Masterclass RosenDimov PDF

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Post-Communist Constitutions:

New Beginning for countries in

Central and Eastern Europe?

Montesquieu Masterclass 2010 Brick by Brick. BuildingEuropean Parliamentary Systems before and after 1989

By Rosen Dimov

[email protected]

Date: 10 June 2010

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1. Introduction

The Berlin wall fell down in the late 1989: a symbolic act that sparkled hopes among

repressed victims of Communism in the rest of Europe. A cascade of events followed

thereafter, leading to the collapse of the former regime. However, alike the remaining pieces

of the Berlin wall and the skyscraper panels of flats for the labour class, the totalitarian

system did not disappear thoroughly. Imprints on the economic life, the common way of

thinking, the bitter lack of justice could not be removed with the mere adoption of a new

constititution. Constitutions, again embodying the romantic expectations of the ordinary

people, did not proove to be the panacea that everyone needed. Furthermore, the

necessitated solutions varied from country to country, even going deeper into the federated

entities (for instance, former Yugoslavia) and did not overlap entirely in temporal terms.

xceptions from the constitutional wave which flooded Central and Eastern Europe also pose

a question to the universal character of the new beginning that is claimed by both

protagonists and antagonists of the Communist times slipping by.

2. Choice of the subject

Being a human creature, I admit that the reasons why I opted for this subject are not

solely academic. As a citizen of Bulgaria, which was a Soviet satellite during the Communist

era, I fully understand that all the academic masterpieces available shall be used to analyse

the situation accompanying the rebirth of democracy in my country as well as the rest of the

block. I am also curious to dissect the constitutions of other Central and Eastern European

Countries that have made a lesser or huger progress ever after the former regime collapsed.

Before I came to the Netherlands for a pilot, experimental final-year programme in

International Law, I was thought in my home university (New Bulgarian University) by one of

the fathers of constitutionalism in my motherland, prof. Evgeny Tanchev, a member of the

Venice Commission and presiding judge in the Bulgarian Constitutional Court. I learned that

the constitutions are the very basics of the whole development in legal, economic, cultural,

societal respects, etc. Studying in the Netherlands and attending the highly selective

programme of the Montesquieu Institute, I got another perspective. Now I am wondering if

constitutions are omnipotent. If not, it seems that democracy in Central and Eastern Europe

was not restarted. Therefore, for these constitutions are still in effect, does it mean that my

country and the rest of the Soviet satellites have not jumped out of Communism? Hence, it

would be completely comprehensible for me when I receive greetings (in Bulgaria and other

red states of the former fraternity) by passers-by, addressing me as their comrade. They

might be right that the epoch is not gone completely.

Another important argument why I prefered this topic is that I believe in emerging

leadership throughout former Communist Europe. Particularly, I see myself as an integralpart of it, adding my contributions to the reforms in Bulgaria especially. I cannot accept that I

was deceiving myself that I live under a new system or by all my civil efforts I have

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strengthened the remnants of totalitarism. I would feel like a guilty failure, remorsefully

looking back at all young fellows that I have brought up into campaigns to stop corruption, for

example.

Last but not least, I realise my modest role in writing this piece. It is not going to be

tremendous chef-d'oeuvre in the realm of science. By contrast, it is going to be a re-

energising relief for myself and a motivating impetus for all high spirited changemakers

across Central and Eastern Europe.

3. Goal

This paper is intended to give a new insight into the re-start of democracy in Central

and Eastern Europe. It is targetted at constitutions as the primary substance but also zooms

into the multiplicity of events and stakeholders gravitating around the initiation of

constitutionalism into post Communist Europe. It is designed to bear another grasp also of

the long-term consequences entailed therein. Thus, it is going to be a fascinating paper

alluring to academics and practitioners as well as the passionate worshippers of

constituionalism.

4. Problem

Herein the primary issue constitutes the challenging of the role of constitutions in the

re-establishment of Central and Eastern European countries. As this is not a yes/no

question, the alternatives are reviewed via the magnifier of the climate leading to the birth of

new constitutions, the influences over these fundamental documents, the contents and the

potential threats posited in the provisions.5. Methodology and literature

With regards to my limited skills in research methods, the instrument of literature

review was most frequently employed in the paper. Yet, it is compensated by reliance of

plausibe written resources produced by renown scholars of utmost stature, who have

processed a wide range of empirical material prior to elaboration of the theoretical

conclusions. Their input was chosen because their common aceptance is proven by citations

by other authors or use as didactic supply in the academic curriculum. The full list of

literature is attached to the body of the text.

A survey into the constitutional provisions of Central and Eastern European states was

conducted. Remarkably, in all methods, Albania and former Yugoslavia are not deeply rooted

as they had their own constitutional story Albania acquiring a new constitution after

Berishas dictatorship until the late 1990s and the federation getting dissolved under

Milosevics rule and wartime.

