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

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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 .

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CONTRACTOR : University of Chicag o

PRINCIPAL INVESTlGATOR : Stephen Holme s

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DATE : June 7, 1995

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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 . The president ha d vent a further deterioration in Albanian-Greek relations , clashed with the chairman of the Court and wanted t o may set an unfortunate legal precedent. Although the deci- remove him (see EECR, Albania Update, Vol . 4, No. 1 , sion received a positive response in and outside Albania , Winter 1995) . When the referendum failed, the executiv e many jurists noted its unabashedly political character . scrambled to unearth a criminal act that would allow Brozi' s The prosecutor general, claiming proof of political cor- immunity to be lifted. Under the "Law on Major ruption, sought to lift the immunity of two DP deputies wh o Constitutional Provisions, " a judge of the Court of Cassation had once been members of the government, former Financ e may be stripped of his or her immunity, only if there is evi- Minister Genc Ruli and the former minister for questions o f dence that he or she has committed a serious crime . local power, Rexhep Uka (see EECR Albania Update, Vol . Interestingly, had Berisha's draft constitution been ratified , 4, No. 1, Winter 1995) . Parliament asked the attorney gen- proof of the commission of a crime would no longer have eral for an explanation of the accusations. To make it clear been a prerequisite for lifting immunity . Article 102.4 of the that the attempt to strip these particular deputies of their unsuccessful draft states that "Judges of the Supreme Court immunity should not be mistaken for a genuine effort to (as the Court of Cassation would have been renamed) ma y fight corruption, the opposition noted that any number o f be removed from duty and criminally prosecuted under th e more serious financial scandals had, for some reason, escaped conditions provided by law on the basis of a reasoned deci- the notice of the DP government. On March 17, having sion of Parliament pursuant to a proposal of the presiden t decided to employ a secret ballot, Parliament voted not to lift and when a majority of the members of Parliament have the immunity of the two former ministers. The margin of voted for it." This provision would have definitely made th e victory in this case was larger than in that of Brozi (about 20 political harassment and pressuring of judges much easier . votes), showing that members of the DP majority ar e On February 23, the Constitutional Court issued anoth- increasingly willing (under conditions of anonymity) t o er important decision, No . 3/1995, in response to a com- oppose the government's ploys . plaint filed jointly by SDP and SP . Petitioners alleged tha t A financial scandal has recently received considerabl e submitting the constitution for popular ratification without attention in the Albanian press . Two years ago, the Ministry first having it approved by Parliament violates the "Law o n of Defense paid 300,000 dollars to a private Bulgarian firm Major Constitutional Provisions ." Article 16.2 of this law for military trucks that were never delivered . Since the con- states that "the People's Assembly has the power to adopt tract between the firm "Meiko" (on behalf of the Ministry o f and amend the Constitution ." Although the complaint had Defense) and the Bulgarian firm "Bolid 1990 Petrov" was been filed over three weeks before the referendum, th e signed so long ago, the opposition press claimed that th e Court's decision came down more than three months after - money must have been used for some other purposes, callin g wards. Three members of the Constitutional Court resigned this case a sign of corruption among the DP leadership. The in protest over this delay . facts appear to have been otherwise, however. The Albanian In its decision, the Court held that direct popular ratifi- firm, represented by its own lawyers, appealed the case t o cation of the constitution is lawful . The justices based thei r the Court of Arbitration in Bulgaria . In a session held on reasoning on Art . 3 .2 of the " Law on Major Constitutiona l March 23, that Court ruled in favor of the plaintiff, requir- Provisions," which states that "the people exercise their ing the Bulgarian company to return 300,000 dollars to the power through their representative organs and referenda . " Albanian Ministry of Defense. The minority opinion castigated the Court's decision a s Newspapers have been focusing increasingly on corrup- "unconstitutional and groundless . " tion in the organs of public order and of justice. Corruption On February 8, a three judge panel of the Court o f and ineffectiveness has even led to vigilantism and an Cassation, headed by Chairman Brozi, reconsidered the con - upsurge in crimes of vengeance . This problem is most acut e victions of four ethnic Greeks sentenced last September for in northern Albania. On the other hand, Albania has recent -

3 EAST EUROPEAN CONSTITUTIONAL REVIE W ly passed new codes of criminal law and criminal procedure , action, aimed at achieving economic integration wit h finally repealing the codes inherited from the communis t Russia?" ; and "Do you agree that it is necessary to introduc e era, which had been substantially but selectively modified . amendments to the Constitution that will make it possibl e The new codes go into effect on June 1 . for the president to dissolve Parliament before its term end s when it violates the fundamental law? " Lukashenka's aggressive campaign understandably Three main tendencies have charac - antagonized the opposition. On April 11, about twenty Belarus terized the constitutional process in opposition deputies declared a hunger strike in the Belarus during the first quarter of Parliament building. They were protesting against the presi- 1995: the strengthening of authoritarian presidential power, th e dential decision to hold a referendum on constitutiona l weakening of Parliament's influence, and concessions violating amendments and against what they called the president' s Belarusian sovereignty in favor of Russia's interests in the censorship of unfavorable reports . The hunger strikers were region. Furthermore, the president and many others routinel y led by opposition leader Zyanon Pazdnyak. violate the Constitution. No institution or politically influential Besides rousing political opposition, Lukashenka's initia - group seems willing or able to prevent these violations . tive is likely to encounter some constitutional problems as Belarus's parliamentary deputies were elected five year s well. According to the Constitution, Parliament must approve ago and held their first session on March 26, 1990. New elec- questions submitted to a referendum . So far, Parliament has tions are scheduled for May 14. President Alexander approved only one of the referendum questions proposed b y Lukashenka first urged the deputies to resign by the end o f the president—the one regarding the relationship between March, arguing that, technically, their five year term woul d Belarus and Russia. More importantly, the first, second an d have already expired by that time . The president's proposal , third questions would introduce changes to the Constitution however, violated the new Constitution, which holds that th e which, according the Constitution itself (Art. 148 .2) , current Supreme Soviet may preserve its powers until the firs t Parliament cannot consider in the final half-year of its term . session of a newly-elected parliament . Nevertheless the president stood by his plan to hold the refer - Tensions between president and Parliament hav e endum on the same date as the parliamentary elections . recently been on the rise . The president, for example, ha s Lukashenka has also completed the formation of a hier- accused Parliament of stalling economic reform and attempt - archy of heads of local governments, who now report direct- ing to restrict his powers. Lukashenka also maintains that ly to him. Practically all new candidates are recruited fro m legislation enacted by the Supreme Soviet violates the con- the ranks of the former communist nomenklatura. In addi- stitutionally enshrined separation of powers . The president tion, the president has strengthened his control over the mas s was particularly bitter about a parliamentary decision mak- media. The National Television and Radio Company faith - ing it impossible for him to adopt economic legislation with - fully follows his orders and ignores the law on mass media a s out having to amend the Constitution . He has also claime d well as Parliament's demands. The Belarusian Printin g that massive absenteeism at recent parliamentary sessions i s House, the largest printing facility in the country, has bee n "an indication of inefficiency and low morale . " put under the direct control of the president's office. After The president urged Parliament to resign voluntarily , taking over, the new authority immediately rescinded con - but ominously added that if the deputies did not compl y tracts for publishing 18 independent newspapers, some o f "measures would be taken to ensure stability ." Shortly before which were critical of the president. The remainder had to this, the president had ordered Parliament's bank accoun t be satisfied with short-term contracts renewable every thre e frozen. The deputies were then presented with a five billion months. Eighty-four deputies have appealed to th e ruble bill (about a half million dollars) for "renting" the par - Constitutional Court, protesting monopolization of the liamentary chamber. Leaders of Parliament, however, man- press, but no decision has yet been handed down . aged to strike a deal with Lukashenka . They promised to end Parliament was again humiliated at the end of Marc h their sessions in the middle of April—a month before th e when the president dismissed Josef Syaredzich, editor-in-chie f scheduled elections . Distracted by subsequent events, howev- of the parliamentary daily Narodnaya Hazeta, by far the most er, this promise seemed to be quickly forgotten . popular and influential publication in Belarus. The editor Lukashenka has also proposed that a referendum b e was accused of "inciting violence" for having published a let - added to the May 14 ballot on the following four questions : ter criticizing the president's policies . Narodnaya Hazeta wa s "Do you agree that the Russian language should be grante d founded by Parliament and its editor, himself a deputy, ha d equal status with the Belarusian language?"; "Do you sup - been appointed by Parliament and reported directly to it . port the proposal to introduce a new flag and a new stat e The president established a press supervision committe e emblem?" (The new state symbols proposed by Lukashenka on March 16 . This body is widely regarded as a new versio n resemble uncannily the old communist flag and the previous of the soviet censorship committee . In his speech t o state emblem of Belarus); "Do you support the president's Parliament, the president stated that the best media Belaru s

4

SPRING 199 5

ever had was that of soviet times . Banning the publication of A number of agreements were concluded, among them a MP Syarchei Antonchyk's report on corruption, interrupt- treaty on friendship and cooperation, an agreement on a cus- ing parliamentary television broadcasts, and dismissing the toms union and joint border control (with Poland , editors-in-chief of leading dailies, Narodnaya Hazeta included, Lithuania, and Latvia), and a deal extremely favorable to are the boldest attacks on freedom of speech in Belarus sinc e Moscow on Russian military bases in Belarus . Parliamen t the communist coup of August 1991 . was not consulted during the drafting of these agreement s Acting in accord with Art. 100.20 of the Constitution, and was similarly ignored at the signing of the documents . the president has "returned" to Parliament a number of law s According to the Constitution, Parliament is responsible fo r without having promulgated them . Among these were laws ratifying treaties, but the president's office simply refused to "On the Supreme Soviet" and "On local government an d initiate the required procedure . self-government ." The deputies then passed these laws by a In February, Lukashenka started to echo Moscow' s two-thirds majority vote, thereby overriding the president' s warnings against any expansion of NATO's membershi p veto. In response, the president apparently decided that h e and effectively put a halt to the process of eliminating con- did not have to obey laws with which he disagreed. ventional arms, despite Belarus's obligations as a member of Following his example, other officials have started disdain - the Conventional Arms Limitation and Reduction Treaty in fully ignoring decisions made by Parliament . Europe . This last decision was a violation not only of a n Several dozen deputies have given up their parliamen- international treaty but also of the Constitution itself, which tary seats and, on the proposal of the president, have move d explicitly gives international treaties to which Belarus is a over to his office or to other positions in the executive party priority over national legislation (Art. 8) . branch. In an attempt to re-invigorate its authority , Parliament adopted the decree "On the Implementation o f Supreme Soviet Acts" on January 30. This decree laid down Political developments in the period that all decisions of the legislative body, even when they ar e Bulgaria immediately following the not laws, are strictly binding and must be followed by al l December 1994 parliamentary elec- Belarusian citizens . This strongly worded decree, however, tions reflect both the ambitions of the governing Bulgaria n has had zero effect . It seems that the attention of th e Socialist Party (BSP—the party of the ex-communists), and th e deputies, as well as of the public at large, is increasingl y strategy of the opposition. BSP's massive effort to assert itself a s focused on the upcoming elections . According to Centra l the dominant political force in the country, to marginalize th e Electoral Commission Chairman Alexander Abramovich , opposition, and to repeal the pro-reform legislation adopted b y 2348 candidates have been registered, 43 .3 percent of whom previous governments will undoubtedly reconfigure the politi- have no party affiliation. Of the nearly 320 current MPs, 74 cal landscape . But these BSP goals will no doubt also encounte r intend to run for re-election . The most competitive election resistance from the president and the parliamentary minority , is expected in Minsk, where 15 candidates will compete fo r and be subject to close scrutiny by the Constitutional Court. one parliamentary seat . The first issue discussed by the new Parliament was a pro- After an initial attempt to check Lukashenka's powe r posal for new parliamentary regulations . The number of vic e (see EECR, Belarus Update, Vol. 4, No. 1, Winter 1995) , chairmen was changed from three to five in order to insure that the Constitutional Court has chosen to keep a low profile . A t each parliamentary faction will have a vice chairman . At the the end of March, the former minister of justice an d same time, the new regulations restricted the rights of the vice Communist Party secretary, Valery Tihinya, was appointe d chairmen to set the agenda and preside over debates . Now only chairman of the Constitutional Court. Tihinya had been act- the chairman (currently BSP member Blagovest Sendov) and , ing chairman of the Court since October 1994 . According to in his absence, the vice chairman of the largest parliamentar y the Constitution, the president had to propose a candidat e group (i .e., BSP), have the right to chair plenary sessions . for chairman and Parliament had to approve the choice (Art. The BSP majority also voted for two changes that wil l 100.5). Having found themselves in the midst of an execu- have a considerable impact on the functioning of parliamen - tive-legislative showdown, judges have occupied themselve s tary committees. First, the legislative committee, which wa s with rectifying minor discrepancies in current legislation . used by the opposition to delay legislation of which it disap - Ticklish questions concerning presidential acts were consid- proved, was abolished. Second, a new quorum requiremen t ered only on the initiative of groups of deputies . The was introduced. Committees can now hold sessions and mak e Constitutional Court has apparently chosen not to react t o decisions with only one-third of their members present. Th e presidential violations of the Constitution or the law, lest i t governing majority argued that these changes would improv e suffer the same fate as Parliament. the effectiveness of the legislative process. The opposition— Russian Foreign Affairs Minister Andrei Kozyrev , Union of Democratic Forces (UDF), People's Union (PU) an d Speaker of the State Duma Anatoly Rybkin, and Presiden t Movement for Rights and Freedoms (MRF)—argued tha t Boris Yeltsin visited Belarus one after the other in February . these procedural and institutional changes revealed deep anti -

5 EAST EUROPEAN CONSTITUTIONAL REVIE W democratic tendencies and effectively abolished legitimat e 1995 budget or preparing a "White Book," an overview of counter-majoritarian parliamentary devices . the activities of the previous governments . Perhaps becaus e The next challenge facing the ruling party was the for- the budget is inevitably contentious and bound to b e mation of a government. Having won the elections in coali- unpopular with BSP's electorate, the cabinet decided t o tion with three small organizations (ecological, nationalisti c publish the "White Book" first. The initial text was pre- and agrarian), BSP considered including representatives o f pared during the election campaign. A later version, which two other leftist organizations (a social-democratic coali- contained some critical remarks about all previous govern- tion, Democratic Alternative for the Republic [DAR] an d ments (including Andrei Lukanov's BSP government o f the nationalistic coalition, Patriotic Union [PU], neither of 1990 and the BSP ministers in Berov's 1993-1994 govern - which had passed the four percent electoral threshold) i n ment), was openly attacked by Lukanov and by the curren t the cabinet. Evidently, these parties were too small t o Deputy Prime Minster Kiril Tzochev, who held the deput y recieve minesterial appointments, however, and the cabi- prime ministership under Berov. In the final version, pub- net, which assumed office on January 25, was comprised lished on March 21, all references to Lukanov's an d exclusively of BSP politicians. The new Council of Berov's governments (which ruled the country for alto- Ministers was formed on the basis of compromises struck gether 31 months) were deleted . The bulk of the text i s between various factions within BSP . Only Minister of now devoted to a rather general denunciation of the UDF Education Ilcho Dimitrov, a prominent university profes- government headed by Philip Dimitrov, in office for nin e sor, was viewed as a token concession to the nationalists. months from 1991 to 1992 . Before 1989, Dimitrov worked in the Central Committee The BSP also succeeded in passing several laws reflect - of the Bulgarian Communist Party and was allegedly a n ing its political priorities. The parliamentary majorit y active participant in the coercive campaign to "Bulgarize " amended the law on restitution of property by extending th e the names of Bulgarian Turks . Since 1990 he has published moratorium on restituting property rights for another thre e numerous articles excoriating MRF (the political party o f years. The law affects flats and houses which the state— ethnic Turks) as unconstitutional . under the previous regime—rented at fixed prices to privat e The cabinet was also selected to meet the demands of citizens. What is more, it changed the law regulating contro l the Bulgarian Business Bloc (BBB), BSP's only possible par - over environmental pollution, restricting public supervisio n liamentary partner. At the opening session of Parliament , of the executive branch in this area . Henceforth, an environ- BBB leader George Ganchev declared that his party's sup - mental expert's report will not be necessary for governmen- port hinged upon the exclusion of DAR and PU from th e tal building projects or state-run factories . government. The first acts of the newly elected Parliamen t A step towards re-asserting the political influence o f provide further evidence that BBB is the only political BSP in Bulgarian academia was the February 23 repeal o f force with which BSP is predisposed to deal . As a quid-pro- the law on the decommunization of science and educatio n quo for BBB support, BSP elected Ganchev to be chairma n of December 1992 . In its concluding provisions, the new of the Committee for Radio and Television . This commit- law stipulates that all existing bodies of self-government i n tee functions as a ministry, because there is still no law reg- universities should be abolished and that new bodie s ulating state and private electronic media, and the commit - should be elected by October. In another move designed t o tee, therefore, directly administers their activities . bolster the party's influence, BSP amended the law on loca l Subsequent events showed that Ganchev's unwaverin g government and created the office of regional governor of support for the BSP might cause tensions within his ow n Sofia to oversee the activities of the mayor of Sofia and party and even precipitate the disintegration of the BBB's other city officials . The current mayor was elected on a small parliamentary club. First, a clash between Ganchev UDF ticket in 1991 and, although his relationship with th e and Kristian Krastev (BBB's vice chairman in Parliament) leaders of the coalition deteriorated, he is still considered a n brought about the dismissal of Krastev from his post . Later, anticommunist and one of the few local officials in th e on March 24, three deputies declared that they intend t o country who opposes BSP policies . Parliament is currentl y leave the club. Obviously concerned that internal squabbles debating an amendment to the law on land restitution , might weaken its ally, BSP exercised political pressure o n which will impose severe restrictions on the right to bu y BBB parliamentarians and, after several hours of negotia- and sell agricultural land . The BSP majority claims tha t tions with Krassimir Premyanov, one of BSP's most outspo - these legislative acts will decrease the social costs of refor m ken leaders, BBB decided not to split. If they had, BBB's par - and guarantee more effective government control over liamentary club would have ceased to exist, since member - marketization and privatization . The opposition interpret s ship would have then dropped below the ten-deputy mini - them as an overt reimposition of state control and a fla- mum needed to form and maintain a club . grant restriction of individual property rights and the righ t At the beginning of the parliamentary term, the cabi- of self-government. By now it is clear that BSP is not con- net had to choose between two priorities—adopting the templating a repetition of its 1990 strategy, which include d

