Problems Associated With Constitutional Design in Central and Eastern Europe - Essay Example

According to Gallagher et.al. (2006: 87), constitution is ‘a body of rules that specifies how all other legal rules are to be produced, applied, and interpreted.’ The overall process of preparing constitutions in the post communism era represents multi-faceted problems. Not only had the States to manage a transition towards the democracy but they were also required to make changes within their legislative framework to accommodate the same change. Moreover, these countries not only faced problems which were common to them but also faced the situations which were typical for them. Countries like Bulgaria therefore struggled in order to bring in a balance between the powers of President and other State authorities to make the overall legislative environment more flexible to accommodate the new ideological changes which took place in the region. On the other hand, countries like Poland, Bulgaria, Slovakia, Czech Republic and Hungry made their accession to EU in the first part of 21st century however, the overall process of making constitutional changes were on since 1989. It has been argued that the overall approach towards constitutionalism remained focused on two important approaches of pluralist bargaining and imposition of ideas of dominant group. Countries like Hungary, Poland and Czech took the first approach whereas countries like Bulgaria, Lithuania, and Slovakia etc. modeled their constitutions based upon the ideologies of the dominating groups. Firstly, this essay will discuss the problems faced by Central and Eastern European countries in constitutional design since 1989 and how the overall process of constitution building evolved over the period of time. Therefore, this paper will outline the constitutional changes made by these countries over the period of time to make their constitutions in accordance with the requirements for the membership of EU. Some of the key challenges and problems faced included making a balance between the powers of different institutions, electoral rights for the EU citizens, redefining the role of national and international law as well as the transfer of power. These issues, though were gradually drafted into the constitutions however, they took time and were not rushed into the implementation. Since breaking away from the communism, Central Eastern European countries had to make a transition towards parliamentary democracy but had to develop the market economies too. The initial response towards this transition was based upon development of policies which can reduce the social consequences of a shift towards more market based economies in the region. Secondly there was an intense debate as to which governance style these new states can adapt. There were clear discussions regarding whether to adapt the social-democratic welfare state mechanism or the corporatist welfare state on the basis of US. (Calda, 1999) Since 1989, Hungary and Poland were only two countries which kept their communist era constitution intact. All other countries therefore made conscious efforts to change their constitutions and tailor them according to the needs of being a member EU state. Poland, due to its fragmented majority in Parliament therefore was not able to make changes in the constitution early on however; an interim constitution was later adapted to initiate the process of constitutional change. One of the significant challenges faced by Poland was the clarification of the powers to be held or given to the Parliament and President. Poland therefore initially promulgated so called little constitution which was later on further modified and new constitution was adapted during 1997. (Mullerson, et al. 1998, ) Constitution in Romania has allowed immunity to government functionaries which are under the criminal investigations. Many argue that the Romanian constitution has virtually allowed lawlessness within the country by restricting the power of courts and other institutions to try corrupted politicians and government functionaries. Czechoslovakia’s initial reaction to the change towards democracy and constitutional change was based upon making two basic changes in its constitution. First, it deleted the role of communist party and secondly it also abolished the education of youth to teach them about Marxism and Leninism. Czech history is relatively more volatile in the sense that there were different constitutional challenges which opened up all at the same time. The change of name, the decentralization of powers, the confederacy as well as the ratification of the changes were some of the problems which constantly hunted the elected government of that time. (Schwartz, 2002,194) It is also important to understand that Czech Republic passed an amendment package for the constitution in order to prepare for the membership of EU. However, the overall process of implementing the amendments were lengthy as the Parliament of the country deliberated on more than 15 amendments in the constitution to make it compatible with the requirements of the EU laws. This supposedly lengthy and complex process therefore further delayed the accession of the country with the EU and make changes which can make the constitution compatible with the requirements of EU. (Sadurski, 2006, 115) There is also an issue of granting electoral rights to the EU Citizens as except Slovak constitution, all other constitutions actually could include the provisions which can provide such flexibility. Otherwise, most of the changes which took place over the period of time were gradual and were based upon a process of evolution. One of the key problems or challenges faced by these countries while dealing with the constitutional problems as a result of their accession to EU was the legitimacy of the polity. Many argued that in order to make a better transition and to make these states to play at the level playing field with the existing members of EU, it is important that new constitutional changes must be brought in to actually build a nation. States like Poland, Hungary, Bulgaria and Romania however, remained strongly focused on the polity legitimacy as they remained largely stuck in their cultural hurdles which could not allow them to move forward initially. (Pogany, 2011,335) Slovakia was one of the new states which initiated the process of constitutional