Post-Soviet Constitutions and Challenges of Regional Integration

Adapting to European and Eurasian integration projects

Roman Petrov, Peter Van Elsuwege

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9780367875466
• eBook ISBN: 9781317326267
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book explores the implications of European and Eurasian integration projects for the constitutional orders of post-Soviet countries. On the one hand, the process of Eurasian integration, culminating in the establishment of the Eurasian Economic Union (EAEU), led to the creation of new institutions and mechanisms influencing the domestic legal order of the participating countries. On the other hand, the process of European integration, epitomised through the European Union (EU), constitutes an important source of reference for domestic constitutional developments in the countries which recently concluded a new generation of Association Agreements with the EU. This book analyses the implications of both processes.

The book addresses the relevant experience of the countries from Central and Eastern Europe with transitional constitutionalism, mapping out the significance of European and Eurasian integration for protecting the rule of law in the post-Soviet space and identifying the constitutional implications and challenges of the EAEU and the new generation of Association Agreements. It also provides detailed country reports on national constitutional orders in the post-Soviet space and their adaptability to regional integration projects, authored by leading academics from the countries concerned, providing a number of general reflections about the evolution of post-Soviet constitutions in light of European and Eurasian integration projects.

Part I

European and Eurasian integration initiatives

Constitutional challenges

1 The evolution of constitutionalism in the post-communist countries of Central and Eastern Europe

Some lessons for the post-Soviet space

Paul Blokker

Introduction

The centrality of legality, the rule of law, constitutionalism and human rights in the radical changes in the former communist countries of Central and Eastern Europe (CEE) since 1989 has been widely noticed and analysed.¹ There are three reasons of why one would want to refer to a distinctive post-communist experience with constitutionalism. First of all, all the constitutional orders in the region emerged after a prolonged experience with communism. Second, a good part of the countries in the region embarked on a process of obtaining membership in the European Union (EU), while others have become part of the EU ‘neighbourhood’ and of the Council of Europe (CoE), a process often referred to as the ‘return to Europe’. Third, as of 2017, many countries appear to be in an ongoing process of some form of transformation, particularly visible in explicit ‘counterconstitutional’² moves in Hungary and Poland, but equally expressed in more modest ways of ‘illiberal’ or ‘counterconstitutional’ practice elsewhere (e.g. Romania).³

The processes of constitutionalisation in the post-communist region are in a general sense characterised by a dual process, that is, the original turn to constitutionalism and human rights regimes is importantly related to domestic processes of change and dissidence, but at the same time international factors (in terms of actors, models, institutions) have played a highly significant role from the start, and most conspicuously with the rapprochement to the EU and the CoE, and subsequent membership.⁴ Constitutionalisation in the post-communist region has seen the emergence of important and complex processes of domestic constitutional politics and conflict, in some cases already before 1989, while external actors and models have become increasingly prominent in the post-communist transformations.⁵ In this, the significant role of external factors and actors can hardly be overstated. In the heat of the ‘constitutional moments’ of the early 1990s, European constitutional models (in particular, those of Germany and France) evidently played a major role in constitution-making processes, even if sometimes in the form of opaque practices of ‘bricolage’.⁶ The prominence of the EU enlargement process and its conditionality has to be duly acknowledged,⁷ while also the role of the CoE, through the European Court of Human Rights (ECtHR) and increasingly the Commission of Democracy Through Law (Venice Commission), is evidently considerable in the processes of constitutionalisation in the region.

The chapter will start with a discussion of the post-1989 process of constitution-making, with an emphasis on the widespread adherence in the region to a model of legal or ‘new’ constitutionalism. Second, the EU enlargement process will be related to constitutional trajectories in Central and Eastern Europe, while, third, the role of the EU Charter of Fundamental Rights, and, fourth, the complex nature, and the persistence, of national sovereignty in the context of EU law will be discussed, on the basis of relevant judgments. Fifth, the recent illiberal developments and their significance for constitutionalism in some countries (Poland, Hungary) will be identified. In the concluding section, some potential lessons for post-Soviet neighbourhood countries will be outlined.

Post-1989 constitutionalisation

An emphasis on legal constitutionalism in the post-communist societies is not surprising in the light of a dissident emphasis on human rights and the language of legalism shared by communist reformers and opposition forces prior to 1989.⁸ The emphasis on legalism, legal continuity and the rule of law can further be related to the fact that legalism was perceived as an antidote to the ‘ideological’⁹ or ‘contradictory’¹⁰ socialist legality of the communist regimes. The post-1989 ‘return’ to constitutionalism and the rule of law or, at the very least, the rejection of the communist instrumentalisation of the law for political purposes, reconnected with a trend of globally emerging, ‘new’ constitutionalism. By the end of the 20th century, legal or new constitutionalism¹¹ had allegedly become predominant, even if not uncontested. In the post-communist democracies, the role of new constitutionalism has not least been seen as one of securing the transition to robust constitutional democratic orders.¹²

What makes new constitutionalism relevant in the post-communist situation includes, among others, the following dimensions: the (re‑)establishment of sovereign, democratic orders grounded in the rule of law, the idea of constitutional law as a higher law (and thus particularly entrenched against the influence from politics), the idea of fundamental rights, and the idea of a guardian of the constitution in the form of a Constitutional Court. New constitutionalism provides one possible way of protecting societies from succumbing to totalitarianism and dictatorship. The emphasis, in this, is on written constitutions with an entrenched ‘catalogue of rights’, and a ‘system of constitutional justice to defend those rights’.¹³ The Constitutional Court plays a primary role in the protection of society in that it is an independent institution, which is not only regarded the ultimate guardian and interpreter of the constitution, but equally so of fundamental rights.