6 SPRING 199 5 making some minor concessions to the parliamentar y completion of their mandate . Thus, tensions between the leg - minority. Indeed, BSP deputies have pledged to shut th e islature and the Constitutional Court are mounting and ma y opposition out of high executive offices. This hardlin e presage dramatic confrontations in the future. approach is reflected in the fact that none of the opposi- Valkanov's initiative confirms the view, shared by tion's nominees for the Supervisory Board of the Agenc y many observers, that a characteristic feature of th e for Privatization were supported by the parliamentar y Bulgarian transition is the relentless effort by legislativ e majority. All of the new members of this influential body majorities to gain sway over the judiciary . This effort are affiliated with BSP . affects the Constitutional Court, the Supreme Judicia l President Zhelyu Zhelev reacted promptly to BSP's leg- Council (the administrative body of the judiciary), and var- islative initiatives. He vetoed three acts: the extension of th e ious aspects of financial and administrative autonomy of moratorium on restitution, the concluding provisions of th e the judicial branch . The September 1994 decisions of the law revoking of the decommunization of education and sci - Constitutional Court outlawed direct parliamentar y ence, and the amendment of the law on control over envi- attempts to interfere with the judiciary (see EECR , ronmental pollution. These presidential vetoes elicited a n Bulgaria Update, Vol. 4, No . 1, Winter 1995) . Therefore, angry response from the BSP government. In February, the 1 BSP's new strategy is to use the executive branch to subdu e cabinet decided that the president and his representative s 1 the courts. The conflict between the government and the would not be allowed to attend meetings of the Council of judiciary was aggravated when the BSP cabinet tried t o Ministers . Article 101 of the Constitution provides that a cancel a lawsuit filed by the state against the Communis t presidential veto may be overridden by an absolute majority Party for the sum of one billion leva and to recove r of all deputies, or 121 votes. Since BSP holds a stable majori- 600,000 dollars illegally transferred from the state to BSP' s ty in Parliament (125 of 240 seats, plus at least half of the 1 3 predecessor, the Bulgarian Communist Party, betwee n BBB deputies) efforts by the president to block legislatio n 1952 and 1989 . Though the government itself withdre w have been ultimately unavailing. Two of his vetoes were the charges, the court refused to dismiss the case, and th e overridden the next day . Sofia regional attorney pledged to keep it alive . Given the lopsided array of political forces, petitioning The response of the executive was prompt and brutal . the Constitutional Court has proved to be the most effectiv e Budgetary allocations to the judicial branch were even fur- way for the opposition to counteract the uncompromisin g ther reduced. The minister of justice accused the Suprem e stance of the government. Five petitions were filed in the firs t Judicial Council of receiving larger salaries than the law two weeks of March . The first case was initiated by the attor - allows, and his announcement was smoothly transforme d ney general, who asked the Court to declare the election o f into a government decree cutting the benefits of Counci l George Ganchev invalid, arguing that in December 1994 he members . Another development likely to impair th e was still an American citizen and therefore ineligible to b e finances of the judicial branch regards compensation o f elected to Parliament. In mid-April the Court declare d investigative magistrates. In accord with the decommu- Ganchev's mandate invalid, a decision which is likely to hav e nization agreement reached during the 1990 Round Tabl e a debilitating effect on BBB's parliamentary faction . talks, these magistrates were obliged to give up their mili- The other four petitions, filed by opposition deputies, tary ranks. But as ex-officers they were entitled to a kind contested the constitutionality of 15 sections of the ne w of severance pay equivalent to 12 months' salary. In anoth- parliamentary rules and procedures, Krastev's dismissa l er attempt to bring the judiciary to its knees, the cabine t from the vice chairmanship of Parliament, the extension o f decided that this money would have to be paid not fro m the moratorium on the restitution of houses and apart- the budget of the Ministry of Interior, but from the budge t ments, and the new coat of arms, which was hastily pre - of the Ministry of Justice . The head of the Nationa l pared by the government and contains the figure of a Investigative Service (administratively attached to th e crownless lion. BSP argues that a crowned lion would hav e Ministry of Justice), Ani Kruleva, began to dole out th e conveyed an unhealthy longing for the restoration of money. However, on March 29, the Supreme Judicia l monarchy, while the opposition maintains that this tradi- Council retaliated by recommending to the president that tional figure simply symbolizes the historical continuity o f Kruleva, who has proven wholly submissive to th e the Bulgarian state . demands of BSP, be dismissed . BSP is aware that the Constitutional Court might curb it s It is perhaps too early to predict if these political skir- efforts to repeal previously adopted legislation, and is there - mishes will be confined by the established system of check s fore bent on exercising political pressure on that institution . and balances or if, instead, the present conflicts will escalat e Velko Valkanov, a prominent BSP deputy who ran for presi- into an open war between institutions. But the ongoin g dent in 1991, has recently introduced a draft amendment to struggles which pit Parliament and government against pres - the Constitutional Court Act, which would cut the justices ' ident and Constitutional Court will undoubtedly continu e salaries and abolish their right to retire with a pension upon to expose the constitutional system to serious strain .

7 EAST EUROPEAN CONSTITUTIONAL REVIE W

With almost a year and a half to go Reichman were arrested for fraud, a party conventio n Czech before the next parliamentary elec - would be called to decide whether CDA should remain i n tions, the first months of 1995 wit - the coalition. There were urgent talks with President Vacla v Republic nessed the worst crisis among th e Havel, Klaus, and other leaders in order to avert the crisis , parties of the fragile governing coali - and Christian Democratic Party (ChDP) leader Ivan Pili p tion since 1992. Two of the coalition partners, the Civic spoke out against the politicization of the Reichman case . Democratic Alliance (CDA) and the Christian Democratic Nevertheless, on March 17, Reichman was formally Union (CDU)-Peoples' Party (CPP), brought charges against charged with fraud and was admitted to a psychiatric hospi- the BIS (counter intelligence service), arguing that the ser- tal because of nervous exhaustion . vice was out of control and was illegally monitoring the Political tensions and financial scandals drove home the activities of parliamentary parties . This was seen as a direct need to regulate party financing. Only the Communist Party assault on the third coalition partner, Vaclav Klaus's Civic of Bohemia and Moravia (CPBM) seems unaffected b y Democratic Party (CDP) since it nominated the provisiona l financial shortfalls. Even Klaus's CDP recently resorted to director of the BIS, Stanaslav Devaty. questionable fundraising practices when it hosted expensiv e The most eye-catching charges against the BIS, levele d dinners whose patrons included the heads of several ailin g by CDA leader Deputy Prime Minister Jan Kalvoda, were state enterprises which had been bailed out by Klaus's ow n investigated by both governmental and parliamentary com- government. On February 8, in response to the ensuing out - missions. At the end of January, after less than a week's cry about conflict of interest, the government banned state - work, the governmental commission concluded that th e owned firms from donating money to political parties . charges against the BIS could not be proven. In a govern- In the midst of financial scandals and security servic e ment vote, 18 ministers denounced the way Kalvoda lodge d accusations, opinion poll ratings for CDA and CDU-CPP his charges ; Kalvoda alone supported himself . fell. Many supporters of both parties defected to CDP . Public The parliamentary commission, led by non-affiliate d opinion polls predicted that five parties would win seats if deputy Vlastimil Doubrava, unearthed little evidence to con - parliamentary elections were held this quarter : CDP (30 per- firm Kalvoda's allegations. Two of the accusations—influ- cent), Czech Social Democratic Party (CSDP) (13 percent) , encing public opinion through controlled leaks of BIS infor - CDA (nine percent), CPBM (seven percent) and CDU-CPP mation and sending agents to contact persons detained i n (seven percent). Another polling company showed support connection with a scandal at a bank that had allegedl y of the CSDP rising above 20 percent for the first time . Thi s loaned money to the CDA—were so vague that the commis - latter poll also showed public trust in President Havel risin g sion was unable to reach any conclusions . The third charge , from 70 percent to 75 percent since February 1994, while making contact with foreign security services without th e Prime Minister Klaus's popularity dropped from 72 percent knowledge of the government, might backfire on Kalvoda . to 54 percent in the same period . As deputy prime minister for legislative matters, he ought t o Disapproval of CDA's behavior was voiced in politica l have discovered and reported the problem . The fourth circles as well as in opinion polls. At the end of January , charge, collecting materials against extremist organizations , Tomas Jezek, an architect of the Czechoslovak privatizatio n was rejected . Five of the seven members of the Doubrav a scheme, quit CDA, claiming that the party had tried t o commission, including two members of opposition parties , divert public attention from its internal debt scandal . I n voted to dismiss all allegations on February 16 . February, Jezek joined CDP's parliamentary club, increasing Both of the accusing parties, CDU-CPP as well as CDA , its representation to 67 of 200 seats. In an official pro- are beset with financial problems . The CDU-CPP is still try - nouncement, the small ChDP also commented: "Kalvoda' s ing to repay a debt of 27 million Czech crowns . The CDA party is destroying everything that our society has achieve d accepted a 52 million Czech crown loan from the now - since 1989 . It is trying to paralyze the democratic securit y bankrupt Credit and Industrial Bank . The bank was owne d services and holds values like responsibility, law, and loyalt y by Antonin Moravec, who is now under arrest for fraud, an d to the democratic state in low esteem . " who owes more than 4 billion crowns to other banks. Th e Tension within the coalition suggested that the govern- CDA claims it has repaid its loan, but the circumstances of ment could break up before the 1996 elections. On Februar y the repayment are shrouded in mystery . In a statement sub- 11, CDA Deputy Ivan Masek threatened to remove hi s mitted to the Doubrava commission, CDA claimed that th e party from the coalition to preserve the party's political inde- debt issue was used in a smear campaign against CDA and pendence. Rumors even circulated that the CDU-CP P CDU-CPP conducted by "influence agencies" in the media . would follow suit and that the two defectors would try t o The statement insinuated that CDP was responsible . form a new government together with the opposition CSDP , In mid-March, Josef Reichman, the head of the CD A led by Milos Zeman . secretariat, fell under suspicion for his handling of the party' s These rumors soon faded, but coalition tensions helpe d finances. The CDA Political Council warned that if reawaken the debate over the Senate. The Constitution for-

8 SPRING 199 5 bids dissolution of Parliament as a whole . This presents a Prague refocused attention on Roman Catholic ecclesiasti- problem if the coalition collapses . In such circumstances, i n cal property. A petition promoted by writers Lenk a the absence of a Senate to keep "Parliament" in existence , Prochazkova and Zdenek Mahler (a playwright whose best - Havel could not dissolve the lower house and call new elec- selling popular history of the cathedral was criticized by tions (Art . 106 .3). But senatorial elections have not bee n professional historians) claimed that the cathedral had bee n held and do not seem imminent. built with state money and that it belonged "to all the peo- Debates over senatorial election provisions have spli t ple." The petition, which demanded that Parliament pass a both the coalition and the government. Klaus is ambivalen t special law making the cathedral the property of the state , about the need for a Senate, while Havel is one of its mos t was signed by 121 MPs—including 25 deputies from th e resolute supporters . CDP, CDA, and ChDP agree that can- CDP and two from the CDA. The Christian parties, how - didates for the 81 Senate seats should compete in 81 single - ever, criticized the petition for putting unacceptable pres- member districts. Plurality rules would apply, unless no can- sure on the judiciary . didate gains more than 20 percent of the vote; in this case , Historically, the cathedral belonged "to itself' until th e there would be a second round . The CDU-CPP, however, communist regime nationalized it in 1954 . In 1994, the still insists on the "27 by 3" formula, which give Senate seats Prague First District Court ruled that the cathedral agai n to the top three candidates from each of 27 three-membe r belonged "to itself," thus transferring effective control to th e districts. This clever formula would effectively undermin e Roman Catholic Church . On February 9, Havel's offic e CDP domination of the political scene. appealed this decision to the Prague Municipal Court . No date In his address on March 14, President Havel exhorte d has been set for the appellate hearing, but both sides have inti- Parliament to comply with the Constitution by creating a mated that they will abide by the Municipal Court's decision. Senate and revamping the state administration . The CDP generally opposes further restitution of churc h Constitution calls for a separation of state and public property. The party maintains that, while no further prop- administration and for the creation of higher administra- erty should be nationalized, property seized from the churc h tive units. Havel also proposed the establishment of a fund in the pre-war land reform and by other measures prior t o to finance political campaigns. Finally, he recommended 1948 should not be returned. This insistence on 1948 as the the creation of an ombudsman's office and urged intoler- baseline year for property restitution has cropped up in sev- ance for racism, antisocial behavior, and the bullying of eral other controversial property cases . recruits in the armed forces. One especially noteworthy case was recently decided b y Klaus and Assembly of Deputies Chairman Mila n the Constitutional Court. On March 8, the Court rejected a Uhde, both CDP members, at first refused to comment on plea by Rudolf Dreithaler, a Czech citizen of German origin , the president's address . It is no secret that they do not shar e to abrogate the 1945 Decree No . 108 "On the Confiscation the president's views . Three days later, Klaus admitted in a n of Enemy Property and the Funds of the National Revival . " interview that he could not agree with Havel on a number of Dreithaler claimed that the decree was invalid becaus e points, but he failed to specify which ones . Edvard Benes was not legally president of Czechoslovaki a International commissions continued to criticize th e when he promulgated it. Dreithaler himself was born i n Czech citizenship law and its effect on the Romany popula- 1949, but his family's property in Liberec had been confis- tion. Klaus responded by calling a US State Department cated under the decree . His request for restitution under th e report "a distorted and simplified evaluation . " 1991 law, which uses 1948 as the base year for restitution , In February, Jan Kalvoda and Foreign Minister Jose f had been denied by the local and regional courts in Liberec . Zieleniec proposed an important constitutional change . A decision in Dreithaler's favor would have had incal- Their proposal would allow the government to send troop s culably vast repercussions, since the decree formed the lega l abroad and order defensive military action in cases of emer- basis for the confiscation of the property of 3 .5 million gency without the preliminary consent of Parliament . Th e Sudeten Germans after World War II . If the decree had ministers argue that such a provision is necessary to carry ou t been overturned, all of those expropriated and forcibly decisions of the United Nations Security Council to enforc e expelled former Czechoslovak citizens and their heirs could peace and security . The proposal will be voted on durin g claim restitution of their property . Indeed, Dreithaler' s Parliament's next session . Article 39 .4 of the Constitution lawyer, Kolja Kubicek, seemed to be using Dreithaler' s requires three-fifths of all deputies to vote in favor of consti- claims as a test case. He hoped to delegitimize the expropri- tutional laws in order for them to pass. Although it contain s ation of the Sudeten Germans by drawing attention to th e no provision to suspend the Constitution or constitutiona l illegal basis of the Czechoslovak political system between rights, this proposal would change the fundamental princi- 1945 and 1948 . ple that laws may be issued only by Parliament . The Court rejected Dreithaler's arguments, arguin g Restitution has continued to breed controversy durin g that Benes's 1938 abdication took place under foreign pres- the last few months . The case of the St . Vitus's Cathedral in sure, that Benes was recognized as Czechoslovakia's presi -

9 EAST EUROPEAN CONSTITUTIONAL REVIE W

dent by Great Britain, the USA, the USSR, and 24 othe r ruling. For example, the group interpreted the Court's refer- nations during the war, and that the postwar Provisiona l ence to the "mass responsibility " of the Sudeten Germans a s National Assembly unanimously confirmed Benes as presi- an attempt to introduce the discredited idea of collectiv e dent until new elections could be held . Finally, asserting tha t guilt in a new guise. The Landsmannschaft also claimed tha t Benes's legitimacy cannot be judged by invoking formal cri- the Court was under pressure from the chairman of th e teria, the Court concluded that Benes had full authority t o Assembly of Deputies, Milan Uhde. Before the verdict, issue Decree No. 108 in 1945 . (Furthermore, the Provisiona l Uhde declared that for him the abrogation of the Benes National Assembly declared the decrees to be valid laws .) In Decrees would be "unimaginable . " short, the Court found that these legal acts conformed to the The Landsmannschaft has also tried to link compensa- legal system of pre-war Czechoslovakia . The Court als o tion for Sudeten Germans to compensation for victims o f argued that the confiscation decree was aimed not against Nazi war crimes . The successor states of the former citizens of German or Hungarian origin but against enemie s Czechoslovakia are the only states to which no such compen- of democracy. As such, it did not conflict with the Charter of sation has been paid since the war . The Czech government , Rights and Freedoms or other agreements . The confiscation however, has repeatedly spurned proposals to combine th e simply aimed to alleviate the suffering caused by th e two compensation questions. German occupation, the Court said . Landsmannschaft leader Franz Neubauer has repeatedl y This decision was unanimously welcomed by Czec h demanded a settlement between the Czech Republic and hi s political parties, but it has many critics within and outsid e organization. The Landsmannschaft has urged the Germa n the Czech Republic . These critics point to the fact that para- Federal Government to block the Czech Republic's applica- graph 1.2 of Decree No. 108 states that the property of tion for membership in the European Union until a "just set- "physical persons of German or Hungarian ethnicity (narod- tlement" with the Sudeten Germans is reached. These nost), except for those who can prove that they remained demands have not fallen on completely deaf ears . German faithful to the Czechoslovak Republic and never acte d Foreign Minister Klaus Kinkel recently urged the Czech gov- against the Czech and Slovak nations, and either activel y ernment to open a dialogue with the Sudeten groups . participated in the struggle for their liberation or suffere d These advances were firmly rebuffed by the Czech gov- from fascist terror" shall be confiscated without compensa- ernment. Klaus has consistently refused to deal with th e tion. No such confiscation was envisioned for persons o f Landsmannschaft, arguing that a government can negotiat e Czech, Slovak, or other ethnic backgrounds, although ther e only with other governments, not with private organizations . were collaborators among them as well . In a reaction to Kinkel's speech, Klaus also stated that th e Meanwhile, Dreithaler has another complaint pendin g issue of the expulsion of the Sudeten Germans and the confis - before the Constitutional Court . This second petition seeks a cation of their property is "definitively closed ." On March 19 , simple reversal of the specific decision not to return his fami - Klaus met with German Finance Minister Theo Waigel , ly property in Liberec. This case is somewhat more limited i n leader of the Bavarian Christian Social Union, which ha s scope. Dreithaler is presently a citizen of the Czech Republic long supported Sudeten German demands . The two did not and his family was never expelled from Czechoslovakia, s o discuss the Sudeten question directly, but Waigel asked Klau s that a decision in his favor which did not overturn the Benes to eliminate "strains" in Czech-German relations . Klaus Decrees would not automatically apply to expelled Sudeten responded, "I don't see any strains whatsoever. " Germans. But Kubicek believes that it would apply to th e In an interview published February 24, Czech Foreign estimated 50 to 80 thousand German-speaking citizens of th e Minister Zieleniec hinted that former residents o f Czech Republic, who feel that they have been discriminate d Czechoslovakia, including Sudeten Germans who would against in the process of property restitution . like to return, could obtain preferential and expedited treat- The ongoing restitution case of Karel des Fours Walderode , ment when applying for Czech citizenship . an aristocrat of French-German ancestry, raises many of th e On February 18, Havel delivered a major speech devot- same controversial issues. Walderode, whose Czech citizenship ed to Czech-German relations . The resolute tone of the has been confirmed by the Ministry of the Interior but whose address represented a significant departure from the con - wartime activities seem suspicious to many Czechs, has claime d trite apologies he had offered to the Sudeten Germans in th e Hruby Rohozec castle in north-east Bohemia and about 330 early days of his first presidency . Havel rejected attempts t o acres of land. So far he has received 230 acres of forest. Man y interpret the expulsion without taking its historical contex t local citizens have joined a petition committee to prevent th e into account and proposed turning away from the past i n return of property to Walderode, and he has received severa l order to build a better future . anonymous death threats in connection with his case . The country's struggle to turn its back on the communis t Property restitution claims continued to blemish Czech- past has also continued . On February 20, Havel pardoned Jir i German relations . The Munich-based Sudeten Germa n Wonka, who was arrested for libel after he addressed Judg e Landsmannschaft criticized several aspects of the Dreithaler Marcela Horvathova in vulgar language . Wonka's brothe r