change rather early as amending constitution required only three-fifth majority. Slovakia, initially took steps such as distribution of power within government organs as well as defined the direct presidential election methodology under new amendments to the constitution. There were reforms later on too which completely redefined the public administration, local governments as well as the judiciary of the country. On more common grounds, issues such as appointment of judges, appointment and dismissal of individuals on the public positions as well as the methods of elections. Almost all countries faced the constitutional challenges to bring balance of power between different institutions and keeping them away from the constitutional conflicts due to overlapping of roles. One of the key policy debates and constitutional challenges remained was the election of President and how the overall process should be governed. In countries like Bulgaria as well as Slovakia, there were conscious efforts by the government to influence the judicial process within the country. The steps such as budget cuts as well as increasing the threshold for the majority decisions therefore there were some constitutional challenges which continued to keep the balance of power between the institutions in tilting position. Slovakia also went on to make changes in its constitution in order to further streamline the constitution to meet the requirements of EU. This included defining the procedure for having accession to the EU as well as defining the rules for special majority in order to achieve the same objective. Special amendments were made to make EU law as superior and also defining the role of international institutions in the constitutional history of the country. (Albi, 2005,72 ) The new constitution of Hungary which was enacted recently has attracted much of the cry from EU members. Though the constitution is described as a socially and fiscally conservative, it has attracted much of the criticism from different quarters due to its overall impact and significance for the EU and US. The constitution has mainly been considered as an effort to restrict the democracy taking its roots in a country which has communist roots. The new constitution has curbed the powers of constitutional court though they have been done so in order to reduce the debt levels below 50%. What is critical to note that President of the country is allowed to dissolve the Parliament in case budget is not approved? The powers to dissolve the Parliament therefore are considered as anti-democratic by the forces such as UK and US and Hungary is facing constant criticism from different quarters. Though it is claimed that the constitution has completed the transition from Hungary’s communist past however, it has still been criticized for its overall contents and distribution and balance of power between different state organs. Criticism at the domestic level suggested that the government used its two-third majority in Parliament to push through new constitution without actually achieving all party consensuses on the constitution of the country. EU is of the view that the new constitution has actually curtailed the powers of the judges and the central bank and other institutions in the country. Such measures therefore are believed to be increasing the hold of the government over the state and may not allow Hungary to push for required austerity measures under EU laws. To make a conclusion it is essential to outline that Central Eastern European countries, after the collapse of USSR, made a transition towards the market based democracies. They not only faced the challenges of remaking their constitutions to suit to the requirements of the parliamentary democracy but also needed a social and economic change to accommodate market forces. The social and political changes which took place as a result of the events however, further became complicated in terms of legalizing them through extensive legislation. (Manning, 2004, 215) The process of amendments of the existing constitution or drafting new constitutions therefore was one of the key areas to be dealt with. Further the accession of countries like Poland, Czech Republic, Hungary, Bulgaria and Romania with EU further required changes in constitution to make them according to the needs for gaining membership within the club. In order to accomplish this change were made however; these changes went through significant challenges. One of the key challenges faced was balancing the power between different institutions to ensure that every organ of the state works under the cohesive legal environment. Further, issues such as ensuring national sovereignty were well as protecting polity were some of the key issues which were faced by these countries. The case of Slovakia is critically important because its constitution allowed easy amendments therefore the overall process of changes started with Slovakia. Changes which were later implemented therefore allowed smooth transition towards liberal democracies required for becoming member of EU. References Albi, A. (2005) EU enlargement and the constitutions of Central and Eastern Europe, Cambridge: Cambridge University Press. Calda, M. (1999) Constitution-Making in Post-Communist Countries: A Case of the Czech Republic. [online] Available at: http://tucnak.fsv.cuni.cz/~calda/APSA99.pdf [Accessed: 11th Jan 2012]. de Raadt, J. (2009) Contested Constitutions Legitimacy of Constitution-making and Constitutional Conflict in Central Europe, East European Politics and Societies, 23(3), p.315-338. Gallagher, M., Laver, M., and Mair P. (2006) Representative government in modern Europe. 4th edition, Boston: McGaw-Hill. Manning, N. (2004) Diversity and Change in Pre-Accession Central and Eastern Europe Since 1989, Journal of European Social Policy, 14(0), p.211. Mullerson, R. et al. (1998) Constitutional reform and international law in Central and Eastern Europe. London: Martinus Nijhoff Publishers, . Pogany, I. (2011) Constitutional Reform in Central and Eastern Europe: Hungarys Transition to Democracy, International and Comparative Law Quarterly, 42(02), p.332-355. Sadurski, W. (2006) Rethinking the rule of law after communism. Prague: Central European University Press,. Schwartz, H. (2002) The struggle for constitutional justice in post-communist Europe. Chicago: University of Chicago Press. Read More