws which are subject to compulsory examination by the Council of Federation. These issues seem to cause problems in the working of the Russian Parliament.119 The Kazakh Parliament consists of the Senate and the Majlis. The latter comprises 67 deputies elected from single-mandate territorial constituencies which are formed in line with the administrative-territorial arrangement of the republic and which contain approximately equal numbers of voters. The Senate is formed by two deputies each from every region, city of republican significance and the capital of the Republic of Kazakhstan. They are elected at a joint sitting of the deputies of all representative bodies of the regions, cities of republican significance, and the capital of the republic, respectively. Seven deputies are appointed by the President for the duration of Parliament's term (Art. 50). A bill is considered and approved by a majority of votes of the total number of Majlis deputies and then passed to the Senate, where it is 119. Alexey Alyushin, "Parliament by Design, Russia", 4 EECR 1995 No. 2, 61-66.

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discussed within no more than 60 days. A bill approved by a majority vote of the total number of Senate deputies becomes law and is submitted to the President for signing within 10 days. A bill fully rejected by a majority of the total number of Senate deputies is returned to the Majlis. If the Majlis, by a two-thirds majority vote of the total number of deputies, once again approves the bill, it is passed to the Senate for a repeat debate and vote. A bill rejected twice may not be resubmitted in the course of the same session. Amendments and additions to a bill made by a majority vote of the total number of Senate deputies is forwarded to the Majlis. If by a majority vote of the total number of its deputies the Majlis agrees to the proposed amendments and additions, the law is considered adopted. If, however, the Majlis objects by the same majority vote to the amendments and additions expressed by the Senate, the differences between the chambers shall be resolved by way of conciliation procedures (Art. 61.4, 5). According to the amended version of the Kyrgyz Constitution, the Parliament of the Kyrgyz Republic, Jogorku Kenesh, consists of two chambers, the Legislative Assembly and the Assembly of People's Representatives. The latter comprises 70 deputies elected on the basis of representation of territorial interests, whereas the former comprises 30 deputies elected on the basis of the representation of nation-wide interests (Art. 54). Laws concerning taxes, dues, financial and custom regulations passed by the Legislative Assembly are subject to consideration by the Assembly of People's Representatives. A bill is considered approved by the Assembly of People's Representatives, if it is passed by more than half of the total number of deputies of the latter. Certain decisions of the Assembly of People's Representatives enumerated in the Constitution are subject to consideration by the Legislative Assembly. These decisions are considered approved if they are passed by more than half of the total number of deputies of the latter (Art. 64). As this survey suggests, there are several problems in bicameralism in post-communist countries. Thus these provisions regulating bicameral parliaments may be subject to revision in the future. Yet one should note that amendment is not as easy as it seems. On the one hand, most amending articles require the approval of the second chambers for the adoption of a constitutional amendment. So, it would be very difficult to obtain their approval which would entail their self-destruction. On the other hand, such an amendment may require a comprehensive re-organization of the constitutions concerned. To many political groups, this may seem to be a risky and painful job. Thus they may prefer to leave the solution of problems concerning bicameralism to constitutional courts, or try to solve them by standing orders, if they can.


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4.6. The Referendum A referendum can be defined as a procedure through which people express their view on a given issue concerning public policy through voting. Several issues can be put to a referendum in different ways. Most post-communist constitutions, as well as many Western constitutions,120 include provisions concerning the referendum. Post-communist constitutions state almost uniformly that the people exercises its power through its representatives and through referendums.121 The referendum may be advisory or binding. An advisory referendum can be seen as a comprehensive public poll on a significant issue. Thus the legislature or the government may or may not translate the results of the referendum into law. A binding referendum, on the other hand, requires a public vote on certain laws or constitutional amendments. Some post-communist constitutions require a referendum on certain issues. The Azerbaijani Constitution, for example, enumerates the issues which may only be solved by a referendum in Article 3: the adoption of the Constitution, the introduction of amendments to the latter, the change of state borders of the Azerbaijan Republic. According to Article 93.1 of the Slovak Constitution: "A referendum is called to confirm a constitutional law on the Slovak Republic's joining with another state or on the withdrawal from such a union." The Ukrainian Constitution stipulates that issues altering Ukraine's territory shall be resolved exclusively through a referendum (Art. 73). Some constitutions also allow to put draft laws to a referendum. The Estonian Constitution in Article 105 provides that the legislature (the Riigikogu) has the right to put draft laws or other national issues to a referendum. The Kyrgyz Constitution envisages a referendum on constitutional amendments. According to the amended version of Article 1.5 of the Kyrgyz Constitution: "Changes and additions to the Constitution of the Kyrgyz Republic, laws of the Kyrgyz Republic and other important issues of state life may be put to a referendum." Generally, post-communist constitutions contain similar provisions and provide that a referendum is compulsory for the adoption of constitutional amendments. Some constitutions only mention that referendums may be held on important issues, but they leave the determination of these issues to legisla120. For the theoretical and practical aspects of the referendum in Western democracies, see Vernon Bogdanor, "Western Europe", in Referendums Around the World, (David Butler and Austin Ranney, eds.), Macmillan, London 1994, 24-97. 121. Albania (Art. 3), Azerbaijan (Art. 2.II), Bulgaria (Art. 1.2), The Czech Republic (Art. 2.2), Georgia (Art. 5.2), Hungary (Art. 2.2), Kazakhstan (Art. 33.1), Poland (Art. 4.2), Russia (Art. 3.3), Slovakia (Art. 2.1), Tajikistan (Art. 6), Ukraine (Art. 69), Uzbekistan (Art. 32).

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tures. According to the Polish Constitution a nation-wide referendum may be held on issues which are particularly important to the state (Art. 125). The Uzbek Constitution stipulates that: "Major matters of public and state life shall be submitted to a nation-wide discussion and put to a referendum." (Art. 9) According to Article 75 of the Moldovan Constitution: "Problems of utmost gravity or urgency confronting the Moldovan society or state shall be resolved by referendum." According to Article 9.1 of the Lithuanian Constitution: "The most significant issues concerning the life of the state and the people shall be decided by referendum." In some cases voters may propose certain laws themselves, instead of voting on the proposals prepared by the legislature or government. Such an initiative requires the participation of a certain number of voters. In postcommunist countries, generally, presidents and parliaments have the right to initiate a referendum, but some constitutions, such as the Belarussian, Georgian, Lithuanian, Slovak and Ukrainian constitutions, recognize the people's initiative. Article 74 of the Belarussian Constitution stipulates that: "National referenda shall be called on the initiative of the President of the Republic of Belarus, as well as on the initiative of the Council of the Republic or House of Representatives, which is taken at their separate sittings by a majority of the full number of deputies of each house, or on the initiative of no fewer than 450,000 citizens eligible to vote, including no fewer than 30,000 citizens from each of the regions (oblasts) and city of Minsk." According to Article 74 of the Georgian Constitution, the President, upon the request of Parliament, or of at least 200,000 voters, or on his own initiative, calls a referendum on issues determined by the Constitution or an organic law within thirty days after receiving such a request. The Lithuanian Constitution also introduces the popular initiative: "Referendums shall also be announced if no fewer than 300,000 of the electorate so request." (Art. 9.3) Under the Slovak Constitution, a referendum is called by the President upon the request of 350,000 citizens or upon a resolution of the legislature (Art. 95). According to the Ukrainian Constitution, the legislature and the President have the right to call a referendum. It may also be called by popular initiative upon the request of three million citizens who are eligible to vote, on the condition that the signatures supporting the call of referendum are collected in no less than two-thirds of the provinces, and with no less than 100,000 signatures from each province. This article seemingly makes it difficult to use the popular initiative (Art. 72). The Belarussian (Art. 75) and the Russian Constitutions (Art. 130) also allow the use of referendums in exercising local self-government. At this point, the Turkmen Constitution has to be mentioned as an exception. The Constitution envisages the establishment of a body, Khalk


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Maslakhaty, consisting of the President, members of Parliament, popularly elected local representatives, judges and other high-ranking bureaucrats. This body may declare a national referendum upon the proposal of at least one-fourth of its members, or upon the initiative of at least 250,000 eligible voters (Art. 50.2, 95). Some constitutions forbid to hold a referendum on certain issues. The Georgian Constitution prohibits to hold a referendum on the adoption or repeal of a law, on amnesty and pardon, ratification or denunciation of international treaties and agreements, or on questions which would diminish the fundamental rights and freedoms of the person (Art. 74). According to the Slovak Constitution, a referendum may decide other important questions of public interest, except those concerning basic rights and freedoms, taxes, inland revenues and the state budget (Art. 95). The Ukrainian Constitution, in turn, forbids the use of referendums on draft laws on issues of taxation, budget or amnesty (Art. 74). As for the results of a referendum, post-communist constitutions introduce different arrangements. Usually the determination of the majority, which is required to adopt the issue put to the referendum, is left to the legislature, but in some cases constitutions regulate this issue themselves. According to the Polish Constitution, for example, results of referendums shall be binding, if more than half of the number of those having the right to vote have participated in it (Art. 125). The Estonian Constitution requires the majority of those participating in the referendum for the approval of the issue in question (Art. 105). According to the Slovak Constitution, the result of a referendum shall be valid, is more than half of the eligible voters take part in it and more than 50% of the votes cast were positive (Art. 98). The legal status of referendums results varies. Some constitutions, for example, accord a higher legal status to results. The Armenian Constitution, in this respect, contains an interesting arrangement: "Laws passed by referendum may only be amended by referendum." (Art. 112). This provision imparts rigidity to certain laws and elevates them to the rank of the Constitution which can only be amended by referendum. The second paragraph of Article 75 of the Moldovan Constitution introduces a similar and somewhat ambiguous regulation: "The decisions passed in consequence of the results produced by a republican referendum have supreme judicial power." The Estonian Constitution contains an interesting article in this respect. If a draft law which has been put to a referendum does not receive a majority of affirmative votes, the President shall declare special elections to the Riigikogu (Art. 105). This provision may reduce the use of the referendum by making it risky.

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Some constitutions limit the use of the referendum device. The Slovak Constitution, for example, forbids the holding of a referendum on the same issue within three years from the original one (Art. 99). As this overview suggests, post-communist constitutions generally regulate the procedural aspects of referendums, but, as an interesting example, the Azerbaijani Constitution contains an article attempting to regulate the content of the referendum. This provides a typical example of the understanding of the concept of democracy in a substantive way. According to Article 149 of the Azerbaijani Constitution: "Acts that have been passed by referendum must be based on law and justice (on the equal relationship to equal interests)." There is no consensus in the literature on whether the referendum is desirable for democracy. Some authors advocate the introduction of the device on the grounds that it maximizes legitimacy and participation. Referendums allow people to express their opinion on certain issues directly. Thus when the referendum results have been translated into law, they will most likely be obeyed more easily. Moreover, most authors consider participation as one of the most important components of civic culture, vital for a working democracy. Thus direct participation in making decisions on public policies may socialize people into a civic culture. The critics of the referendum mainly argue that referendums reduce complex issues to the level of a "yes/ no" choice. Thus people would be susceptible to the manipulation of various political groups. They also point out that citizens lack the proper education and information to take such decisions.122 Despite these disadvantages, it has been argued that there is a global trend in using referendums more frequently.123 This is particularly true for postcommunist countries. Referendums have played a crucial role in the multidimensional transformation of communist polities. The referendum device, in fact, was also used by pre-communist and communist regimes from time to time,124 but after the collapse of communist regimes the use of the referendum increased dramatically.125 122. See David Butler and Austin Ranney, "Theory", in Referendums Around the World, (David Butler and Austin Ranney, eds.), Macmillan, London 1994, 11-23. Mueller, op.cit. note 116, 177-191. Lijphart, op.cit. note 87, 197-206. 123. David Butler and Austin Ranney, "Practice", in Referendums Around the World, (David Butler and Austin Ranney, eds.), Macmillan, London 1994,2-6. Particularly see Table 1 1 on page 5 showing the increase of the use of referendums in each decade of this century. 124. Bulgaria: 19 November 1922, on the approval of trials of "war crimes"; 8 September 1946, on ending the monarchy; 16 May 1971, on the approval of the constitution; Estonia: 17-19 February 1923, on the restoration of religious instruction; 19 August 1932, on the constitutional referendum; 10 June 1933, on presidential government; 14 October 1933, on presidentialism with ministerial responsibility; 8 January 1936, on the convention of a constituent Assembly; Latvia: Summer 1931, on religious rights; Poland:


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In East Central Europe Hungary used this device twice in its democratization efforts in November 1989 and July 1990. The former was on the postponement of presidential elections, whereas the latter was on the direct election of the President. These referendums set to a certain extent the background of Hungary's stable institutional structure. In Poland the new Constitution was adopted in a nation-wide referendum in May 1997. In Czechoslovakia, interestingly enough, people had not been asked their opinion on such an important issue as the split-up of the country. In Slovakia a referendum was held in May 1997 on Slovakia's joining of NATO and on the direct election of the President. In Eastern Europe a draft constitution was adopted in a referendum in Romania in December 1991. In Albania a draft constitution was rejected in a referendum in October 1994, whereas another one was adopted in a similar referendum in 1998. In the former USSR several referendums were held on different issues. The most important one in the USSR was held on a "renewed union" on 17 March 1991. Six republics (Armenia, Georgia, Moldova, and three Baltic republics) boycotted the referendum and they decided to hold their own national referendums on independence. In total, 75.4% of the voters in the USSR took part in the referendum and 76.2% of them voted in favor of a "renewed Union." In Russia, 75.4% took part and 71.3% supported a "renewed Union." There was another question on the ballot paper in Russia about the direct election of the President; 69.85% of those participating in the referendum voted "yes" to this proposal. In Russia two more referendums were held on 25 April 1993 and 12 December 1993. In the former, people were asked their opinion on the confidence in the President, on the President's and government's socioeconomic policies, on early presidential and parliamentary elections. The latter was on the adoption of the new Russian Constitution. The Baltic republics took an important step towards their independence through referendums. Moreover, Estonia and Lithuania adopted their constitutions in nation-wide referendums in June and October 1992 respectively. The Latvian people voted in favor of amending the Citizenship Law in a referendum in 1998. 30 June 1946, on abolishing the Senate, making the economic system permanent, approval of Baltic and eastern frontiers; 29 November 1987, on the approval of economic and political reforms; Romania: 10 May 1864, on constitutional change; 2 May 1866, on Prince Charles Louis as reigning prince; 24 February 1938, on the approval of the Constitution; 2 March 1941 and 9 November 1941, on the approval of the Antonescu Government; 3 November 1986, on unilateral arms reduction. See, Butler, Ranney, "Appendix A, Nationwide Referendums, 1793-1993", 265-284. 125. For details, see Ritsuko Sasaki, "Referenda: A Double-Edged Sword of Democracy", Transition 21 December 1996, 41-45.