6. Description of chapters

Each of chapters in the analytical part tackles another side of the research issue.

Chapter 7 gives a glimpse into the the atmosphere which predicated and accompanied the

making of new constitutions. Chapter 8 enumerates the most significant internal and external

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factors that gave an impact to the new constitutions. Chapter 9 deals with the ingredients of

the constitutions, especially the tipical provisions a constitution may contain. Attention therein

is paid to the socioeconomic rights, the correlation between rights and duties and the

restrictions to constitutional rights and freedoms. The last chapter (10) is a wrap-up, outlining

some tendencies and threats.

7. The road to the new constitutions

It was a series of events in Central and Eastern Europe that led to the idea of

preparation and adoption of new constitutions. Constitution-making was not a signle act. In

all the studied cases it was a process which was finalised by an act of adoption by the

legitimate body. It is therefore argued that there were plenty of concomitants in the

postcommunist countries across Europe, which triggered off the shift to a new system

formalised by the constitutions. The totalitarian rule in Eastern Europe and especially Central

Europe was ready to collapse in the eve of the birth of these fundamental documents. The

primary impulse that fastened the political changes was the economic crisis common with

each corner of Communist Europe in the 1980s. (Fowles, 1999)

This is a historical backwardness, which prevailed until the nineteenth century

(Kochanovitz, 2006). The clear distiction between a more developed West and less

advanced East and South remained in the continent even in the twentieth century, when

agriculture remained immature and transition to industrialisated planned market economy

was not a success. The demise of aristocracy and the long-traditions in serfdom as well as

small-scale peasant farming was the other side of the medal (Chirot, 1991). Whileunderdevelopment was common throughout the whole region, the countries in South Eastern

Europe (also known as the Balkans) suffered the most from the economic obstacles (Fowles,

1999). Not only the living environment but also the mentality of people in those lands was

deformed by the Ottomanic Empire. Therefore, to a lesser or greater degree in the whole of

Central and Eastern Europe, the realm of Communism was exceedingly distinguishable from

the West. Specifically speaking, there was a lack of democratic traditions, a clear tendency

towards authoritarianism, a gross divergence from the West in terms of cultural perceptions

and values. Economic prospects were not an exception in all these decades and the

macroeconomic situation did not differ vastly from the pre-World War II reality. On a scale

employed by Andrew Janos (Andrew Janos, 2000) in a research of Stanford University,

where the maximal benchmark index is 100 on the basis of the gross domestic product, the

proportions of the results in the period 1926-34 compared to the 1980s is Czechoslovakia

57/55, Hungary 45/41, Yugoslavia 41/36, Romania 30/20. It emerges that this was even a

decline, a significant worsening that caused a political reverse.

This burdensome legacy was in the hands of the governing oligarchy in the 1980s.

Younger or more liberal members of the political elite wanted more drastic changes, whereas

established leaders like Zhivkov, Honneker, Kadar, Husak pursued all chanes to keep power

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and hold of the state. The leadership drift, supported by the nomenklatura (i.e. the highest

administrative stages) and opposed by the dissidents, recognized constitutions as a unique

opportunity to maintain or even extend their power.(Fowles, 1999)

As mentioned, it was quite inevitable to avoid strong leadership in those Central and

Eastern European states due to the inhereted inclination to authoritarism. Nevertheless,

instead the effects of a national hero at the helm of state (Anderson , 2001: 88) could be

mitigated by a careful redistribution of power. In this apperently fragmented political

landscape the constitution was meant to serve as a bridge between the extremes and to

prevent or reduce chaos and paralysis (Zielonka, et al., 2001: 457).It appeared as if in this

configuration of interests a compromise had to be reached among the counteracting forces,

who believed in the constitutionalision of a new fabric of politics(Rosenfeld, 1994: 341). The

charm of constitutions that appealed to the masses is disputed: in fact, the shift of power is

considered to have been negotiated (Teitel, 2000). The fundamental documents were simply

an instrument to legitimise the move to power-sharing.

The giant at the time the superpowerful Communist state, did not downsize with the

constitutional enactment. Moreover, the popular fear was not concealed. Indeed, the worst

expectations of the general people were fulfilled. The constitutions in Central and Eastern

Europe were the legal tool designed to colonise the state into the future and enable

Lenninist institutions to survive (Crawford, et all, 1997: 5). While in some corners of the

region people strived for a revolution, which could cost blood and casualties, the Party (in the

leading position) was overthrown, rather than the state (eitel, 2000).On the whole, there is a ceaseless discourse about the character of the preludes to the

constitutionalisation of the new beginning in Central an Eastern Europe. It was a somewhat

alloy of rupture, reform, revolution and transition (Gnen, 2002). Despite the contradictory

understanding of the sequence of events, constitutions seemed an emblematic demarcation

of the crisis and the future: it was a natural return to the golden very past of the states

(Zielonka, 2001; Rosenfeld, 1994).Constitutions were a contagious messengers of change,

which were the prevalent domino effect throughout the post communist regions of Europe

(Teitel, 2000).