1 0 SPRING 199 5

Pavel was a political prisoner who died in prison after Judge The "official" communist party (CPBM) denounce d Horvathova refused his request to be transferred to a hospital. Stepan's supporters as "ambitious political bankrupts wh o Wonka's dramatic arrest earlier in the year drew consider- admit that they themselves contributed to the fall of social - able public attention. ism and who would now like to take control of the Left . " Many communist judges with similarly smudge d The CDU-CPP proposed a bill on criminal sentencing records have been accorded tenure by the present govern- in early March . The bill would impose life imprisonment o n ment, causing considerable bitterness, especially among for- third-time repeat offenders in major crimes. The other coali- mer political prisoners. Despite this discontent, Minister of tion parties disapproved of this three-strikes-and-you're-ou t Justice Novak announced on January 8 that the judiciar y proposal, calling it populistic. had been thoroughly cleansed of communist judges . On February 8, the government approved a bill outlinin g According to his statement, only one-fourth of former stricter requirements for owning firearms and ammunition . employees remain in the courts, and only one-third of cur- Under the proposed law, gun owners would have to be 21 , rent judges belonged to a political party before 1989 . have no criminal record, and present certificates of physica l Several cases against communist leaders underwent new and mental health. They would also have to pass an examina - developments in early 1995 . The last communist minister o f tion. A controversial last-minute clause would deny firearm s the interior, Frantisek Kincl, was released from prison o n licenses to men who refused military service or performed civi l February 13 after serving about half of his three-year sentence . service instead. Critics claim that the clause would restrict con - He was convicted of abuse of power in October 1992, for orga - stitutionally guaranteed individual rights, but the governmen t nizing reprisals against dissidents and demonstrators in 198 8 defended the measure as consistent and appropriate . and 1989 . Kincl will remain on probation for two years. Parliament failed to agree on its own proposed rules an d Charges against Milos Jakes, former general secretary o f procedures. Almost two hundred modifications were incor- the Czechoslovak Communist Party, and Karel Hoffmann , porated in a draft text prepared by a commission led by Jan former trade union leader, have been dropped for procedu- Kasal (CDU-CPP). Proposed amendments included a n ral reasons. Jakes and Hoffmann were accused of illegall y increase in the minimum size of a parliamentary club to ten arming the communist People's Militia . deputies (which would have disbanded the five-membe r Finally, there is the case against Pavel Minarik, an intelli - Liberal National-Social club and the six-member Republica n gence officer accused of planning to blow up the Munich offices club), a ban on guns and explosives in the assembly hall, a ba n of Radio Free Europe in the early 1970s. Minarik's 1993 convic- on smoking and alcohol consumption in the assembly hall , tion was overturned by a higher court, which remanded the cas e and a change in the committee formation rules . One propos- to the state attorney's office . The state attorney dropped the case , al would have required the Assembly of Deputies to be in ses - leading to allegations of communist ties within Czech investiga - sion every weekday of the month except one (to be reserve d tive offices . The Interior Ministry's appeal to overturn the late r for contact with voters and participation in international con- court ruling was successful, and the case will now be reopened . ferences). At present, deputies spend one week each month in A draft law on the accessibility of communist secret plenary sessions, two weeks in committee work, and one police files was approved by the government's Legislativ e week in commission work, with the remaining few days free . Council. Under the proposed law, anyone spied on by the security services would have access, for a small fee, to his o r her own file until 2001 . Unlike the German Stasi files, how- Estonia's right-of-center ruling coali- ever, the Czech files would not be fully disclosed : the names Estonia tion was defeated by the centris t of secret police officers would be preserved while informer s bloc, led by the Coalition Party (CP) , would be identified by code names only, and third persons ' in the March 5 parliamentary elections . Although the CP's names would be blacked out. The proposal has been fiercely electoral victory was convincing, the fragile alliance began t o criticized by organizations of former political prisoners, wh o crumble as soon as it attempted to form a new government . are demanding a German-style full disclosure . Nearly 69 percent of all eligible voters (550,000 ) Other efforts to rid the republic of communist vestige s went to the polls for Estonia's second postsoviet parlia- have been rather formal. On March 13, Minister of the Interior mentary elections. Although only two and a half year s Jan Rum! ordered three international communist organiza- have gone by since the first elections, a constitutional la w tions, the International Organization of Journalists, the was passed providing for the early dissolution of the firs t International Union of Students, and the World Trade Unio n Parliament and permitting pre-term elections . The newl y Federation, to move their headquarters out of the republic. elected members of the Riigikogu (Parliament) will hol d Their other activities on Czech territory will not be affected . their office for four years (Art . 60) . Meanwhile, a fourth communist party was founded b y The party which used to control a majority i n pre-1989 communist politician Miroslav Stepan . The new Parliament—Pro Patria (or Isamaa) Party (PPP), headed b y party calls itself the Party of Czechoslovak Communists . former Prime Minister Mart Laar—expected a drubbing a t

1 1 EAST EUROPEAN CONSTITUTIONAL REVIEW the polls after leading the country through two years of eco- Finally, on March 31, Vahi and Savisaar signed a coalition nomic shock therapy. While carrying out large-scale indus- agreement, pledging to continue market reforms, but conced- trial privatization and radically shifting the country's foreign ing the need to create a more balanced social policy. Tiit Vahi' s trade to favor Western partners, the Laar government als o nomination as prime minister was approved in Parliament o n slashed agricultural subsidies and froze pensions, which ha d April 5, and his cabinet has subsequently sworn in on April 17. a devastating effect on many people. Nevertheless, becaus e The formation of the new government represents a clear victo- Estonia's economy began to grow by as much as five percen t ry for the former opposition, which now has solid support in 1994, much of the electorate expressed support for marke t from around 57 of the 101 members of the Riigikogu. reform. Thus, in pre-election maneuvering, another right-of- During the election campaign, many parties (including center party, the Reform Party (RP) led by the president of CP) had favored amending the Constitution to provide fo r the Bank of Estonia, Sum Kallas, emerged alongside PPP. In direct presidential elections by popular vote . This would have the opposition camp, meanwhile, Tiit Vahi's CP allied wit h opened the way for incumbent President Meri's arch-rival, the Rural Union (RU—led by popular Soviet-era leader Arnold Ruutel, to avenge his loss to Meri in the 1992 the pres- Arnold Ruutel) to form a broad electoral bloc supported b y idential race . Ruutel was the top vote-getter in the March elec- both the cities and the countryside . Although branded by the tions (with 17,000 votes in his district) and would probabl y right as excommunists and members of the former nomen- fare best in a popular poll for the presidency . Disputes within klatura, Vahi and Ruutel proved popular among farmer s Parliament appeared not only to have aggravated the problems and low-income voters seeking relief from the painfu l of governance, but also to have improved Meri's chances of re- reforms imposed by the Laar government. election. If bickering continues in the assembly and th e The formation of this alliance allowed Vahi and Ruute l Constitution is not amended, Meri will have a good chance t o to reap more than 32 percent of the vote, which translated win support from the majority of parliamentarians . into 41 seats in the 101-seat Riigikogu . Slim Kallas's RP also On January 19, Estonia passed a new citizenship law . fared well with 16 percent or 19 seats, while the leftist Cente r The new law extends the residency requirement and appli- Party (led by ex-Premier Edgar Savisaar) came in third with cation period from three to six years, and imposes a ne w 16 seats. PPP, in an alliance with the National Independence civics exam (in Estonian) for all applicants, on top of th e Party (NIP), survived Estonia's electoral threshold of five per- already mandatory language exam . The new exam, which cent, gaining eight seats, as did the Moderates (with six seats ) will test knowledge of the Constitution as well as of the cit- and the Right-wingers (with five seats) . A Russian party als o izenship law, was criticized by leaders of the non-citize n entered Parliament for the first time since 1992, when community as harsh and unfair . They warned that the ne w Estonia's citizenship legislation denied most of the republic' s exam will make it even harder for soviet-era immigrants t o 430,000 Russians automatic citizenship and, thereby, th e acquire citizenship, potentially forcing them to apply fo r right to vote. This Russian-based bloc, named Our Home is Russian citizenship . Because members of the Riigikog u Estonia, won six seats . Most of Estonia's political leaders wel- were already gearing up for the election campaign, howev- comed the election of a Russian bloc, saying it would speed th e er, the bill passed without much controversy . The new law minority's integration into Estonian society . went into effect on April 1 . The CP-RU electoral victory was disappointing to som e Meanwhile, Estonia's Constitutional Review Chamber observers who lamented that Estonia—much like Slovakia , handed down only one minor decision during the first quar- Poland, Lithuania, and Bulgaria—had shifted from the right to ter of the year. The decision dealt with defining the scope o f the left, even after two years of highly successful economic ministerial authority. Decided on January 11, the cas e reform. Within the triumphant CP-RU bloc, Tut Vahi ' s CP stemmed from a lower court of appeals judgment addressin g was generally known as more market-oriented, wherea s the legality of a February 1994 decree issued by Estonia' s Ruutel's RU was seen as more interested in protecting the agri - Interior Minister Heiki Arike . Under Estonia ' s court system , cultural sector . In pre-election statements, Vahi preached the if a lower court deems a government act unconstitutional , need to maintain foreign investments and private enterprise, the act is automatically appealed to the Constitutional but within a more "socially-oriented market economy," on the Review Chamber for a final ruling. In this instance, th e German model. When President Meri nominated Vahi t o Tallinn Administrative Court had declared unconstitutiona l form a new government ten days after the elections, Vah i the minister's decree (involving procedures for issuing resi- turned first to RP in an attempt to build a pro-reform image fo r dency permits) . In the lower court case, a resident of Tallinn the government. Wedding RP's pro-market stance with RU ' s had contested the denial of his residency permit by Estonia n protectionist inclinations, however, became impossible fo r authorities in 1993 . In resolving the dispute, the interior Vahi, and he was soon forced to turn instead to Edgar Savisaar' s minister had issued a ministerial decree. The lower cour t Center Party. Cooperation between the parties became embit- ruled that he had had no legal right to do so without receiv- tered during voting for leadership posts in Parliament, disillu- ing special authority by law . In its final decision, th e sioning voters with their newly-elected representatives . Constitutional Review Chamber agreed with the lowe r

1 2 SPRING 199 5 court and declared the minister's decree null and void . The for criminal offenses. The offices affected include the presi- ruling will serve mostly as a check on ministerial authority . dent, legal chancellor, state auditor, and members of th e The Court made a similar ruling in early December regard- National Court. The Constitution gives Parliament the right ing a decree by the finance minister . to decide these cases, but each case must be brought by anoth- After nearly two years of activity and a total of 16 cases er state official. For example, the president can bring a case decided so far by the Chamber, the Chairman of th e against the legal chancellor, and vice versa. Constitutional Review Chamber, Justice Rait Maruste, wh o Reasons for delay in adopting these constitutional law s also serves as chairman of the National Court, expressed sat- vary. To begin with, the first Parliament was overburdene d isfaction with the process of judicial review that th e with lawmaking, and these laws were not viewed as espe- Chamber has helped establish. The Constitutional Review cially urgent. In addition, each law is politically sensitive, Chamber is not a wholly separate entity, as it is in othe r involving power balancing between Parliament and the countries, but is only a subdivision of the National Court. president. For example, the law on state defense in peace - Five of the 17 National Court justices serve on th e time ended up in the Constitutional Review Chamber afte r Chamber. In a March interview with EECR, Justic e President Meri objected to some of its provisions. Finally , Maruste especially commended President Meri's role in chal- institutions such as the National Court and the legal chan- lenging Parliament on several recent bills and asking th e cellor do not have the power of legislative initiative . Thus , Constitutional Review Chamber to review them . In many Parliament does not always feel pressured to act . All these of the cases involving the president's constitutional powers , institutions can do is issue public statements or quietly lobb y the Estonian press has interpreted Meri's actions as designe d in hopes of getting necessary legislation passed . to safeguard or expand the president's prerogatives . Justice Maruste, however, contended that the president and his legal advisors had challenged the Riigikogu on many sub- During the last quarter, the Six-Party stantive issues that needed to be addressed . Maruste als o Hungary Conference failed to establish a com- asserted that the president had been quite moderate in th e mittee to prepare the new draft con- exercise of his powers, as he had referred only five laws to stitution, and deliberation to fill two vacant seats on the the Chamber (of the hundreds passed by Parliament in th e Constitutional Court continued without result. In the mean- last two years). Good rapport between the chairman and th e time, a struggle over the future of the government's economic president may exert considerable influence on the way th e program led to personnel changes in several top posts. The system of checks and balances functions in the future . reshuffling began in January when the prime minister's office Estonia's legal chancellor, Eerik-Juhan Truuvali, ca n proposed to the board of directors of the State Assets Agency only advise on the constitutionality of legal acts and recom- that the recent sale of a state hotel chain be invalidated . Those mend that they be changed. But Justice Maruste argued that opposed to the sell-off argued that the sale price was too lo w Truuvali had been effectively doing his part as watchdog i n and that the value of the chain's assets had not been adequatel y the system—nine of the cases decided by the Chamber in the appraised prior to the tender of offers . Sitting Privatization last two years were referred by Truuvali. These include the Commissioner Ferenc Bartha resigned, and the prime minis- case concerning the constitutionality of the Summer 199 3 ter's office announced that privatization matters would n o territorial autonomy referenda held in the northeaster n longer be directed by the Ministry of Finance. A draft privati- Estonian towns of Narva and Sillamae, and several laws zation bill was submitted to Parliament before the governmen t passed by the Riigikogu involving police and surveillanc e decided to establish the office of Minister of Privatization procedures . The remaining three Chamber decision s (without portfolio) . The draft bill must now be rewritten to involved automatic appeals from lower courts, such as the include the new privatization chief. This new minister on a one described above. short government leash will take over from the Ministry o f The Estonian legal system in general still lacks a channel Finance the responsibility for overseeing privatization . As a for public participation or access to the highest court, which i n member of the government, the minister is held accountable to other countries is provided by the ombudsman . The establish- Parliament. Minister of Finance Laszlo Bekesi resigned i n ment of such an office could be especially important for response to the cancellation of the sale and the subsequent uncovering and investigating cases of bureaucratic corruptio n reduction of his ministry's powers. and arbitrariness . The new Parliament has yet to pass several In March, Prime Minister Gyula Horn went forward an d laws required by the Constitution . Among these are the pro- appointed Tamas Suchman as minister of privatization mat- cedures for declaring martial law (Art. 129) and state defens e ters. Article 37.2 of the Constitution stipulates that "minister s during peacetime (Art. 126) (see EECR, Estonia Update, Vol . without portfolio shall perform the duties determined by th e 4, No. 1, Winter 1995), and for state defense in wartime (Art . government ." In his new position, Suchman heads no agency 126) . Another long-delayed bill was passed in the Riigikog u and has no staff of his own. Shortly thereafter, the governmen t on the procedures for the impeachment of top state officials appointed two well-known economists, supporters of free-mar -

1 3

EAST EUROPEAN CONSTITUTIONAL REVIE W

ket reforms, to two vacant posts. Former National Ban k privatization, remain to be passed . In addition to the problem- President Gyorgy Surany was re-appointed head of Hungary' s atic privatization bill, the government has still not submitted to Reserve Bank. Surany was pressured to leave the bank by th e Parliament a draft bill on the media . (A non-government media Boros government in December 1991 due to his repeated bill was, however, submitted by an MP of the Christia n protests of the bank's insufficient independence from the gov- Democratic Party [CDP] .) ernment. (The top spot at the National Bank of Hungary wa s According to the "Standing Orders of the Hungaria n vacant because the government requested and received the res- Parliament," members of Parliament have three different ignation of former Bank President Bod Peter Akos i n grounds on which to speak during parliamentary question December 1994 .) Surany's colleague, Lajos Boleros, wa s hour (the time Parliament sets aside each week for questions , appointed minister of finance to replace Bekesi . Prior to 1989, answers and interpellations). Altogether, 268 question were Bokros and Surany had co-authored a book calling for the cap - raised during the last half-year; 88 percent of the questions italist-style reform of the Hungarian economy . were asked by opposition parties and 12 percent by govern- Shortly after making the new appointments, the govern- ment parties . Among the opposition, the Small Holders Party ment enacted a stringent austerity plan . The March austerity (SHP) was most active. The Free Democrats (FDP) raised the program was perhaps the most widely-discussed issue i n fewest questions . Questions were most frequently addressed t o domestic politics this quarter. The main purposes of Resolution the Minister of Finance (14 percent), the Prime Minister (1 3 1023/1995 (III .22. Kormhat) are to increase the speed of pri- percent) and the Minister of Interior (11 percent) . vatization, lower Hungary's trade deficit by taxing imports , Three MPs have resigned since the new government wa s restrict wages (and thereby induce inflation), revamp the col- elected, two from the FDP and one from the HSP. These resig- lection and administration of public revenues, better manag e nations do not require interim elections because all MPs wh o the state debt, and curb the black market. In an effort to shrink resigned had obtained their seats based on the party list vote . budgetary outlays, the government has reduced unemploy- Consequently, the FDP and HSP may simply appoint thei r ment, health care, and child care benefits, and will requir e replacements . (For an analysis of Hungary's mixed electora l tuition payments by university students beginning in 1996. It system see, EECR, Feature, Vol. 3, No . 2, Spring 1994 . ) will, in addition, eliminate many state offices . The government Meanwhile, during the last quarter, the Constitutional is also seeking to prevent local governments from running up Court was asked to review two social institutions : marriage and their own deficits, particularly in regions that are habitually "partners-in-life" (14/1995 (111 .13) A.Bh .) . According to the insolvent. The government claims that the welfare system , Hungarian Laws in Force, both institutions are restricted to rela - while trimmed down, will better assist those truly in need . The tionships between a man and a woman. Petitioner asked the legislative agenda of the government has been altered as a Court to rule that the gender limitations contained in the Law s result of the austerity program . Many of the government's ne w in Force were unconstitutional because they discriminate d decisions require Parliament to amend existing laws. against gays and lesbians. The Constitution of Hungary does not This draconian overhaul of the welfare system came as a explicitly state that marriages are restricted to male-female cou - shock to most citizens, who view these benefits as a just retur n ples. Rather, Art. 15 of the Constitution reads, "The Republic o f on years of contributions, not as now-obsolete socialist largesse . Hungary shall protect the institutions of marriage and family . " By appeasing free-market reformers in the coalition, moreover , The Court ruled that the state is not constitutionall y Horn lost the support of some of the more traditional element s required to provide for marriages between members of the same of the Hungarian Socialist Party (HSP) . First to go was Minister sex. In its opinion, the Court primarily focused on the historica l of Welfare Pal Kovacs, who described the austerity measures a s definition of the institution of mamage. The Court reasoned antisocial and tendered his resignation on March 12 . Shortl y that the Constitution of Hungary must be placed in the traditio n thereafter, Bela Katona, minister (without portfolio) of secre t of constitutions and laws that protect and value marriag e services, and Janos Csirik, state secretary at the Ministry o f between a man and a woman, and that it does not provide fo r Culture and Education, also left the government. marriage of homosexual couples. The Court claimed that th e Hungary and Slovakia signed a Basic Agreement o n long cultural traditions restricting marriage to male-female cou - March 19, which will probably be ratified by Parliament in ples indicated that the institution of marriage was historically late May. The Agreement provides protections for ethni c and remains a legal recognition of relationships between me n Hungarians living in Slovakia in exchange for the recognition and women. The Court drew support for its view from Art. 1 2 by Hungary of the inviolability of the current Hungarian - of the Convention of European Human Rights and the practic e Slovak border established at Trianon at the end of WWI . of the European Court of Human Rights as represented in th e During the first six months of the new government , Rees case (October 17, 1986, Series A, 1987, p. 19) . The Court Parliament amended 31 laws, passed 19 new laws and enacte d also explained that the Constitution does not grant the right o f 44 parliamentary resolutions . Fifty-one of the 66 bills slated to equal access for every individual to every state institution . In this be submitted by the government were actually put before case, the Court explained, altering the definition of marriage wa s Parliament. Some major laws, including the rewritten act on not the only means by which to provide legal recognition of non -