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In Transcaucasia, Georgia and Armenia, just like the Baltic republics, held a referendum on independence from the USSR. Armenia and Azerbaijan held referendums in July and November 1995 respectively on the adoption of their new constitutions. Apart from this, in Georgia, the people in the separatist South Ossetia region went to the polls in January 1992 to vote for independence. A similar separatist referendum was held in Moldova where the people in the self-declared Dniestr Moldovan Republic voted for their new Constitution in December 1995. In Central Asia originally only Tajikistan adopted its Constitution through a nation-wide referendum in November 1994. Of the other Central Asian republics, Turkmenistan (in 1994), Uzbekistan (in 1995), and Kazakhstan (in 1995) resorted to the referendum to extend the terms of the presidents' office. Kazakhstan and Kyrgyzstan also held referendums on constitutional change. Kyrgyzstan comprehensively amended its Constitution through referendums in 1994 and 1998. Kazakhstan replaced its Constitution of 1993 in 1995, granting more powers to the President. In Belarus, in turn, President Alexander Lukashenka made himself almost a dictator through referendums, held in May 1995 and November 1996. All these examples of referendums in post-communist countries confirm the arguments of the advocates as well as those of the critics of the referendum. This device, for example, facilitated the establishment of the legitimacy of the emerging democratic regime in Hungary. In the same vein, it justified, for example, the separatist movements in the Baltic republics in the eyes of international observers. Thus it can be said that the device had a positive impact on state and nation building in some political systems. Yet in others, the referendum served the disintegration of the state, e.g., the USSR. Separatist referendums in Georgia and Moldova are other examples. As the referendums in Belarus and Central Asia suggest, the device was also used to undermine nascent democratic regimes in post-communist countries. As this mixed record has shown, a referendum can play a crucial role in establishing, destroying, strengthening or undermining democracy. It can also play a crucial role in nation-building. It appears that most post-communist countries will retain the referendum device. One may even expect to see the introduction of this device in more countries. First and foremost, most post-communist leaders have to take many unpopular decisions during their multiple transitions to market democracy. To legitimize these decisions they may resort to the referendum. On the other hand, the referendum may give some leaders an opportunity to show the world how democratic they are, even though they are not in reality.


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4.7. Functions of Constitutions in Multi-National Political Systems Constitutions play a double-edged role in multi-national political systems. They protect ethno-national minorities and, if necessary, regulate power relations between majority and minority groups. Minorities can be defined as groups in a given political unit who are numerically smaller than another group or groups from which they distinguish themselves on the basis of ethnicity, language, or religion. These groups may be excluded or even suppressed by majority group(s). Thus some effective mechanisms should be established to protect them. Most modern constitutions include such mechanisms. There are also some efforts for the protection of minority rights at the international level. The Council of Europe, for example, prepared the "Framework Convention for the Protection of National Minorities" in 1994. As of 31 October 1996, the Convention was signed by 33 countries, including some post-communist countries, but it was ratified by only four countries, Cyprus, Hungary, Romania, and Spain.126 Before studying these mechanisms for the protection of minority rights, it would be useful to determine the dimensions of ethnic problems in postcommunist countries. In Eastern Europe, as opposed to many regions in the former USSR, and with the exception of the former Yugoslavia, ethnonational problems have not led to civil war or large-scale armed clashes, but the relationships between several ethnic groups are potentially or actually tense in many countries. The Greek minority in Albania, the Turkish minority in Bulgaria, the Hungarian minorities in Slovakia and Romania have had several problems in terms of participation in political and social life, and maintaining and developing their cultural identity. The autonomy of Moravia and Silesia and the status of the Germans in the Sudeten region have been on the political agenda of the Czech Republic for quite some time. Apart from that, one can speak of irredentism in Eastern Europe, i.e., the claim of some states or an ethnic group within another state. In this respect, Albania, Romania and Hungary maintain certain Irredentist claims on behalf of respective minorities in other countries.127 Sometimes these tendencies find expression in constitutions. According to Article 7 of the Constitution of Romania: "The State shall support the strengthening of links with Romanians living abroad and shall act accordingly for the preservation, development and 126. For details, see Steven Wheatley, "National Minorities and the Emerging Human Right to Political Inclusion and Dialogue", 2 East European Human Rights Review 1996 No.2, 121-152. 127. See Adam Czarnota, "Constitutional Nationalism, Citizenship and Hope for Civil Society in Eastern Europe", in Nationalism and Postcommunism, (Aleksander Pavkovic, Halyna Koscharsky and Adam Czarnota, eds.), Dartmouth, Aldershot 1995, 83-110.

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expression of their ethnic, cultural, linguistic and religious identity, under observance of the legislation of the State of which they are citizens." As for the former USSR, one can distinguish three sets of problems. First, the situation of Russian minorities in the former Soviet republics is problematic. Ethnic policies of Moscow encouraged inter-republican migrations in the communist period. As a consequence, Russian minorities became the largest and most scattered minority groups in the former USSR, particularly in the Baltics and in some Central Asian republics. Today, the situation of Russian minorities creates serious problems in several countries. Second, Russia is still very influential in some former Soviet republics, particularly in Ukraine and Belarus. Unification is not a remote possibility, particularly for Belarus. Third, there are many ethnic groups in every republic who have problems with dominant groups. Some of these minority groups have already obtained, or more correctly retained, their autonomous status in the newly independent states, but in some countries they demand full-blown independence. Crimea in Ukraine, Abkhazia in Georgia, Tatarstan and Chechnya in Russia can be given as examples.128 As this brief survey suggests, the ethnic problems in the former USSR are more complex, thus more difficult to solve, than those in Eastern Europe. Most importantly, ethnic tension has already reached the level of internal or external war in several countries. Wars in Chechnya, Nagorny-Karabakh and Tajikistan illustrate the dangers of such ethnic and religious tensions. The most worrying trend in many post-communist countries, however, is the emergence of "ethnic", rather than "civic" nationalism. The latter evaluates the concept of nation on the basis of citizenship and is inclusionist in character, but the former is based on blood lineage and tends to be exclusionist. The authorities in a given multi-national polity act basically in two ways in solving an ethnic or national problem: either they may remain within the limits of liberal democratic norms and principles, or they may prefer various methods which violate these norms and principles.129 The latter methods are well-known and have been seen in many regions across the world. Genocide, forced mass population transfers, integration and/or assimilation are among these methods. Needless to say, these methods have nothing to do with the concepts of constitution and constitutionalism. If the authorities in a given multi-national political system are willing to solve ethno-national problems through constitutionalism, they have several 128. See Pal Kolsto, "Nation-Building in the Former USSR", 7 Journal of Democracy 1996 No. 1,118-132. 129. Brendan O'Leary and John McGarry, "Regulating Nations and Ethnic Communities", in Nationalism and Rationality, (Albert Breton, Gianluigi Galeotti, Pierre Salmon, and Ronald Wintrobe, eds.), Cambridge University Press, Cambridge 1995, 245-289.


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options. These options again can be categorized into two, legal and political solutions. Legal solutions involve the provision of extra or special constitutional guarantees for minority groups which have already been under the protection of general rights provisions. Political solutions, in turn, involve certain power-sharing models and federal arrangements. Ultimately, secession or partition may be considered as a radical solution by minority and/or dominant group(s). The choice between these solutions depends on the nature and demands of the minorities in question. Legal Solutions to Ethno-National Problems

Legal solutions first and foremost involve the principle of equality before the law. According to this principle all individuals are free and equal before the law regardless of sex, race, color, language, religion, political or other views, nationality, ethnicity, social status, property or residence. All post-communist constitutions guarantee this right.130 According to the principle of equality before the law, minorities in a given multi-national polity are supposed to be under the protection of general rights protection mechanisms. In addition to normal court procedures, two important institutions in the protection of human rights must be mentioned, constitutional courts and ombudsmen. These institutions may play a crucial role in legally guaranteeing minority rights. As far as constitutional courts are concerned, a serious problem arises. As Friedrich rightly observed: "...national minorities will rarely accept the decision of a court manned by the majority as rendering "disinterested" justice. They will always suspect partisanship on the part of a judge of the other nationality. Therefore a supreme court could not hope to be an effective guardian of a constitution which undertook to guarantee minority rights. None but an international tribunal or a mixed arbitral body containing members of their own nationality will be able to satisfy such a national minority."131 Concerning the two options proposed by Friedrich, we have already mentioned that most post-communist constitutions contain provisions which would allow minorities to resort to international mechanisms. As for the second option, i.e., the representation of minorities in constitutional courts, this may help to appease ethnic tension in various countries. For example, the Tajik Constitutional Court consists of seven judges and one of 130. Albania (Art. 18,20), Armenia (Art. 16), Azerbaijan (Art. 25), Belarus (Art. 22), Bulgaria (Art. 6.2), Estonia (Art. 12), Georgia (Art. 14), Hungary (Art. 70/A), Kazakhstan (Art. 14), Kyrgyzstan (Art. 15.3), Lithuania (Art. 29), Moldova (Art. 16.2), Poland (Art. 32), Romania (Art. 4.2, 16), Russia (Art. 19.2), Slovakia (Art. 12), Tajikistan (Art. 17), Turkmenistan (Art. 17), Ukraine (Art. 24), Uzbekistan (Art. 18). 131.Carl J. Friedrich, Constitutional Government and Democracy: Theory and Practice in Europe and America, fourth edition, Waltham, Blaisdell 1968, 235.

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them is a representative of the Gorny Badakhshan Autonomous Region (Art. 89). The other institution for protecting the rights and freedoms, the ombudsman, may also be very functional in ethnic matters. Establishing a separate ombudsman to monitor the rights of ethnic minorities, as the Hungarian Constitution did, may strengthen the protection mechanism. Nevertheless, merely granting an equal status to minorities before the law and providing them extra legal mechanisms may not satisfy them. Quite naturally, they generally aspire to preserve and develop their cultural identity. In this respect, the right to speak their own language and the right to education in accordance with their beliefs and values are of great importance. These issues have been particularly problematic in most post-communist countries. Adding to equality before the law, most constitutions mention the rights of minorities to develop their culture and identity and to use their own language. At this point, one should consider the connection between language and education issues. According to the second paragraph of Article 36 of the Bulgarian Constitution: "Citizens whose mother tongue is not Bulgarian shall have the right to study and use their own language alongside the compulsory study of the Bulgarian language." Accordingly, ethnic minorities in Bulgaria can study their own language, but not every subject in their language. This means that they cannot enjoy full education in their language.132 The Polish Constitution introduces an extra guarantee for language rights by making reference to international law. According to Article 27: "Polish shall be the official language in the Republic of Poland. This provision shall not infringe upon national minority rights resulting from ratified international agreements." To solve the language issue in a constitution, however, is not as easy as it seems. The fate of the Kazakh Constitution may illustrate this point. The regulation of the language issue in the Constitution of 1993 did satisfy neither Kazakhs, nor Russians. This led to the change of the article in question in the Constitution of 1995. At this point, one should note that language and education issues are not regulated only by constitutions. Although constitutions provide the limits and framework of other regulations, they generally leave the legislature a discretionary area. In this respect, other statutes may assume as much importance as constitutional provisions.

132.Elster and Holmes, op.cit. note 67,12.


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Political Solutions to Ethno-National Problems Legal solutions may not always satisfy ethnic minorities, they may also want to have a say in the governance of a given polity. In this case, the solution is not to be found in the legal realm, but in the political realm through certain power-sharing models. Power-sharing among minority and majority groups can first and foremost be realized through various electoral strategies. It is generally said that proportional representation is more suitable than a majoritarian system to ensure the representation of minorities. Proportional system may give an opportunity to minority groups to be represented in Parliament. Of course, the proper working of this system in minority representation depends first of all on the existence of minority parties. In some countries the banning of such parties deprives ethnic minorities of access to representative institutions. In some countries additional electoral devices have been developed for ethnic minorities. One of the best known devices is the introduction of a separate electoral roll and reserved seats in Parliament for specific ethnic groups. The Romanian Constitution, for example, reserves a number of seats for minorities. According to paragraph 2 of Article 59: "Organizations of citizens belonging to national minorities, which fail to obtain the number of votes for representation in Parliament, have the right to one deputy seat each, under the terms of the electoral law. Citizens of a national minority are entitled to be represented by one organization only." Nevertheless, these electoral strategies may not satisfy minorities wanting more powers. Other power-sharing models, such as consociationalism, may be attractive for such minorities. Consociationalism refers to a pattern for governing plural societies divided along religious, linguistic, cultural, racial or ethnic lines. There are four characteristics of consociational democracies: executive power-sharing or grand coalitions, a high degree of autonomy for the segments of the plural society, proportionality, and minority veto.133 It would, however, be very difficult to apply such a pattern as consociationalism in post-communist countries requiring again an appropriate political culture. Federalism may also be a solution for ethno-national issues. Among post-communist countries, only Russia has opted for federalism. So, it deserves special attention because its success or failure may affect the choices of other post-communist countries. 133. Arend Lijphart, Democracy in Plural Societies: A Comparative Exploration, Yale University Press, New Haven, 1977. Also see Arend Lijphart, "Consociational Democracy", in The Blackwell Encyclopedia of Political Science, (Vernon Bogdanor, ed.), Blackwell, London 1991, 137-139.