8. Influences upon constitutions of Central and Eastern Europe

This domino effect had a variety of repercussions across Central and Eastrn

European states. The exact dimensions of the constitutions therein was contingent upon a

set of internal and external factors that are briefly studied in this section.

It is beyond doubt that although constitution framers had been in trouble, the

constitutions in postcommunist Europe were not born entirely out of vacuum. They had

hundreds of existing examples to derive inspiration from, among which were their former

fundamental documents. Therefore, it was rather a choice between a reactive or an

evolutionary constition. The latter was predominantly a re-consideration of the Communist

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constitution and did not represent a clear cut off the totalitarian past. On the other hand, the

reactive constitution was thought as a guarantee for the future institutional architecture of the

state. It was not an incremental and gradual adaptation of the prior state system, but a

complete re-launch (Verheijen, 1995).

Paradoxically, countries from Central and Eastern Europe such as Hungary and Poland,

which were the most energetic fighters against the former ruling regime, finally turned out to

be less less drastic in pursuit of a wholesale constitutional change. (Wolczuk, 2007). An

explanation can be discerned if one explores the origins of the authors of the constitutions. In

pluralist bargaining as in the Czech Republic, Bulgaria and Romania, the group of drafters

consisted of former communists that wanted to sustain their power. Hence, it is rational why

they did not strive for a radical shift and imposed more retroactive ideas on the text.

Amazingly, on the contrary, Estonia and Latvia were the only countries in the region that

headed for a throrough restitution of their constitutions dating back to the early twentieth

century. (Wolcuzk, 2007)

Slipping out of the Soviet family, the new constitutions of Central and Eastern Europe

placed the post Communist countries in the European family. It was a movement back to the

natural positions of these states, which deviated from the common European path in their

post-World War II history. For decades they were capsulated in the Communist ideals and

the constitution was a comfortable excuse that entitled Moscow for an ever-lasting

dominance. Now, turning their sight to the Western world, the Central and Eastern European

countries decided to resume their constitutional development. (Rosenfeld, 1994)In the realm of the European traditions law, including the legal basis of constitutions, was

not exploited for idealogical purposes, as opposed to the Soviet system. The rule of law, laid

down on respected constitutions, was the precondition for democratisation and protection of

the fundamental freedoms of individuals (much neglected in the name of the collective good

in the Communist doctrine). Thereby, the achievements of the German and French models

were enticing and Central and Eastern European states were in a rush to adopt some of their

features.

Within that Western European framework, particular impulse was given by the new list of

individual rights, stretching out to involve the novel freedoms such as the freedom of speech,

freedom of assembly and association, freedom of conscience, the right to information and

the right to create politicacl parties. These rights were not feasible in the former constitutions.

Additional attractiveness presented the principles of non-discrimination on the basis of

nationality, ethnic, social, religious or other grounds. The procedural protection of crime

convicts was another prominent characteristic that impressed former Soviet satellites. A

source of inspiration was the backbone of the German judiciary, specifically the appointment

of judges, procedures to bring actions and petitions, etc. (International Institute for

Democracy, 1996).

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While some argue which model (the French or the German) was dominant in which

constitution, it is hardly possible to make a clear distinguishment as both models interacted

with each other for centuries and are interconnected. With a certain degree of criticism a

common assertion can be accepted: Bulgaria and Romania were those preponderantly

affected by the French model, as it was deeply rooted in their constitutional traditions

(Verheijen, 1995).

Influences stemming from beyond the European continent can also be detected. The

United States of America, which supported the initial steps towards democratisation in the

region, shared with Central and Eastern European countries some of their constitutional

lessons. It is worth noticing that this impact is much related to the impetus in terms of

constitutional abstractness given to Western European countries following World War II. The

American constitutionalism brought a new constitutional wave in Europe in the mid-20

century, consisting of three main compoents that were then incorporated in the new post

Communist states. Firstly, horizontal and vertical separation of the powers is not a conditio

sine qua non that enables citizens to enjoy fully their rights. Checks and balances should

then be complemented by a list of fundamental freedoms which are enforceable upon

anyone in the state, including state actors, and no one is allowed (generally) to violate them.

