Constitutions in Transition - Tendencies in European Constitutional Law after the Fall of Communism

Constitutions in Transition - 

Tendencies in 
European Constitutional Law 
after the Fall of Communism

Paper for the Summer School of Polish Language 
and Culture of the Jagiellonian University

(Poland and Central Europe in Transition)

Matthias Klissenbauer

Cracow, July 2000

Introduction 1

Stalinist-shaped Constitutions in CEE-countries before 1989 2

Transition in Poland 4

The Constitution of 1997 5

Bibliography 8

Anmerkungen 10

Introduction

Soon after the historical changes that took place in Central and Eastern Europe in 1989, it became clear that any new political, social, cultural and economical system introduced after the fall of communism had to be based on a constitutional system of western type. As it will be pointed later, this does not necessarily mean, that basic ideas and concepts of constitutions like those existing in western Europe were completely unknown in the CEE-countries in communist times. However, the need to find a kind of legal framework to prevent drawbacks on the way to democracy and market-orientated economy as well as the demonstration of the new orientation towards the west made significant changes of the constitutional system even more important. From the very beginning there were two sides to the constitutional aspect of transitions. On the one hand, national problems had to be solved. On the other hand, an international political pressure could be observed, e.g. concerning the protection of human rights. The search for a new legal system was a walk on a fine line between principles and compromises on both internal and international level.

Stalinist-shaped Constitutions in CEE-countries before 1989

Primarily some of the basic concepts of typical stalinistic-shaped constitutions, that were introduced in all the countries under the communist governments should be outlined. Thus it will be obvious why changes were inevitable and what questions those changes had to concern.
One first big difference to Constitutions in a western sense consisted in the socalled "Pragmatism". This means, that the Constitution had only a minimal binding effect for the public institutions and therefore for the Communist Party, which maintained the control of all the strategical important positions in the public administration. Access to those positions was always restricted, although the range of possible control covered obligations to notify the nomination of candidates as well as the right to send selected party members, depending on how important a position was considered to be. Persons were nominated for such positions by the party either because of their qualification or applying political criteria. (Nomenklatura system) The Constitution was also meant to rule over all aspects of society life, thus reducing the importance of private initiatives in every possible way. Although those regulations differed depending on the country as well as on the sector in question, one of the effects was that the private sector in economy played a minor role in contrary to the western system. Concerning the legal system, the leading role of the Communist Party was also part of the constitution and included in the preamble or in Art. 1.

Another fact that derived from Pragmatism also had very much to do with the situtation of individuals and their rights in the Communist State. There was no possibilty to allege a violation of the Constitution before a court. Courts similar to Constitutional Courts existed in former Czechoslovakia, Poland1, Yugoslavia and to some extent in Hungary but they played and insignificant role: as a matter of fact, only some statal institutions could allege violations of the Contitution and even then, the Sentences of a Constitutional Court had no further effect which means that no execution of those Sentences was possible, whereas in the Western Constitutions the freedom of the individual and its effective protection against the state is one of the most important achievements of liberalism and part of all constituitonal systems.

The importance of this institution will be pointed out later in the case of Poland but can also be deducted from the fact that they were introduced shortly after the fall of communism in a great number of countries. Today Constitutional Courts exist in the following countries:

• Albania,
• Belarus,
• Bulgaria,
• Chech Republic,
• Hungary,
• Kazakhstan,
• Lituania,
• Republic of Macedonia,
• Poland,
• Romania,
• Russia,
• Slovakia and
• Slovenia.

Whereas in Poland the Court was established in 1985 and reborn after the fall on communism,
Russia saw its introduction in 1993. But even then its role cannot be underestimated as the
controverses with the former president Yeltsin and CPSU show.
In Hungary the Court not only ruled in 1992 that it would be unconstitutional to hold a

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