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Federalism in Russia One of the most important experts of federalism, Daniel Elazar, defined the concept as follows: "As a political principle, federalism has to do with the constitutional diffusion of power so that the constituting elements in a federal arrangement share in the process of common policy-making and administration by right, while the activities of the common government are conducted in such a way as to maintain their respective integrates. Federal systems do this by constitutionally distributing power among general and constituent governing bodies in a manner designed to protect the existence and authority of all."134 As this definition implies, one may speak of several constitutional implications of federalism. First, federal governments need a written constitution. This derives from the very nature of federal arrangements involving a guaranteed division of power between central and regional governments. By specifying the rights and duties of the subjects of a given federation, a written constitution meets this requirement. Secondly, the subjects of a given federation draw up their own constitutions and can change them independently. The alteration of the federal constitution, however, necessitates the consent of the component units. This derives from the preservation of the authority of the constituting elements of a given federation. A partially retained constituent power enables the component units to regulate freely the areas left to them by the federal constitution. Adding to these implications, federalism requires the establishment of certain institutions at the constitutional level. As a rule, federal legislatures comprise two chambers representing the people and the components of the federation respectively. It is said that there is a correlation, if not a very strong one, between federalism and judicial review. As mentioned above, federal systems are based on written constitutions. It follows that an impartial interpreter is required to ensure the exercise of power by central and regional governments according to the Constitution.135 The history of federal arrangements in Russia goes back to imperial times, but it became important particularly after the October 1917 Revolution. The defeat of Russia in the First World War and the collapse of Tsardom led to the emergence of nationalistic aspirations within the lands of the rump Russian Empire. The right to national self-determination and the right of secession were acknowledged by the Bolsheviks immediately after the revolution. As a result, Poland and Finland gained their independence at the very outset. Although these rights, given their potential to disrupt the revolu134. Daniel J. Elazar, "Introduction", in Federal Systems of the World: A Handbook of Federal, Confederal and Autonomy Arrangements, (Compiled and Edited by Daniel J. Elazar and the staff of the Jerusalem Center for Public Affairs), Longman, Essex 1991, xv. 135.For the characteristics of federalism, see Lijphart, op.cit. note 87, 169-186; for the relations between federalism and judicial review, see 195-96.


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tion, were recognized by the Russian revolutionary authorities, they were seen as the elements of the class struggle. They could only be exercised insofar as it was to the benefit of the working class. This formulation, on the one hand, allowed national collectivities to express their aspirations, but, on the other, it enabled the Bolsheviks to keep their aspirations under control. Thus it made the progress of the revolution possible. Since the Soviet Federation had not yet been established at that time, the Russian Constitution of 1918 did not mention national republics. As the Soviet regime became consolidated, the need for a new state structure was felt more acutely. The victory of the Bolsheviks in the Ukraine, and the entrenchment of Soviet domination in the Caucasus paved the way for a Soviet federation. As a first step, the three Caucasian republics (Georgia, Armenia and Azerbaijan), were welded into a federation, a "Transcaucasian Socialist Federative Soviet Republic" on 12 March 1922. Thereafter, this republic, the RSFSR, Ukraine and the Belorussian SSR founded the USSR by signing a union treaty on 31 January 1924. The USSR Constitution of 1924 set the legal framework of the newly-established state structure. A new USSR Constitution was promulgated in 1936. In the course of time, several changes occurred in the original composition of the USSR. While the Transcaucasian Federation was dissolved into three republics, the Central Asian republics became new members of the Union. During the Second World War, the Union was expanded by the inclusion of the Moldovan SSR, the three Baltic SSR's and the KareloFinnish SSR. The latter became an autonomous republic within the RSFSR in 1956. This composition remained unaltered until the secession of the Baltic republics in 1991. According to the 1977 Constitution of the USSR, there were 15 Soviet Socialist republics, 20 autonomous Soviet Socialist republics, and 8 autonomous provinces. Russian federalism was of a peculiar character during the communist period. The Soviet Union was a federal state on paper, but in reality the predominance of the Communist Party prevented the application of the basic principles of federalism. Even at the level of the Constitution, the central government was assigned such broad powers that one could hardly qualify the Russian state as a federation at that time.136 After the collapse of communism, ethno-federal issues became vitally important. In post-communist constitution-making there were mainly three sets of ideas concerning the structure of the newly-emerging Russian state. Some advocated that Russia should be reorganized as a unitary state subdivided into administrative units such as the gubernii of Tsarist Russia. Others 136. For the developments in Russian federalism in the communist period, see Feldbrugge, op.cit. note 16, 36-42 and 91-95.

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were in favor of a rigid application of federal principles by dividing Russia into federal republics. Others again argued that the current ethnic-based hierarchical federal structure should be retained. The draft Constitution of 1991 reflected the second set of thoughts, but this led to a reaction of the republics who advocated the third position. As a result, various concessions were given to the republics and their special status was preserved, but the rights of the other federal subjects were expanded in the subsequent drafts.137 The first concrete step toward a new federation along the agreed lines was a federal treaty signed by Russia and the republics in the Russian Federation on 31 March 1992. Tatarstan and Chechen-Ingushetia refused to sign the Treaty. The Treaty was not a substitute of a constitution, rather it aimed at regulating the relationships between Russia and the republics. There were three types of federal subjects in the Russian Federation according to the Treaty: republics, administrative territorial areas (oblasts and krais), and national territorial areas (autonomous oblasts and okrugs). Although in principle all these subjects were to have equal rights and duties, the Treaty tipped the balance in favor of the republics which would have their own constitutions and executive, legislative and judicial organs. This "asymmetrical federalism" introduced by the Federal Treaty of 1992 survived into the 1993 Constitution of Russia. The Treaty did not solve the ethno-federal problems of Russia and the Constitution of 1993 made these problems more complex. Most importantly, the definition of the republics as "sovereign" entities was deleted from the draft of the 1993 Constitution. It was argued that a state could not have two sources of sovereignty.138 The new Constitution was adopted on 12 December 1993 by a nationwide referendum. Under the Constitution the Russian Federation consists of 21 republics, 6 krais, 49 oblasts, 1 autonomous oblast, 10 autonomous okrugs, and 2 federal cities (Art. 65). The principle of "asymmetric federalism" of the Federal Treaty of 1992 was ostensibly abandoned by excluding the latter from the text of the Constitution and declaring all the subjects of the Russian Federation legally equal (Art. 5), but the same article of the Constitution, just as the Treaty had done, granted the right to have their own constitutions and legislation to the republics, whereas the other subjects were only allowed to have their charters and legislation. Moreover, although the Constitution did not include the Federal Treaty, it did not abolish it entirely either. According to Article 11.3 and Article 1 in Section 2, the Treaty is still in force so long as it is not at variance with the Constitution. 137. Richard Sakwa, Russian Politics and Society, Second edition, Routledge, London/New York 1993, 175-90. 138. See Vera Tolz, 'Thorny Road toward Federalism in Russia", 2 RFE/RL Research Report 3 December 1993 No. 48, 1-8.


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Adding to the inequality between the federal subjects and the republics at the constitutional level, the latter are also in an advantageous position in practical terms. That is to say most republics receive more subsidies from Moscow than other subjects do. Most importantly, the Constitution allows the signing of bilateral agreements between the central and regional governments under Article 11.3,78.2, and 78.3. Several republics, such as Tatarstan, Kabardino-Balkaria, Bashkhortostan, North Ossetia, Sakha, Buriatia and Udmurtia, have become "more equal" than the other subjects of the Federation by signing such power-sharing treaties. These bilateral agreements, in combination with unequal fiscal policies of the central government, widened the gap between the republics and other federal subjects.139 The federation provisions of the Constitution have been criticized on different grounds. Some have maintained that the Constitution grants excessive powers to the federal government, whereas others have argued otherwise and criticized the excessive powers of federal subjects. Some critics have also called attention to the ambiguity of the provisions regulating the relationships between the central and regional governments, and even noted several internal contradictions between these articles. Lastly, the critics have underlined the fact that the Constitution recognized Russia's ethnic-based internal borders of the communist period and that the ethnically-defined republics have more rights than the other federal subjects. They have proposed to redraw these borders to prevent permanent ethnic tension.140 One may make a good case in favor or against these criticisms, but, for the purpose of this study, it is important to note that the 1993 Constitution could not solve the ethno-federal problems of Russia to the satisfaction of all parties concerned. Thus it seems that the federation provisions of the Constitution will most likely be the subject of future constitutional debates. And it is again important to note that although these provisions will most likely be a source of demands for constitutional change, the Constitution is almost impossible to change. As the Chechen case has suggested recently, this rigidity would block almost all peaceful channels to resolve ethno-federal problems within the framework of the Constitution.141 This dilemma seems to have a potential to destabilize not only the Constitution, but also the entire political system in Russia. Although considerably different from the federalism as applied in Russia, some former Soviet republics have already adopted federal-like solu139. Steven L. Solnick, "Federal Bargaining in Russia", 4 EECR No. 4,1995, 52-58. 140. For these criticisms and their evaluations, see Edward W. Walker, "Federalism-Russian Style, The Federation Provisions in Russia's New Constitution", in Problems of PostCommunism, July-August 1995, 3-12. 141. Edward W. Walker, "Constitutional Obstacles to Peace in Chechnya", 6 EECR 1997 No. 1,55-60.

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tions. More correctly, they retained the autonomous status of various regions in the communist period. The autonomous republics of Karakalpakstan in Uzbekistan and Nakhchivan in Azerbaijan; the autonomous region of GornyBadakhshan in Tajikistan; and the Abkhazian autonomous republic in Georgia are examples of such arrangements. It may be very difficult to convert a given unitary state into a federal state, but one may observe an evolution toward semi-federal arrangements in other countries as well. That is to say, federal principles may be applied in various post-communist countries in the future. Even power-sharing models may not satisfy certain minority groups who do not want to live within the same state framework with other groups. Secession and partition, in this case, appear as an ultimate solution for such groups. Secession is a right exercised in principle in federal states; subjects creating a federal state voluntarily should have the right to leave the federation freely. The Russian Constitution does not directly address the right to secession. But the sixth paragraph of Article 66 stipulates that: "The status of a subject of the Russian Federation can be changed by mutual consent of the Russian Federation and the subject of the Russian Federation in accordance with a federal constitutional law." This article can hardly be interpreted as the recognition of a right to secession. If one reads Articles 16.2 and 4.3 of the Russian Constitution, it appears that a change in the status of a subject requires the convention of a constitutional Assembly. For example, Article 65.1 of the Constitution defines the Chechen Republic as one of the 21 Russian republics. Thus without a constitutional amendment, the secession of Chechnya would be unconstitutional. Although secession, as a rule, concerns federal entities like the Russian Federation, partition refers to the divorce of a certain national collectivity from another collectivity or collectivities. Three different ways of partition can be distinguished. First, partition may be imposed by foreign powers. The partitions of Poland in the eighteenth century by Russia, Austria and Prussia provide an example. Second, the core state may decide on the conditions and the manner of partition. It determines which portion of the periphery may leave the state. The UK, for example, decided on the secession of Ireland in 1921. Third, secession may be democratic; national collectivities negotiate and decide on the conditions of the partition. The "velvet divorce" of Czechoslovakia in 1992 can be given as an example.142 Consequently, both secession and partition derive from the principle of self-determination. According to this principle, national and ethnic groups have the right to form their own sovereign states and to govern themselves. The application of this principle, however, may create more problems than it 142. Vernon Bogdanor, "Overcoming the Twentieth Century: Democracy and Nationalism in Central and Eastern Europe", 66 The Political Quarterly 1995, 84-97.


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solves, e.g., the determination of the nation to secede. This principle may more easily be applied in political systems where ethnic groups are concentrated in certain regions than in polities where majority and minority groups are highly mixed and enmeshed. East European countries and the former Soviet republics fall mainly in the second category. Thus secession and partition have a potential to create various problems in these countries. Despite these difficulties, however, secessions or partitions can be seen as a solution by many. If this happens, both solutions will require constitutional change, for neither federal, nor unitary constitutions in post-communist countries recognize the application of the principle of self-determination. All in all, as many examples all around the world suggest, if such developments will occur, they will most likely occur in spite of, even against, the Constitution. So far, we have studied various arrangements which may regulate power relations between minority and majority groups. Will they really work? Will they find a solution to ethno-national problems of post-communist countries? The answer is simple: "...a political constitution can provide a framework for governing a people as a single people only if they are willing to be so governed. Absent genuine social unity, or some principled commitment to live together despite diversity, there is no future for a socially mixed commonwealth."143 As an overall conclusion concerning ethno-national problems in postcommunist countries, we would agree with Offe. He argued that, on the one hand, "...the 'ethnification' of politics of transition is the outcome of powerful causal forces that cannot be wished away..." on the other hand, "...it is exceedingly difficult to design institutional or constitutional arrangements that would conform to universalist standards and pave the way for the peaceful coexistence of ethnic groups within East European states." He concluded that "...the ills of ethnic politics have strong causes and weak cures."144 Accordingly, the ethno-national problems will most likely be one of the most debated constitutional issues in post-communist countries and generate constitutional change demands.

4.8. Conclusions In this chapter, we have studied the effectiveness of constitutions. We have defined effectiveness as the capacity to meet the expectations of people. We 143.Goodin, op.cit. note 9, 637. 144. Glaus Offe, "Strong Causes and Weak Cures", 1 EECR1992 No. 1,21-23. Also see by the same author, "Ethnic Politics in European Transitions", ZERP-Diskussionpapier, Papers on East European Constitution Building 1993 No. 1.

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have distinguished three basic functions of constitutions in connection with the expectations of various groups in liberal democratic regimes, demoprotection and demo-power functions, as well as functions concerning ethnonational minorities. We have pointed out that if constitutions cannot meet the expectations of members of a given political system by fulfilling these functions, this will most likely give rise to constitutional dissatisfaction, and thus constitutional change. Since it is too early to evaluate the performance of some of the constitutions, we have focused in particular on institutional alternatives within liberal democratic regimes in case of the occurrence of constitutional change. Occasionally, however, reference has been made to the actual working of constitutional systems. The analysis in this chapter has suggested that many arrangements in post-communist constitutions have a potential to generate constitutional dissatisfaction. Two problems come to the fore: relationships between state agencies and ethno-national problems. As for the former, the relationships between executives and legislatures, as well as between legislatures and constitutional courts will most likely continue to generate dissatisfaction, particularly at the elite level. As for the latter, various problems, ranging from proper protection of minorities to power-sharing arrangements, will most likely occupy the post-communist constitutional agenda for a long time.

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CHAPTER 5 CONSTITUTIONAL CHANGE AND CONSOLIDATION OF DEMOCRACY As explained in the introductory chapter, this study is mainly concerned with probable constitutional changes in Eastern Europe and the former USSR. So far, the stability of regimes and constitutions has been explained on the basis of the concept of legitimacy deriving mainly from culture, constitutionmaking and effectiveness. Now we can recapitulate the essential points and discuss the relationships between constitutional change and the consolidation of democracy.

5.1. Causes of Constitutional Change Constitutions can change due to various causes. Since the causes of constitutional change display great variety, scholars usually avoid claiming to have developed a general theory of constitutional change. Banting and Simeon concluded in a study on constitutional change that: "Even if a single comparative theory of constitutional change is impossible to achieve ... there is much to be learned from a comparative analysis of efforts at constitutional change or renewal."1 In the current study we share their view in principle. We have started this study by creating a conceptual framework to explain the stability of regimes and constitutions. We have tried to explain the problem of stability by a three-pillar legitimacy model. In the second chapter we have studied the concept of culture as the first source of the legitimacy of regimes and constitutions. We have found that there is political support for democratic norms and principles in most post-communist countries, particularly in East European countries. Although this support derives more from people's expectations, or more correctly hopes, than from a deeply-rooted liberal democratic political culture, we have concluded that certain regimes enjoy sufficient political support to afford constitutional changes within themselves. In the second chapter we have also focused on the relationships between political culture and constitutions. We have argued that the more a constitu1.