Secondly, no matter how the rights in the constitutional charter are implemented in practice

(statutory forms), the constitutional provisions about these rights apply to all persons, among

them state agencies, and are entirely perceptible and enforceable by all branches of the

judiciary. Thirdly, in order to reinforce the phenomenal essence and universal quality of theconstitutional rights, they should be set forth in such a way that sub-constitutional provisions

can be declared invalid in the events of colliding norms and inconsistency (Sadurski, 2002)

The same line of scholarship claims that the constitution of the United States also

served, in some respects, as an anti-model for the constitutional fathers in Central and

Eastern European countries (Klug, 2000). The new democracies did not prefer the

abstractness and high status of the judiciary and refrained from it upon drafting of their

fundamental documents. Although the ambiguous provisions in the US constitution are

considered a remarkable virtue under the American traditions, they are suitablbe for an

environment where the judges are granted a huge discretion. In continental Europe it has

always been that the judge is equipped with narrow competencies in interpretation of

general, unclear legal texts. The depreciated value of the constitution of the United States of

America in the eyes of constitutional legislators from the post Communist space in Europe is

also due to the freshness of Western European constitutions. They were 30-40 years old,

when in the 1990s the US constitution was over 200 years old. Hence, possibly, the newer

European constitutional pieces were considered more appropriate and persuasive. There are

two emblematic quotes that give illustrative substance to this argument:

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"American constitutional lawyers [. . . ]were happy to cheer the fall of the Berlin Wall and

to celebrate the rise of world constitutionalism with an orgy of junketeering to far-off places in

need of legal lore." (Ackerman, 1997: 783)

"As exporters, advocates of the American model found that, instead of enjoying an

unassailable, dominant status, they faced open competition from advocates of the German . .

. or other constitutional experiences." (Kluz, 2000: 607)

As evitable, constitutionalism in the post Communist Central and European states was

integrated into very global processes. Along with Western European and American

influences, framers of the new consstitutions had to take into consideration the international

law. Internationalisation of these constitutions actually can be dated back to the very

beginning of international law. The commitment to the civilized peoples, prevailing upon any

norm of domestic law, was deepened and prolonged by accession of states in the region to

international/inter-governmental entities such as the United Nations, the Council of Europe

and the more membership restrictive blocks such as the North Atlantic Treaty Organisation

and the European Union. Treaties of these organisations concluded by post Communist

Countries bind them upon shared responsibilities with many developed democracies. To

exemplify, even though Belarus still remains out of the Council of Europe, the country, alike

the rest of Central and Eastern Europe, took advantage of the constitutional consultations

given by the organisations European Commission for Democracy through Law (referred to

as the Venice Commission). As the website of the Venice Commission admits, it has "has

played a leading role in the adoption, in eastern Europe, of constitutions that conform to thestandards of Europe's constitutional heritage ("Introduction," at

http://www.venice.coe.int/site/interface/english.htm).

Yet, above all, it was the pressing wishes of people that deprived constitution drafters of

time to dwell on foreign experience. The end of the Soviet domination generated huge

popular expectations that made these framers move quickly. It was even often the case that

in the times of elaboration of the constitution drafts authors from the different corners of

Central and Eastern Europe exchanged ideas and concerns. Moreover, exclusively during

this process it was often the case that to some degree constitutions influenced each other.

Borrowing from each other continued as countries proceeded in their common constitutional

and European directions (Olson, 1996).

In the meantime, there were also domestic factors that left their imprints on the new

constitutions of post Communist Europe. The aforesaid general affection to authoritarianism

provoked an inconceivable division among the constitution drafters. While the overall

institutional design was not problematic, the very details ignited disagreement. The judiciary

or the charters of rights and freedoms, for example, were not as much debated and

contradictory as the choice between presidential or parliamentary system. Even though this

may appear a rather pragmatic discourse, the core consisted of the polar appetites of the

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constitution drafters. Favouring a stronger presidency was the natural behaviour of parties

and personalities who were sure that they could seize control over this institution (in elections

or in the course of politics). Semi-presidential models, on the other hand, were a compromise

between the former communist elite (which preferred parliamentary models) and the

opposition, which endorsed a stronger presidency believing that they benefit a huge amount

of public trust. Meanwhile, parties and movements which were more powerful than the

current presidents in the processes of constitution drafting, stopped presidents from

dominating the entire institutional engineering to the same degree as in the former Soviet

republics. (Wolczuk, 2007)

Hence, realities influenced the choice. Long-term political calculations were embedded

in the decision; consequently, wrapped in constitutional provisions. Although under

communist rule parliaments were conferred with vast authority, they did not really fulfil their

functions adequately. The legislatures were just another piece in the whole institutional chain

created by the constitutions inspired by Lennin and Stalin. The Communist leaders and their

successors as well as disciples in Central and Eastern Europe did not allow the parliament to

limit the government/governing figure in any way (Verheijen, 1995). Hence, one can deduce

that the legislatures lacked the capacity necessary to undertake the democratic reforms in a

new constitutional environment. Alternatively, a president could balance the

(under)performance o the institutions in dark days of the new democracies and even

overcome disunited and weakend parliaments. The personality of a popularly accepted head

of state could ensure the perception of national and institutional integrity in difficult changes(Wolczuk, 2007).

