Central and Eastern European constitutionalism a quarter century after the fall of the Berlin Wall: Introduction to the Symposium

More than quarter century after the fall of Communism—not a single episode, of course, but a sequence punctuated by such events as the 1989 Round Table in Poland leading to the first non-Communist government in the region; the fall of the Berlin Wall followed by the reunification of Germany; the “Velvet Revolution” in Czechoslovakia; and much bloodier events in Romania, etc.—I∙CON decided to devote this Symposium to current constitutional developments and trends in the region of Central and Eastern Europe (CEE). Enough time has passed since 1989 and its immediate aftermath to take stock, but the quarter-century span that encompasses the new constitutional trajectory at stake remains short enough to underscore that constitutionalism in the region is still a work-in-progress. As the convenors of this symposium, we had two principal purposes in mind: to prompt the invited authors to reflect upon what they considered to be the main constitutional phenomena in their countries and in the region, while at the same time showcasing what we deem the best and most interesting new scholarship emanating from a new generation deeply anchored in, and focused on, the region. It bears stressing that our second purpose is at least as important as our first one. This is because the notorious generational change in public law scholarship (as well as in legal scholarship generally) in the CEE represents far more than a purely chronological or biographical shift. We have deliberately chosen scholars of the first generation which was virtually completely immune from the markings of the “bad old days” of enforced ideological and methodological orthodoxy. To be sure, in some countries of the region, the orthodoxy in question was less rigidly imposed than in others, but even where the scholars of the generations educated and commencing their academic careers during the period of state socialism merely paid lip service to some official prescriptions, this nonetheless inevitably affected the integrity of their scholarship. In contrast to this, no equivalent constraints have weighed in on the generation of scholars represented in this Symposium: hence the pervading methodological and ideological pluralism, diversity, and, most of all, freedom of choice concerning an agenda, methods, and approaches. Moreover, this is the first generation of legal scholars in CEE for whom it is natural and significant that their “national” constitutional order form part of a broader constitutional architecture of Europe, informed as it is by two paramount pan-European structures from a constitutional standpoint: the European Union and the Council of Europe with the European Court of Human Rights as its epicenter. Significantly, the European transnational determinants of constitutionalism are immediately recognizable in each of the national constitution focused articles in this Symposium. Besides the generational identity and the lack of socialist “baggage” shared by all the symposium contributors, can one detect anything else that emerges as common to the articles which follow? We deliberately gave our authors a broad leeway to choose their own topics, with the proviso that they represent key aspects of public law of their countries, and that they also “showcase” each of the included scholars’ own current scholarly agenda. What emerged is a broad spectrum of themes, perspectives, and approaches—but also some striking similarities. One rather obvious common characteristic shared by many (if not all) the articles is a notable absence of optimism, let alone enthusiasm about the state of constitutionalism in the region. The positive energy that accompanied the immediate post-1989 period has been replaced, so it seems, by a rather harsh realism if not by outright melancholic disappointment. Characteristically, one of the authors even entitles his paper “A Crisis of Constitutional Democracy in Post-Communist Europe” (Bugarič). Consider further some of the labels used by our authors to describe the constitutional systems they analyze: “illiberal political order,” “neo-corporatist democracy,” “democratic fatigue,” “institutionalized cronyism,” and “constitutional regression.” As one can see from this litany, very little joyful enthusiasm is detectable in the contributions to this Symposium. At the same time, the sense of a “new beginning,” of virtually everything being possible on a constitutional plane, so typical of the early 1990s, has been replaced by a more realistic sense of path dependence and of strong constraints upon the choice of options. No one calls for “back to the drawing board!”; instead, there is a strong recognition of the limits to experimentation and innovation in matters constitutional. Consistent with this, very few authors make use of the paradigm of “transitional constitutionalism” which was so influential among the analysts in the early days of post-Communist constitutional developments (Bugarič is the exception, but his approach to the paradigm is highly critical). The analytical framework of “transitionalism” connected phenomena in CEE with similar development in other post-authoritarian or post-apartheid settings, and seemed to provide a useful template for understanding a number of puzzles, or at least particularities, of adopted constitutional models and undertaken constitutional evolution. But it seems, at least judging from our authors, that the template has very little purchase on present-day constitutional scholarship. There may be different explanations of this fact. One, and perhaps the simplest, is that it is just a matter of time: “transition” is by its very nature something temporary, provisional, and tentative—and yet how long can you be in a provisional state of affairs? More seriously, however, transitional paradigm may be unappealing to our scholars because of its inherent built-in optimistic dynamic: transition is a road from point A to point B, where B is an ideal to be attained—most characteristically in our case, a certain idealized picture of consolidated, democratic constitutionalism in its West European or North American incarnation. But the contours of this “B” are no longer clear or stable: as, in particular, the Hungarian developments suggest, with the entrenchment and consequent long-term prospects for illiberal constitutional schemes, the liberal democratic model can no longer be taken for granted as a common objective to be pursued by all. What is the finalité of CEE constitutionalism anyway? Can one still reasonably maintain that current trends will lead towards a steadily improved protection of citizens’ rights, clearly and logically demarcated separation of powers, robust constitutional review, and more widespread compliance with constitutional norms? The authors in this Symposium definitely do not seem to think so as they supply a number of counter-examples to this idea of inevitable progress which is apparently part and parcel of the transitional constitutionalism paradigm. None of the Central European cases of constitutional failures have come close to the level of Hungarian departures from liberal-democratic best constitutional practices, and it is therefore not surprising that a number of the Symposium authors refer to Hungary as a certain negative benchmark by reference to which they compare their own countries. Renata Uitz