Keith G. Banting and Richard Simeon, "Introduction: The Politics of Constitutional Change", in The Politics of Constitutional Change in Industrial Nations, (Keith G. Banting and Richard Simeon, eds.), Macmillan, London 1985, 3.

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tion embodies the dominant beliefs and values of members of a given political system, the more it has a chance to survive. In this way of thinking, cultural change can be seen as a source of constitutional change, provided that a given constitution reflects the culture of a given polity successfully. If political culture changes in such a political system, it will also most likely affect its constitution. Most 18th-century constitutions, for example, provided limited suffrage. As the political culture of the respective societies became more participatory, particularly due to industrial development, their constitutions were amended in such a way that they granted voting rights to the excluded segments of society. If a constitution does not reflect the political culture of a given society, it is quite conceivable that either culture or the constitution tends to change. German constitutional history provides two valuable examples which may illustrate these two possibilities. The Weimar Constitution of 1919, for example, failed to mirror the dominant culture of the German people at the time. The phrase of a "republic without republicans" has been used to characterize the Weimar Republic. In this case, culture proved to be resistant and liberal democratic institutions were dramatically replaced by totalitarian ones. The German Constitution of 1949, in turn, provided a counter-example. German political culture, particularly thanks to the effectiveness of post-war institutions, underwent a radical transformation, particularly in the 1970's. Since then, the Constitution has been enjoying almost unshakable legitimacy in Germany. When we turn to post-communist countries, we find both types of constitutions. The first group of post-communist constitutions, particularly the East European ones, reflects the dominant political cultures of the respective societies successfully. It is, however, important to note that the political culture reflected by these constitutions is a mixed one comprising pre-communist, communist and mainly post-communist elements. It follows that changes in this mixed culture may also produce constitutional changes. Consider property rights in the Bulgarian Constitution as an illustration. Article 17 of the Constitution guarantees private property, but the fourth paragraph of Article 18 provides the establishment of a state monopoly over such areas as railway transport and the national postal and telecommunications networks. This arrangement suggests that the Bulgarian Constitution embodies an amalgam of emerging liberal-capitalist orientations and statist values. Once the nascent middle class grows stronger in Bulgaria and a culture of individual initiative and self-reliance has taken root in society, this may lead to the revision of Article 18. This prediction can also be extended to other articles of post-communist constitutions. One cannot guarantee of course that cultural change will be directed towards a more liberal demo-

Chapter 5. Constitutional Change and Consolidation of Democracy

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cratic culture, but the socialization capacity of liberal democratic institutions and previous liberal democratic experiences of the countries concerned will help them to jettison certain pre-communist and communist elements from their political culture in the course of time. All in all, one should always bear in mind that culture does not change overnight. Thus, in the short run, it would be unrealistic to expect constitutional change deriving from cultural change in these countries. The second group of post-communist constitutions, in turn, does not perfectly reflect the dominant beliefs and values of the societies concerned. The majority of constitutions drawn up in the former Soviet republics fall into this category. As a rule, pre-communist and communist values which are hardly congruent with liberal democratic institutions are predominant in the political cultures of these countries, and their constitutions include certain arrangements reflecting these values. They also, however, introduce rather liberal democratic institutions. As far as the latter are concerned, the gap between constitutions and culture is much wider in these countries than in the countries of the first group. This being so, one may reasonably expect that either political culture, or the constitutions will change in the presence of such incongruency. Cultural change, however, may take generations. So, it would be more realistic to expect changes in constitutions. Indeed, such changes have already occurred in Belarus, Kazakhstan and Kyrgyzstan. Relatively liberal democratic constitutions were replaced by semi-authoritarian ones and people overwhelmingly approved these new documents in nation-wide referendums. This is also quite conceivable in other former Soviet republics. We know, however, today that to have a liberal democratic constitution, even though it is fictional, provides a number of advantages to non-democratic regimes at national and international levels. Thus, for the authorities of the republics in question, to retain current constitutions as they are would be wiser than to replace them with authoritarian ones. They already employ non-democratic methods in spite of democratic constitutions. There is no need to constitutionalize these non-democratic practices, particularly in view of international criticism. The second source of the legitimacy of constitutions is constitutionmaking. The latter appears as one of the most important moments in the establishment of a given regime. The consensual or dissensual characteristics of constitution-making affect the consolidation of democracy positively or negatively. The more a constitution emerges from the consensus of major political forces, the more it has a chance to survive and contribute to the overall legitimacy of the system. The consensual characteristics of a given constitution depend on whether all major political forces participate in constitution-making and whether they can express their opinions on constitu-

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tional problems as well as solutions freely. Transition to democracy, as the background of constitution-making, is also of importance in creating consensual or dissensual documents. We have studied transition to democracy and constitution-making in post-communist countries in the third chapter. We have focused in particular on the relationships between the modes of transition and the style of constitution-making. Accordingly, although post-communist countries made their transitions from authoritarian or totalitarian regimes to democracy in different ways (e.g., reform, rupture, as well as pacted and negotiated transitions), emerging constitutions displayed a common characteristic: they appeared as elite documents. In some former Soviet republics constitutions even appeared as leader constitutions. Moreover, in many cases, important groups were excluded from constitution-making or, even though they took part in the drawing up of new constitutions, the final documents failed to meet their expectations. In short, the majority of post-communist constitutions are far from being social contracts. Two sets of problems, those deriving from ethno-national issues and those deriving from the separation of power, generated serious disagreements about the basic institutions of emerging liberal democratic regimes. Most post-communist constitutions have been criticized on the grounds of inadequate minority protection and disproportionate power distribution. More importantly, in some countries, constitutions failed to gain substantial popular support. As a result, critical groups have called for constitutional revision immediately after the adoption of the constitutions concerned. Effectiveness is the third source of the legitimacy of constitutions. We have focused on the problems deriving from the performance of constitutions in the fourth chapter. Although it is too early to evaluate the effectiveness of most post-communist constitutions, we can safely maintain that major disagreements, or birth defects, emerging during the constitution-making processes, persist in many countries. We have defined the effectiveness of a given constitution as its capacity to meet the expectations of members of a given political system. Accordingly, it appears that new constitutions are not very successful in satisfying certain groups in most post-communist countries. The problems concerning the relationships between state agencies, particularly those between the executive and the legislature, and the protection of minorities are still being discussed both in Eastern Europe and the former USSR. It is not surprising that dissatisfied groups frequently articulate their demands for constitutional change. So far we have recapitulated the causes of probable constitutional changes in post-communist countries stemming from legitimacy problems. Constitutions, however, can change within regimes due to other causes. First and foremost, they may become obsolete owing to changing socio-economic


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conditions. In this case, the adaptation of a constitution to a changing environment becomes inevitable. Such changes do not necessarily violate the norms and principles of the regime. Rather, they involve the accommodation of basic institutions to new conditions which could not be predicted by the founding fathers. The 1983 revision of the Dutch Constitution, for example, did not alter the basic characteristics of the regime, but it entailed the adaptation of certain parts of the document.2 When we turn to post-communist countries, we can also expect to see such changes. Since socio-economic conditions change rapidly in these countries, even more rapidly than in many other European countries, regime authorities may need to adapt their constitutions. It is important to note that although we can reasonably anticipate such changes in post-communist countries, we cannot exactly determine when they will occur because the conditions which would lead to these changes are highly unpredictable. Not only changes in the national, but also in the international environment may require constitutional adaptation. A number of West European countries amended their constitutions to enter into or fulfill the requirements of the EU. Ireland, for example, amended its Constitution in 1972 and 1987 to join the European Community.3 Such constitutional changes are also possible in post-communist countries, particularly in Central and East European countries, including the Baltic republics. The ultimate goal of most of these countries is to be a part of Europe and Europe is willing to receive them into the EU. Thus as the integration process progresses, one may expect such constitutional changes in Eastern Europe. Poland, for example, has already included several articles in its new Constitution which would facilitate its integration into Europe. After heated discussions, lasting more than two years, Lithuania, in the same vein, amended Article 47 of its Constitution in a way to legalize the sale of land to non-citizens and private legal entities. This amendment cleared the way for the ratification of the Association Agreement between Lithuania and the EU.4 To sum up, there already are certain constitutional change demands in many post-communist countries. This, however, does not necessarily mean that these demands will actually result in constitutional change. In other words, those demanding such changes may never have an opportunity to implement their proposals or they may change their positions under certain conditions. Accordingly, to answer the question of whether constitutional 2. 3. 4.

Jan Vis, "The Netherlands (1983): The Failure of Constitutional Reform", in Constitutions in Democratic Politics, (Vernon Bogdanor, ed.), Gower Publishing Company, Cambridge 1988, 342-363. See Neil Collins and Franck McCann, Irish Politics Today, second edition, Manchester University Press, Manchester 1991, 88-91. See "Constitution Watch: Lithuania", 5 EECR 1996 No. 2/3,15.

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change demands will result in actual constitutional change, one should study the forms, processes and actors of constitutional change. Forms of Constitutional Change Constitutions may change in different ways, but three basic forms can be distinguished: usage and convention, judicial interpretation, and formal amendment.5 Let us examine these forms respectively. Usage and convention do not change the provisions of a constitution, rather they supplement certain provisions. That is to say, the text of a given constitution remains unaltered, but the practices, emerging in the course of the application of the constitution, become part of it. Such usage and conventions are counted among the sources of constitutional law in countries like the United Kingdom, which operates under an unwritten constitution. It would be misleading, however, to see constitutional change through usage and convention merely as a peculiarity of unwritten constitutions. It may emerge also under a written constitution. Since this type of constitutional change requires the application of a given constitution for a considerable length of time within the same regime parameters, it does not seem relevant for post-communist constitutions, at least in the short-run. The second way of constitutional change, judicial interpretation, refers to a mental activity carried out by judges during the legal process. Every legal rule requires interpretation. At the constitutional level, judges as a rule investigate the conformity of hierarchically inferior legal rules to constitutional provisions. Sometimes, however, the meaning of a given constitutional provision itself may not be clear. In this case, it is the task of the judge to determine the meaning of the ambiguous provision within the context of a given legal relationship. A constitutional provision usually acquires a new meaning thanks to judicial interpretation, produced exclusively by constitutional or supreme court judges in many countries. Most post-communist constitutions need judicial interpretation because of at least four reasons. First, some new constitutions were written hastily by constitution-makers who had limited experience with the institutions they were creating. Second, in some cases, borrowed Western institutions were insufficiently or clumsily adapted to national conditions. Third, economic, social and political conditions in these countries change so rapidly that constitutional provisions may require constant fine-tuning. Fourth, of the twenty-two countries under survey, Hungary is still following the comprehensively amended version of its communist constitution. This patchwork text contains a number of ambiguous regulations. 5.

See K.C. Wheare, Modern Constitutions, Oxford University Press, London 1971, 67136.


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Judicial interpretation requires several preconditions concerning constitutions and judges respectively. As for constitutions, they should be flexible enough to leave judges room for interpreting constitutional provisions. That is to say, constitutional provisions which claim to regulate a given area or relationship in detail may not be suitable for interpretation. This point underlines the advantages of short and ambiguously written constitutions. It can generally be said that most post-communist constitutions claim to regulate certain areas in detail. This constitutes an obstacle to judicial interpretation. A more important obstacle within the post-communist context, however, derives from the education and experience of judges. Most judges in these countries were educated and gained their professional experience under the communist legal system. As a result, they have limited experience with newly-created Western-style institutions. The legal culture of judges is also important in judicial interpretation. Communist legal culture created subservient judges who may perceive constitutional change through judicial interpretation as interference with the will of other state agencies claiming to represent the people. The third form of constitutional change, formal amendment, is our main concern in this study. This type of constitutional change may occur in two ways, full replacement and individual amendments. Full replacement usually occurs after major political crises, such as revolution, war, and achievement of independence. The American and French constitutions made after the Revolutions of 1776 and 1789, West European constitutions made after the Second World War, and African constitutions made in the aftermath of decolonization provide examples of such constitutional changes. Post-communist constitutions themselves also fall into this category. Full replacement is also possible within a given regime. The 1809 Instrument of Government, for example, was replaced by the 1974 Instrument of Government in Sweden. Formal amendments, however, usually involve individual amendments, occur within the framework of a given regime and respect legal continuity. The French Constitution of 1958, for example, was amended in this way in 1995. Within the post-communist context, total replacement has already occurred in Belarus and Kazakhstan. But, for the reasons explained above, we can expect individual—whether limited or comprehensive—constitutional amendments, rather than full replacement in post-communist countries. Processes of Constitutional Change Constitutions themselves determine the process of formal constitutional amendment. Accordingly, amendments are usually initiated and finalized by regime authorities. Most constitutions grant the right to propose constitutional changes to presidents, governments and to members of legislatures.

