Executive-Legislative Relations and Constitutional Politics in Central and Eastern Europe

This is a post by Anna Fruhstorfer, Postdoc at Humboldt University Berlin, who – together with her colleague Michael Hein – is the editor of the new book Constitutional Politics in Central and Eastern Europe. From Post-Socialist Transition to the Reform of Political Systems, published by Springer VS.

With its changes in the political and economic realm, 1989 to many citizens in Central and Eastern Europe marked a spark of great hope for the establishment of a western-style political, legal, and economic order. The aim of the new elite was the introduction of democracy and the rule of law. One important tool to achieve these goals was that of constitutions. The post-1989 constitution-making processes have also been widely discussed in political science research (Arato 2000; Elster 1993; Elster, Offe & Preuß 1998; Holmes & Sunstein 1995; Kitschelt 1994; Sartori 1997). However, since then it has become apparent that the different countries’ pathways do not fulfill the great hopes referred to above. Either the pathways were longer than initially expected or they reached an impasse due to (semi‑)authoritarianism and a poverty trap. These only partially fulfilled hopes also apply to the development of the constitutional systems (see also Rosenfeld, Sadurski & Toniatti 2015).

Against this background, we analyze constitutional politics in 20 post-socialist countries from two perspectives. We focus on constitutional politics following the implementation of the first post-soviet constitution after 1989 and examine all successful amendments and unsuccessful draft amendments, including failed attempts to establish a new constitution, up until 2015.[1] Thus, we considerably broaden the perspective on constitutional studies, since failed amendment initiatives have hardly ever been studied[2], even though such a “success-oriented” angle significantly narrows the data and information on constitutional processes (see Mahoney & Thelen 2010). We focus on three main research questions: How do democratization or autocratization processes influence constitutional politics and vice versa? Do external actors exert a significant influence on constitutional politics? And: Is the ‘transition paradigm’ still applicable to Central and Eastern Europe?

Constitutional politics after the enactment of the first post-socialist constitutions in Central and Eastern Europe – here used in the narrow sense of constitution-making, constitutional amendments, and the national discourse about the constitution and its changes – have dealt with a broad spectrum of topics. In our analysis of 20 Central and Eastern European countries, we find that there is virtually no individual constitutional subfield that has not been the target of amendments or amendment initiatives in at least one of these countries. With this perspective, the variety of topics has led us to assume that certain patterns of constitutional politics might be distinguished.

Most certainly, we can observe problems of path dependence and action constraints. These have particularly emerged with regard to the democracy-autocracy divide. In particular, Belarus and Russia present a case of a thorough autocratization[3], whereas e.g. in Bulgaria, Lithuania, and Moldova certain constitutional provisions ultimately led to democratic deficits or were not helpful in preventing them. However, we can also see the light at the end of the tunnel, i.e. countries in which constitutional politics can actually make a positive difference. The constitutional amendments pursued in Poland solved severe inter-institutional conflicts, and in Croatia and Slovakia semi-autocratic structures were actually replaced with a democratic constitutional arrangement.

The most important constitutional subfields are legislative-executive relations, national identity and minority rights, and aspects related to EU accession. In this post we focus primarily on the findings concerning the relationship between presidents and cabinets within the executive. We particularly expected to find draft amendments in this realm in countries with conflict-prone constitutional specifications, such as Albania, Croatia, Moldova, Poland, Romania, and Ukraine. And indeed, the question of presidential power, the agent-principal relation between president and prime minister, and questions of negative or positive parliamentarism dominated both constitutional discourses and politics in a number of countries (in particular in Albania, Croatia, Moldova, Poland, Romania, and Ukraine). Whereas in two of those cases the respective problems in the institutional design were solved by means of a thorough constitutional reform (in Croatia) or a new constitution (in Poland), in the other four cases constitutional reforms did not lead to an enduring pacification of institutional conflicts or a higher efficiency of governance. Not surprisingly, Albania, Moldova, Romania, and Ukraine are the countries in our group of 20 cases that witnessed the most serious crises at the heart of their governmental systems.