1 4 SPRING 199 5

traditional matrimony. Rather, the state could reserve marriag e The electoral law for the current Saeima did not give politi- for male-female couples while creating another institution fo r cal parties alone the right to present candidate lists, bu t same-sex couples . The Court postponed its decision on the status allowed voters to do the same if the lists had been signed by of the institution of "partners-in-life" until March 1996 . at least 100 voters. The opposition argued that the new pro - Several decisions handed down this quarter by the vision violated Art. 2 ("The sovereign power of the Latvian Constitutional Court assessed the constitutional validity of loca l state shall belong to the people of Latvia .") and Art. 9 ("Any government ordinances . The Court declared unconstitutional Latvian citizen over 21 years of age on election day may b e several provisions of a local government decree in the town o f elected to the Saeima .") of the Constitution . The PAE fac- Nagyloc which limited access to records of public sessions of th e tion, LW's coalition partner, interceded in the debate t o representative body of local government (19/1995 (III .28 ) offer a compromise. PAE members suggested adopting a ABh.) . According to the decree in question, only individuals liv- hybrid electoral system in which half of the deputies woul d ing within the territory of the local government were to b e be elected by a proportional system and the other half by given access to the records of the representative body, and onl y plurality voting for specific candidates in single-member dis- for a limited period of time. The Court ruled that this decre e tricts. This proposal was quickly rejected on the ground s violated Art. 61 sec. 1 of the Constitution, which provides tha t that it would violate Art . 6 of the Constitution which clear- "In the Republic of Hungary everyone shall have the right to ly requires that parliamentary elections be held on the basi s know and disseminate data of public interest." The Court went of proportional representation . on to explain that a local government may require an individu - Legislative squabbles have led many political organiza- al requesting information to pay for the expense of generating a tions to propose a major overhaul or even to repeal th e report, but that charges may not be used to cover costs associat - Constitution . Latvia's basic law, the Satversme, was adopt- ed with the initial gathering of information . ed in 1922 and reinstated by the fifth Saeima in 1993, afte r the redeclaration of Latvian independence. First adopted over 70 years ago, the Satversme does not take into accoun t Upcoming parliamentary elections , the dramatic changes undergone in Latvia in the interim. Latvia scheduled for October, have prompt- For example, the Satversme lacks a section on citizens ' ed the Saeima (Parliament) to adopt a rights, required of every country petitioning for member - new electoral law. During an extraordinary meeting o n ship in the CSCE or the EU . To fill this void, the "Law o n February 22, deputies considered three alternative drafts pre- Rights and Obligations of a Citizen and Person" was adopt- sented by Latvia's Way (LW), the Fatherland and Freedo m ed by Parliament in 1991 . Party (FFP), and the Latvian National Independence A new draft amendment to the Constitution has bee n Movement (LNIM) . The electoral law proposed by LW formulated by the Farmers' Union (FU). This draft provides passed its first reading, 56 to six with 13 abstentions. In accord for a popularly elected president . (The Satversme states th e with Art. 6 of the Satversme (Constitution), the LW draft pro- president is elected by the Saeima .) In addition . it propose s vides for proportional elections and sets the threshold to ente r instituting a constitutional court, extending the Saeima' s Parliament at five percent. Candidates must be at least 21, eli- term from three to four years, and guaranteeing provision s gible to vote, residents of Latvia for at least 12 months prior to for the dismissal of deputies . (Art. 14 of the Satversme pro- the elections, and fluent in Latvian . Individuals previously con - hibits MPs from being recalled.) The draft also includes a n victed for a premeditated crime, and KGB agents or agents o f entire chapter devoted to local governments . any foreign state security service or defense ministry are ineli - FU has already begun to gather voters' signatures t o gible . The LW draft also requires each candidate pay a 2000 lat bring the amendment to a referendum. According to th e (nearly 3000 dollars) security deposit prior to elections . "Law on Referenda," FU will have to collect 10,000 signa- By March, the Legal Commission of the Saeima ha d tures in order to present the draft to the Central Electora l received numerous proposals for amending the draft law tha t Committee. Then, within 30 days, the Committee mus t had passed its first reading. Alternatives had been proposed for collect signatures from one-tenth of all eligible voter s almost all the articles, but the Legal Commission decided to (nearly 130,000) . According to Art. 78 of th e reject many of them. Among the rejected proposals, for exam - Constitution, having been endorsed by one-tenth of th e ple, were those to raise or reduce the threshold for entering th e electorate, the proposed constitutional amendment draft i s Saeima, to reduce the security deposit to 1000 lats, and to ba n presented to the president, who must then refer it to th e former officials of the Communist Party and Comsomol fro m Saeima for adoption . If Parliament fails to adopt th e running for office. amendment, then the bill is presented to the electorate in a One proposed change was particularly controversial . referendum. Article 79 states that if at least half of all eli- Article 8 of the LW electoral law draft allows only partie s gible voters support the draft, the constitutional amend- or coalitions to submit candidate lists. The parliamentary ment is adopted . FU hopes to coordinate the referendu m opposition argued that this restriction was unconstitutional . with the elections, arguing that it would save the stat e

1 5 EAST EUROPEAN CONSTITUTIONAL REVIEW from the financial burden of organizing an additiona l accountability to the electorate . It also expressed its desire to vote. FU is optimistic about the referendum, given polls i n promote stability and strengthen the citizens' faith in reforms . which 79.3 percent of the respondents support the idea of LNIM assessed its prospects in the elections at a special a popularly elected president . conference held on February 25 . With its 1820 members , A popularly elected president is also supported by the LNIM is the second largest party in Latvia after FU. The aim People's Harmony Party (PHP), PAE, and the part y of the conference was not to adopt a program, but to launch it s Saimnieks. A referendum on the question will nevertheless electoral campaign. LNIM and its coalition partner, the Gree n be necessary due to opposition by many groups, includin g Party, had formed eight working groups to puzzle out the pre - the Fatherland and Freedom Party (FFP), which support s election and post-election strategy . the parliamentary system . LW does not support change The law on financing political parties also passed on its first either, and would prefer not to consider the popular elec- reading in the beginning of March. It aims to stem political cor- tion of a president, as this arrangement would change the ruption by prohibiting parties from receiving any financial sup - whole spirit of the Satversme . The Democratic Party (DP) , port from the national or local government, from abroad, from the Latvian Social Democratic Worker's Party (LSDWP) stateless persons, from anonymous contributors or through the and the Latvian Popular Front (LPF) are also satisfied wit h intervention of third parties. The law also demands parties kee p the status quo. They also fear the extension of presidentia l strict annual financial records which are open to the public . power. The opposition claims there is nothing wrong wit h Though no deputies voted against this law, the LNIM factio n the Constitution, charging that the FU would not have pro- has worked out amendments which ensure privacy for donors . posed any amendment if the president were an FU mem- On January 10, the City Council of Riga passed the reso - ber. That FU is well represented in Parliament is common- lution "About allowances to indigent inhabitants of Riga i n ly adduced to explain why that party wants to extend the the 1994-1995 heating season ." Article 10 of the resolutio n parliamentary term . proposes to maintain subsidies for heating only to Latvian cit- Recent discussion about the amendment shows that izens, while forcing non-citizens to bear the full cost of heat- the smaller parties plan to use the amendment as a politica l ing. The Ministry of State Reforms invalidated the resolution bargaining chip . For example, the chairman of Saimniek s on the grounds it violated the constitutional law "The Right s has announced that his party is ready to give up the idea o f and Obligations of a Citizen and Person," local government the popularly elected president in order to avoid potentia l legislation, as well as the Universal Declaration of Huma n obstacles to uniting with DP . Rights. The chairman of the Riga City Land Commission , Anticipation of parliamentary elections has catalyze d Egils Vigants, assured all concerned that this was only a bud - coalition formation. On January 21, the November 1 8 get issue and stated : "I suppose we will have to find some othe r Union and the FFP merged into the Union for Fatherlan d way to solve the problem of heating and rental allowances . " and Freedom (UFF) . On the day of its founding, the ne w Thus far, separate laws have been passed on social and party had 466 members . Its founding congress adopted a labor rights for Latvian citizens and for permanent residents. A t new program geared to "protecting" Latvia . Saimnieks, DP , the beginning of March, PHP suggested integrating them. The and the Republican Party also plan to form a coalition at the 11 amendments to the draft laws expanding the rights of per- end of April. PAE will leave its coalition with LW to join manent residents are supported also by PAE, DP, and CDU . the new party's coalition list for the elections, and it wil l UFF, on the contrary, seems opposed . join the coalition fully afterwards . A precondition for Latvia's admission to the Council of FU congress took place at the end of February . Europe was the adoption of a democratic "Law O n Members of the party agreed on the procedure for nomi- Citizenship ." Adopted on July 22, 1994, the law came int o nating candidates to the sixth Saeima . The congress decid- force on August 11, 1994 . On February 1, the territoria l ed that only FU members who have joined the party a t departments of the Naturalization Office began their wor k least six months before the elections may be included on throughout Latvia. The first naturalization applications have the candidate list . Candidates may be nominated only b y been filed and applicants have been given appointments t o regional organizations of the FU. The congress deprived submit documents and to pass the Latvian language test. S o the party's central board of the right to choose two candi- far, several hundred naturalization applicants have passed the dates in each electoral district . language test and the history tests will be administered begin - The 25th Congress of the LSDWP took place on ning March 20 . Parliament has recently passed legislation to March 4 . It accepted the party's election program, adoptin g simplify these procedures . The amendments give automati c a resolution appealing to all noncommunist left-wing par- citizenship to ethnic Latvians and to Livs whose place of resi - ties, trade unions, and other organizations to form a pre - dence is Latvia, if they register before March 31, 1996 . election coalition. Applicants who have passed general education requirements LW, by contrast, has announced that it will not form an y in a Latvian-language school or persons suffering from dis- coalitions before the elections, claiming it stands for strict abilities will now be exempt from taking the language exam .

1 6 SPRING 199 5

On February 22, having tested the eigners to purchase land in Lithuania . Except for the smal l Lithuania political waters for several months, a Union of Nationalists faction, all political groups expressed group of44 lawmakers, most of them their willingness to cooperate . This development dispelle d representatives of the majority Lithuanian Democratic Labor LDLP fears that the amendment would need to be brought to Party (LDLP), presented to the Seimas (Parliament) a draft a referendum. If it were to come to that, LDLP would fall into amendment to Art . 47 of the Constitution, regarding lan d its own legislative trap: last summer, the Seimas passed a ownership. Though support from 44 deputies was enough for "Law on Referenda" in anticipation of the opposition's refer- LDLP to propose the amendment under Art . 147, it is a far cry endum initiative. The law not only restricted the use of refer- from the 95 votes needed to amend the Constitution . enda, especially for economic questions, but also reduce d During his presentation of the draft, Chairman of th e their power; even if a referendum passes, the bill or resolutio n Agricultural Committee Mykolas Pronckus urged support , in question must still be adopted by a Seimas vote (see EECR, arguing that existing constitutional restrictions hinder th e Lithuania Update, Vol. 3, No. 3/4, Summer/Fall 1994) . proper functioning of the land market . Article 47.1 of the On January 25, the Constitutional Court ruled that the Constitution provides that "Land, internal waters, forests, and European Convention on Human Rights and Fundamental parks may belong by the right of ownership only to the citi- Freedoms does not contradict the Lithuanian Constitution . zens and the state." This provision bans not only non-citizen s President Algirdas Brazauskas had brought the case to th e from owning land, but also foreign and domestic corporations, Court, after a special working group had determined tha t which are limited to leasing land for 99 years. The amend- some articles of the Convention and its protocols did not ment proposes to eliminate the word "only" from the first agree with certain provisions of the Constitution . Almost tw o paragraph of Art. 47 and replace the second paragraph with years have passed since Lithuania signed the Convention, and "land can belong, by right of ownership, to voluntary agricul - preparation for ratification was the main reason for referra l tural cooperatives. Plots of non-agricultural land occupied b y to the Constitutional Court. The Court's ruling clears the production and other facilities, and lands necessary for thei r way for Lithuania to join the European Human Rights maintenance can belong by right of ownership to Lithuanian Convention by May. However, the process of harmonizing and foreign legal entities and foreign individuals, as well as t o national laws (those already passed and those to be adopted ) foreign states for establishing their diplomatic and consular with Convention provisions is ongoing . institutions, in accordance with the terms established by law . " On February 10, a general congress of judges, convene d The opposition, led by former head of state, Vytauta s in Vilnius, was attended by 300 judges representing all four Landsbergis, is reluctant to support the proposed amendment . of the newly established levels of the court system—th e It believes that the reference to "voluntary agricultural coop- Supreme Court, the Court of Appeals, area courts . and dis- eratives" reflects an intention to reinstate soviet-style collectiv e trict courts (see EECR Lithuania Update, Vol. 4, No. 1 , farms. The previous government was deliberately slow in lib- Winter 1995) . The congress elected a Council of Judges, a eralizing the land market because of its commitment to lan d new body that will assist the president in appointing and pro- restitution and the dissolution of the kolkhoz system . moting judges. The nine-member council includes represen- Ongoing negotiations with the European Union brought tatives from all four judicial levels . a new urgency to LDLP' s search for a compromise with th e On January 31, Brazauskas reorganized the six-month opposition. Land ownership reform is a major stumbling old Anti-Crime Commission—an intergovernmental com- block in talks between Lithuania and the EU, the latest roun d mission with broad-ranging powers to fight economi c of which was held on February 27 in Brussels. Deputy crimes—into the Consultative Council for the Struggl e Foreign Minister Albinas Januska exhorted the Seimas t o Against Economic Crimes. The Council is to analyze th e reach a decision quickly : "if no decision is made on a consti- effects of anticrime policies and formulate new proposals on tutional amendment allowing foreign corporations and indi- how to eliminate the causes of economic crimes . The presi- viduals to purchase land, Lithuania's hopes for associate dent's initiative came in response to numerous requests from membership in the EU may be forestalled or even fail." He members of the opposition and of his own party to rid th e claimed that Lithuania was the only Central Europea n government of corruption. It is doubtful, however, that the nation not allowing foreigners to acquire land . During the president's new Council will be more effective than the old talks, EU representatives in principle agreed with Lithuania' s Commission, as it includes basically the same officials and i s proposal of a transitional period lasting until 1999, to bring its charged with similar duties . legislation into line with EU standards . Lithuanian officials The formation of the new Council did not deter th e have expressed hope that an association agreement with the media from disclosing the details of the close relationship EU will be signed in May or June . between presidential advisor Rimantas Andrikis and leader s In light of EU requirements, the opposition announce d of the organized crime group "Taurage" throughout its readiness to participate in the preparation and adoption o f February. Andrikis's shady past was well known by govern- a constitutional amendment and subsidiary laws to allow for- ment officials and parliamentarians . In 1993, the presidentia l

1 7 EAST EUROPEAN CONSTITUTIONAL REVIE W advisor on national security issues, Alvydas Sadeckas, ha d campaign. During a press conference, which was conducte d resigned . primarily because of Andrikis's appointment . in Polish, EALP candidates described their intention to Forced to take stronger measures against corruption , decentralize the relationship between local and state gov- Brazauskas dismissed Andrikis on March 7 . ernment, create an autonomous, multilingual district of the The sensationalism surrounding the Vytas Lingys murder Vilnius and Salcininkai regions, and postpone the deadline trial is slowly dwindling (see EECR, Lithuania Update, Vol. 3 - for ethnic minority assimilation . Provoked by EALP' s 4, No. 3-1, Spring 1994-Winter 1995). A collegium of the broadcast press conference (which was not translated int o Supreme Court, consisting of three justices, concluded that Lithuanian) and their bold political agenda, Committee on there were no grounds for reviewing the sentences of Lingys' s Education and Culture Chairman Bronislovas Genzelis murderers. Boris Dekanidze, leader of the criminal gan g (LDLP) appealed to Minister of Justice Jonas Prapiestis t o "Vilnius Brigade," was sentenced to death last November for review the legality of the coalition's declaration . Prapiestis ordering the murder. The sentences were reviewed a second ruled that the EALP could not campaign on their presen t time, upon appeals by Dekanidze's lawyers, who claimed that platform in local elections, stating that, according to Art . conflicting evidence was not eliminated during the trial . 112 of the Constitution, local councils must "implemen t Dekanidze's relatives have now asked the president for parliamentary legislation, not sabotage it ." He added that , amnesty, and their appeal is now under consideration . although there were grounds to dissolve the coalition for it s At the ceremonial March 11 Seimas session, commemo- antistate rhetoric, current political party legislation did no t rating the fifth anniversary of the restoration of Lithuanian provide procedures for enforcing the law, he advised th e independence, Seimas Chairman Ceslovas Jursenas publicl y Seimas to adopt such legislation in the future . Prapiesti s apologized on behalf of the LDLP for crimes committe d required the EALP either to retract its campaign promise s against Lithuanians by communists. In his address, he stated : before elections or be removed from the ballot . Given thi s "for more than 20 years I was a member of Lithuanian ultimatum, the EALP opted to compose a bland and uncon- Communist Party . I feel morally responsible for those who, troversial platform in order to remain a contender in elec- in the name of the party, committed crimes against the tions. Nevertheless, EALP won its first local district seats Lithuanian state. That is why today I want to apologize to al l and will be represented in nine constituencies, with majori- Lithuanians, who in those hard times were persecuted , ty positions in the Vilnius and Salcininkai regional councils deported, and impoverished." Jursenas urged former com- where Poles make up the majority of the population . munists belonging to other parties, namely the Center Unio n (CU) and the Homeland Union-Conservatives of Lithuania (HU-CL), also to accept responsibility for these crimes . On March 1, Waldemar Pawlak , Neither HU-CL nor CU responded to the LDLP' s Poland prime minister and leader of th e request, but this did not seem to affect their performance in the Polish Peasant Movement (PPM) , municipal council elections, held on March 25 . Results seeme d became the latest political casualty of high-stakes political to replicate the 1989 elections, when members of the Sajudi s maneuvering in Poland. The dismissal of the Pawlak govern- Movement were victorious in the first multi-party election s ment by the Sejm (Parliament) followed a protracted power - held since 1940. Before the 1992 parliamentary elections, th e struggle between the president and the governing coalition Sajudis leadership splintered into basically two right-wing par - (PPM-Union of the Democratic Left [UDL]) and, more person - ties: HU-CL and the Lithuanian Christian Democratic Party ally, between President Lech Walesa and Pawlak. Whil e (LCDP) . Despite the low (42 .5 percent) turnout in the Marc h Walesa and Parliament were shaking the foundations of the pre- elections, HU-CL enjoyed a decisive victory over other parties , sent constitutional order, the Constitutional Commission of th e winning 426 of 1488 municipal seats (29 percent of the vote) , National Assembly continued to pave the way for a new consti- while LCDP received 247 seats, or almost 17 percent . Th e tution by reaching agreement on many controversial issues . poor showing of the ruling LDLP—a modest 297 seats or les s The conflict between the president and Pawlak's gov- than 20 percent—is attributed to its unclear strategy for eco- ernment can be traced to a dispute about filling the vacan t nomic reform and its indifference to public opinion . offices of minister of defense, ambassador to the Vatican , The elections were based on proportional representatio n and minister of foreign affairs (see EECR, Poland Update , with a four percent threshold required to win municipa l Vol. 4, No. 1, Winter 1995) . Walesa and the government council memberships. Seventeen political parties participate d sharply disagreed over the degree of influence the presi- in the elections, and 16 are now represented . Other winner s dent should wield over executive appointments . The con- include the Lithuanian Farmers Party (LFP), CU, and th e tinued vacancies led the president to accuse the governin g Social Democratic Party (SDP) with 6.9 percent, 5.5 percent, coalition of intentionally creating a "paralysis of the state. " and 4.8 percent respectively. He even promised to take "appropriate steps" to remed y The Electoral Action of Lithuanian Poles (EALP ) the problem. The president also warned the coalition tha t stirred up some controversy from the very beginning of its its ill-managed finances were—so he alleged—cause for sus -