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The decision about the proposed amendment, as a rule, is taken by parliament. The required majority for the adoption of the proposal varies. Yet modern constitutions usually envisage qualified majorities (e.g., 2/3, 3/5 or 4/5) of legislatures. Sometimes, the people may be involved in the amendment process either at the beginning—i.e., the people may propose constitutional amendments—or at the end of it—i.e., they decide on the proposal through a referendum—or both. Almost all post-communist constitutions include presidents among those who have the right to propose or initiate a constitutional amendment procedure. Lithuania is an exception. The Lithuanian Constitution of 1992 gives no say to the President in the constitutional amendment process. Apart from presidents, a certain number of deputies, ranging from 1/3 to 1/5, can propose constitutional amendments under post-communist constitutions. The respective chambers of bicameral legislatures, e.g., the Russian and Romanian legislatures, can exercise this right individually. Some constitutions, e.g., the Moldovan and Russian constitutions, confer the right to initiate constitutional amendments also on governments. A few post-communist constitutions, e.g., the Belarussian, Romanian, Georgian, Kyrgyz, Lithuanian and Moldovan constitutions, envisage the initiation of constitutional amendment by the people. The method of approval of amendment proposals again displays great variety. Some constitutions stipulate the approval of amendments by the legislature, e.g., the Polish, Slovak, Georgian, Kyrgyz, Latvian, Moldovan, Turkmen and Uzbek constitutions, whereas others provides a referendum on a given constitutional amendment, e.g., the Armenian, Kazakh and Tajik constitutions. Some constitutions envisage parliamentary approval in some cases and referendum in other cases, e.g., the constitutions of the Baltic republics, the Russian and Ukrainian constitutions. The Romanian Constitution requires both parliamentary approval and referendum. The Albanian and Belarussian constitutions, in turn, allow constitutional amendment either through parliamentary approval or referendum. In some cases, e.g., Azerbaijan, Kyrgyzstan and Moldova, the examination of amendment proposals by constitutional courts is also necessary. Lastly, there are several approval methods in parliaments, such as double readings, and readings in a joint session of two chambers. The required majority, however, is usually 2/3. Another important issue in formal constitutional amendments is that, in some cases, constitutions may contain some unamendable provisions. For example, the provision of the French Constitution of 1958 stipulating that the republic is the form of government of France, and the provisions of the German Constitution of 1949 regulating the federal structure of the republic and individual rights and liberties, cannot be amended. Similarly most postcommunist constitutions limit constitutional amendments. First, they forbid


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to amend certain provisions, such as those determining the form of government. Second, they prohibit constitutional amendment during a state of emergency. Third, they forbid the repeated proposition of an amendment on the same issue within a certain period of time. Although some constitutions, e.g., the Kazakh and Armenian constitutions, confer broad powers on certain state agencies, particularly on executives, to change constitutions, it can generally be said that post-communist constitutions contain sufficient procedural guarantees to protect themselves against arbitrary revisions by strong majorities. However, to decide whether it is easy or difficult to amend a given post-communist constitution, one should consider the amendment procedure in connection with the political conditions of a given country. Undoubtedly, the method of "legislative approval by a 2/3 majority" would be theoretically easier than, say, the method of "legislative approval twice by a 2/3 majority + referendum",6 but one should always bear in mind that to muster a 2/3 majority would be more difficult in some countries than in others. A highly fragmented legislature may even make it impossible to amend a given constitution. In the same vein, approval by referendum may have different implications in different countries. Such factors as the political culture of a given society—whether it is a fragmented or unified culture; whether it is parochial, subject or participatory—the popularity of those proposing constitutional amendments and the content of the proposal may play a crucial role in the adoption or rejection of constitutional amendment proposals. One can generally claim that to change constitutions is easier in certain former Soviet republics than in Eastern Europe. This is particularly true for Central Asian and Transcaucausian republics where constitutions generally envisage the holding of a referendum on constitutional amendments and other important constitutional issues. Strong and charismatic leaders have already utilized the referendum device in some republics to impose their authoritarian constitutions. Where constitutions envisage parliamentary approval, it may not be so difficult to muster the required majority for dominant groups in most former Soviet republics thanks to the weakness or suppression of oppositions parties. Among the former Soviet republics, Russia provides a counter-example. To change the Russian Constitution of 1993, partly because of the provisions regulating the federal structure, is very difficult. As for East European countries, where constitutions, as a rule, require legislative approval for constitutional amendments, the difficulties of changing constitutions may derive mainly from the fragmented nature of legislatures. Although there have been some attempts to reduce the number 6.

For several proposal and approval methods and an evaluation of their difficulties, see Donald S. Lutz, 'Toward a Theory of Constitutional Amendment", 88 American Political Science Review 1994, 355-370.

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of parties in East European parliaments through electoral law design, most parliaments are still fragmented. Given the absence of a culture of negotiation and compromise, dissatisfied groups will encounter various difficulties in changing current constitutions in Eastern Europe. All in all, every constitution can be changed, provided that those intending to change it are not condemned to be a permanent minority. This observation brings us to the last point which we will discuss in this chapter, the actors of constitutional change. Actors of Constitutional Change Some authors explain institutional changes as a consequence of rational elite preferences who pursue their self-interests.7 These explanations undoubtedly shed light on the problem of constitutional change. Indeed, some empirical data suggest that constitutional change remains elite business and that the masses pay little attention to the issue. According to several public opinion surveys, for example, the general population remained indifferent to the 1982 Revision of the Portuguese Constitution.8 Other empirical data, however, suggest otherwise. According to a survey, carried out in 1994 in Argentina, the Argentine public had a fairly sophisticated understanding of the issues involved in constitutional reform.9 Although elite-based explanations of constitutional changes are mostly sound, one should not underestimate the role played by the public in these changes. Accordingly, it would be more suitable to focus on political parties as a link between elites and masses in constitutional changes.10 7.

According to Barbara Geddes, for example: "Those who make institutional changes pursue their own individual interests above all else and their interests center on furthering their political careers. Insofar as these interests remain stable—as they do in most times and places—political institutions will exhibit stability, even in what seem to be fluid political environments. Political institutions change only when, for whatever reason, they fail to serve the career interests of those with direct power to change them." Although Geddes did recognize also the importance of the policy preferences of politicians' constituents, she put the emphasis on the interests and behaviour of political elites. Barbara Geddes, "A Comparative Perspective on the Leninist Legacy in Eastern Europe", 28 Comparative Political Studies 1995, 241. 8. For these surveys and their assessment, see Thomas C. Bruneau and Alex Macleod, Politics in Contemporary Portugal, Lynne Riener Publishers, Boulder, Colorado 1986, 123-124. 9. Mark P. Jones, "Assessing the Public's Understanding of Constitutional Reform: Evidence from Argentina", 18 Political Behaviour 1996, 25-49. 10. According to Vernon Bogdanor, for example: "In every democracy, constitutional change depends upon a perception by political parties and leaders that change would be in their interests... Constitutional change therefore is intimately linked with the rise and fall of political parties." Vernon Bogdanor, "Conclusion", in Constitutions in Democratic Politics, (Vernon Bogdanor, ed.), Gower Publishing Company, Cambridge 1988, 385.


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When we put the problem of the actors of constitutional change into a legitimacy perspective, we can better understand the role of political parties. As the analysis made thus far suggests, legitimacy relates to support. Support, in this sense, mainly involves individual sentiments, but one can also speak of another type of support, given by groups. We can term this "political integration", to connote indirect legitimacy; a type of legitimacy channeled and mediated by groups.11 If a regime and a constitution rely on political integration, they would have more chance to survive. That is to say, if all major groups in a given political system hold the belief that the regime and the constitution are the most appropriate ones for them, the latter will enjoy an almost unshakable legitimacy. What is important to survive for a constitution and a regime is, therefore, to gain or maintain the support of major groups in a given political system. Of several groups, political parties play a crucial role in the establishment and maintenance of the legitimacy of a given regime and a constitution. To understand the role of political parties in constitutional changes properly, we can distinguish two types of demands for change: top-down and bottom-up demands. Top-down demands come typically from political parties. They try to promote their and their supporters' interests when they come to power. If a given constitution appears as an obstacle to realize their goals, they may attempt to change the constitution. In post-communist countries constitutional change demands concerning the relationships between the legislature, the executive and the judiciary generally derive from the constitutional dissatisfaction of political parties acting within and through institutions. Bottom-up demands are relatively rare and may vary with the amendment procedure laid down in the constitution. Popular involvement in constitutional change through initiative and referendum may encourage bottom-up demands. Political parties, in this case, either mobilize people or channel their grievances. On the other hand, the interest of the people in constitutional issues depends on their political culture. It can be maintained that people enjoying a participatory political culture may involve themselves in constitutional change more than those with a parochial or subject political culture. The presence of a viable civil society makes the task of political parties easier. For example, civil society organizations, such as civil rights groups and youth movements, played a vital role in the realization of several constitutional amendments to the American Constitution of 1787.12 In con11. Jean Blondel, Comparative Government, second edition, Prentice Hall, London 1995,57. 12. Stephen L. Schechter, "Amending the United States Constitution: A New Generation on Trial", in The Politics of Constitutional Change in Industrial Nations, (Keith G. Banting and Richard Simeon, eds.), Macmillan, London 1985, 160-202.

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nection with the latter point, one may safely assume that the content of the constitutional amendment is also of importance. Subjects affecting people directly, such as abortion, language or religious freedoms, may draw more public attention than subjects concerning a revision of the governmental machinery. In post-communist countries, although there are some constitutional problems directly affecting people's lives, current conditions are not favorable to generate bottom-up constitutional demands. First, there is a gap between elites and masses. Political parties do not properly represent the existing interests in post-communist societies. Moreover, party linkages to interest groups and interest groups themselves are weak.13 It seems that postcommunist political parties are not well-equipped to mobilize and channel people's constitutional dissatisfactions. As a result, given the absence of a consolidated party system, charismatic leaders may dominate or even manipulate the constitutional amendment process in some countries. This has already happened in some Central Asian republics and Belarus. Secondly, participatory elements are still missing or weak in the political cultures of many post-communist societies. As for the civil society, in spite of the vital role it played in the transition to democracy, there are many problems in the establishment of an active and viable civil society in post-communist countries. One of the most important problems, may be the most important one, in post-communist constitutional change concerns the constitutional dissatisfaction of ethno-national minority groups. Even though these groups manage to organize themselves into political parties by overcoming de facto and de jure difficulties, their demands may be perceived as a threat to the unity of the country and they can be punished by the majority. This prevents minority groups from articulating their constitutional dissatisfaction freely. More importantly, even though they manage to organize themselves and express their dissatisfaction, it is hardly possible for them to muster the majority required to amend the constitutions concerned. The difficulties in appeasing the constitutional dissatisfaction of minority groups can also be explained from a different perspective by a theory developed by a French author, Olivier Duhamel. According to Duhamel, the position of French political parties on the Constitution was determined to a great extent by the party's distance from power. That means that the further the parties are away from power, the more critical they are of the Constitution. The Left, for example, attacked the French constitutional system only when they were in opposition. Their attitude began to change as they were 13. Beverly Crawford and Arend Lijphart, "Explaining Political and Economic Change in Post-Communist Eastern Europe", 28 Comparative Political Studies 1995,184-186.


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approaching power. They abandoned their critical position with the advent of victory in the 1981 elections. Yet soon after their defeat in the 1986 legislative elections, they resumed their campaign against the Constitution. It is striking, however, that the position of the French Communist Party on the Constitution proved to be stable. They never came to power and always criticized the Constitution.14 Accordingly, political parties, articulating their constitutional dissatisfaction, may change their attitude due to the fact that they enjoy the advantages of power provided them by the constitution. The situation of ethno-national groups, however, is considerably different. They are usually condemned to perpetual opposition. Thus, although they are dissatisfied with the regime and the constitution, they encounter insurmountable difficulties in changing it within the framework of a given constitutional order. This has a potential to undermine a given regime and, increasingly, the political system.

5.2. Constitutional Change and Consolidation of Democracy So far, we have tried to show that, in spite of several difficulties deriving from its mechanisms and actors, constitutional change is quite possible in a post-communist setting. This being so, one may reasonably ask: Is it also necessary? In other words, what happens if constitutional dissatisfactions of certain political groups are not appeased? These questions bring us to the relationships between the consolidation of emerging liberal democratic regimes and constitutional change. Defining Consolidation of Democracy Transition and consolidation connote two different stages of democratization. Although there is no consensus among authors on when a transition starts and ends, it is generally accepted that consolidation is an overriding imperative for most countries making the transition from authoritarian or totalitarian regimes to democracy. Consolidation of democracy is not a well-defined concept.15 Several authors focus on different aspects of democratic regimes to define the 14. Mentioned by Guy Carcassonne, "France (1958): The Fifth Republic After Thirty Years", in Constitutions in Democratic Politics, (Vernon Bogdanor, ed.), Gower Publishing Company, Cambridge 1988, 251-252. 15. For several definitions of the concept, see Guillermo O'Donnell, 'Transitions, Continuities, and Paradoxes", in Issues in Democractic Consolidation, (Scott Mainwaring, Guillermo O'Donnell, and J. Samuel Valenzuela, eds.), University of Notre Dame Press, Notre Dame 1992, 17-56. Also see Guillermo O'Donnell, "Illusions About Consolidation",7 Journal of Democracy 1996 No. 2, 34-51.

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concept. To begin with, some authors, seeing competitive elections as the core of a democratic political system, put the emphasis on the importance of regularly held elections in consolidation of democracy. For example, according to Huntington's "two-turnover test", if those coming to power in the first election turn over power to those winning the subsequent election, and if the latter turn over power peacefully to the winners of a later election, one may consider democracy consolidated.16 Would it really be sufficient to hold free and competitive elections to consider a democracy consolidated? Our answer is negative. Since democratic regimes rely on popular consent more than other regimes do, to speak of consolidation, we should look beyond the procedural aspects of democratic regimes, i.e., we should focus on people's orientations towards these regimes. Some authors, in this respect, put the emphasis on the concept of legitimacy, along with free and competitive elections.17 They define the concept of consolidation as a process in which a broad and deep legitimation is achieved, when all significant political actors, at both elite and mass levels, believe that the democratic regime is better than any other regime that might have been established. Putting it differently, we may consider a regime consolidated when it becomes the "only game in town".18 These authors also underscore that "this legitimation must be more than a commitment to democracy in the abstract; it must also involve a shared normative and behavioral commitment to the specific rules and practices of the country's constitutional system."19 These definitions are compatible with our analysis, resting on the relationships between the regime and the constitution. Accordingly, one can maintain that disagreements over basic constitutional issues appear as an obstacle to the consolidation of democracy and that constitutional change may remove this obstacle. Although this conclusion explains the relationships between consolidation of democracy and constitutional change to a great extent, there is one more thing to consider. How can we draw a line between transition to democracy and consolidation of democracy from a constitutional point of view? Linz and Stepan made a distinction between completed transition and consolidation. This would be helpful in answering the latter question. Let us quote from Linz and Stepan at length to make our point: 16. Samuel Huntington, The Third Wave: Democratization in the Late Twentieth Century, University of Oklahoma Press, Norman 1991, 266-67. 17. Particularly see Richard Gunther, P. Nikiforos Diamandouros and Hans-Jiirgen Puhle, "Introduction", in The Politics of Democratic Consolidation, Sothern Europe in Comparative Perspective, (Richard Gunther, P. Nikiforos Diamandouros, and Hans-Jiirgen Puhle, eds.), Johns Hopkins University Press, Baltimore 1995, 1-32. 18. Juan J. Linz and Alfred Stepan, 'Toward Consolidated Democracies", 7 Journal of Democracy 1996 No. 2, 14-17. 19. Larry Diamond, "Is the Third Wave Over?", 7 Journal of Democracy 1996 No. 3, 33.