We believe that these crises, or sometimes even shifts between authoritarianism and democracy, are closely related to constitutional politics. Constitutions can provide the context within which a democracy can thrive (e.g. Bulgaria, Estonia, Latvia, Lithuania, Poland, and Slovenia). However, sometimes constitutional politics also contribute to a failed democratization (Belarus after 1994, Croatia and Serbia until 2000/2001). We see that autocratization virtually appears as constitutional choice by design, in particular by establishing over-powerful presidential institutions (e.g. Albania, especially until 1998, or Belarus). Furthermore, constitutional choices concerning executive-legislative relations can also become a ‘political battlefield’, such as in Moldova or Ukraine, where executive-legislative relations, or in particular the choice between a premier-presidentialism or presidential-parliamentarism, were vigorously debated. Yet, constitutional amendments have not necessarily advanced the countries’ democratic development (as exemplified by the ‘ping-pong game’ in Ukraine or the constitutional and political stalemate 2009–2012 in Moldova). Thus, some of the country studies suggest that not only the degree of democratic quality, but also the direction of democratic development can be represented in a constitution. Aleksandr Lukašenko, Slobodan Milošević, Franjo Tuđman, and Vladimir Putin did not gain their powerful positions only – if at all – by breaking the constitution. The constitutional choices made during early post-socialist transition have instead featured as a necessary condition for their successes. And although the type of governmental system certainly has no clear causal effect on the success or failure of democracy (see in particular, and representative for the debate, Cheibub 2007), the constitutional crises in these countries did center around the question of legislative-executive relations, thus making the type of governmental system the focal point of the constitutional debate regarding the success of democratization in Central and Eastern Europe.

References
Arato, Andrew 2000. Civil society, constitution, and legitimacy: Rowman & Littlefield Publishers.
Cheibub, José A. 2007. Presidentialism, parliamentarism, and democracy: Cambridge University Press.
Elster, Jon 1993. Constitution-making in Eastern Europe: Rebuilding the boat in the open sea. Public Administration 71(1-2), 169–217.
Elster, Jon, Offe, Claus & Preuß, Ulrich K. 1998. Institutional Design in Post-communist Societies. Rebuilding the Ship at Sea. Cambridge: Cambridge Univ. Press.
Fruhstorfer, Anna & Hein, Michael 2016. Constitutional Politics in Central and Eastern Europe. From Post-Socialist Transition to the Reform of Political Systems. Wiesbaden. Springer VS.
Holmes, Stephen & Sunstein, Cass 1995. The politics of constitutional revision in Eastern Europe, in Levinson, Sanford (Hg.): Responding to imperfection: the theory and practice of constitutional amendment: Princeton University Press, 275–306.
Kitschelt, Herbert 1994. Rationale Verfassungswahl? Zum Design von Regierungssystemen in neuen Konkurrenzdemokratien. URL: http://edoc.hu-berlin.de/documents/ovl/kitschelt-herbert/PDF/Kitschelt.pdf [Stand 2010-07-28].
Köppl, Stefan 2003. Vergebliches Bemühen um Veränderung: Gescheiterte Anläufe zur Reform der italienischen Verfassung. Zeitschrift für Parlamentsfragen, 310–329.
Lutz, Donald S. 1994. Toward a theory of constitutional amendment. American Political Science Review, 355–370.
Mahoney, James & Thelen, Kathleen 2010. Explaining Institutional Change. Ambiguity, Agency, and Power, in Mahoney, James & Thelen, Kathleen (Hg.): Explaining Institutional Change. Ambiguity, Agency, and Power. Cambridge [u.a.]: Cambridge Univ. Press, 1–37.
Rasch, Bjørn E. & Congleton, Roger D. 2006. 12. Amendment Procedures and Constitutional Stability. URL: http://rdc1.net/forthcoming/DCD%20(Chap%2012,%20Amendment%20Procedures,%20Congleton%20and%20Rausch).pdf [Stand 2016-06-21].
Rosenfeld, Michel, Sadurski, Wojciech & Toniatti, Roberto 2015. Central and Eastern European constitutionalism a quarter century after the fall of the Berlin Wall: Introduction to the Symposium. International Journal of Constitutional Law 13(1), 119–123.
Sartori, Giovanni 1997. Comparative Constitutional Engineering. An Inquiry into Structures, Incentives and Outcomes. Houndsmills, Basingstoke, Hampshire and London: Macmillan Press Ltd.

[1]  The selection criterion here is that such attempts have at least gone through the formal amendment procedure as outlined by the valid constitution.
[2]  The rare exceptions are Köppl (2003), Rasch and Congleton (2006), and Lutz (1994).
[3]  All references to individual countries refer to the analysis in the respective country chapters in the edited volume (Fruhstorfer and Hein 2016).

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