provides a useful (and deeply disquieting) anatomy of the recent Hungarian constitutionalism which raises the interesting question of whether Hungary is just the most shocking example of basically the same aberrations as are manifest in Romania or Slovenia, or whether the Hungarian case represents a more radical, and potentially disastrous, aberration that is qualitatively, rather than merely quantitatively, different from the other cases of constitutional failure. There seem to be sound reasons to adopt the latter perspective. Compared to a highly personalized conflict exploiting the inevitable tension within a semi-presidential system (Romania) or an informal “state capture” by largely corrupt political actors (Slovenia), the Hungarian model is both infused with a strong illiberal ideological message, and also so deeply entrenched that it will be very difficult to undo (in contrast, for ex ample, to a Romanian sorry episode which was short-lived—Perju describes it even as a “Constitutional blitzkrieg”—and hopefully with only short-term consequences). Perhaps the main qualitative difference between Hungary and all the other constitutional failures described in this Symposium is that in the former case, the process consisted of the deep and unfortunate change of the constitutional rules themselves, leading to a thorough dismantling of checks and balances and standards for the protection of rights, whereas in the other cases in Central Europe, the problem seems confined to the mere disregard of the rules, without otherwise departing from best constitutional practices of liberal constitutionalism. It is significant that in the face of various degrees and types of constitutional failure, the Symposium contributors identify external factors as likely sources of remedy. This demonstrates the pervasiveness and ubiquity of the Europeanization of constitutionalism in CEE. As a result of their embeddedness in the system of the European Convention of Human Rights as well as the European Union, national constitutional systems become less resilient to “external” pressure and suasion. Institutions such as the European Court of Human Rights, the Parliamentary Assembly of the Council of Europe, the Venice Commission, the European Commission, or the European Parliament, for all their weaknesses and wavering, have played an unqualifiedly constructive role in disciplining constitutional actors within the Central European states. (Perju, for one, provides a fascinating case study of how the European environment changes the cost-benefit calculus of domestic actors contemplating non-compliance with their own Constitutional Court’s decisions.) There is only so much that can be done from the outside—but what can and what has been done has been positive, important, and testifies to the value of Europeanization for the promotion of liberal constitutionalism. Are there any lessons to be drawn specifically regarding the favorite institution of many constitutional scholars interested in post-Communist transitions, namely constitutional courts? These courts, very shortly after having been put in place, became the real darlings of constitutional commentators, often seen as the main institutional vehicles for countering the forces of the ancient regime, or of authoritarianism, of rights-threatening nationalism, or of many other forces of evil. And this seems quite natural as these courts have been powerful, often genuinely independent, and successful in preventing some truly objectionable legislation from entering into force (though, in all fairness, it should not be forgotten that they have also struck down some rights-protective measures). What general assessment emerges from the articles below, most of which see a central role of the respective constitutional courts in the countries and developments they describe? To use a worn-out cliché, the jury is still out. Perhaps one thing that emerges, at least, is that we should scale down the level of expectations we have vis-à-vis constitutional courts, especially in difficult times. While in various constitutionally tense episodes described in the articles that follow, several courts have adopted a courageous, and eventually effective, position, when they were faced with direct and harsh assaults, they proved powerless. This is more than natural, and implies no blame on their part. Instead, these developments confirm the obvious truism that constitutional courts are part of the overall system of political power, and do not have resilience which renders them immune to an overall deterioration in the integrity of the system. The fate of the Hungarian constitutional court after Orban’s constitutional counter-revolution, or (for different reasons) the role of strong constitutional courts in post-Soviet area which became willing and reliable partners of autocratic rule, as emphasized by Mazmanyan, provide good confirmation of this truth. In the end, readers are most likely to ponder what broader lessons for constitutionalism tout court may be drawn from this “regional” Symposium. One specific ex ample regarding broader implications is provided by Mazmanyan: constitutional courts in the area which he discusses falsify, according to him, a well-known theory about the rationale for establishing judicial review as a form of insurance policy geared to the time when the party that controls the constitution-making process moves to the opposition. Mazmanyan shows that strong constitutional courts were established in the autocratic systems where ruling parties anticipated that they never would have to give up power. Mazmanyan sees his case study as a contribution to a more general conception of judicialization of politics. The other writers also link their analyses to ideas and conceptions currently in wide circulation throughout the worldwide precincts of constitutional theory, such as “constitutional identity” (Sledzinska-Simon), global administrative law (Szwedo), or a post-sovereign condition (Priban). They also refer explicitly to an active debate (covered in past issues of this Journal) about the (de-)merits of court-centered, “legal” constitutionalism, as opposed to “political constitutionalism” emphasizing, as it does, the values of popular participation and inclusiveness in the constitutional maintenance (Bugarič). One of the authors, Renata Uitz, links the developments in Hungary with broader issues in constitutional theory in yet another, more basic and fundamental way. She advances the thesis that the constitutional actors who transformed the Hungarian Constitution from a liberal to an illiberal one were able to do so in a largely invisible way by artfully concealing their project and by making strategic use of the body of knowledge produced by contemporary comparative constitutional law scholars. According to Uitz, comparativists tend to overemphasize identities over differences, and that can be of benefit to constitutional actors while being of detriment to comparative scholars. This latter thesis, as well as many other incisive points made in the various articles below, will undoubtedly enrich both our understanding of the CEE region and of more general issues relating to constitutional practice and theory. In addition, these thought-provoking articles will certainly give rise to further fruitful debates. At least some of these, it is hoped, will find their way into future issues of I∙CON.

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