While generalisation for the Central and Eastern European countries is possible under

certain conditions, it is a notable characteristic among all these states in the region that this

wondering ended with a failure to go for a categorical choice of a presidential or a

parliamentary system of government (Olson, 1996). Hence, in a study (Remington, 1994) of

27 political systems of the region published in 1994 a remarkable one third opted for a hybrid

model, i.e. the so called semi presidential system. In the same examination, even in

constitutionally defined presidential or parliamentary systems, there is not a clear-cut

distinction, albeit the ascription assigned. Another perspective is offered by a more recent

academic piece, which, according to a well-accepted typology of Shugart and Carey, in the

1990s transitional times out of a total of twenty seven, only nine countries adopted a clasic

parliamentary system. The rest preferred a semi-presidential system, either premier-

presidential (eight states) or president-parliamentary (ten countries). Despite these

influences lacerating Central and Eastern European countries, a clearer regional pattern is

discernible. Hence, parliamentary and premier-presidential systems prevailed in post

communist states which were Moscow sattelites but not members of the Soviet Union. On

the other hand, president-parliamentary systems were favoured in the former Soviet

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republics. As it transcribes, these choices were much impacted by the legal and political

traditions, along with the remaining influence or affection with the Communist traditions.

Eventually, out of the 15 former Soviet republics Moldova and Lithuania were the only two

which at first adopted a system based on the premier-presidential model. Croatia, before the

constitutional amendment in 2000-2001 was the unique example of a country outside the

former Soviet Union, which went for a president-parliament. To put the states in categories,

the following groups follow. Parliamentarism was accepted constitutionally by namely the

Czech Republic, Estonia, Hungary, Latvia, (Former Yugoslav Republic of) Macedonia,

Moldova (since 2000), Slovakia and Slovenia. Premier-presidential models were common

among Bulgaria, Croatia (since 2000-2001), Lithuania, Moldova (until 2000), Poland,

Romania and Ukraine (since 2006). Belarus, Croatia (before 2001) and Ukraine (until 2005)

all followed the pattern of president-parliamentery systems. Still, presidents and parliaments

co-habitate there. (Wolczuk, 2007)

These compromises between the internal and external influences is believed to have

played a significant role in reaching devaluation of the constitutions of Central and Eastern

Europe. Furthermore, they deviated the constitions from their universal goals. Instead of

being social contracts, they became elite documents which were more influenced by the

former elite, re-establishing itself in a legal form. (Gnen, 2002) Hence, the fight between

lawyers and politicians was won by the latter (Zielonka, 2001), although this was not the

outcome of strictly domestic factors over constitution-making (Anderson, 2001).

A vivid extention of this much influenced constitutional debate is the over-detailed outlineof constitutional provisions, which left no room for another configuration of political interests

in the future practice of the constitution. Indeed, the process of application of the constitution

as well as constitutional adjudication. (Czarnota, 2005) Further, this exceedingly elaborate

content of the Central and Eastern European states constitutions are explored in the next

chapter.

9. The ambit of constitutions

Chapters 7 and 8 explained some of the aspects of the new constitutions of Central

and Eastern European states which are not repeated again in this section. Thus, herein the

main focus is dedicated to the constitutional provisions about the rights, freedoms and duties

of citizens rather than the institutional and procedural matter. The common people were not

so interested in the structure of parliament (at the huge variance that Romania preferred a

bicameral legislature, Slovakia a unicameral law-making body), even though they

understood it was better in larger countries (with the exception of Ukraine0 to count rules in a

parliament with two chambers. On the whole, there was the widespread fear not to confer

power in a single institutional body; thus, further checks and balances were posited (Olson,

1996). Scepticism is poured that this too complex institutional set-up was created to

encompass all the forces and maintain a future status-quo: thereby, the changes introduced

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by the new institutions were a categorical betrayal of the people (the popular vote expressed

in referendums, bogus opposition in the roundables and convetions prior to the shift of

power). (Gnen, 2002). All that was set forth in a very rigid constitution, i.e. difficult to

amend. The constitutional fathers did not simply want to leave their names in the golden

pages of history with an outstanding masterpiece, but they also exerted a strong push in an

unchangeable trajectory to the whole nations development for decades to follow. (Fowles,

1999). The lengthy constitutional provisions were drafted in such an in-depth matter that no

alternative legal sources could include norms of constitutional rang (Lutz, 2006). The

Western European or US practitioners which travelled to the region in order to share

expertise did not manage to persude the constitutional legislators that they could posit

fundamental rules in other pieces, such as rights charters or a bank regulation (Lijphart ,

1999). Hence, too much was enshrined in a constitution, making it a simplified manual on the

domestic law of the new state. Additionally, political parties, a basic decision-making tool in

democracies, were constitutionally deformed: they became a colonisation of the state,

intentionally weakened, dependent on the state or even managed by the state (Kopecky,

2006).

It was not only the lack of constitutional culture that prevented the common people to

see these insufficiencies. It was also the rights which they received as constitutionally

granted as of highest supremacy: that was the trophy in the battle for a new fundamental

document.

