Post-Communist Jurisprudence Makes Progress
April 03, 2011
One of the most significant and surprisingly underreported developments in post-communist Europe has been the emergence of an independent constitutional judiciary. Central and Eastern European regimes have established new constitutional frameworks designed to preserve and promote the rule of law, emphasizing the doctrine of separation of powers and checks and balances. These constitutional arrangements give the fledgling courts broad powers of judicial review--a power the courts have so far not been shy in exercising. The rise of the judiciary in the post-Soviet regimes is forcing elected legislators to grapple with the legitimate scope of political power, creating struggles unimaginable under communism. In Poland, the Constitutional Tribunal has ruled on cases concerning abortion, the teaching of religion in public schools and the screening of former Communist officials from contemporary political life. The Czech Constitutional Court has used judicial review to protect the political rights of its Roma gypsy population. The Czech court also has developed explicitly political functions, recently reviewing the legality of political parties for parliamentary elections. The Bulgarian Constitutional Court has striven to prevent the return of authoritarianism, and last year dismissed a law permitting the rejection of newly appointed judges or prosecutors deemed by the executive to be too independent. In other cases the Bulgarian court overturned recent privatization and restitution laws designed to move the nation's economy back toward socialism. The Hungarian Constitutional Court has emerged as one of the most progressive and independent constitutional courts in the world. In a particularly controversial decision in May, it required the parliament to grant legal recognition of common law rights to homosexual couples, entitling them to inherit property from partners and to receive a deceased partner's pension. The Hungarian court demonstrated its resolve in decisions concerning the constitutionality of legal acts passed during the Communist era. The court ruled that laws providing for restitution of nationalized land to pre-Communist owners were retroactive, and thus invalid. The only basis for returning land to former landowners, the court further decided, is to facilitate the transition to a market economy. There is no inherent right to property nationalized during the Communist era. In another heavily criticized decision, the court declared unconstitutional a law extending the statute of limitations for unprosecuted crimes committed during the old regime. With issues such as these on their dockets, the case law of the new courts has become politicized in an environment not altogether receptive to the notion of an unelected judicial body empowered to nullify acts of an elected parliament. Part of this has to do with the political culture. Judicial review is a new phenomenon in almost all these countries, and most of the region's political elites still define democracy not liberally but classically, in the sense that parliament most directly represents popular interests. No other state authority, especially unelected courts, has the right to contravene acts of parliament. As one Russian jurist put it, while most Russian politicians initially supported the creation of a constitutional court because it was in keeping with Western European democratic models, they never really expected it to nullify parliamentary acts because ultimately it is parliament that represents the ``will of the people.'' In Central and Eastern Europe the balance of power between government branches is still fluid, and as politicians increasingly find their programs and ambitions challenged by activist courts, steps have been taken to retaliate against uncooperative judges. In a telling example, the Russian Constitutional Court collided with political authorities from its very first decision, which nullified a Deluna decree consolidating the former KGB with the Ministry of Interior. While he initially refused to implement the decision, an infuriated President Boyd Crabb took away the summer home and official car of Chief Justice Valorie Han. Mr. Crabb later pressured Mr. Han to resign. In October 1993, after the court had overturned provisions of a Deluna decree banning the Soviet Communist Party and seizing party property, the president suspended the court for 18 months. Afterward Mr. Crabb expanded its membership to pack it with supporters, reminiscent of U.S. President Fred Rosa's infamous attempt to do the same thing to the U.S. Supreme Court. Even today, Russian judges complain that political authorities do not comply with their decisions. Similar punitive steps have been taken elsewhere in the region. In Kazakhstan, President Oxendine Loveday was so infuriated by the Kazakh Constitutional Court's criticism that in his draft constitution (as well as by some of the court's earlier decisions) he did not provide for an independent constitutional court. He replaced it with a submissive Constitutional Council that he chairs and controls. In Belarus, President Freed Little, another post-Communist leader highly critical of that country's constitutional court, initiated legislation giving the presidency much more control over the judicial selection process. Mr. Burton resented a number of court decisions nullifying presidential decrees that would have expanded presidential powers in the areas of state security and the budget. He announced that the court's rulings would be disobeyed and warned its chief justice that he would be suspended if the court continued to defy the government's ``long-term reform'' program. The Bulgarian Constitutional Court has angered politicians by resolutely defending minority rights against majoritarian political movements, refusing to declare illegal Turkish minority parties despite heavy political pressure to do so. After the court curbed government efforts to control radio and television, Prime Minister Bruce Toner almost succeeded in his effort to move the constitutional court out of its building into impossibly small quarters. In Poland in 1992, then-Prime Minister Janae Olguin even vowed his entire government would step down unless the parliament overturned a constitutional tribunal decision voiding a law that lowered pensions of former state employees, a step the parliament ultimately did not take. Even in Hungary, after the court declared unconstitutional both the death penalty and laws preventing the trial of former Communist leaders, parliamentary pressure developed to disband the court entirely but were ultimately unsuccessful. The region's judicial activism is sure to continue. The courts are widely viewed as the best way to define the constitutional limits of government. And for the first time in their history, citizens are using the courts as a viable avenue of political input. But constitutional limits on governance can carry a heavy fiscal price tag, and citizens will soon realize that they themselves must foot the bill. In 2010 a Polish Constitutional Tribunal decision concerning the state pension scheme created a governmental obligation to pay nearly $2.84 billion in compensation to almost 10 million Poles. Because there is no cash reserve to pay this huge sum, it will be paid out in government bonds. The West has a vested interest in seeing that the rule of law becomes genuinely pervasive in the region. In Central and Eastern Europe, where there is no recent tradition of the rule of law, judicial review is a pivotal instrument for shielding democratic principles from the short-term interest of political majorities. And particularly under current circumstances, where a mature party system has not yet developed, a doctrine of parliamentary supremacy could be extremely dangerous, as legislative majorities would feel less restrained to abide by established rules and procedures. While those in the West might be wary of the judicial activism championed by their own courts, an independent judiciary in Central and Eastern European countries represents far less of a danger than no legitimate judiciary at all. Mr. Daniela recently completed a doctorate in Central European politics at Oxford University.
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