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Disagreements among democrats over such issues as a unitary versus a federal state, a monarchical or republican form of government, or the type of the electoral system may create questions about the legitimacy of the emerging democratic government, the decision-making process, and indeed the future of the political system. Such institutional indeterminacy about core procedures necessary for producing democracy may not only leave the transition incomplete, but also postpone any consolidation of democracy. We do not mean that there cannot be disagreement about the most desirable institutions early in the transition and in the constitution-making process. Such disagreement is normal. But a deep and continuous confrontation and ambivalence about democratic institutions among the political elites and the majority of the population, with no sign of accommodation to the enacted institutions, is certainly not conducive to consolidation. It is, therefore, disagreement not only about the value of democracy, but also about the specific institutions of a democracy that might make consolidation difficult.20 This quotation implies that an agreement about the constitution appears as a precondition of both completed transition and consolidation of democracy. This might be true, but before accepting this argument, a caveat is in order. Consider the Russian case as an illustration. Major political forces in this country rejected the Constitution and only 30% of the total electorate gave their support to the document in a nation-wide referendum. This being so, according to the criteria of Linz and Stepan, the Russian democracy can hardly be qualified as a consolidated democracy. But what about the completion of transition? Is the Russian democracy still in the phase of incomplete transition? Take another example. Only 30% of the people approved the new Polish Constitution in a referendum held on its adoption and most right-wing groups called for the replacement of the Constitution by a new one. Given the serious disagreements on the Polish Constitution at elite and mass levels, can we maintain that Poland has not yet completed its transition to democracy? We should apply Linz and Stepan's criteria loosely in answering these questions. That is to say, the presence of a minimum agreement about a constitution which at least would ensure its coming into effect should be sufficient for a completed transition. In this way of thinking, it can be argued that both Poland and Russia completed their transitions and are on the way to consolidation. So, what do they need for a consolidation of democracy? A minimum agreement on the regime and the constitution should not be sufficient to consider a democratic regime consolidated. There must be a 20. Juan J. Linz and Alfred Stepan, Problems of Democratic Transition and Consolidation: Southern Europe, South America, and Post-Communist Europe, Johns Hopkins University Press, Baltimore/London 1996,4, italics in the original.

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consensus on the legitimacy of democracy at the abstract and the national levels. We mean by consensus, a deeper and firmer commitment to the regime and the constitution. Most Western democracies meet this criterion. When we turn to post-communist countries, we observe serious disagreements about basic institutions. These disagreements, undoubtedly, create one of the most important obstacles to the consolidation of democracy. As we have said earlier, disagreements about the separation of power may fade away in the course of time, if the groups criticizing the arrangements in question find them to their advantage when they come to power. If this does not happen, constitutional change may become inevitable. The latter cure, however, can hardly be used for ethno-national ills. For minority groups have various difficulties in expressing their constitutional dissatisfaction and in realizing the constitutional amendments they desire. As a result, this has a potential to disturb or even disrupt the stability of the constitutional, and even the political system. This conclusion would be consistent with the analyses of many authors seeing ethno-national problems as an insurmountable obstacle to the consolidation of democracy.21

Conclusions In the light of the above discussion, we may conclude this study by speculating about the future of new liberal democratic constitutions in post-communist countries. In this respect, we may break down post-communist countries into three broad categories. Some countries have completed their transitions and have taken significant steps toward consolidation of democracy. That is to say democracy is almost the only game in town. The East Central European countries and the Baltic republics fall into this category. One may expect to see progress toward consolidation in these countries. In Poland, however, disagreements over the new Constitution stand as an obstacle to further consolidation. In the same vein, there are some problems in Slovakia. Hungary and Latvia are also in this category, but some constitutional change is in order in these countries, although not deriving from disagreement about basic institutions. Hungary is still operating under its comprehensively amended communist constitution. Thus it will most likely replace the latter by a new one in the near future. One should not, however, expect that the new constitution will be radically different from the present one. Latvia, in turn, restored its pre-communist constitution. It is still trying to bring it up to date through constitutional amendments. 21. Juan J. Linz, "Some Thoughts on the Victory and Future of Democracy", in Democracy's Victory and Crisis, (Axel Hadenius, ed.), Cambridge University Press, Cambridge 1997, 404-426.

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Countries in the second category have completed their transition, but their regimes are still far from being consolidated. The Balkan countries, Russia, Ukraine and Moldova fall into this category. Although in these countries democracy is still not totally safe, the majority of elites and masses seem to prefer democracy to other alternatives. There were some disagreements about specific democratic institutions during constitution-making processes and these disagreements still seem to persist. In Russia, in particular, constitutional change may be an important step toward consolidation, providing that such change does not violate the norms and principles of democracy. To sum up, democracy is still not the only game in town in these countries. There is complete consensus, neither on the game, nor on its rules, but a revision of the latter may attract more players. Georgia and Ukraine can also be placed in this category, but they are relatively in a better position in terms of the legitimacy of their new constitutions, at least at the elite level. Albania is another exception in this category. After the adoption of the Constitution of 1998 in an atmosphere of uncertainty, it is quite difficult to predict future constitutional developments in this country. Countries in the last category are the least promising ones in terms of democratization. In most of these countries one can hardly maintain that transition to democracy is complete. There are even some problems about the basic criterion of democracy—holding free and competitive elections regularly. First of all, there are certain reported irregularities in the elections which have been held so far. Ruling authorities suppress the opposition and curtail political liberties. Moreover, in some countries, presidents have extended their term of office through a referendum. To use the same metaphor again, not only is democracy not becoming the only game in town in these countries, they have either not yet started to play the game, or they do not observe its rules. The Central Asian republics, and Belarus fall into this category. In some of these countries certain constitutional changes have already occurred, but unfortunately these cannot be seen as a step toward consolidation. On the contrary, they have introduced semi-authoritarian institutions. Consequently, constitutional change seems possible, even necessary, in certain post-communist countries. It may be very difficult to change a given constitution under the peculiar conditions of a given country, but constitutional change seems the safest way to remove the disagreements about the rules and procedures of democracy as one of the most serious obstacles to its consolidation, while preserving its norms and principles. We may conclude this study with a thought of Carl J. Friedrich. According to him: .. .a constitution, any constitution, is not a panacea but an experimental attempt of arriving at a viable and legitimate government.22

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Although some have already proclaimed the end of history,23 this is obviously not the end of constitutional history. We believe that the search for good government will continue not only in post-communist countries, but also in other countries of the world...

22. Carl J. Friedrich, "Some Reflections on the Meaning and Significance of ConstitutionMaking in our Time", in Festschrift fur Karl Loewenstein, (Henry Steele Commager, ed.), J.C.B. Mohr, Tubingen 1971,129. 23. Francis Fukuyama, "The End of History", 16 The National Interest 1989, 3-18.

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BIBLIOGRAPHY Constitutions For the English translations of communist constitutions, see: The Constitutions of the Communist World, (William B. Simons, ed.), Sijthoff & Noordhoff, Alphen aan den Rijn, The Netherlands/Germantown 1980. The Constitutions of the USSR and the Union Republics, Analysis, Texts, Reports, (F.J.M. Feldbrugge, ed.), Sijthoff & Noordhoff, Alphen aan den Rijn, The Netherlands/Germantown 1979. For the English translations of post-communist constitutions, see: The Constitutions of New Democracies in Europe, (Peter Raina, ed.), Merlin Books, Cambridge 1995. The Rebirth of Democracy-12 Constitutions, Council of Europe Press, Strasbourg 1995. Constitutions of the Countries of the World, (Gisbert H. Flanz, ed.), Oceana Publications, Inc., Dobbs Ferry, New York 1996. Also see following internet resources: Constitution Finder (www.richmond.edu/~jpjones/confinder/) ICL: International Constitutional Law (www.uni-wuerzburg.de/law/)

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419

INDEX A Abdullojonov, A. 204 Abkhazia 354 abortus provocatus 224 absolutism 43, 45 enlightened, Eastern Europe 51-54 Adam Czartoryski 57 Adamec, L. 139 Adams, J. 167 Akayev,A. 199, 200, 201 Akopyan, R. 180 Albania constitution (provisional) 1991 151 Constitution 1946 82, 269 Constitution 1976 82 Constitution 1998 153 elections parliament 1991 151-153 ombudsman 260 parliamentary system 318-326 transition to democracy 110 Alekseev, S. 161 Alexander Cuza 62 Alexander I 57, 65, 66, 78 Alexander II 67 Alia, R. 150, 152 Aliyev, H. 184 Almond, G.A. 32 America. See United States Anastasios 152 Andrew II 39 Applewhite, H.B. 30 Aquinas 85, 218 Arato,A. 122 Aristotle 31 Armenia Armenian National Movement 179 Constitution 1995 182 constitution-making 178-182 Constitutional Court 295

president-parliamentary system 292-305 referendum 1991 179 referendum 1995 182 Aslanov, K. 203 Augustus III 53 Austria 51, 54, 56, 60, 64 Constitutional Court 251 Austria-Hungary 73 Austro-Hungarian Empire 60 autocracy Russia 47-49, 49 Azerbaijan Constitution 1995 184 constitution-making 182-184 Democratic Bloc 183 Popular Front 182 presidential system 281-291 provisions on referendum 347 referendum 1993 184 referendum 1995 184

B Bacon, F. 50 Baltic states 76 Banting, K.G. 365 Battle of the White Mountain 46 Beard, C.E. 115 behavioralism 6, 7 Belarus Constitution 1994 191 Constitution 1996 256 constitution-making 190-192 Constitutional Court 256 Council of the Republic 295 Ecological Union 190 elections president 1994 191 House of Representatives 295 Language Association 190 Popular Front 190

420


president-parliamentary system 292-305 provisions on referendum 348 referendum 1995 191 referendum 1996 192 Belgium Constitution 1831 58, 63 universal male suffrage 72 Belorussia. See Belarus Berg 56 Berisha, S. 152 Berlin Treaty 64 Berman, H.J. 80 Bielecki, J.K. 130 Bill of Rights 1689 215 Bill of Rights 1791 215 Bismarck 59 Bluhm,W.T. 37, 57 Bogdanor, V. 6, 9 Bohemia 37, 46, 60 Bolsheviks 79 Bosnia-Herzegovina 63 bourgeoisie 51 BoyarDuma 43, 47, 48 Brazauskas, A. 169 Brezhnev Doctrine 123 Brunner, G. 269 Brzezinski, Z. 9 Bufi,Y. 152 Bulgaria Bulgarian Empire 37 Club for Support of Glasnost, Perestroika 143 Constitution 1879 63-65, 333 Constitution 1947 82, 269 Constitution 1971 82, 269 Constitutional Court 257 Eco-glasnost 143 elections Constituent Assembly 1990 144 «July Concept» 143 Podkrepa 143 Round Table Talks 144 transition to democracy 109, 110 Union of Democratic Forces 333

universal male suffrage 72 Byzantine Empire 36, 37

c Calfa,M. 139, 140 Carolingian Empire 37, 38 Catherine II 52, 53 Catholics 44 Ceausescu, E. 147 Ceausescu, N. 147 censorship 242, 243 Central and East European Barometer 92, 94 Chanturia, G. 185 Charlemagne 37 Charles I 85 Charles of Hohenzollern 62 Charles X 58 charter Golden Bull 1222 39 MagnaCartal215 39 Charter 77 138 Chechnya 354, 361 Chechnya-Ingushetia 360 Chirac, J. 274 Christianity Eastern 33, 37, 38, 41 Western 33, 37, 38, 41 Church and state 38 Catholic 44 Orthodox 49, 53 Poland 126 Russia 42, 49, 53 Cicero 85, 218 «CityofGod» 38 «Civic Culture, The» 32 civil liberties 11 protection 248 «cohabitation» 274, 321 Commonwealth of Independent States 158 consilium 40 Constant, B. 10 Constantinescu, E. 332

Index constitution Albania (provisional) 1991 151 Albania 1946 82, 269 Albania 1976 82 Albania 1998 153 Armenia 1995 182 as social contract 117-118 Austria-Hungary 1867 60 Azerbaijan 1995 184 Belarus 1994 191 Belarus 1996 256 Belgium 1831 58, 63 Bulgaria 1879 63-65, 333 Bulgaria 1947 82, 269 Bulgaria 1971 82, 269 Czech Republic 1992 142 Czechoslovakia 1920 74 Czechoslovakia 1948 82 Czechoslovakia 1960 82 Czechoslovakia 1961 140 Estonia 1938 167, 168 Estonia 1992 168 France 1791 30, 52, 58, 113, 251 France 1793 55, 84 France 1795 55 France 1799 55 France 1804 55 France 1814 56, 58, 111 France 1830 58 France 1848 59 France 1852 59 France 1875 59 France 1958 21, 277, 372, 376 Georgia 1922 186 Georgia 1995 187 Germany 1849 59 Germany 1871 59 Germany 1919 73, 75, 366 Germany 1947 209 Germany 1949 215, 242, 366, 372 Grand Duchy of Berg 1812 56 Hungary 1848 60 Hungary 1946 136 Hungary 1949 82, 136, 269 Hungary 1952 110, 136, 154

421

Ireland 1987 369 Italy 1861 59 Italy 1948 215 Japan 1947 111 Kazakhstan 1993 196 Kingdom of Naples 1808 56 Kingdom of Westphalia 1807 56 Kyrgyzstan 1993 201 Latvia 1922 171, 172 Lithuania 1938 169 Lithuania 1992 171 Moldova 1994 189 Netherlands 1815 58 Piedmont-Sardinia 1848 59 Poland 1791 53, 56, 77 Poland 1793 55 Poland 1815 57 Poland 1921 75 Poland 1952 82, 269 Poland 1992 129, 130 Poland 1997 111, 132 Portugal 1976 19, 374 Portugal 1982 215 Romania 1866 61-63, 65 Romania 1923 75 Romania 1948 82, 269 Romania 1952 82 Romania 1961 269 Romania 1965 82, 148 Romania 1991 149-150 Russia (Soviet) 1918 82,359 Russia 1906 67, 70, 78 Russia 1993 162, 373 Slovakia 1992 141 Soviet Union 1924 82,359 Soviet Union 1936 82,215,269 Soviet Union 1977 81, 157, 159, 220, 221, 359 Spain 1978 215 Switzerland 1848 84 Switzerland 1874 84 Tajikistan 1994 204 Turkmenistan 1992 206 Ukraine 1996 178