1 8 SPRING 199 5

pecting nearly half the members of the government of cor- responsible for lagging privatization and increased inflation , ruption. By early February, Walesa was hinting that h e and generally viewed him as an obstacle to economic reform . might send Parliament packing . He submitted that dissolu- The UDL agreed that Pawlak could be removed, but it tion of the assembly, while perhaps illegal, might be neces - wanted to reconfigure the government while retaining th e sary anyway to fight against the lawlessness and crime mar- existing coalition . The opposition's proposal of a government ring the current government. of experts rather than politicians was rejected . A new coalitio n The president found some faint, tough questionable , agreement between PPM and UDL was struck on February support for dissolving Parliament in Art . 21 .4 of the Littl e 15, and Oleksy was asked to form a new government . Constitution, which stipulates that "if the budget has no t On March 1, Parliament dismissed Pawlak's govern- been passed within a period of three months following th e ment with 285 deputies voting in favor and five against wit h submission of a draft fulfilling the requirements of th e 127 abstentions. FU was among the parties that abstained . budgetary law, the President may dissolve the Sejm ." The On the same day, Parliament approved the coalition's choice president's chancellery interpreted the provisions to mean for prime minister, and Oleksy set about assembling a cabi- that the budget must not only be adopted, but must also net. But he at first refused to resign from his post as parlia- come into force, within the three month period specified ment speaker before his new government was approved b y by Art. 21 .4. Following this line of reasoning, the 30-da y Parliament. As a result, he came under heavy fire, and the period allowed the president by Art . 18.2 to consider an d president even refused to speak with him until he agreed to either sign or reject laws, would count toward Art . 21 .4' s step down from his position as speaker . three-month deadline. This time the Sejm did not wait for either Walesa or the The president's advisors argued, on these grounds, that prime minister (elect) . On March 3, Parliament broke the under no circumstances could the budget come into forc e deadlock by replacing Oleksy with Jozef Zych (PPM) as before the three-month deadline, giving the President consti- speaker and simultaneously approving Oleksy's cabinet. tutional grounds to dissolve Parliament. Thus, following Art. In a conciliatory move, Oleksy appointed Walesa's candi- 18 .3, Walesa could veto the budget on the very last day he was dates to the "presidential ministries," that is, offices which , constitutionally required to sign or reject it . Then, even were according to Article 61 of the Little Constitution, require th e Parliament to override his veto pursuant to Art . 18.3, Walesa prime minister to consult with the president before choosing a could still wait seven days to sign. While the bill woul d pass candidate . The president tapped Wladyslaw Bartoszewski for twice within the deadline, it would, nevertheless, not come into minister of the foreign affairs, Jozef Okonski for minister o f force until after the deadline had expired . defense, and Andrzej Milczanowski for minister of the interior . Parliament rejected Walesa's interpretation of the law . Oleksy's appointment to the prime ministership is sym- The draft of the budget was first submitted to the Sejm o n bolically significant . A member of the Polish United November 4, 1994 . The Sejm passed it on December 3 0 Workers Party and a minister in the last communist govern- and the Senate accepted it on January 3 . The budget was ment, Oleksy is the first prime minister with a communis t thus introduced to and passed by the legislature within background since the Roundtable Talks . In his first address three months. The signing and promulgation of laws is th e as prime minister, he assured the nation that he would no t responsibility of the president. How could Parliament b e seek to re-establish the People's Republic of Poland, vowin g dismissed for delays in the budgetary procedure whic h to support a democratic state of law and tolerance, to encour - occurred after Parliament had passed the budget? age entrepreneurship and to preserve a social safety net for Parliamentary Speaker Jozef Oleksy (UDL) began t o the needy . He also pledged to seek and gain Poland's entr y counter Walesa's threats and attacks . He rallied the deputy into NATO and the European Union. speakers and the heads of the parliamentary clubs by The Constitutional Tribunal played a mediating role i n announcing that he might call a special meeting of th e the clash between the president and the governing coalition . National Assembly (a joint session of the Sejm and th e Walesa appealed several laws adopted by Parliament to th e Senate) on February 4. Oleksy wanted Parliament to prepar e Tribunal, claiming that they were unconstitutional . Thes e to impeach the president if Walesa took any unconstitutional laws included the tax law, the "Law on State Salaries," "Law action against the assembly . on the Rights of the Members of Parliament," and, as men- With the gauntlets cast and the lines drawn in the sand , tioned above, the budget. Walesa demonstrated once again why he is widely consid- The president declared that he would not sign the bud- ered one of the most agile politicians of the region. Rather get until the Constitutional Tribunal had determined it s than push the country into a constitutional crisis, he offere d constitutionality. Specifically, he asked the Tribunal to mak e the PPM-UDL coalition a simple method for averting a head - a ruling about the tax law's provision, related to the budget , on collision : remove Pawlak . The president's proposal quick- for decreasing tax deductions for housing expenses. Whe n ly gained support in Parliament. One reason was that the pro- the Constitutional Tribunal ruled, in the first of two opin- reform opposition had long held Pawlak's government ions, that the provisions of the tax code in question did no t

1 9 EAST EUROPEAN CONSTITUTIONAL REVIE W violate the Constitution, the president still refused to sign could impeach the president for, among other things, ille- the law. Finally, in an attempt to show his "will to cooper- gally dissolving Parliament . ate" with the new government, Walesa reversed his positio n The new amendment was passed by the Nationa l after Oleksy's government was sworn in on March 8 and, at Assembly with 401 votes in favor, three against and four long last, promulgated the budget. Walesa did not wait fo r abstentions . It is the first amendment to the Littl e the second decision concerning the constitutionality of the Constitution . Walesa opposed the amendment and vetoed it tax law which was scheduled to come down any day . on February 6, contending that it violated the separation o f Ironically, in the second ruling, the Tribunal agreed with th e powers and the constitutionally guaranteed balance between president and decided that the law on taxes violated the basi c the legislative and executive branches. He also argued that principles of the democratic state, including the principle o f the amendment violated the principle of equality in the elec- no retroactive legislation, protection of rights alread y tions since sitting deputies could use Parliament as a plat- acquired, preservation of vocatio legis, and the prohibitio n form from which to conduct their own campaigns. against introducing changes into the tax law during th e Walesa stated his willingness to accept a similar amend - course of the tax year. ment, on the condition that Parliament could only debat e Walesa's threat to dissolve Parliament was not taken draft bills that were submitted to it prior to its dissolutio n lightly and no doubt influenced the Sejm's decision t o and that the (officially dissolved) National Assembly coul d amend the Little Constitution, making it more difficult fo r not impeach the president . But the president's veto was over - the president to close down the assembly . The amendment ridden with 303 votes in favor of the override, 11 against , process was conducted with unprecedented speed. On th e with 21 abstentions. Walesa was therefore forced to sign th e morning of January 20, the draft amendment reached amendment on March 24 . He did not have the right to peti- Parliament and, on the motion of the Labor Union, wa s tion the Constitutional Tribunal in this case because th e automatically put on the day's agenda . Two hours later, the amendment altered the basic law itself . Leszek Spalinski, a draft was sent to the Legislative Commission with a notic e spokesman for the president, stated that the amendment tilt- that it needed to be ready for a second reading during th e ed the balance of powers toward Parliament and announced February 3 session . Usually constitutional revision takes a t that Walesa planned "firm actions" to right the balance . least several months, but recent memory made this particu- The Constitutional Commission of the Nationa l lar amendment almost universally popular among parlia- Assembly, which in January began work on the final unified mentarians. Starting in June 1993, Parliament ha d draft of the constitution, decided to incorporate the provi- remained dissolved for four months, and unable to monitor sions of the new amendment into its own proposal . The fina l or check the executive . unified draft was prepared by the Editorial Commission o n The new amendment is designed to avoid extraordinar y the basis of the work of six subcommissions . To build (an term breaks. Such breaks may take place only if Parliamen t uneasy) consensus among the disparate factions taking par t dissolves itself by a two-thirds majority or if the presiden t in the drafting, many crucial compromises were required . dissolves it (Art. 4 of the Little Constitution) . Presently, "th e The Commission began its work on the final draft of th e term of office of the Sejm and the Senate ends on the day o n constitution with three preliminary and general agreements . which a Sejm resolution or presidential decree on the disso- First, the preamble was deleted altogether. UDL deputies lution of the Sejm is announced" (Art . 4 .5). The amendment supported the removal of the preamble because it wa s provides that Parliament remain in session after its dissolu- "impossible to write a preamble that could justly evaluat e tion until the election of the new assembly . Interim breaks the history of the Polish nation and, therefore impossible t o between parliaments may occur only if Parliament ha s write a preamble that would not divide the people . " served its entire four-year term . Secondly, the Constitutional Commission decided on a When sitting after having been formally dissolved, how- bicameral assembly. (It did not, however, spell out the role o f ever, Parliament does not possess full powers . It cannot make the second chamber.) Finally, the Commission agreed tha t changes to the Constitution, to the electoral law, to the bud- the president would be "the guarantor of the continuity o f get, or to any laws that would directly affect the budget . In executive power" but not "the head of the executive branch, " addition, according to the amendment, during such a period, as supporters of the presidential model had advocated . the government would not have the right to introduce urgen t The Commission then set to work on the first chapter o f legislation as provided in Art. 16, or submit any drafts of con- the constitution, the "General Principles." Three articles whic h stitutional laws concerning rights and freedoms of the citi- establish the political character of the state proved particularly zens, or drafts of budget laws, tax laws or any electoral laws . controversial . First, after prolonged debates on the basi c The deputies of the Freedom Union (FU) failed to con - attributes of the state, the Commission endorsed a draft articl e vince Parliament to suspend the speaker's right to call a that envisions an active social function for the state. Draft Art. general meeting of the National Assembly during an inter - 1 now reads, "The Republic of Poland is a democratic state o f im. If a joint session were called, a dissolved Parliament law implementing the principles of social justice ." Second, the

20 SPRING 199 5 classic doctrine of the separation of powers was accepted an d but no later than the end of 1995 . So far, the commission has incorporated into Art. 10: "The state system of the Republic of established that the law on marriages and the law on free - Poland is based on the separation and balance among the leg - dom of conscience and religion need to be amended. If rati- islative, executive and judicial powers ." Finally, after lon g fied, the concordat would also require state financing of th e debates, with many compromises made and some unmade, th e Papal Theological Academy . The commission determined Commission agreed, on April 11, to language describing the that the Concordat does not violate the curren t relationship between church and state. The final wording of Constitution, despite one of its own subcommission's argu- Art. 16 gives far-reaching concessions to the Catholic Churc h ments to the contrary. by replacing the word "separation" with a reference to the Due to the commission's decision, the ratification of the "neutral autonomy" of the church and the state and, by replac - concordat was the main topic at the March 27, 1995 session ing state "neutrality" in matters of religion and conscience wit h of the Social Democratic Party (SDP), the main party of th e state "impartiality." The drafters also agreed to a clause which Union of the Democratic Left . Aleksander Kwasniewski provides that the relationship between the state and th e stated that "ratification of the concordat will mean defeat fo r Catholic Church will be determined by the concordat betwee n the SDP." Other members of his party said that th e Poland and the Holy See. The wording of Art. 16 was proposed "Concordat is unacceptable in its present form" and called by Tadeusz Mazowiecki from the opposition FU . Although for renegotiations . Soon afterward Parliament decided by a the chairman of the Constitutional Commission, Aleksande r narrow margin to postpone ratification of the concordat. Kwasniewski, voted against this provision, he expressed satis - With presidential elections approaching this fall, th e faction with the compromise, hoping that it might prevent th e conflict between the president and the governing coalition Church from asking Catholics to reject the Constitution in th e was often linked to the presidential campaign . The Suprem e ratification referendum . Court's resolution of March 19 concerning the confidential- The Church was also satisfied with draft Art . 37 con- ity of journalistic sources of information, will have a sub- cerning freedom of conscience and belief. This article states stantial impact on the campaign . According to this law, " a that, although parents have a right to raise their children journalist and the editor of a paper cannot refuse to be a wit- according to their own morals and beliefs, such upbringing ness in criminal proceedings about matters covered by pro- "should take into consideration the child's will, degree o f fessional secrets if a court or a prosecutor releases a journalis t maturity, and freedom of conscience and beliefs ." According from confidentiality . " to Jozef Krukowski, an Episcopate expert, the article intend s This resolution was accepted by the Supreme Court o n to restrict parental powers by allowing the state to pressur e the motion of a regional court . The ombudsman and sever - parents whose children might be influenced by various (non - al politicians joined the journalists and their unions in criti- Catholic) sects. Another provision of Art . 37 permits publi c cizing the resolution . The ombudsman stated that protec- expression of beliefs and religious instruction in schools but , tion of professional secrets is essential for guaranteeing free - prohibits the use of coercion in any such activities . Th e dom of the press, radio and television which is, in turn, a pil - Commission, which meets for three days every two weeks , lar of the democratic state. The chairman of the Supreme also managed to compromise on other controversial issues , Court, Adam Strzembosz, vigorously defended the resolu- such as "the right to life ." By establishing vaguely that "every - tion, arguing that "journalistic secrecy is one of the guaran- one has the right to life," it avoided (and no doubt tabled) a tees of freedom of speech, but it must be sacrificed if th e constitutional debate on the death penalty and abortion . information in question would prove a citizen's innocenc e On March 2, the press published a statement b y or guilt." At the same time, he admitted that current la w Archbishop Jozef Glemp which was highly critical of th e does not adequately guarantee the journalist's right to pro- current situation in Poland . "Although economic liberaliza- tect his sources . The chairman submitted to Parliament a n tion has been initiated," said Glemp, "there is a residua l amendment which provides that journalists, doctors an d antipathy towards God, believers and the Church ." The lawyers be instructed to violate confidentiality only on th e archbishop referred not only to the draft constitution, bu t order of an independent court, rather than on the instruc- also to the coalition's attitude towards the ratification of th e tions of a procurator as is now the case . concordat with Rome that was signed by the Suchocka gov- ernment in July 1993 . After a year, Parliament postpone d the ratification of the concordat until the ratification of a Campaigning for the 1996 election s new constitution . (See, EECR, Poland Update, Vol. 3, No. Romania has already begun . As a result, elec- 3/4, Summer/Fall 1994.) Parliament created an extraordi- toral strategy, not legislation, cur- nary commission to "evaluate legal implications of the ratifi - rently occupies the attention of all the major parties . cation in the light of the current Constitution and othe r The opposition has recently undergone major changes . laws." This commission is obliged to submit a final report o n As a consequence of increasing conflicts among parties in th e its findings immediately after the constitutional referendum Democratic Convention of Romania (DCR) coalition, it s

2 1 EAST EUROPEAN CONSTITUTIONAL REVIE W president, Emil Constantinescu, supported by the Nationa l The countless concessions of the Party of Social Democracy Peasant Party (NPP), decided to hold internal elections for th e (PSDR) to its leftist allies in the past two years may now b e coalition's presidency. This decision stirred up controversy backfiring. Although government stability has been guaran- regarding the structure of the DCR and its mode of electing a teed and the opposition's motions of no confidence canno t president. A question also arose as to whether the newly elect- carry, the government's main initiatives are systematicall y ed coalition president would be the sole DCR candidate t o undermined from the inside . run in the 1996 presidential elections. The upshot was tha t Nevertheless, ever since the coalition vowed to support the Social Democratic Party (SDP), the Civic Alliance Part y Vacaroiu's government, the latter has become much more self- (CAP), the Liberal Party `93 (LP '93), and the Democrati c confident. It now openly defies Parliament and the courts, and Alliance of Hungarians in Romania (DAHR) all decided t o ignores pressure from international institutions . For example, quit the coalition . Several MPs and other prominent mem- the minister of justice—a member of the Party of Nationa l bers of CAP and LP `93, however, abandoned their defectin g Unity of Romania (PNUR)—declared that he would initiate parties to form a unified liberal party that stayed within the procedures for banning DAHR. Although PSDR initiall y DCR. Emil Constantinescu was elected DCR president and promised to ask for his resignation, it was unable to sanctio n won the coalition's nomination for the 1996 presidential elec- him. PSDR later paid for this gesture at the Parliamentary tions. He defeated 1990 presidential candidate Ion Ratiu , Assembly of the European Council, where it was denied mem - nominated by the World Union of Free Romanian s bership in the social democratic parliamentary group . (WUFR) and Nicu Stancescu, nominated by the Democrati c Vacaroiu's administration also launched an attack against Unity Party (DUP). Constantinescu was also DCR's candi- various local officials whom it perceived to be opposition - date in the September 1992 presidential elections, but wa s minded . The government has been unsuccessful so far in it s defeated then by current president, Ion Iliescu . bid for total control over town halls and county councils . In While the main opposition forces were in turmoil, the most towns, the opposition won the local elections three year s governing coalition closed ranks . Around mid January, its ago, and the prefects appointed by the executive have been four core parties signed a protocol reassuring the public tha t apparently unable or unwilling to follow instructions comin g they retain their commitment to effective government an d from the center. To make up for these electoral losses, the gov- social stability . Thus, the leftist and ultranationalist mem- ernment has resorted to two basic strategies : either luring may- bers of the ruling coalition have now officially become "law- ors affiliated with the opposition over to the governing parry , and-order" parties . The signing of this protocol marks th e or dismissing them and calling new elections . The cost of orga- emergence of a political formation that many commentator s nizing new elections is covered by the municipal budget, no t are calling the "red quadrilateral. " by the government. In many communities where mayor s The four-party protocol sometimes operates all to o were dismissed, people showed no interest in electing succes- smoothly. The income tax law, for instance, was debated an d sors. Often, more than two polls were necessary because par- passed between February 7 and March 1, an incredibly short ticipation ranged from 13 to 20 percent. In January, as many period compared to the time it took last year . Similarly, th e as 11 mayors and 17 counselors were charged with corruptio n budget was passed with 244 votes in favor and 102 against , and violations of the law, and were subsequently dismissed b y with 32 abstentions. While Romanian education, health and the government. Overall, 133 mayors have been dismissed b y cultural expenditures remain the lowest in Eastern Europe , government-appointed prefects, and another 264 have the Vacaroiu cabinet nevertheless submitted its anti-inflatio n resigned on their own . Of the 62 mayors who appealed to the package, which easily passed . This will translate to even larg- Court of Justice only four received redress . Despite the reac- er budget cuts for education, health, and culture . The oppo- tions of the parliamentary opposition, international organiza- sition charges that the government's fiscal policy hinder s tions and the electorate, the executive seems determined t o reform and discourages private initiative . carry on its program of purging mayors and local counselors . The voting discipline of the majority coalition was no t On the same day when Mayor Adrian Moruzi (CAP) won his in much evidence, however, when debate began on the case before the Brasov Court of Appeal, the majority i n draft privatization law, only a day after the budget wa s Parliament rejected an opposition motion to outlaw abusiv e adopted. In the Senate, which had dedicated almost th e measures such as the dismissal of mayors. entire autumn to this draft, the governing parties clashe d Besides "the Mayors Scandal," a further example of th e among themselves from the very first day of the debates . government's aggressive policies is the so-called "Scandal o f After ten hours of heated discussion, the senators agree d Ordinances." During Parliament's winter holiday (end of only on the title of the law . The Socialist Labor Party December to February 6), the government practically took (RSLP) even suggested abrogating all laws on privatizatio n over the prerogatives of the legislature, issuing ordinance s and returning to a system of state and group property, eve n and orders at an astounding rate . The law which empowered though the protocol of January 20 had committed the party the government to do this was adopted by the Senate o n to supporting legislation initiated by the Vacaroiu cabinet . December 20, 1994, and was approved by the Chamber o f

