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East European Constitutional Review Volume Number 2. Spring 1995

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East European Constitutional Review Volume Number 2. Spring 1995 TITLE : EAST EUROPEAN CONSTITUTIONAL REVIE W VOLUME 4, NUMBER 2 . SPRING 1995 AUTHOR: STEPHEN HOLMES, EDITOR in CHIE F UNIVERSITY OF CHICAGO LAW SCHOO L THE NATIONAL COUNCI L FOR SOVIET AND EAST EUROPEA N RESEARC H TITLE VIII PROGRA M 1755 Massachusetts Avenue, N .W . Washington, D .C. 20036 NCSEER NOT E The quarterly journal East Euro p ean Constitutional Review, is published by th e Center for the Study of Constitutionalism in Eastern Europe at the University o f Chicago Law School, and has been delivered by the Editor in Chief to the Counci l under contract 808-05 for reproduction and supplementary distribution to it s readers who are not on the Center's subscription list . Readers who already receive a copy directly from the Center are requested to notify the Council (202) 387-0168 . PROJECT INFORMATION :* CONTRACTOR : University of Chicag o PRINCIPAL INVESTlGATOR : Stephen Holme s COUNCIL CONTRACT NUMBER : 808-05 DATE : June 7, 1995 COPYRIGHT INFORMATIO N Individual researchers retain the copyright on work products derived from research funded b y Council Contract. The Council and the U.S. Government have the right to duplicate written reports and other materials submitted under Council Contract and to distribute such copies within th e Council and U.S. Government for their own use, and to draw upon such reports and materials fo r their own studies; but the Council and U.S. Government do not have the right to distribute, or make such reports and materials available, outside the Council or U .S. Government without th e written consent of the authors, except as may be required under the provisions of the Freedom o f Information Act 5 U.S.C. 552, or other applicable law . The work leading to this report was supported in part by contract funds provided by the National Counci l for Soviet and East European Research, made available by the U. S. Department of State under Title VIII (the Soviet-Eastern European Research and Training Act of 1983) . The analysis and interpretations contained in th e report are those of the author. East Europea n Constitutional Review Volume 4, Number 2 Spring 1995 DEPARTMENTS 2 Constitution Watc h Country-by-country updates on constitutional politics in Eastern Europe and the ex-USSR . 35 Special Reports Wiktor Osiatynski on Poland's latest political crisis ; Aurelian Craiutu on the mutually reinforcin g extremisms of Romania's separatists and nationalists; Cass Sunstein on the uncertain constitutional statu s of the Czech bill of rights ; and Stephen Holmes on postcommunist state building . 91 From the Cente r Conferences in St. Petersburg, Lausanne, and Budapest, Roundtable in Moscow, Russian language Revie w and acknowledgement of support . FEATURE Political Consequences of Parliamentary Rule s 56 Introduction David Olson 61 Russia Alexey Alyushin 67 Czech Republi c Milos Calda and Mark Gilli s 71 Slovakia Darina Malova 78 Romani a Elena Stefoi-Sava 84 Belarus Alexander Lukashu k East European Constitutional Review, Vol. 4, No. 2, Spring 1995 . ISSN 1075-8402. Published quarterly by the Center for the Study of Constitutionalism in Eastern Europe in partnership with the Central European University . Editor-in-Chief Stephen Holmes . Executive Editor: Dwight Semler. Managing Editor: Nida Gelazis. Associate Editors: Cyrus Amir-Mokri, Venelin I. Ganev, Christian Lucky. Editorial Board Jon Elster, Lawrence Lessig, Wiktor Osiatynski, Cass Sunstein . Subscriptions are free. For information, write to the CSCEE, The University of Chicago La w School, 1111 East 60th Street, Chicago, Illinois . 60637. Copyright © 1995 by the Center for the Study of Constitutionalism in Eastern Europe . EAST EUROPEAN CONSTITUTIONAL REVIEW Country-by-country updates on constitutional politics in Eastern Europ e Constitution Watch Over the past three months, Albani a even the chairman of Berisha's own DP, Eduard Selami . A t Albania has been coming to grips with th e several DP meetings held throughout the country, Selam i November 6, 1994 referendum i n emphasized that circumventing Parliament is undesirable . which the electorate refused to endorse President Sali Subsequently, the DP leadership organized several part y Berisha's draft constitution . In response to the unsuccessfu l meetings to conciliate the supporters of the president wit h referendum, the opposition—consisting of the Socialist Party those of the chairman. The roughness of the debates, howev- (SP), the Party of the Democratic Alliance (PDA), the Socia l er, revealed that consensus would be hard to reach. To Democratic Party (SDP) and the Party for the Protection o f resolve the disagreements between the two groups, the D P Human Rights (PPHR)—convened a working group of lega l held an emergency conference on March 5 . By the end of the specialists to prepare a draft constitution of its own . conference, it had become clear that Berisha's supporters ha d Members of this working group vowed to build on the idea s the upper hand. Encouraged, Berisha moved for Selami's dis- and institutional arrangements incorporated into earlier missal . Several participants requested that voting on th e drafts of the constitution, including the previous drafts pre- motion should be conducted secretly, since party statutes pared by the opposition in the second half of 1994 as well a s require that chairmen be elected (and presumably dismissed ) the ill-fated Berisha draft. by secret ballot. The president and his supporters swiftl y The leaders of the Democratic Party (DP), includin g moved to block this proposal, which did not pass . Finally , President Berisha himself, denounced the opposition's initia - without the benefit of a secret ballot, the conference voted to tive as illegal, arguing that it violated the "Law on Majo r remove Selami. Several weeks later, he was ejected from th e Constitutional Provisions." Article 44 of this constitutiona l leadership of the DP . law stipulates that: "The provisions of this law are applicabl e The problems of judicial independence and the power o f until the adoption of the Constitution of the Republic o f Parliament to strip judges of their immunity were also at the Albania, the draft for which shall be prepared by a Specia l center of political debate. As previously reported (see EECR , Commission appointed by the People's Assembly ." Despite Albania Update, Vol. 4, No. 1, Winter 1995), the attorne y Berisha's efforts to discredit the opposition's draft constitu- general asked Parliament to lift the immunity of Zef Brozi , tion, a final version was prepared in less than two months . chief justice of the Court of Cassation, alleging that he ha d The new draft basically reflects the consensus alread y improperly ordered the release of a person of Greek national- reached in the Constitutional Commission during delibera- ity convicted of a drug-related offense . When the questio n tions on previous drafts. Only the chapter on th e was first raised in Parliament, the DP parliamentary grou p Constitutional Court and the final provisions on the method proposed that the opinion of the Constitutional Court b e of ratifying constitutional amendments differ somewha t sought as to whether "the People's Assembly is the competent from the equivalent articles in earlier drafts . organ to lift the immunity of the chairman and members of The opposition's draft constitution was published in loca l the Court of Cassation." In its decision No . 1/1995, date d newspapers on February 28 . In a joint declaration, the oppositio n January 19, the Constitutional Court ruled that "for liftin g parties pledged not to violate the basic law and to follow strictly the immunity of a particular subject, when not otherwise pro - the constitutional procedures for adopting a new constitution, vided by law, the organ that named or elected him has the including submitting the draft to the Constitutional Commission. power to decide ." Because it elects the judges of the Court of Even after the disappointing results in his November 6 Cassation, Parliament may also lift their immunity . referendum, the president continued to believe that a new It took relatively long for Parliament's Committee on constitution should be approved by referendum, thu s Mandates to investigate the attorney general's request to lif t bypassing Parliament . This strategy, however, antagonized Brozi's immunity. At least several members of the commit - 2 SPRING 199 5 tee were not convinced that the criminal charges levele d espionage and arms-related crimes . A fifth, convicted onl y against the justice were credible. After much debate in ple- on a weapons charge, had already been granted amnesty . nary session, during which Brozi appeared personally t o The Court of Cassation did not reverse the convictions, bu t defend his position, Parliament decided to hold a secret vote . decided to release all the defendants on parole. The chair - With the support of at least some members of the DP, late on man, for his part, argued that the charges were unprove n the night of February 1, Parliament voted against lifting and that the defendants should be exonerated. The entire Brozi's immunity. The margin was a slim four votes, an d case illustrates how law and politics are inextricably woven there were many abstentions . Various commentators—both together in present-day Albania. The crimes of which the inside and outside of Albania—have asserted that the decision individuals in question had been convicted are considere d marks an important step toward safeguarding the indepen- very serious under the Albanian Penal Code and parole i s dence of the judiciary . ordinarily not an option in such cases. Thus, the Court' s This narrowly-repelled attack on the judiciary was indi- strained interpretation of the law, presumably aimed to pre - rectly linked to the referendum's defeat .
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