Positive social-economic rights listed in the Constitutions relieved the constant, commondeprivation of property at the Communist era. Although in Western legal phylosophy it is a

controversial issue whether or not to include such rights in the constitutions, that was not the

case with Central and Eastern European constitutions (Sadurski, 2002). Omitting

socioeconomic rights from the new constitutions would have sent a signal to the countries in

the region that the political elites who emerged after the fall of communism neglected the

pain caused by poverty in the near past. In addition, the impact of liberal political forces

which may have been reluctant on ideological grounds to constitutionalise broad catalogues

of socioeconomic rights, has been relatively weak, while the political weight of social

democrats and christian democrats in the region has been quite strong.(Winczorek, 1997)

These parties had a strong contribution in infusing the constitutional charters of rights with

symbolic statements of their attachment to the idea of an activist state protecting the citizens

against economic disasters. To some degree, this was also an ideological legacy of

communism (Henckaerts, 1998) which provoked vast welfare expectations. The idea that

citizens are entitled to a certain, albeit often miserably low, standard of living, work,

recreation, and education has become particularly well entrenched in popular consciousness.

The invention and inclusion of such provisions on socio-economic rights was not

unproblematic. Far from it in the constitutional debates within postcommunist states and

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held by outside observers (sharing their Western experiences, as referred above), some

important objections were raised to the proposal about constitutionalising welfare rights.

(Sadurski, 1999). It is important to emphasize that the reasons for the rejection of the idea of

constitutional welfare rights was not grounded on a rejection of welfare policies (Sadurski,

1999). Some participants in this debate, by comparing generous welfare states with no

socioeconomic rights in their constitutions to countries that have an appalling welfare

situation but impressive catalogues of constitutional socioeconomic rights, went one step

further and asserted an inverse relationship between socio-economic rights being in a

constitution and the existence of a welfare safety net.

Those opponents of constitutional welfare rights were concerned that, once a welfare

right is written into a constitution, even if subject to various provisions about non-justiciability,

there is nothing that will prevent a constitutional court from scrutinising a government policy

or a new law under the standard of this constitutional provision (Preuss, 1995) Therefore, this

practice may serve as a basis for displacing choices made by legislative and executive

branches. In brief, primary reason for disapproving of constitutional welfare rights was that

they will produce an unfortunate institutional shift in the separation of powers and will allow

(even require) constitutional judges to decide matters in which they have neither

qualifications nor political authority. (Sadurski, 1999)

Another fear was the impossibility to enforce socio-economic rights (Elster, 1998)These

rights are, by their nature, under-enforceable. The concern was that a habit of tolerance for

under-enforcement of some rights can erode a rigid commitment to enforcement of all otherrights, including civil/political rights. Finally, it was claimed that, while statutory welfare rights

may be a good thing, putting them in the constitution is counter-productive because the very

nature of a constitution is meant to restrain legislators against likely, subtle temptations

(Sunstein, 1993). Constitutional rights were seen primarily as restraints upon human nature.

In a constitutional level they may promote attitudes of welfare-dependency and become a

counterincentive to self-reliance and individual initiative.

It is, therefore, not surprising that, in virtually all postcommunist constitutions (except for

Bosnia and Herzigovina), one can find enumerated lists of socioeconomic rights (some

broad, some narrow). Any attempts at relegating them to a status of "tasks of state generally

failed. One such heroic attempt should be acknowledged: the 1992 "Presidential" (so-called

because it was formally proposed by then-President Lech Walesa) draft of the constitutional

Charter of Rights and Freedoms in Poland.(Sadurski, 2002) It clearly distinguished "Social

and Economic Rights and Freedoms" (including a right to education, right to labor safety,

right to medical protection, right to social welfare, and freedom of work) from "Economic,

Social and Cultural Obligations of Public Authorities" (including, among other things,

improvement of working conditions, full employment, aid to families, and medical care

beyond the basic level). There also was an explicit statement that the latter "obligations" are

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to be performed by public authorities "depending upon their economic resources." This was

meant to convey a message that provisions on "socioeconomic tasks" applied to

governmental actions and aspirations, rather than to determinate results. This project,

however, never became law.

In an textual analysis of the catalogues of socioeconomic rights, one can see

constitutions as falling into some categories:

most "generous" constitutions which list comprehensive social security,

education, health care, work protection rights, and other socioeconomic rights -

Belarus, Croatia, Czech Republic, Moldova, Poland, Romania, Russia, Slovakia, and

Ukraine.

constitutions which have limited social security, education, and health

care rights, but good work protection guarantees, and many other socioeconomic

rights - Bulgaria, Hungary, Macedonia, Slovenia, Yugoslavia, Montenegro, andSerbia.

constitutions which provide for good social security, education, and

healthcare rights, but only a limited number of the other rights the Baltic states.

constitutions with very few socioeconomic rights - Bosnia and

Herzegovina, and Georgia.