2 2 SPRING 199 5

Deputies a week later. In accord with procedures established lates that "the decisions of the Constitutional Court shal l by Art. 74 .2 of the Constitution ("ordinary laws are approved be binding and effective only for the future," meaning that by a majority vote of the members present in each chamber") , they are binding unless and until Parliament votes to over- the legislature authorized the Vacaroiu cabinet to adopt "nor - ride them. The three judges who voted against this inter- mative acts with the power of law" so long as they do no t pretation pointed to the absence of any provision in the encroach upon constitutional laws . On December 28, 53 Constitution or in Law no . 47 of 1992 (on the opposition deputies filed a petition with the Constitutiona l Constitutional Court) empowering it to issue such an inter- Court asking that the December 20 law be declared uncon- pretive decision . At last, on March 14, Parliament voted stitutional. The authors of the petition claimed that th e against the law on the border crossing toll (only 122 votes "empowerment act" violated Art. 114 .1 of the Constitution in favor), and the cabinet was forced to accept the uncon- ("Parliament can pass a special law to empower the govern- stitutionality of Ordinance no . 50 . It seems that this affai r ment to issue rulings in areas which do not come under statu- is not yet over. Acting on a proposal by the Ministry o f tory laws"), because Art . 1.g and Art . 3 of the law might be Finance, PSDR has reintroduced a modified version of th e interpreted to allow the government to legislate on matter s law, insisting that the revenue at stake is necessary for exclusively subject to regulation by "statutory laws" (accord - financing social programs. At this point, it is hard to predic t ing to Art . 72 .1 of the Constitution, Parliament may enact the fate of the bill. three types of laws : constitutional laws, by means of whic h To understand why Parliament sided with the Court , the Constitution is revised, statutory laws, and ordinar y one must be aware of another controversy which was unfold- laws). Moreover, petitioners argued that the "empowerment ing at the same time. On February 14, the Constitutiona l act" should be considered a "statutory law," therefore requir- Court declared unconstitutional Law 53, 1994, which grant- ing approval of an absolute majority of the members of each ed members of Parliament a tax exemption on their dail y chamber (Art. 74 .1 of the Constitution) . allowance. Immediately after the adoption of that law, repre- By Resolution no . 2 of January 5, the Constitutiona l sentatives of the CDP—led by the ex-prime minister, Petr e Court denied the petition, and the president subsequentl y Roman—had appealed to President Iliescu not to promulgat e promulgated the "empowerment act." Meanwhile, another a law legitimating parliamentary privilege in violation of th e 50 deputies addressed the Constitutional Court, this tim e constitutional principle of equal civil rights. The chief of stat e contesting the constitutionality of several ordinances issue d declared that he would not promulgate the law. A month by the government. One of these, Ordinance 18/1994 , later, Iliescu openly charged Parliament with greed and cor- authorized the government to obtain and guarantee foreig n ruption. He asked all MPs to resign from administrative posi - credits. On January 24, the plenum of the Constitutiona l tions in state-owned companies, which provided them wit h Court rejected this petition too, stating that this ordinance additional remuneration for defending obscure local inter- did not violate the fundamental law . ests. Against this background of ever increasing conflic t Another controversy emerged in the aftermath of the between president and Parliament, and between the govern- enactment of Ordinance 50/1994, which introduced a ment and the Constitutional Court, the legislature could re - 15,000 lei tax for each Romanian citizen traveling abroa d establish its prestige only by supporting the Constitutiona l (approximately 15 percent of the average monthly salary) . Court and standing up against the border tax . The Constitutional Court declared this ordinance unconsti- Both the border tax and issues concerning nationa l tutional (Resolution 139/1994) . According to the Court's minorities have re-animated disputes between pro - decision, the government may not tax the exercise of a fun- Europeanists, such as the minister of foreign affairs, clus- damental right, as that would constitute an inadmissible tered around the president, and the leaders of the two cham- financial burden, countervening Art. 49 of the Constitution . bers and their ultranationalist allies, often supported by ordi- The Cabinet, however, refused to obey the Court's deci- nary members of the governing parties . Faced with this ten- sion, invoking Article 145 .1 of the Constitution, according to sion within the governing coalition, the majority frequentl y which any bill declared unconstitutional by the Constitutiona l removes controversial issues from the agenda and endlessl y Court shall be returned to Parliament for reconsideration . If delays debates . The strategies of pressure, postponement , the bill passes unchanged by a majority of at least two thirds of blackmail, and threats brandished by the allies in debatin g the members of each Chamber, the objection of unconstitu- laws necessary for institutionalizing reform are also used t o tionality shall be removed, and promulgation thereof shall b e hinder the resolution of foreign policy problems . compulsory. The Cabinet then insisted that, until Parliament' s Ethnic relations in Romania have been complicated by final vote, the ordinance must be applied. the activities of DAHR and by debates surrounding th e In reply, the plenum of the Constitutional Cour t preparation of a Romanian-Hungarian treaty. At the begin- issued, voting six to three, Decision no . 1 of January 17 o n ning of the year, DAHR's leadership decided to establis h the compulsory nature of its constitutional decisions . Th e "Representative Councils" in Covasna and Harghita coun- Court noted that Article 145.2 of the Constitution stipu- ties, central areas of Romania where ethnic Hungarians ar e

2 3 EAST EUROPEAN CONSTITUTIONAL REVIEW numerous and concentrated . This move was justified as a so far, they will have to justify their actions before a publi c form of territorial self-determination on ethnic grounds, a which strongly fayors European integration . principle definitively rejected by both chambers of Finally, the upcoming elections have prompted an airing o f Parliament, the cabinet, and the opposition (the DCR and public discontent with the electoral law. Taking up a suggestion DP). DC president, Emil Constantinescu, asked DAHR lead- made by a national newspaper, representatives of DAHR hav e ers for a clear and unambiguous statement expressing "their submitted a draft electoral law to Parliament. The opposition commitment to observe the Constitution and national laws . " parties have also drawn up a draft electoral law which combines The DAHR refused to answer this request and, on Februar y the proportional and majoritarian systems . A third draft wa s 26, its representative council decided to withdraw the part y presented by the League for Human Rights. It is likely tha t from the DCR. Asked at the beginning of February by the debates over the new electoral system will come to the forefront mayor of Cluj to declare a state of emergency in several coun- of Romanian politics in the next few months . ties inhabited by Hungarians, Iliescu stated that the DAH R leadership was acting "irresponsibly . " The expected bilateral political treaty with Hungary , Although the undeclared war i n the completion of which is the main condition for member - Russia Chechnya drags on, the spring i n ship in European organizations, also affected domestic poli- Moscow has been marked by a tics. The minority issue is contentious within the governin g strange complacency about the wholesale carnage and dev- coalition, as well as among the opposition . The pivotal issue astation. There were essentially no public demonstration s is the inclusion of a provision establishing "the principle o f against a military campaign that all opinion polls revealed to territorial autonomy based on ethnic criteria" in the treaty . be very unpopular. And not a single liberal reformer seem s This controversy aggravated political tensions betwee n to have resigned from the government or from Presiden t PSDR and its extremist allies. Extremists attacked the presi- Boris Yeltsin's broad circle of experts and advisors. The pres - dent and the Foreign Ministry, and demanded a nationa l ident and Parliament, for their part, have been increasingl y referendum to approve or reject the treaty with Hungary, preoccupied by the elections still scheduled for Decembe r after having asked—during negotiations—that DAHR b e and June 1996 . While the public at large seem sickened b y banned. Gheorghe Funar, president of PUNR, backed by Russia's first televised war, it is apparently either too skepti - PRM and PSM leaders, made the following statement : "a s cal about the effect or too preoccupied with daily life to stir negotiated by Romanian and Hungarian expert teams, th e from its deep political passivity. treaty is a betrayal of Romanian national interest, makin g After more than a year since the Constitution's adoption , room for territorial secession." Overall, the bilateral treaty the requisite 19 justices on the expanded Constitution Court with Hungary stands a poor chance of ratification . On were finally all in place. The last justice, Marat Baglai, wa s March 17, after a meeting with his Hungarian counterpart , approved by the Federation Council on February 9 . The Minister of Foreign Affairs Theodor Melescanu announced Court's resurrection has been long and arduous . In October that the Romania-Hungary treaty could not be signed 1993, largely because the then chairman, Valery Zorkin, side d before March 21 . In effect, normalization of relations with openly with the insurgent Supreme Soviet, the president sus - Hungary was postponed, even though the Europea n pended the Court's activity. Following Parliament's passage of Council was pressing for this and the Slovak-Hungaria n the "Law on the Constitutional Court" last summer (see treaty to be worked out no later than March 20, when the EECR, Roundtable Vol. 3, No. 3/4, Summer/Fall 1994), the Conference for European Stability was to be held in Paris . president found it unexpectedly difficult to win Federatio n On Saturday, March 18, the prime minister summoned th e Council approval for his candidates. In January, Yeltsin's chief parliamentary parties (except PL ' 93 and DAHR) t o of staff, Sergei Filatov, announced that the president woul d Victoria Palace, demanding that common ground on th e give up proposing candidates if the Council were to continue treaty be reached . All political parties rejected the position rejecting them out of hand . of the Hungarian government, and approved of their ow n Perhaps frustration over its inability to curtail the "execu- cabinet's decision to postpone signing the bilateral treaty . tive action" in Chechnya and hopes that a sitting Court migh t DCR issued an official statement on the occasion of th e strike down some of Yeltsin's most outrageous decrees finall y Conference for European Stability expressing its "suppor t led Parliament to confirm the nineteenth justice in February . for the Romanian government and its prime minister ." I n During his confirmation hearings, in response to senatoria l Paris, the Romanian and Hungarian prime ministers signe d questioning on the legality of the Chechen conflict, Baglai was a declaration stating their commitment to continue talk s critical, noting that the "greatest danger to human rights and lib- over the minority problem with a view to reaching a com- erties [in Russia] comes from the executive branch ." Former promise. Settling the matter of the Magyar minority repre- deputy director of the Academy of Labor and Social Relations sents an essential step toward integrating Romania into and a widely respected legal scholar, Baglai refrained from mak- Europe . Since the authorities have been unable to tackle it ing direct comments about Chechnya after his approval. At his

2 4 SPRING 199 5 inauguration, he stated that he would be guided in his work "b y cessfuL But an official Duma request was finally filed on April 7. the Constitution alone, and by nothing or no one else . " On April 13, a petition of higher constitutional status was file d The new Court consists of 13 justices appointed with by the Federation CounciL What galvanized the Federatio n tenure set according to the old Constitution, and six new jus- Council into action was the revelation that the president ha d tices who, in principle, will serve 12-year terms under the new issued a secret decree on November 30, "On Measures to Restore Constitution. Those elected under the old Constitution must Constitutional Law and Order in the Chechen Republic ." On retire only at age 65 and those chosen under the ne w April 12 the Council voted 97 to one to petition the Court with Constitution either at age 70 or after 12 years (whicheve r a formal inquiry. Roughly speaking, the Council's request com- comes first). Baglai is 63 . On February 13, the justices elected bines the Duma's objections to the published decrees with it s Vladimir Tumanov as chairman and Tamara Morshchakova own objections to the secret decree . as vice chairman of the Court. Although by law the chairma n According to Art . 125 of the Constitution, the Court may serves a three year term, Tumanov, who is now 68, will b e examine the constitutionality of laws and regulations whic h required to retire from the Court when he turns 70, a year were directly related to the action in Chechnya, but it canno t before the normal end of his three-year term. On February 14, review the actions of governmental bodies or individuals. The the Court formed its two chambers, one of nine justices, th e Council has therefore asked the Court to analyze the constitu- other of ten . tionality of all three legal documents : the presidential decree The Court issued some official pronouncements about it s of November 2, 1994, "On the Basic Provisions of Military possible future role in the Chechnya crisis before and after the Doctrine of the Russian Federation," his secret and still unpub - Baglai appointment went through . Speaking on February 1 5 lished decree of November 30, 1994, and the December 9 , at the Court's first press conference, Chairman Tumanov stat- 1994 resolution of the government, "On the Provision of Stat e ed that "If we receive an appeal, the Court will carry out a Security and Territorial Integrity of the Russian State. " legal scrutiny of the documents which provided the basis for Against the two published decrees, the Federation Counci l sending Russian troops into Chechnya ." Earlier that week , objects that they unconstitutionally imposed a state of emergen - Tumanov had identified the top priorities of the Court a s cy, a decision which clearly requires Council approval (Art. interpreting the Constitution and ensuring that regional law s 102.1). Against the unpublished decree, the Council invoke s be consistent with it . He admitted that implementation of th e Art. 15.3 of the Constitution, which invalidates all unpublished Court's decisions would be difficult. He went on to say that decrees affecting basic rights, and the "Law on the State o f the Court is "not a fire brigade which should motor out to Emergency" adopted by the Supreme Soviet of the RSFSR on every political event and forget other issues. A major politica l May 17, 1991 . Article 21 of this law permits the use of MV D case can turn out, in practice, to be something very mino r and KGB troops during an emergency, but does not permit th e from the Court's point of view . " use of the regular army. (Art. 28 reinforces this limit.) Initial attempts at gathering the one-fifth support of mem- In Art. 87.2, the Constitution stipulates that a state of war , bers in either the Duma or the Federation Council to request th e where the army clearly may be used, can be introduced only Court to review the legality of the Chechnya issue were unsuc- because of a threat of imminent aggression against Russia. Th e

New Justices on the Russian Constitutional Court Vladimir Tumanov: Born in 1926, Tumanov has been a professor at the Institute of State and Law at the Russian Academy of Sciences since 1959 and a member of the International Academy of Comparative Law. In 1994, he was elected president of the UNESCO International Association of Legal Sciences . He last worked as a member of the Duma's Committee o n Legislation, Judicial, and Court Reform . Jury Danilov: Born in 1952, Danilov was appointed judge of the Voronezh Regiona l Court after graduating from the law faculty of Voronezh State University . Later, while working as deputy minister of justice and deputy chairman of the State Committee on Anti-monopolistic Policy and Support of New Economic Structures, Danilov super - vised the drafting of laws such as the "Law On Competition" and the "Law On Mercantile Exchange ." Vladimir Strekozov : Born in 1940, after serving as an artillery officer, Strekozov entered the Military Political Academy, where he graduated i n 1973. Strekozov taught at the Military Institute and later became assistant to the dean of the Military Academy of Economy , Finance and Law . Marat Baglai : Born in 1931, after graduating from the Institute of State and Law, Baglai was lecturer an d assistant professor at the Institute of International Relations at the Ministry of Foreign Affairs and was head of the departmen t at the Institute of International Worker Movements at the Academy of Sciences. In 1977 he was promoted to assistant to th e dean of the Academy Labor and Social Relations . Olga Hohryakova : Born in 1937, having worked at the Institute of Legislatio n and Comparative Law, she was promoted to head the Department of Labor and Social Law after completing her dissertation in 1992. Hohryakova has published nearly 60 articles on legal theory and practice of labor relations . Vladimir Yaroslavtsev: Born in 1952, Yaroslavttev has worked in various courts since he graduated in 1979. In 1990, he completed his dissertatio n on the topic of labor disputes in Great Britain . His last appointment was as a judge of the St . Petersburg City Court .

25 EAST EUROPEAN CONSTITUTIONAL REVIE W

"Law on Defense" allows the use of the armed forces onl y automatically to pass if the upper house does not examine th e against an aggressor or to fulfill international obligations . legislation within that time, and Art . 106, which lists especially The published decrees were very broadly written, more- important areas of legislation, mandatory for the upper house to over, and do not drectlyi order the use of the army in Chechnya , consider, without setting any specified time limit. The but instead instruct the power ministries to use "all necessar y Federation Council asked the Court to determine whether Art . means" to bring Chechnya back under federal authority . Some 105.4's 14 day limitation applied to Art. 106 . lawyers argue that the decrees were crafted vaguely in order no t The Court determined that the initiation of a discussion o f to fall afoul of the Constitution . The Court's press office has Art. 106-type legislation must be initiated under the rules laid announced that it will consider the Council petition quickly . An down in Art . 105 .4 . That is, the upper house should begin dis- additional dilemma is that the Court has no procedure for review - cussion of these kinds of bills within 14 days of receiving them . ing secret decrees. Moreover, at present the Court does not eve n If such bills are not voted on, however, they should continue to possess a copy of the secret decree . be considered at the next parliamentary session . This decision Other controversial cases were widely reported to have bee n was thought to split the difference because it means that the filed at the Constitutional Court. No statement has yet been Federation Council does not have to complete consideration o f issued on whether any were accepted for review . One such case Art. 106-type legislation within the stringent two-week limit. concerns Alexei Kostin, the publisher of the "erotic" magazine , A dissenting opinion by Justice Luchin argued that th e Yeshcho. He was held in Moscow's Butyrka pre-trial detentio n 14-day time limit of Art. 105 was not at all applicable to Art . facility for more than a year on charges of publishing and dis- 106-type legislation . He disagreed with the majority's view tributing pornography. In late February, Kostin pled not guilty to that the Federation Council was required at least to begin con- the charges and was released provisionally. His lawyer requested sideration of Art. 106-type legislation within two weeks of that the case be sent directly to the Constitutional Court to test th e receiving it from the State Duma. He objected further to th e Soviet-era criminal code, still in force, in light of the new imposition of a fourteen-day requirement to initiate review of Constitution's commitment to free speech. The magazine still Art. 106-type legislation on the grounds that it has no practica l holds a valid Russian license and the defendant was supported b y legal consequences . The Federation Council remains constitu- a letter from Sergei Gryzunov, chairman of the Press Committee. tionally obligated to vote on all Art. 106-type legislation, four- A tense dispute between the president and the Moscow teen-day requirement or not . mayor, Yurii Luzhkov, arose after the president dismissed the Following the Court's first decision, it announced that it s Moscow City Procurator Gennady Ponomaryev, and Chief o f next scheduled case would be heard in April. It concerns th e Police Vladimir Pankratov . The president took this action in th e basic question of what should be considered the "general num- wake of the murder of the nationally popular journalist, Vladislav ber of deputies" (obscheye chislo deputatov) of Parliament require d Listyev. Yeltsin announced the dismissals during a nationwide to constitute a quorum. Again, problems that stem from sloppy broadcast saying it was "a small punishment" for Listyev's mur - drafting of the Constitution will have to be resolved by judicia l der. The mayor protested that he had not been consulted and tha t construction. The Constitution explicitly states that the Dum a the dismissals were in violation of the Constitution. Moscow law is comprised of 450 seats (Art . 95), and then goes on, in severa l enforcement officials, according to law, answer to both the articles (Art . 103, Art. 105, and Art. 117), to invoke the "gener- Moscow city government and the federal ministries. The lines of al number" of deputies as the baseline for determining ho w authority are not, however, clearly defined, particularly in th e many votes make up a majority or two-thirds. The choice of a case of the chief of police . The mayor threatened to challenge th e legally minimal number of deputies out of which majorities an d constitutionality of the firings before the Constitutional Court , supermajorities can be formed is important because it will deter - giving numerous interviews on television and in local newspa- mine if seats which are not filled, either due to death (severa l pers to express his outrage. He also threatened resignation in cas e deputies were murdered in the Duma's first year) or to othe r the two officials were removed. They were eventually replaced , problems (such as Chechnya's failure to hold elections), will sys- but Luzhkov remains in office and he has apparently filed no cas e tematically count as negative votes . The question the Court wil l at the Constitutional Court. It is still unclear if the president's dis - have to decide is how this "general number" should be calculat- missal of the two law officials has weakened Luzhkov politically . ed, either strictly by the letter of the Constitution, or according Actions by both sides were widely interpreted to be the first step s to the number of people who could possibly attend, or accord- in a long presidential campaign . ing to how many deputies actually attend the legislative session . The one case decided by the newly constituted Court was This issue is additionally touchy because absenteeism is epi- so thoroughly uncontroversial that most newspapers did no t demic, and the practice of giving one's voting card to fellow even cover it. The Federation Council requested that the Court MPs, who then vote in one's place, is widespread. There is also clarify two articles of the Constitution regulating the procedur e considerable speculation whether a strict construction of th e of the Federation Council's review of legislation : Art. 105 .4 , Constitution would throw past votes into question . For which imposes a two-week limit on the Federation Council for instance, Ivan Rybkin, speaker of the Duma . did not receive the discussion on bills passed by the lower house, allowing the bills majority required—half the "general number" plus one vote