422


United States 1787 52, 75, 84, 111, 113, 115, 250, 281, 375 United States, 1787 17 USSR 1977 82 Uzbekistan 1992 207 Yugoslavia 1921 74 constitution-making 22 Albania 150-153 and legitimacy 18, 367 Armenia 178-182 Azerbaijan 182-184 Baltic republics 164-172 Belarus 190-192 Bulgaria 143-146 Central Asia 192-207 constituent assemblies 113 definition 104 election of framers 113 elite characteristics 111-112 Estonia 165-168 founding elites 111 Georgia 185-187 Hungary 134-139 Kazakhstan 193-198 Kyrgyzstan 198-201 legal continuity 122 Lithuania 169-170 Moldova 187-190 national assemblies 113 Poland 125-132 ratification 118 referendum 118 Romania 146-150 Russia 159-163 style 115 Tajikistan 202-204 «through amendments» 121, 134 timing 120-122 Transcaucasia 178-187 Turkmenistan 205 Ukraine 173-177 Uzbekistan 206-207 constitutional change 5 actors of 374-377 bottom-up demands 375

forms of 370-371 processes of 371-374 through formal amendment 371 through judicial interpretation 370 through usage and convention 370 top-down demands 375 within regimes 22, 97 constitutional court and other state agencies 254-259 Armenia 295 Austria 251 Belarus 256 Bulgaria 257 composition 253 France 252 Germany 252 Hungary 137, 252, 258 Kazakhstan 256, 295 Kyrgyzstan 254 legitimacy 258 Portugal 252 Romania 254 Russia 254, 257 Slovakia 257 Spain 252 structure and authority 252-253 United States 252 constitutional review 250-251 «abstract» 252 «concrete» 252 ex ante 252 ex post 252 initation 253 constitutional studies 3 Anglo-American tradition 4 constitutional theory 2 constitutionalism 9, 12 and democracy 11 and nationalism 60 and political culture 34 communist 78 definition of 13 Eastern Europe 78 liberal democratic 12, 38, 45, 72 liberal, Russia 65-72

423

Index medieval 50 medieval, Balkans 41-43 medieval, Russia 41-43 «negative» 12 Poland 79 «positive» 12 religious foundations 33 religious foundations, Europe 3738 secular foundations 34 secular foundations, Europe 38-41 «stop-gap» 121 Western 82 constitutions and behavioralism 6 and heterogeneous communities 214 and institutionalism 6 and liberal-democratic systems 215 appeal to constitutional court 278 appointive powers 279 as political manifesto 8, 13 as power map 8, 13 as «social contract» 154 as supreme law 8, 13 causes of change 365-370 decree power 277 definition of 8 demo-power function 214 demo-protection function 213 effectiveness 211, 212 emergency powers 280 functions 9, 211-215 in operation 14, 20, 261 Janus-faced nature 3 legal approach 4-5, 7, 8 on paper 14, 20, 261 political approach 5-7, 7, 8 politico-legal nature 3 presidential powers 276 right to call referenda 277 right to initiate laws 277 supremacy of 16 veto power 278

Convention for the Protection of National Minoriti 353 Council of Europe 90, 353 Crampton, R.J. 65, 75 Crimea 354 Crimean War 62 culture components of 27 definition of 27 curia regis 40 Czartoryski, A. 65 Czech Republic Chamber of Deputies 343 Constitution 1992 142 parliamentary system 318-326 Senate 343 Czechoslovakia break-up of Federation 141, 154 Charter 77 138 Civic Forum 139 Constitution 1920 74 Constitution 1948 82 Constitution 1960 82 Constitution 1961 140 elections parliament 1990 139 elections parliament 1992 141 Public Against Violence 139 Round Table Talks 139 transition to democracy 109, 110 «Velvet Revolution» 139

D Dahl,R.A. 10, 34 De Gaulle, C. 277 death penalty 226 Declaration of Rights Man and Citizen 215 democracy and constitutionalism 11 consolidation of 5, 97, 377-380 contestation 10 definition of 10 demo-power 10, 11, 34, 89, 213, 333-338

424


demo-protection 10, 11, 34, 89, 213, 267 > 11 Germany 32 96 Italy 18, 32 liberal 11, 213 liberal, definition 10 Mexico 32 participation 10 «Third Wave» of 106 transition to 22, 97, 106, 107 United Kingdom 32 United States 17, 32 democratization studies 7 demokratizatsiya 157 Diamond, L. 16, 21, 29 Dicey, A.V. 85 dictatorship of the proletariat 219 domestic law and international 264 Dondukov-Korsakov, A.M. 64 Druc, M. 187, 188 Dubcek, A. 139 Duchacek, I.D. 8, 81, 112 Duhamel, O. 376 Duma 70, 71 Dusan, Stefan 42 Duverger, M. 274, 320

E Eastern Europe «new evolutionism>> 123, 134 transition to democracy 122 ECHR. See European Convention on Human Rights of 1950 economics as determinant of political culture 33 effectiveness 7, 19, 22 and «efficacy» 210 as source of legitimacy 368 definition of 210 of constitutions 211, 212 Elazar, D. 103, 358

Elchibey, A. 184 elections Albania parliament 1991 151-153 Belarus president 1994 191 Bulgaria Constituent Assembly 1990 144 Czechoslovakia parliament 1990 139 Czechoslovakia parliament 1992 141 Georgia parliament 1992 186,187 Hungary parliament 1990 136 Hungary parliament 1994 136 Kazakhstan parliament 1994 196 Kazakhstan president 1991 193 Latvia parliament 1993 172 Lithuania parliament 1992 170 Moldova parliament 1994 189 Poland parliament 1989 128 Poland parliament 1991 129 Poland parliament 1993 131 Romania parliament 1990 148-149 Tajikistan president 1994 204 Turkmenistan president 1991 205 Ukraine parliament 1994 176 Elster,J. 116, 140 Enlightenment 43, 50, 77, 85, 270 estate assemblies 40 Estonia Constitution 1938 167, 168 Constitution 1992 168 constitution-making 165-168 parliamentary system 318-326 Popular Front 164, 165 provisions on referendum 347 referendum 1992 168 «Restitution» 168 Riigikogu 347 EU. See European Union Eurobarometer 18 European Convention on Human Rights 1950 217, 223, 224, 226, 235, 236 European Union 101, 117, 153, 369

Index euthanasia 225 Evans, G. 88

F federalism 357 definition 358 Russia 358-363 Fedotova, L. 194 Feldbrugge, F. 159 Fergana Valley 198 feudalism 38, 42 Finer, H. 6 Finer, S.E. 9 Fishman, R. 13 Fokin, V. 174 Founding Fathers 111 France 44, 50, 55, 59, 63, 65, 107 «cohabitation» 274 Constitution 1791 30, 52, 58, 113, 251 Constitution 1793 55, 84 Constitution 1795 55 Constitution 1799 55 Constitution 1804 55 Constitution 1814 56, 58, 111 Constitution 1830 58 Constitution 1848 59 Constitution 1852 59 Constitution 1875 59 Constitution 1958 21, 277, 372, 376 Constitutional Council 252 Declaration of Rights of Man and Citizen 1789 51,215 Fifth Republic 274, 309 Kingdom of 37 Revolution 1848 59-60 Third Republic 74, 76 universal male suffrage 72 Freedom House 261 Friedrich, C.J. 9, 117, 355, 381 Fuchs, D. 20

425

G Gaidar, E. 163 Gambar, I. 184 Gamsakhurdia, Z. 185, 186 Gapon, G. 68 Gdansk 126 Gelasius I 38 Georgia Constitution 1922 186 Constitution 1995 187 constitution-making 185-187 elections parliament 1992 186, 187 National Democratic Party 185 National Independence Party 185 ombudsman 260 presidential system 281-291 provisions on referendum 349 referendum 1991 186 Round Table-Free Georgia 185 Germanic tribes 36, 37 Germany 59, 63, 107 Constitution 1849 59 Constitution 1871 59 Constitution 1919 73, 75, 366 Constitution 1947 209 Constitution 1949 215, 242, 366, 372 Reichstag 292 Revolution 1918 73 universal male suffrage 72 Weimar Republic 292 Gheorghiu-Dej 147 Gibson, J.L. 90 Giles of Rome 38 glasnost 123, 143, 157, 164, 165, 173, 178 Golden Bull 39 Goodin, R. 214 Gorbachev, M. 124, 156, 157 Grand Duchy of Warsaw 56 Greece 107 Gregory VII 38 Grosz, K. 135 Grotius, H. 218

426


groups and democracy 212 definition 212 Gryb, M. 256 Guidorossi, G. 20 Guizot, F. 59 Gumbaridze, G. 185

Social Democratic Party 135 Socialist Workers' Party 134 Szatmar Compromise 46 transition to democracy 109 Huntington, S.P. 106, 108, 109, 378 Husak,G. 138 Husseinov, S. 184

H

I

Habsburg Lands 45, 46, 52, 60, 61 Havel, V. 138 Hindenburg, P. 73 Hitchins, K. 63 Hitler, A. 73 Hofferbert, R.I. 94 Holmes, S. 11 Hoxha, E. 150 human rights definition 216 European Convention 1950 217, 223 liberal conception 218-221 socialist conception 219-220 Universal Declaration 1948 217 Hungary April Pact 136, 154 Christian Democratic People's Party 135 Constitution 1848 60 Constitution 1946 136 Constitution 1949 82, 136, 269 Constitution 1952 110, 136, 154 Constitutional Court 137, 252, 258 Democratic Forum 134 elections parliament 1990 136 elections parliament 1994 136 Hungarian Kingdom 37 Independent Smallholders Party 135 New Economic Mechanism 134 ombudsmen 260 parliamentary system 318-326 premiership government 137 Round Table Talks 135, 154 September Pact 136, 154

ICCPR. See International Covenant Civil Political Rights Iliescu, I. 149 India 33 institutionalism 7 «new» 6 «old» 5, 6 International Covenant Civil Political Rights 217, 223, 224, 236 international law and domestic law 264 internationalization 100 Ireland Constitution 1987 369 Italy 59 Constitution 1861 59 Constitution 1948 215 Ivashko, V. 173 J

Jakes, M. 138 Japan 33, 107 Constitution 1947 111 Jaruzelski, W. 126 John 39 Joseph II 52

K Kadar,J. 134 Kant, I. 85 Karimov,!. 206, 207 Karl, T.L. 14 Katsarov, Z. 333 Kazakhstan Alash 193

Index Assembly of the Peoples of Kazakhstan 197 Azat 193 Constitution 1993 196 constitution-making 193-198 Constitutional Court 256, 295 elections parliament 1994 196 elections president 1991 193 Independent Socialist Party 193 Majlis 295, 296, 341, 345 Nevada-Semipalatinsk 193 president-parliamentary system 291-305 referendum (constitution) 1995 197 referendum (presidency) 1995 197 Senate 345 Zheltoqsan 193 Kebich,V. 191 Kelsen,H. 9, 251 Khasbulatov, R. 336 Khmaladze,V. 187 Khrushchev, N.S. 86, 87 Kievan Russia 37, 42 Kingdom of Bohemia-Moravia 37 Kingdom of Bulgaria 37 Kingdom of England 37 Kingdom of France 37 Kingdom of Hungary 37 Kingdom of Poland 37 Klaus, V. 141 Klingemann, H.-D. 94 Kocharyan, R. 182 Kochubey, V. 65 Kolbin, G. 193 Kotowski, C.H. 105 Krasner, S.D. 15 Kravchuk.L. 174, 175 Kuchma, L. 175, 176, 177 Kunayev, D. 193 Kvyatkovskaya, T. 196 Kwasniewski, A. 132 Kyrgyzstan Ashar 198

427

Assembly of People's Representatives 346 Constitution 1993 201 constitution-making 198-201 Democratic Movement 199 Jogorku Kenesh 346 Legislative Assembly 346 OshAymaghi 198 president-parliamentary system 291-305 provisions on referendum 347 referendum 1995 201 referendum 1998 202

L Lajos Kossuth 60 Landsbergis, V. 169, 170 Latin America 100, 120 Latvia Constitution 1922 171, 172 elections parliament 1993 172 parliamentary system 318-326 Popular Front 164, 171 referendum 1990 171 legal continuity 122 legal culture 4 legal institutions 4 legal science comparative method 7 dualist theories 4 natural law theories 218 natural law theory 4 positive law theories 4 sociological theories 4 legislature bicameral 340 unicameral 340 legitimacy 4 «abstract» level 17 and effectiveness 19 and political culture 18, 366 and political support 17 and trust 17 constitution-making 367

428


definition of 16, 17 effectiveness 368 «national» level 17 three-pillar model 22 Lenin, V.I. 79, 84, 86, 87 liberties civil 217, 222 international protection 264 right to life 222, 223-227 liberum veto 54, 55 Lijphart,A. 271, 273, 320 Linz, JJ. 16, 21, 23, 107, 108, 147, 210, 378 Lippmaa, E. 168 Lipset,S.M. 16, 19, 21, 23, 210 Lithuania Constitution 1938 169 Constitution 1992 171 constitution-making 169-170 elections parliament 1992 170 premier-presidential system 308-316 referendum 1991 169-170 referendum 1992 170 Sajudis 164, 169, 171 Locke, J. 10, 50, 85, 218 Louis Philippe 59 Lukanov, A. 144, 145 Lukashenka, A. 191, 192, 256, 352 Lukianov, S. 64 Lupu, V. 42

M Madison, J. 83 Magna Carta 39 Main waring, S. 108 Majlis 295, 296 Makhkamov, K. 202 Mamadov,Y. 183 Manukyan.V. 182 Marbury v. Madison 250 Maria Theresa 52 Marsilio of Padua 38 Marx, K. 84, 219

Marxism-Leninism 78, 82, 84, 85, 219, 220, 269 Masaliyev, A. 199 Masol.V. 174, 176 Mazowiecki, T. 129 McAllister, I. 163 McWhinney, E. 120 Meciar,V. 141, 258 media 242 Meksi, A. 152 Merkl, P.H. 101 Michael I 332 middle class «new» 92 Mihailov, V. 333 Mikhail Romanov 48 minorities definition 353 legal solutions 355 political solutions 357 Minsk Agreement 122, 175 Mishina, A. 161 Mitterand, F. 274 mixed constitution 83 Mladenov, P. 143 modernization 100 Moldavia 61, 62 Moldova Christian Democratic Popular Front 188 Constitution 1994 189 constitution-making 187-190 election parliament 1994 189 GagauzSSR 188 Popular Front 187 premier-presidential system 308-316 provisions on referendum 348 referendum 1994 189 Transdnestrian SSR 188 Molotov-Ribbentrop Pact 164, 165, 169 monarchy definition 331 Montesquieu, C.S. 50, 83