However, not all constitutions of the region draw any meaningful distinctions between

socioeconomic and all other rights. In the fifteen constitutions belonging to this category

(Belarus, Bulgaria, Croatia, Estonia, Georgia, Hungary, Latvia, Lithuania, Macedonia,

Romania, Russia, Ukraine, Yugoslavia, Montenegro, and Serbia) no differentiation is made

as to the enforceability of socioeconomic against civil-political rights. Herein, one can also

find particular provisions which establish that practical details of certain rights shall be

decided by subsidiary or secondary law. On the whole, nearly all postcommunist

constitutions ignore a distinction in status between civil and political rights on the one hand

and socioeconomic rights (either all constitutional socioeconomic rights, or at least a

significant number of these rights), on the other. In some of the countries of the region, the

task of drawing the necessary distinctions between various categories of rights has been

undertaken by constitutional courts who are acting as provisional constitution-makers. For

example, in 1990, the Hungarian Constitutional Court established that the right to social

security (Article 70E of the Constitution) "does not entitle anyone to social security and

safety, and legal claims on such a general level cannot be defined." (Brunner, 2000: 67)

Citizens rights and dutues also co-exist together in the Central and Eastern European

constitutions, which is not unusual against the background of the European constitutional

tradition. (Ludwikowski, 1996). Whether citizens' duties belong in a constitution depends

upon the broader conception of what a constitution should be. If the main function of a

constitution is seen as placing limits on the exercise of state power, then the inclusion of

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citizens' duties in its text is illogical and may even be harmful. If, however, the constitution is

seen as a statement of the paramount moral and political principles upon which the political

system is built, and which are supposed to be subsequently articulated and concretized in

ordinary laws, then citizens' duties should be spelled out in the constitution alongside

citizens' rights, even if only to counteract what many deem an excessive emphasis on rights

to the detriment of responsibilities in liberal democracies.

Different answers to the question of the constitutional status of citizens' duties can,

therefore, be seen as resulting from different philosophies about the role of a constitution.

These conclusions also result from different conceptions of the relationship between

constitutions and subconstitutional laws.

A survey of postcommunist constitutions in CEE countries indicates that all but three

(Albania, Bosnia and Herzegovina, and Latvia) of the constitutions of the region contain

provisions placing affirmative duties upon citizens. There is no correlation between the

absence of citizens' duties in the constitution and a more liberal approach to constitutionalism

or politics in the three constitutions that constitute exceptions to the general rule. In Bulgaria

there is a one-of-a-kind, worrying, duty of all to learn and use the official language. This

requirement necessarily raises the issue about minority members' rights.

In a step further, however, one can claim not merely that constitutional provisions on

duties are innocent redundancies, but that they can be harmful. Firstly, the provisions on

duties diminish the civil-libertarian flavour and introduce a statist rhetoric to the constitutions.

The message is that, while the state has some duties toward its citizens, the citizens haveduties not just to one another, but also to the state. This message emerges, for instance, in

Article 82 of the Polish Constitution: "Loyalty to the Republic of Poland, as well as concern

for the common good, are the duty of every Polish citizen." Secondly, the inclusion of duties

alongside rights might be seen as implying that the enjoyment of one's rights is conditional

upon the performance of one's duties. Although this is never explicitly stated, it may be one

way of interpreting the reason behind the inclusion of duties in the constitution. Thirdly, the

"correlation of rights and duties" view may be seen as a residue of the old, communist

approach to constitutional law, which emphasised the so-called inter-dependence of "rights"

and "duties." Strictly understood, however, this connection of rights and duties implies only

that one cannot effectively enjoy one's rights if others do not perform their correlative duties.

This does not amount to a normative position that one must be denied the enjoyment of

one's rights as a result of nonperformance of his duties (including the duty to respect other

people's rights). (Sadurski, 2002)

Once more time, it is not suggested that the very fact of constitutionalising citizens'

duties implies that the drafters intended to make the enjoyment of rights contingent upon the

fulfillment of duties. The fact, however, that such an implication is plausible, at least with

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regard to some pairs of rights and duties, is a cost that is not offset by any clear benefit

gained from proclaiming citizens' duties in the constitution.

These rights may sometimes be limited. In Bosnia and Herzegovina, Georgia, Lithuania,

and Montenegro the constitutional charters of rights that contain no general clause

authorising the legislature to restrict constitutional rights under certain conditions, but instead

mention in specific provisions that those particular rights can be restricted on certain named

grounds. These seem to imply that the rights which are not accompanied by permission for

legislative restrictions cannot be legislatively restricted at all.