2 6 SPRING 199 5

(226)—when he was elected. Although such questions are com - Viktor Sheinis's proposal to reduce the minimum voter monly discussed, it is highly unlikely that the decisions of the turnout for a valid election to 25 percent . Conceivably voter past 18 months will be changed. apathy could invalidate the elections even if Yeltsin himsel f In the lead-up to parliamentary and presidential elec- does not postpone them by decree . tions, slated to take place during the next year, politica l The electoral law for the Duma was passed on Marc h realignments continue to occur. One of the first casualties of 24 by a vote of 257 to 37, with one abstention . The Dum a pre-campaign maneuvering was MP Sergei Kovalev. O n retained its provision to split evenly the 450 seats, requir- March 10, the Duma voted to remove Kovalev from his posi- ing 225 to be elected by party list and 225 in single-mem- tion as ombudsman by changing the January 1993 resolutio n ber districts. Yeltsin favors single member districts, givin g which distributed parliamentary posts among the various fac - 300 seats to those deputies and 150 to those on party lists . tions. Kovalev had been named to his position during the firs t Officially, the reasoning behind his position is that th e session of the Duma as part of a delicately brokered deal . Hi s party system is so poorly developed in the regions that i t removal was the first instance in which this agreement began results in a Moscow-dominated Duma. Unofficially, or s o to unravel, signaling that previous deals are now off. It seem s his opponents argue, the president wants to keep the party that political regrouping has now begun in earnest . system weak and limit any organized opposition . All par- Sergei Baburin's nationalist Russian Way (RW) group ties and electoral associations must collect 200,000 signa- proposed Kovalev's removal, which passed by a vote of 240 t o tures to participate in the election, with no more tha n 75, with three abstentions. Because of Kovalev's painful reve- seven percent of these signatures being gathered in any on e lations about human rights violations in Chechnya, he als o subject of the Russian Federation. There will be only on e became a premier target of attacks from Vladimir round of voting in the Duma elections, and a party mus t Zhirinovsky and his Liberal Democratic Party (LDP) . In receive at least five percent of the votes nationwide to gai n January, as a member of a parliamentary delegation to the seats in the party-list half of the Duma . Council of Europe, Kovalev's statement, that "as long as bloo d The two bills were sent for approval to the Federation is being spilt in Chechnya, it is absurd, immoral and blasphe- Council and both were rejected on April 12 . On May 4, how- mous to discuss membership," outraged many Russian politi- ever, the Council did pass the law on presidential elections , cians. The Council of Europe's subsequent decision i n (see above), with 111 in favor, nine opposed, and eight February to suspend membership talks with Russia, citing abstentions. Only 11 senators voted in favor of the Duma pro- human rights violations in Chechnya, was clearly influence d posal . On April 10, the Federation Council Committee o n by Kovalev . (The Council of Europe also urged amending the Constitutional Law, Judicial, and Legal Issues recommende d Russian Constitution to give Parliament more control ove r that the upper house reject the Duma's bill on the election o f the executive.) Somewhat surprisingly, given his brazen criti- Duma deputies. The Committee endorsed the president' s cism of the war, Kovalev retains his position as chairman of proposal distributing fewer seats to party lists . Federatio n the presidential Human Rights Commission . Council Chairman Vladimir Shumeiko, who has been wag- With parliamentary elections due in December, time i s ing a campaign against the Duma proposal, has even argued running out for passage of the necessary electoral laws, which that no Duma deputies should be elected on party lists. must be published at least four months before an election, leav - Following the recommendation of the Council Committee , ing the legislature only until August 12 to complete its task . Shumeiko warned that the Duma would have to compromise Draft legislation is now under debate . Public discussion con- if it wanted elections. Now that both the presidential and cerns not only the substance of the laws, but also the prior Duma electoral laws have been rejected a conciliation com- question of whether the elections will take place at all or b e mission has been formed to resolve the dispute . With the postponed. Although parties and alliances continue to multi- president and Federation Council both favoring reduce d ply, rumors fly that the elections will not take place as sched- party representation, the Duma may eventually have to settl e uled. The president's extremely low approval rating, seve n for a system in which only one-third of its members (150 ) percent in March, leads some commentators even now t o will be elected on party lists . believe that Yeltsin will postpone both the presidential an d But the most controversial of all the electoral laws is th e parliamentary elections. one that will regulate the selection of the next Federation On March 24, the Duma passed their final versions of th e Council . This body is deeply and increasingly divided ove r laws on the election of the president and of Duma deputies . its electoral future, and the rules under which the body wil l The bill on presidential elections was passed by a vote of 28 4 be elected in the future will define to a great extent th e to one, with one abstention. The final bill, which the power relationship between the legislature and the presi- Federation Council accepted, requires candidates to collec t dent. The current Federation Council was directly electe d one million (originally two million) signatures in order to b e by popular vote in the December 1993 elections . But th e listed on the ballot. Fifty percent of the voters must turn ou t Constitution says that the rules under which the Upper for the election to be valid. The Duma rejected Yabloko MP House will be "formed" in the future must be decided b y

2 7 EAST EUROPEAN CONSTITUTIONAL REVIE W federal law (Art. 96.2 : "the order of the formation of th e No. 1, Winter 1995) . Domestic political troubles, however, hav e Federation Council and the order of the election of deputie s not distracted Meciar from scoring political victories on th e of the state Duma will be determined by federal law") . international scene, as shown by the signing of the March 19 , Roughly half of the Council appears to favor M P Slovak-Hungarian Basic Treaty in Paris. Yelena Mizulina's proposal for the direct election of tw o The recent elections marked the political resurrection of representatives from each region . It is unclear how the rep- Meciar whose Movement for a Democratic Slovakia (MDS ) resentatives would be nominated . In theory, her proposal won 34.96 percent of the vote (see, EECR, Slovakia Update , would make the body something like the post-17t h Vol. 4, No. 1, Winter 1995) . Elected to office three times in th e Amendment US Senate. Current Council members woul d past four years (1990, 1992, 1994) and ousted twice (1990 , be allowed to run in the December elections . The 1993), Meciar is the phoenix of postcommunist Eastern Europe . Federation Council speaker, Vladimir Shumeiko, however, After inter-party negotiations that lasted ten weeks, the MD S is energetically pushing to have the Council at least partl y and the Peasant Party (PP) were able to secure a majority coali - appointed by the president . The argument for his proposa l tion together with the Association of Workers in Slovakia (and his opposition to the one-half party-list formula for (AWS) and the Slovak National Party (SNP) . This governin g Duma elections) is that the legislature is in desperate need o f coalition controls 83 of the 150 seats in the National Assembly . "stability ." Following his proposal, Yeltsin would be able t o In an apparent political concession, the nationalists (SNP) were re-appoint a significant number of the current Council given the Ministry of Education to satisfy their concerns abou t members, thus ensuring continuity . Those opposed to th e language and minority policy . As a result of similar concessions , Shumeiko proposal denounce its enhancement of presiden- the Ministry of Privatization was given to the AWS, an d tial powers. They also note that presidentially appointe d Meciar supported the establishment of a new ministry of publi c regional representatives will also be governing in thei r works. Whether such political bargains encourage the politica l respective regions and will therefore be often absent from and economic reforms Meciar claims to support are unclear . the national legislative process in Moscow . With members The government was installed on December 13. frequently absent from the national legislature, they claim , Only days after the coalition was formed, the regional concerns will go unvoiced. But a Federation Constitutional Court became embroiled in a power-struggle Council permanently in session might also give regiona l with the government. On December 29, the Court handed elites a smaller stake in national politics . down an opinion concerning Order No . 221/1993 issued by the During this electoral dispute, on April 25, Prim e Ministry of Health. This order required patients themselves t o Minister Chernomyrdin announced the formation of hi s pay for certain medication and medical services. Pursuant to Art. own center-right bloc to compete in the December Dum a 125 of the Constitution, which establishes the Court's power o f elections. At the same time Speaker of the Duma Ivan Rybki n abstract review ("The Constitutional Court shall have jurisdic- announced that he would form a center-left bloc . Both made tion over constitutional conflicts between: (1) laws and the it clear that they wanted to create broad coalitions, includin g Constitution or constitutional statutes ; (2) regulations passed by all groups except the extreme left and right parties . the ministries or other authorities of the central government an d Chernomyrdin claims to have the support of the entire cabi- the Constitution, constitutional statues or other laws"), th e net (although this is denied by several ministers) and hopes t o Court had jurisdiction to determine the constitutionality of th e pull together the business and financial interests of the coun- decree. In this case, the Court found the ministerial regulation t o try who support the government's "reform" agenda. Rybkin' s be in conflict with Art. 13 and Art. 40 of the Constitution as well bloc is intended to bring together the heretofore disperse d as Art. 4 and Art . 31 of the Bill of Rights and Freedoms . Article agrarian interests . At the announcements, Izvestia suggested 40 of the Constitution provides that "every person shall have th e that the two blocs were not really rivals but rather two right to protect his or her health. Through medical insurance, cit - branches of the same party—"the party of power . " izens shall have the right to free health care and medical equip - ment for disabilities under the terms to be provided by law." Th e Court held that the Ministry of Health did not, therefore, hav e Characteristic of recent Slovak politic s the authority unilaterally to alter medical privileges. According Slovakia has been the unwillingness of mem- to the Court's ruling, any change in health care services to citi- bers of the National Council squarely zens must be adopted by a law of the National Council . to confront important political issues . Instead of handling their The Ministry of Health replied that it would simply no t internal disagreements politically, parliamentarians have bee n obey the Court's order. Court chairman, Chief Justice Mila n trying to use the Constitutional Court as a means of resolvin g Cic, responded in turn that the Court's rulings are binding o n their disputes. Surprisingly, then, the Court has come to occupy the state administration and that it is the responsibility of other center-stage in the seemingly endless constitutional controversie s branches of government to enforce such decisions . This sober between Prime Minister Vladimir Mecia r 's newly formed gov- rejoinder promptly cost the chairman his automobile, which wa s ernment and the opposition (see EECR, Slovakia Update, Vol . 4, being provided by the government and, more ominously, hi s

2 8 SPRING 199 5 bodyguard, also furnished by the state . Meciar then attacked the Constitution states simply that "when the president returns a Court, stating that "a situation where the Constitutional Court , constitutional law or other laws with comments, then the la w by its interpretation of the law either broadens or changes the shall be debated again in the National Council ." On April 5 , Constitution cannot be tolerated." A substantial break between the law was passed by Parliament a second time, forcing th e Cic and Meciar, the main architects of the Slovak Republic after president to promulgate it on April 11 . the splitup, could have important political ramifications, particu - The opposition regards this amendment as another ste p larly for the MDS . In a perhaps conciliatory gesture, Meciar ulti- in a concerted campaign by the governing coalition to dis- mately returned the Chairman's automobile . credit Kovac and to limit his powers . Earlier, on January 25 , The Constitutional Court has received 1618 petitions since the government orchestrated a formal parliamentary resolu- it was established two years ago. Close to one-third of these peti- tion criticizing the president for his response to a letter fro m tions involved the reconsideration of criminal sentences imposed William Orme, executive director of the Committee to by general courts. Fifty-one petitions concerned national an d Protect Journalists . Kovac had disagreed with Orme's claim local election procedures, 31 cases requested an interpretation o f that freedom of the press was threatened in Slovakia . Th e the Constitution, and 24 petitions involved individuals seekin g opposition contends convolutedly that this parliamentary remedy for an alleged violation of basic rights . In 1994, the censure represents an attempt by the government to prepare Court decided on 118 petitions of the 841 received. Another 112 the public for the ouster of President Kovac, on grounds tha t requests were rejected for want of jurisdiction. Cases involvin g his criticism of Orme constituted censorship of the media. In interpretation of the Constitution and individual rights (espe- February, in another move to weaken the presidency, the cially the right to social support and health care) attracted the government slashed the budget of the presidential office . greatest attention from the public and the mass media. Durin g The composition of Parliament itself has also become a the first three months of 1995, the Court has received 239 new matter for constitutional politics. Notwithstanding the petitions. To date, the Court has considered 50 of them. Electoral Commission's ruling that the Democratic Union Like the Court, President Michal Kovac is finding it diffi- (DU) collected the requisite 10,000 signatures to contest the cult to remain above the fray of parliamentary politics and, i n Fall 1994 national elections, the government remains intent particular, to steer clear of conflict with Meciar's MDS. On on removing the DU's 15 deputies from Parliament . At a March 6, Parliament passed an amendment to the "Law on th e recent SNP press conference, party Vice Chairman Slovak Intelligence Service" which transfers the power t o Bartolomej Kunc indicated that the matter could be brought appoint and remove the director of the SIS from the president before the Constitutional Court once again (see, EECR, to the government . Dusan Macuska, an MDS deputy who pro - Slovakia Update, Vol. 4, No. 1, Winter 1995) . Kunc claimed posed the amendment, argued that keeping the appointmen t that the Court may very well "change its standpoint unde r power in the president's hands did not make sense because th e the influence of new evidence ." DU Deputy Milan Knazk o president "does not have the support of Parliament or even of warned that the government's attempt to expel DU from the the majority of the population ." Furthermore, Macuska added , National Council may be a mere first step in a longer plan . the SIS director is responsible to the Council of State Defense , The subsequent division of seats according to PR would giv e of which the president is not a member and over which the the ruling coalition eight new parliamentary seats (and th e prime minister presides as chairman . Article 102.g of the opposition, seven). The government would then be in a posi- Constitution, however, provides that the president shal l tion to garner the 90 votes needed to amend th e appoint and remove the principal officers of national bodie s Constitution outright . and high officials, as defined by law. Most commentator s MDS's efforts to forge party cohesion may also have con - believe that, if asked, the Court would defer to the Nationa l stitutional consequences. Jan Cuper, an MDS deputy, con- Council's determination of which government officers are to firmed in an interview with RFE/RL, on January 23, that MD S be considered "principal" under Art. 102.g. Opponents of th e deputies have each pledged to pay five million Slovak koruna amendment argued that the president should appoint the (160,000 dollars) to MDS should they ever choose to leave the nation's top security official precisely because the president i s party. Legal experts from the opposition argue that this contrac t not involved in day to day party politics. Speaking for the oppo- contravenes Art. 73 of the Constitution, which mandates that sition, the chairman of the Party of the Democratic Left (PDL) , deputies be "representatives of the citizens," be "bound by no Peter Weiss, asserted that "the secret service must serve th e directives," and "exercise their mandates individually an d state as a whole, not just the government," thereby expressing according to their best conscience and conviction ." To date, the concern over the politicization of the security service . Of the 7 9 Court has not been petitioned to rule on this issue. deputies present (opposition members did not attend the ses- During the interregnum between the September 199 4 sion), 75 voted in favor of the amendment and four abstained . elections and the installation of the new government, th e On March 17, the president returned the amendment t o president petitioned the Court to rule on the status of minis- Parliament, but his provisional veto can be overridden by a sim- ters in the departing government . In November 1994, th e ple majority in the National Council. Article 87 .3 of the National Council passed a no-confidence vote against tw o