The first feature that characterises new constitutionalism is an understanding of constitutionalism as closely related to the ideas of politico-legal autonomy and state sovereignty.¹⁴ New constitutionalism follows a traditional understanding of state sovereignty, that is, sovereignty as indicating the relative autonomy of the state from both the external world (external sovereignty) and the internal citizenry (internal sovereignty). Part of the ontology of new constitutionalism corresponds to ‘constitutional nationalism’, that is, the idea that sovereignty is grounded in a national state, which has the ‘final word’.¹⁵

New constitutionalism is relevant in the new democracies in that the new constitutions adopted in the post-communist region have generally displayed a disproportionate ‘souverainist’ character. Anneli Albi has argued that a ‘characteristic feature of the post-Communist constitutions of Central and Eastern Europe is that they are distinctively more protective of sovereignty than most constitutions in Western Europe’.¹⁶ In the run-up to EU membership, Albi argued that, ‘[a]utonomous control or even statehood having been (re-) established merely a decade ago, Central and Eastern European countries (CEECs) operate firmly in the traditional language of sovereignty, independence, the ethnically defined nation-state and national self-determination’.¹⁷ Regarding the latter point, ‘Eastern European academic discourse as well as citizenship and language legislation tend to approach the nation through the ethnocultural concept of the homogeneous nation-state’.¹⁸ The souverainist and ethno-nationalist dimensions have continued to play an important role in post-communist societies, as is particularly, but not only, evident in current developments in Hungary and Poland. This is so, even if the interpretation of sovereignty and statehood has become more complex in the context of EU membership (see below).¹⁹

The second feature – that of the constitution as the apex of the legal system – is a primary dimension in all of the post-1989 constitutions. New constitutionalism tends to endorse the constitution in the form of a higher law, that is, as a law that is situated ‘above’ ordinary laws and is more difficult to change by political means. In other words, such a law is entrenched. The level of entrenchment of the constitution, however, differs importantly between constitutions, and equally within the region. Entrenchment further also relates to judicial review in that the more difficult Constitutional Court decisions are to override, the more entrenched a constitution is. As Sadurski has argued,

[t]he degree of “finality” of decisions of constitutional courts may then be measured by the degree of entrenchment of the constitution: the easier it is to amend the constitution, the less final are the court’s decisions. On the one side of spectrum, there will be cases of an “absolute” entrenchment: when the constitution itself precludes a possibility of amending certain provisions… . On the other side of the spectrum, there will be constitutions that are weakly entrenched, that is, those that envisage a reasonably easy amendment process.²⁰

The higher-law status has constitutionally been enshrined in the form of limitations of revision ranging from simple supermajorities (as in the case of Hungary a two-third parliamentary majority), to complex provisions regarding initiators of revision, parliamentary approval and ratification by means of a popular referendum (such as in the case of Romania).

The third feature, the idea of a set of essential individual rights, became an equally widely endorsed element of the constitutions in the new democracies, not least due to their accession to the Council of Europe as well as the EU Charter of Fundamental Rights. The communist constitutions had included ample catalogues of rights, without, however, granting these rights the status of individual entitlements. Rather, individual rights were benefits granted by the state to citizens who were supposed to fulfil a range of duties, and were anyway interpreted arbitrarily and always within the context of the socialist ideal.²¹ A main aim in all constitutions in the region was to entrench rights so as to protect these from political interference and arbitrariness.

A fourth dimension is that of the role of Constitutional Courts. The post-communist countries adopted a more or less similar model of concentrated or centralised review, in which one singular institution has the responsibility and independent status to ‘authoritatively scrutinise laws in terms of their constitutionality’.²² In this respect, the most important of the judicial review powers is that of review in abstracto, that is, the power to review the constitutionality of laws without reference to a specific case. While, on the one hand, we could speak of a region-wide phenomenon, on the other hand, it is necessary to recognise relatively different trajectories and institutional make-ups in the various countries. Generally, there is no tradition of Constitutional Courts in the region (except for the Czechoslovak case, where such a court was established by the 1920 Constitution and operated from 1921 onwards). Many countries looked to Western Euro...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Notes on contributors
• List of abbreviations
• Acknowledgements
• Introduction
• Part I European and Eurasian integration initiatives: constitutional challenges
• Part II Constitutional orders of the post-Soviet countries and their adaptability to European and Eurasian integration
• Annex 1: rule of law provisions in the Constitutions of post-Soviet states
• Annex 2: constitutional provisions on the protection of national sovereignty
• Table of cases
• Index