Other constitutions (Macedonia, Slovenia, Ukraine), while containing general clauses for

limiting rights, state that these clauses apply only to the rights provisions that expressly allow

for statutory restrictions. A typical clause for this model reads: "The rights and freedoms of

man and the citizen shall be restricted only by the equal rights and freedoms of others and in

instances provided for in the present Constitution." (Former Yugoslavia) This again results in

a situation where the individual articles offer specific justifications and limitations on

restrictions to the right in question. With respect to the scope of legislative discretion, the

practical effect of these two categories of constitutional constructions of legislative

restrictions is identical.

In a third group, including the rest of the Central and Eastern European constitutions,

permission for statutory restrictions of rights is contained in a general clause that lists the

general reasons under which any constitutional right provisions may be limited. These

clauses typically have the following form: "Restriction of personal rights and liberties shall bepermitted only in the instances specified in law, in the interest of national security, public

order, the protection of the morals and health of the population, as well as rights and liberties

of other persons." (Belarus, Croatia, Hungary, etc). The list of grounds for restriction varies

somewhat: At the most extreme end of the spectrum of constitutional permission for statutory

limitations of rights, coming close to the quasi-absolute legislative discretion, we find clauses

which make it clear that the constitutional list for grounds of restrictions is not exhaustive and

that there may be more grounds than those explicitly mentioned (Moldova and Romania).

Academics (Ludwikowski, 1996; Elster, 1998) argue that there is no discernible

correlation between the level of rights' protection in statutes under constitutional regimes that

mandate legislative limitations of rights. There might be an explanation for this apparent

anomaly. One is that the correlation would occur if all other things (other, that is, than the

constitutional design of rights' limitations) were equal; obviously they are not, and those other

factors are more significant than the structure of the constitution. They include, however,

both formal institutional factors (the powers and modes of constitutional courts) and the legal

and political culture of the community. What becomes clear is that this particular

constitutional variable turns out to be relatively insignificant in affecting the shape of the

system of legislative protection of rights.

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Conversely, some particular rights are accompanied by clauses about their statutory

limitations; others are not. Scrutiny of a statutory limitation on a right that is formulated in an

absolutist manner cannot appeal to constitutional grounds for restrictions, but it does not

follow that such scrutiny can never be undertaken, or that it can never conclude with

upholding a statutory limitation. For instance, statutory restriction on speech may be

interpreted as not restricting the right to freedom of speech, as the freedom will be

constructed in a more narrow sense than a license to speak what one wishes without any

restraints. (Ludwikowski, 1996)

It does not follow that it is insignificant which of the constructions of the statutory limits

on rights is chosen. The significance, however, is not in the degree of protection for a right

but rather in the modality of arguing about the consistency (or inconsistency) of a statutory

limitation with a constitutional right. The reasoning of legislators, and/or of constitutional

courts, is more structured, so to speak, when any limitation of a right must be matched to a

standard provided by the constitution itself, such as "public security" or public health, with

additional requirements of proportionality, nondiscrimination, or noninfringement of the

"essence." If a constitution does not supply these yardsticks, much depends on the power of

the constitutional court. When the constitutional court is weak and deferential, legislators

have more discretion in deciding what restrictions on rights are appropriate than in a system

where these standards are constitutionally determined. Either way, the ultimate strength of

protection of rights is only indirectly affected by a chosen model of constitutional

interpretation of statutory limits on constitutional rights. (Sadurski, 2002)10. Concluding words

Much was said during the constitutional debates which the fathers and mothers of the

constitutions of Central and Eastern Europe had. There were encouring words, but there

were warning signals emitted, too. The specific situation in each of the countries, along with

external influences, trends and pressure, reasoned the invention of somewhat constitutions.

They do not follow the same patter throughout the whole of the region. Some are completely

novel, others are a restoration of the pre-Communist traditions in constitutionalism, third are

a soft modification of the Communist predecessors. Yet, whatever the case is, it is beyond

doubt that the authors bear a huge responsibility. They drafted not only the institutional

design of the new states, but they also framed the future of their own countries. Power

balance between the various driving forces, ex communists and opposion, as well as

constitutional actors such as parliaments and the head of the state (be it the President or the

Prime Minister) was not always successful. Consequently, we have the legacy of

insurmountable fragmentation in the legislature, difficult authority-sharing among the leaders

of the main institutions, dependency of the political parties on the state, lack of accountability

of political figures, etc. Some may say that in one respect the new constitutions brought the

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Central and Eastern European countries further, but in other respects they did not even

touch upon the very golden pre-communist past.

At least there is a demarcation from the Soviet rule. The totalitarian rulers are gone.

By means of the new constitutions the countries from the region were introduced to a new

world, where democracy is globalising. Countries unite among themselves and together with

other states conclude international treaties or form international organisations. Cross-border

cooperation, not only in the strictly legal terms, accelerates the reforms and acts as a

safeguard, disabling countries to return to the Communist system. Indeed, it is a new

beginning for the Central and Eastern European states interacting with each other, opening

themselves to the world and changes.

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