Index Moroz, O. 176, 177 Moscow 89 Muraviev, N.M. 66 Muravski,V. 188 Mutalibov,A. 183, 184

N Nabiyev,R. 202, 203 Nagorny-Karabakh 179, 182, 183, 354 Nano, F. 151, 152 Naples 56 Napoleon 55, 56, 57, 59 Napoleon III 59 national self-determination 73 nationalism 57 «civic» 354 «ethnic» 354 Nauzhuvanov, M. 203 Nazarbayev, N. 193, 197, 256 Netherlands 107 Constitution 1815 58 New Democracies Barometer 90, 92, 99 Newton, I. 50 Nicholas I 59, 62, 66 Nicholas II 68 Niyazov, S. 205, 206 nomenklatura 128, 157 Norway 107 Novosiltsev, N. 57, 65 Nowak, M. 224

O October Manifesto 68, 69, 78 O'Donnell, G. 106 Offe,C. 105, 363 Olesky,J. 132 Olszewski, J. 130 ombudsman 259-261 one man-one vote 113 Osiatynski, W. 79 Ottoman Empire 61, 63, 73

429 P

parental law (Soviet Union) 80 Paris Commune 84 parliamentary system Albania 318-326 assessment of 329-331 Czech Republic 318-326 definition 270 Estonia 318-326 Hungary 318-326 Latvia 318-326 pure 275 United Kingdom 318 «with» President See parliamentary system «with» President parliamentary system «with» President Bulgaria 327-328 Slovakia 330-331 Pawlak,W. 130, 132 Paznyak, Z. 191 Peace of Westphalia 44 perestroika 87, 123, 143, 157, 164 Peter the Great 49, 53 Petro,N.N. 47, 48, 68 Peykov, T. 333 philosophes 50, 51, 85 Piedmont-Sardinia 59 Pippin 37 Poland 52, 56, 77 Constitution 1791 53, 56, 77 Constitution 1793 55 Constitution 1815 57 Constitution 1921 75 Constitution 1952 82, 269 Constitution 1992 129, 130 Constitution 1997 111, 132 elections parliament 1989 128 elections parliament 1991 129 elections parliament 1993 131 liberum veto 46, 54, 55 Little Constitution. See Poland: Constitution 1992 «Noble Democracy» 54 ombudsman 260

430


party-soldiers 127 Polish Kingdom 37 premier-presidential system 308-316 provisions on referendum 348 Round Table Talks 128, 154 Sejm 342 Senate 342 Solidarity 125 transition to democracy 109 political culture 6, 7, 18, 22 «alternative» 91 and constitutions 100 and economics 33 and religion 33 as source of legitimacy 366 capacity of change 29 civic culture 32 civic-culture approach 28, 29 communist 78, 79, 80, 87 definition of 28 Eastern Europe 77, 79, 98 «elite» 30 heterogeneity 30 «international» 101 liberal democratic 34 «mass» 30 medieval, European 36 post-communist 98 Russia 48, 68, 77, 79, 98 socialization 28, 81 studies 31 «sub-cultures» 30 political rights See rights political science behavioralism 6 comparative method 7 discourse theory 6 game theory 116 legal-institutional approach 6, 31 political cultural studies 31 rational choice theory 6, 116 political system definition of 13 Polonsky, A. 76

Popov, D. 145 Portugal 107 Constitution 1976 19, 374 Constitution 1982 215 Powell Jr., G.B. 32 Pozsgay, I. 135 premier-presidential system 308 assessment of 316-318 Lithuania 308-316 Moldova 308-316 Poland 308-316 Romania 308-316 president-parliamentary system 275 Armenia 291-305 Belarus 292-305 Kazakhstan 292-305 Kyrgyzstan 292-305 Russia 292-305 Turkmenistan 292 Ukraine 292 presidential system assessment of 305-308 Azerbaijan 281-291 definition 270 Georgia 281-291 premier-presidential. See premierpresidential system pure 275 Tajikistan 281-291 Uzbekistan 281-291 Protestants 44 Prussia 51, 54, 56 Przeworski, A. 100, 120 Pugo,B. 171

R Raidla, J. 167 Rechtstaat 85 referendum Albania 1994 152-153 Armenia 1991 179 Armenia 1995 181 Azerbaijan 1993 184 Azerbaijan 1995 184 Belarus 1995 191

Index Belarus 1996 192 constitutional provisions on 277 definition 347 Estonia 1992 168 Georgia 1991 186 Kazakhstan (constitution) 1995 197 Kazakhstan (presidency) 1995 197 Kyrgyzstan 1995 201 Kyrgyzstan 1998 202 Latvia 1990 171 Lithuania 1991 169-170 Lithuania 1992 170 Moldova 1994 189 Russia 1993 160, 162 Tajikistan 1994 204 Turkmenistan 1991 205 Ukraine 1991 175 Uzbekistan 1991 206 Reform Act, 1832 72 reforma 107, 109, 110 reforma pactada-ruptura pactada 107 Reformation 43, 45, 49 regime and constitution 14, 15 definition of 13, 14 norms and principles 15 rules and procedures 15 regime change 5 Reichstag 74, 292 religion as determinant of political culture 33 Renaissance 43, 44, 45, 49 republic definition 331 Revolution 1989 1 definition 105 Eastern Europe 1989 105 France 1830 58-59 France 1848 59-60 Germany 1918 73 Industrial 51 Romania 1848 61

431

Russia 1905 67, 68, 71, 84 Russia 1917 36, 84, 358 «self-limiting» 123 «Velvet» (Czechoslovakia) 139, 140 rights associations 242 concept of 216 constitutional 216 electoral 233 freedom from slavery 228 freedom from torture 228 freedom of assembly 242 freedom of expression 234 freedom of movement 232 freedom of the press 240 freedom of thought 230 human. See human rights information 234 legal 216 minority 353 natural law theories 218 «negative» 217 political 217 political, post-communist constitutions 233-244 «positive» 218 privacy 228 property 232 protection 248 social and economic 217, 245248 to life 222 Roman Empire 36, 37 Roman, P. 149 Romania 77 Chamber of Deputies 344 Constitution 1866 61-63, 65 Constitution 1923 75 Constitution 1948 82, 269 Constitution 1952 82 Constitution 1961 269 Constitution 1965 82, 148 Constitution 1991 149-150 constitution-making 146-150

432


elections parliament 1990 148-149 ombudsman 260 premier-presidential system 308316 Revolution 1848 61 Senate 344 Sfat 42 transition to democracy 109, 110 universal male suffrage 72 Rose, R. 163 Round Table Talks 123 Bulgaria 144 Czechoslovakia 139 Hungary 154 Poland 154 Rudden, B. 9 rule of law 13, 16, 18, 82, 213 communist rejection of 84-87 England 85 Rumyantsev, O. 159 ruptforma 109 ruptura 107, 109, 110 Rurik 47 Russia 52, 56 Assembly of Factory and Mill Workers 68 Bloody Sunday 68 Bolsheviks 79, 358 BoyarDuma 47, 48 Church 42, 53 Congress of People's Deputies 159 Constitution 1906 67, 70, 78 Constitution 1918 82, 359 Constitution 1993 162, 373 Constitutional Court 257 «constrained autocracy» 47, 49 Council of the Federation 345 Days of Freedom 71 Decembrists 66 Federal Treaty 1992 360 federalism 358-363 Federation Council 295 gubernii 359 House of Rurik 47 krais 360

liberal constitutionalism 65-72 Mongol Invasions 49 Muscovite Dynasty 47 oblasts 360 oblasts, autonomous 360 October Manifesto 68, 69, 78 okrugs 360 Petition of 9 January 1905 68 president-parliamentary system 291-305 referendum 1993 160, 162 Revolution 1905 67, 68, 71, 84 Revolution 1917 84, 358 State Duma 294, 345 Time of Troubles 47, 48, 49 Unofficial Committee 65 Vyborg Manifesto 71 ZemskiiSobor 47, 48 zemstvos 68 Russian Federation. See Russia Russian-French War 65 Rutskoi,A. 162, 336 Ruutel.A. 167

s Sajudis 164, 169, 171 San Stefano 63 Sangheli,A. 188 Sarasenbayev, M. 195 Sartori,G. 9, 10, 213, 272 Schaar, J. 23 Scheidemann, P. 73 Schmitter, PC. 14, 106 Schopflin, G. 97 Schumpeter, J. 10 Second Serfdom 46 Sedlar,J. 41 Sejm 54, 57, 75, 131, 132 semi-presidential system. See premierpresidential system separation of powers 13, 15, 18, 82, 213, 269, 270 communist rejection of 83-84 Serbia 37, 41, 61, 63 Stanak 42

Index Seton-Watson, H. 67 Shakhrai, S. 160 Shapiro, M. 259 Share, D. 13, 108 Shcherbitsky, V. 173 Shelest, P. 173 Shevardnadze, E. 186 Shugart, M.S. 274 Shushkevich, S. 190 Simeon 333 Simeon, R. 365 Simko, I. 258 Slavic tribes 36, 37 Slovakia Christian Democratic Movement 258 Constitution 1992 141 Constitutional Court 257 Movement for a Democratic Slovakia 258 Snegur,M. 187, 188 Sobchak,A. 160 Solidarity Movement 125 Solikh, M. 206 Soviet Union August Coup 158, 165, 166, 175 Constitution 1924 82, 359 Constitution 1936 82, 215, 269 Constitution 1977 81, 82, 157, 159, 220, 221,359 Minsk Agreement 158, 175 «parental law» 80 perestroika 87 transition to democracy 110, 155159 Union Treaty 158 Spain 44, 107 Constitution 1978 215 Speranskii, M. 66 St. Augustine 38 Stalin, I.V. 86, 87 Stanislas Poniatowski 52, 54, 77 state and Church 38 State Duma 294

433

Stepan,A. 107, 108, 147, 378 Stolojon, T. 149 Stolypin, P.A. 71 Stone, A. 259 Stroganov, P. 65 Suchocka, H. 130 suffrage one man-one vote 113 universal 113 universal male, Belgium 72 universal male, Britain 72 universal male, Bulgaria 72 universal male, France 72 universal male, Germany 72 universal male, Romania 72 survey method 88 Svensson, P. 20 Switzerland Constitution 1848 84 Constitution 1874 84 symphonia 42

T Tajikistan Constitution 1994 204 constitution-making 202-204 Democratic Party 203 elections president 1994 204 Islamic Renaissance Party 203 Lale Badakhshan 203 presidential system 281-291 Rastokhez 203 referendum 1994 204 United Opposition 204 Tatarstan 354, 360 Ter-Petrossian, L. 178 Thirty-Years War 44 Time of Troubles 47, 48 Tito, J.B. 79 Tokes, L. 147 Transcaucasian SFSR 359 Transdnestria 188 transition to democracy. See democracy: transition to

434


treaty Adrianople 1829 61 Berlin 64 Bucharest 1812 61 lasi 1792 61 Paris 1858 62 San Stefano 63 Soviet Union 158 Tilsit 56 Verdun 843 37 Vienna 57 Treaty of Paris 62 Treaty of Tilsit 56 Tsereteli, I. 185 Tsikhinya, V. 256 Turkmenistan Agzybirlik 205 Constitution 1992 206 constitution-making 205 Democratic Party 206 elections president 1991 205 Erk 206 etrap 296, 342 khakims 296, 342 Khalk Maslakhaty 296, 341, 348 president-parliamentary system 291-305 referendum 1991 205 Turnovo Assembly 64 two-turnover test 378 Tyminski, S. 129

u Ukraine Constitution 1996 178 constitution-making 173-177 elections parliament 1994 176 «Little Constitution* 176 «power-bill» 176 president-parliamentary system 291-305 provisions on referendum 349 referendum 1991 175 RUKH 173 Verkhovna Rada 294

United Kingdom Bill of Rights 1689 215 constitutional system 58, 72 Great Council 40 House of Commons 340 House of Lords 340 Reform Act 1832 72 United States Bill of Rights 1791 215 Constitution 1787 52, 75, 84, 111, 113, 115, 25Q 281, 375 Constitution 1987 17 Declaration of Independence 51 Founding Fathers 111 Marbury v. Madison 250 Universal Declaration of Human Rights 1948 217 universal suffrage 113 Urbanek, K. 139 USSR. See Soviet Union Uzbekistan Birlik 206, 207 Constitution 1992 207 constitution-making 206-207 presidential system 281-291 referendum 1991 206

V Van Caenegem, R.C. 45 Van der Tang, G. 211 Van Maarseveen, H. 211 vanguard of the proletariat veche 43 Verba, S. 32 Verdun Treaty 37 Verkhovna Rada 294 Vernadsky, G. 42, 43 Verney, D.V. 270 Vezirov,A. 183 Vienna Congress 57 Vigris,J. 171 Vishinsky, A. 269 Vishinsky, A. Y. 84 Voltaire, F.M.A. 50, 51 Vyborg 71

220

435

Index

w

Y

Walesa, L. 126 Wallachia 41, 61, 62 Warsaw 56, 57 Watkins, F. 60 Weber, M. 22, 122 Weimar Republic 292 Westernization 78 Westphalia 56 White, S. 47, 48, 163 Whitefield, S. 88 «world culture» 101 World War, First 71, 72, 76, 78, 358 World War, Second 36, 79

Yaroslavl' 90 Yeltsin, B. 159, 257, 336 Yugoslavia Constitution 1921 74 Yuzkov, L. 174

z Zakharanka, Y. 256 Zemskii Sobor 47, 48 zemstvos 68 Zhelev, Z. 145 Zhirinovsky, V. 163 Zhivkov, T. 143 Zogu, A. 332 Zogu, L. 332


437

ABOUT THE AUTHOR Levent Gonenc, is an assistant professor at the Ankara University Law Faculty. He obtained his LL.M. degree from the Ankara University Social Science Institute in 1994 and his Ph.D. degree from the Leiden University Law Faculty in 1998. He has been teaching constitutional law at Ankara University since 1999. He is currently working on several comparative projects in the field of law and political science.

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Democratization in Eastern Europe

Investor Protection in the CIS (Law in Eastern Europe)

Financial Crisis in Eastern Europe

Buying Property in Eastern Europe

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Russia, Europe, and the Rule of Law (Law in Eastern Europe)

Prospects for improving nutrition in Eastern Europe and Central Asia

Private and Civil Law in the Russian Federation (Law in Eastern Europe)

Euthanasia and Law in Europe

Economic Lessons For Eastern Europe

Populism, Racism and Society in Eastern Europe

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Political Parties in Post-Communist Eastern Europe

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