29 EAST EUROPEAN CONSTITUTIONAL REVIE W ministers of the outgoing government . The cabinet member s the previous government to start on December 15, 1994. in question had submitted their resignations upon their elec- Former Minister of Transportation Mikulas Dzurinda toral defeat, in accordance with Art. 117 of the Constitution. (Christian Democratic Movement [CDM]), noted that the But the former government was scheduled to remain in previous government's program had provided for the sale of a t office until the new government was installed (see, EECR, least 70 billion koruna worth of property through coupon pri- Slovakia Update, Vol . 4, No. 1, Winter 1995) . Th e vatization. Moves by the current government, he said, mea n Constitutional Court handed down its opinion onJanuary 3 1 that the value of property which can be purchased by eac h and discussed the interplay between constitutional Article s coupon holder will fall from about 20,000 to 14,000 koruna . 117 and 116 .3 . Article 117 provides that "the incumbent gov- On January 12, opposition deputies from CDU, DU, th e ernment shall submit its resignation after the opening sessio n Party of the Democratic Left (PDL), the Social Democrati c of the newly elected National Council of the Slova k Party (SDP), and the Hungarian Coalition (HC) submitted t o Republic ; the former government shall, however, remain i n the Constitutional Court a petition to review two privatiza- office until the new government is formed ." Article 116 . 3 tion laws recently passed by Parliament . One law is an amend - stipulates that "The National Council of the Slovak Republic ment to the large-scale privatization bill transferring contro l may also pass a vote of no-confidence in an individual mem- over privatization from the government to the Nationa l ber of the government; in such a case the member shall be dis- Property Fund. The other law cancels all direct-sale privatiza- missed." The Court reasoned that the government and it s tion projects carried out by the Moravcik government afte r members, after their resignation following an election , September 6, 1994. The two laws were initially passed by remain in office by force of the Constitution, not by the wil l Parliament on November 4, vetoed by the president, and then of the newly elected National Council . Therefore, the Court definitively approved by the legislature on December 21 . concluded, the National Council cannot use Art . 116 .3 to dis- Since the formation of the new government, many per- miss a member of an outgoing government who had alread y sonnel changes have occurred in the state administration . Th e resigned pursuant to Art . 117 of the Constitution. government recalled 27 directors of district offices, for exam- The government program was made available to ple. On March 10, the National Council voted to strengthe n Parliament on January 11 . Parliamentary committees me t the control of the government over ministries and enterprises . on January 16 to discuss the program, and the plenary debat e State secretaries will be able to vote for ministers at cabine t opened on January 19 . Rather than lock horns on the pro- meetings, and the government will be able to appoint the lead- gram's substance, opposition leaders, with significant back- ership of various central organs of the state administration . ing in the press, decried the presentation of the program a s Parliament also approved the cabinet's proposal to create a unconstitutional because it was four days late . This led th e new Ministry of Construction and Public Works . National Council's chairman, Ivan Gasparovic (MDS), t o Cancellation of three television programs devoted t o declare that it was up to him to respect the Constitution' s political satire provoked widespread public protest . These pro- requirement of timely presentation. No petition was submit- grams were among the most popular on Slovak TV . ted to the Court. The National Council approved the pro - Organizers of a petition "against the violation of freedom o f gram on January 20, with a strict party-line vote . Of 139 speech in Slovakia" have collected 115,000 signatures con- members present, 83 voted in favor of the program, whil e demning the cancellation. Several mass demonstrations wer e the rest either voted against (44) or abstained (11) . held in Bratislava to increase the political effect of the petition . The government's program includes several amendments In the run-up to the Conference on the Pact of Stability , to the "Act on Political Parties" and the "Act on National an d Prime Minister Meciar and Hungarian Prime Minister Local Elections." The government claims that the new mea- Gyula Horn signed the Slovak-Hungarian Basic Treaty o n sures are needed "to stabilize political life." Additional legisla- March 19. At the core of the Treaty is the acceptance of th e tive priorities include a new bill on parliamentary procedure s present Slovak-Hungarian border by the Hungarian govern- and a bill on conflicts of interest . Meciar has continued to argue ment and the ethnic Hungarian community living in south - that stabilization of democracy requires profound changes i n ern Slovakia. In exchange, Bratislava shall grant linguistic , the political and constitutional system . At the end of educational and representation privileges to the Hungaria n December, at a rally in Zilina, he claimed that a presidentia l minority. To the extent that this treaty resolves the simmer- system would help Slovakia avoid future political crises . ing disputes between ethnic Hungarians and Slovaks, it is a n Furthermore, Meciar defended the need for "a law on the pro - achievement of historic significance . Many Slovaks dat e tection of the republic," which could be used "if the oppositio n their grievance with Hungary at least as far back as the earl y does not accept its electoral defeat and tries to organize mas s nineteenth century . Because Slovaks toiled as agricultura l protests" or if ethnic and social conflicts threaten stability . workers under Hungarian domination for centuries, nation- Claiming that the privatization program had been ill-pre - alists claim, Slovaks now owe no special favor to th e pared, the new government postponed until July 1 the secon d Hungarian minority. Ethnic Hungarians, on the other hand , wave of voucher privatization, which had been scheduled by have contested the Slovak-Hungarian border that has sepa -

3 0 SPRING 1995 rated them from Budapest ever since the reordering o f the repercussions of the press release . Parliament had decided Europe at the end of the First World War . The common in March 1994 that the Rome Agreement of 1983 definitive- desire of Hungarians and Slovaks to curry favor with th e ly settled the legal questions connected with former Italia n European Union may, at least for the time being, soften property. Pahor reiterated this decision, announcing that the mutual recriminations . But the bilateral treaty remains to b e foreign ministers' agreement changed nothing. ratified by both parliaments, and may cause problems with- Even the promise of a change in the property laws great- in Meciar's majority coalition. SNP National Chairman Ja n ly angered opposition members of Parliament . On the first da y Slota, whose party holds nine seats in Parliament and two of the January legislative session, seventeen of them propose d ministerial appointments, argues that granting national to indict Prime Minister Drnovsek for violating th e minorities the right to establish autonomous organizations i s Constitution . The motion was rejected by a large majority , "unacceptable." Article 1201 of the Council of Europe' s though the Slovenian People's Party (SPP), the Socia l Recommendations envisions autonomous organization s Democratic Party (SDP), and the Slovenian National Part y (this intentionally ambiguous phrase is meant to cover any- (SNP) supported it and the United List of Social Democrats thing from school boards and cultural institutes to sport s (ULSD) opposed only the proposal's form . teams) as an integral component of the political exchang e Popular opinion is also resistant to the change: polls have between Bratislava and the Hungarian minority, but ther e shown that almost 75 percent of Slovenians oppose preferen- are no provisions specifying how these organizations are t o tial treatment for Italian former residents. Slovenians fear that be established . Thus, the countries themselves are left t o the Italians will consistently outbid them in privatization and decide how and where CE recommendations will be imple- will literally buy them out of house and home . Lingering fear s mented. Although the possibility for creating autonomous that Italy will reopen the question of its border agreement with territorial governments exists in the CE recommendations, i t Slovenia also fuel opposition to the property law amendment . is doubtful that Slovakia will interpret them in this way . Slovenia has made considerable progress in relations with Croatia. Although the border disputes which flared up last fal l have not been permanently settled, energy and financial issue s The most important legal develop- have been successfully resolved . After several meetings between Slovenia ment of the first quarter of 1995 came their respective economic ministers, the two republics agreed in in early March, when the Italian gov- March on a formula for ownership of the Krsko nuclear powe r ernment agreed to withdraw its objections to an associatio n station. The station, situated in Slovenia near the Croatian bor - agreement between Slovenia and the European Union . Th e der, will be half owned by each republic . Slovenia will own the Italian government had been dissatisfied with regulation s "golden share," entitling it to veto important decisions abou t regarding Istrian property confiscated from former Italian resi- organization, security, and closing down the reactor . The talks dents by the communist government after 1945 . This issue wa s also addressed the use of the Adriatic oil pipeline and transit ga s addressed by the 1983 Rome Agreement between Italy and line. The problem of the allotment of state property, though dis - Yugoslavia, under which the latter agreed to pay compensation cussed in earlier meetings, was not resolved . The Slovenian del- for the property . Slovenia was quite willing to continue its share egation proposed, however, that the formula used in the Krsk o of this compensation, but the Italian government decided afte r case could be applied to the problem of property generally . Slovenian independence that former Istrian Italians should In February Slovenia agreed to pay Croatian citizens wh o have a chance to participate in the proposed privatization of the held foreign currency deposits in the Ljubljanska Banka 20 4 property. The Slovenian government first insisted that th e million dollars . This agreement allayed Croatian criticism of a property issue should be kept separate from talks about relation s Slovenian law passed in August 1994, which attached the set- with the EU, but finally agreed to link the questions . tlement of the debt question to the problem of resolving al l The Slovenian Constitution bars foreigners from hold- legal disputes among the successor states to former Yugoslavia . ing or purchasing property in Slovenia. Prime Minister Jane z These disputes are unlikely to be settled in the near future . Drnovsek said that a constitutional amendment will be Croatian citizens had held nearly 600 million dollars in hard enacted after all EU members have accepted the Slovenia n currency exchange in the Slovenian bank before foreig n association agreement but before the agreement is signed , exchange deposits were frozen by the Yugoslav national ban k possibly in September. If the necessary amendment is not in late 1990 . Since then roughly 369 million dollars of the deb t passed, Italy may yet veto the signing of any treaty . has been transformed into Croatian bonds, and the mone y Any such amendment will face considerable oppositio n remaining in Slovenian banks will now be paid. The Slovenia n in Parliament, where it will need a two-thirds majority t o government also agreed to repay its debt to the Croatia n pass. A storm of parliamentary activity was set off by the join t Health Insurance Fund by the end of 1995 . press release announcing the agreement between the Italia n These agreements mark considerable progress in Slovenian - and Slovenian foreign ministers . Deputy Chair of the Foreign Croat relations, which were unsettled by border disputes in lat e Relations Committee Borut Pahor called a meeting to discuss 1994. The Slovenian law on municipalities, passed in October,

3 1 EAST EUROPEAN CONSTITUTIONAL REVIE W incorporated four villages claimed by Croatia into the Slovenian Autonomous Republic's 1992 Constitution as well as aboli- local government structure . Croatia also objected to Slovenia' s tion of the office of provincial president. This Constitution claim to jurisdiction over the Bay of Piran, a body of water off the was officially reinstated by the Crimean Parliament in Ma y Istrian peninsula. The settlement of the Croat-Slovenian border 1994, but immediately suspended by Kiev, and its suspension , may have to await a final agreement on the respective rights an d in turn, disregarded by Sevastopil . Parliament's new law s duties of the successor states to the Yugoslav Federation . reasserted the authority of the Constitution of Ukraine in Ethnic conflicts have surfaced in Slovenia in recent Crimea, rescinded all Crimean legislation in conflict there - months. In Maribor, the second largest city, members of th e with, recognized as solely authoritative in the peninsula th e right-wing Slovenian National Social Federation have formed national government's Supreme Council and executive, an d patrols they say are intended to protect the Slovenian popula- suspended the financing of all institutions considered uncon- tion from violence by non-Slovenians. An athletic association stitutional. Also canceled were local council elections sched- set up by the Party of the National Right has similar goals . uled for April 29 . Criminal proceedings against Crimean Interior Minister Andrej Ster stated publicly that such "protec- President Yuriy Meshkov for various illegal acts were autho- tion" activities are illegal. Right-wing extremist nationalists tar - rized as well. Would-be President Meshkov, already in disfa- get mainly refugees from Bosnia and Croatia and foreig n vor with his own Crimean parliamentarians, spent severa l workers in Slovenia's industrial cities. days in his office isolated and incommunicado . The nationa l The Defense Ministry ordered the occupants of 1200 Parliament in Kiev acted on the basis of a report by an ad hoc apartments owned by the former Yugoslav People's Army t o committee set up last autumn to investigate all aspects of th e move out or face eviction. Most of the tenants are non- Crimean situation . Presenting a catalog of all the misdeeds o f Slovenian former Yugoslav officers and army employees . As o f Meshkov and his Parliament, the report also denounced vari- March 29, the tenants of 25 apartments had left and evictio n ous instances of Russian intrusion, and dwelled at length o n proceedings had begun against 90 more. Under pressure from the rising crime rate in Crimea as a sign of the provincial gov- human rights groups, Prime Minister Drnovsek called for a ernment's ineffectiveness . halt to this mild version of ethnic cleansing . In addition, the Verkhovna Rada passed a new law on the Although the United States Department of State praise d Autonomous Republic of Crimea which, at least on paper, Slovenia's human rights record in 1994, both Amnesty firmly subordinated the recalcitrant province to central author - International and Helsinki Watch have reported rising human ity and gave it a limited sphere of jurisdiction . The law empha- rights violations in the republic. These violations concern sized Crimea's autonomy, but declared that its relation to th e mainly Serbs, Croats, and other former Yugoslav citizens, espe - center is to be municipal in nature, not federal. Emphasis on cially foreign correspondents. The secretary-general o f the term "autonomous" was meant to downgrade Crime a Amnesty International met with Interior Minister Ster o n from its self-designation as a "republic ." In its reaction to th e January 10 to discuss human rights issues, and warned that decisions made in Kiev, the Crimean Parliament asked Russi a Amnesty would undertake thorough investigations if ne w to withhold approval of its impending agreement with reports of violations were received . Ukraine. Russia acquiesced . On March 24, the Ukrainia n Despite projected GDP growth of seven percent for the Parliament slated local elections in Crimea for June 15 . current year, the Ljubljana Stock Exchange has fallen 15 per - This decision provoked President Leonid Kuchma's decre e cent since the beginning of 1995 . Analysts say traders are wor- placing ultimate power of appointing the Crimean governmen t ried that privatization issues will flood the market . The priva- in his own hands and restoring as its head his son-in-law, Anatoli y tization program began in January 1994, and is slated to con- Franchuk. The Crimean government was to be subordinated to tinue through the first half of 1995. Newly privatized compa- Kiev until the new constitution was drafted by the provincia l nies fear entering the Stock Exchange, however, becaus e assembly, sometime before May 15 . Undeterred, the Crimean Slovenian regulations make takeovers easy . Parliament i s legislators passed a vote of no-confidence in the Franchuk govern - expected to pass a new law on takeovers this year . Current ment on March 22. On April 1, Kuchma restored him to the pre - securities laws restricting and closely regulating foreign invest- miership and threatened the provincial Parliament with dissolu- ment are also expected to change, and Slovenia's two largest tion. For the time being, the Crimeans demurred . banks may be privatized . Earlier, on January 12, Kuchma had authorized the can- cellation of a series of four Crimean government decree s (issued between November 1993 and August 1994), as well a s A dramatic climax in the ongoing (on February 12) half a dozen of Meshkov's presidential edicts , Ukraine saga of relations between the put out between May 15 and September 9, 1994 . Turmoil con- Ukrainian central government an d tinued within the Crimean Parliament, meanwhile, as severa l the autonomous province of Crimea occurred on March 17 , votes of no-confidence removed most of the presidium and when the Verkhovna Rada (Parliament) passed a series o f even, temporarily, the parliamentary speaker. Serhii Tsekov. seven legislative acts, including cancellation of th e Originally ousted by the industrial lobby, Tsekov was reinstat-

3 2 SPRING 199 5 ed in early March. Indicative of the separatist mood of th e or that the president will recognize the law (in both senses of province, in mid-March the Crimean Parliament was debat- "recognize") when it does finally emerge. In his state-of-the- ing, in defiance of Kiev, a bill on dual (Ukrainian-Russian) citi- nation address to Parliament on April 4, Kuchma was still zenship. This debate, however, was postponed and in any cas e pleading with lawmakers to pass his bill . overtaken by the events described above . The president has already suffered one setback in his deal - Work on the Constitution of Ukraine, in the meantime , ings with Parliament this year . His edict on financial-industria l has not progressed very far. Reconstituted by Kuchma in groups, issuedJanuary 27 and intended to sanction the conduct Fall 1994 (see EECR, Ukraine Update, Vol . 4 No. 1, Winter of business by conglomerates, was repealed by the Suprem e 1995), the Constitutional Commission met at the end o f Council on March 2. By a vote of 326 to 32, and on the initiative December and in early March. At the latter meeting , of the Reform faction, which hitherto had supported Kuchma' s Kuchma noted that stylistic and political agreement had ye t economic reforms, the deputies repealed his edict because of it s to be reached on many provisions. The very form of govern- violation of existing tax laws and its contravention of the existin g ment (parliamentary, presidential, or presidential-parlia- Constitution, which authorizes presidential intervention only i n mentary) was yet undecided, as was the question of which areas not already covered by currently valid legislation. institution would be responsible for foreign policy . The first quarter of 1995 began with Parliament acting a s Oleksandr Yemets, on the other hand, reported at the end of judge in its own cause, following the precedent set down in March that his section of the Commission had reached th e soviet legislative practice. By a vote of 221 to 181, Parliamen t conclusion that Ukraine needed a presidential system, on th e denied the honorary chairman of the right-wing Ukrainia n American model, in view of the hyperfragmentation an d Republican Party and former ambassador to Canada, Levk o weakness of its political parties. It had been agreed, more - Lukyanenko, the assembly seat he had won in an earlier by - over, to merge the section dealing with civil society into th e election. It was alleged that illegal campaign materials had been general provisions of the Constitution and the section o n used during the electoral campaign, but the move was purel y rights. Proposals were introduced to reduce the size o f political. Undeterred, Lukyanenko continued to press for Parliament from 450 to 250-300 members, and to institute a recognition, and his mandate was finally approved o n mixed (majoritarian and proportional representation) elec- February 9, by a vote of 205 to 107 . toral system. Some questions about the courts and th e Speaker of Parliament Moroz came under a cloud i n appointment of judges remained undecided . The February, when a scandal erupted over his apparently havin g Commission's secretary, Albert Koryeyev, reported at th e authorized issue of a credit of 30 billion karbovantsi to a city in beginning of March that work was two to three week s the Sumy province. According to a published copy of the behind schedule—a rosy assessment, given that the process o f memorandum, signed by Moroz, there was one condition: the writing a new Constitution for Ukraine began in 1990 . city had to kick back one-third of that amount to a citizen b y While he continued to co-chair (with parliamentary the name of Smirnov, who needed to travel to California for a n speaker Oleksandr Moroz) the Constitutional Commission , eye operation. By this time, Smirnov had disappeared int o Kuchma was at the same time shepherding his own interim Russia or some other part of the CIS, and an embarrasse d solution to the constitutional impasse, the draft law "On Stat e Moroz shifted blame to his erstwhile business adviser, Vikto r Power and Local Self-Government in Ukraine," throug h Bozhenar. Investigation of the Smirnov case uncovered a n Parliament (See EECR Ukraine Update, Vol. 4, No. 1, Winter even bigger fraud, an illegal loan of 80 billion karbovantski . On 1995). The president justified the bill, which was introduced t o March 9, Bozhenar, basketball coach, businessman, and advi- Parliament on December 22, and given its first reading on sor to Moroz and, before that, to President Leonid Kravchuk , December 28, as essential to economic stabilization. It would, was arrested and charged with embezzlement of state funds . he claimed, eliminate conflicts between branches of govern- On the front page of one newspaper, Bozhenar wa s ment by properly dividing and delineating their powers. It shown in an undated picture together with Yefim Zvyahilskyi , would also permit formation of the Constitutional Court and former acting prime minister for Kravchuk, in a friendly hand - would make executive power more effective. Socialists i n shake. On the run for several months, Zvyahilskyi saw his par - Parliament and heads of local governments in the province s liamentary immunity lifted in November 1994 and wa s opposed the bill, arguing that it would weaken the Supreme charged with illegally siphoning off 25 million dollars fro m Council, as well as the principle of "soviet" power generally. energy deals while in office. He was tracked down in Israe l They interpreted it as a power grab by the president and hi s and, in a newspaper interview on March 3, denied his involve - team. The draft has been extensively amended, and the proces s ment in any illegality . The charges were fabrications, he of its consideration may drag on indefinitely. Deputies do not alleged, and he had fled not from justice. but for fear of his life . even agree as to whether the bill's adoption will require a sim- In a move expected since January, Prime Ministe r ple or super majority. There is no assurance that the presiden- Vitalii Masol tendered his resignation on March 1 . Two t's bill will ever again see light of day, although it was to hav e days later, he was replaced by Yevhen Marchuk, wh o been reviewed by the Supreme Council by the end of March, became acting prime minister . Appointed by Kravchuk jus t

33 EAST EUROPEAN CONSTITUTIONAL REVIEW before the presidential elections in 1994 to woo the left- approves a new government according to Art . 117 of the wing vote, Masol had, it was thought, become increasingl y Constitution . The vote came in response to the governmen- out of step with the reformist cabinet created in the cours e t's annual report to Parliament on the state of the economy . of Kuchma's presidency . Of course, Masol had also served a s Deputy Speaker Oleh Dyomin, criticized the governmen t chairman of the Council of Ministers of the Ukrainian SS R for failing to carry out parliamentary and presidential legis- from 1987 to 1990 . Head until July 1994 of the Security lation. This dismissal of the government, the first since inde - Service of Ukraine (SSU), successor to the KDB (Komitet pendence, will allow President Kuchma the opportunity t o Derzhavnoyi Bezpeky ; in Russian, KGB), Marchuk had been put together an entirely new administrative team, some - named Kuchma's chief crimebuster and, since Decembe r thing he has apparently wanted to do since taking office. 1994, had served as first vice premier. Whether th e A little-noticed event in this time of big changes wa s appointment of a secret police chief as prime minister i s the unexpected death, on March 3, of Leonid P . Yuzkov, appropriate at this moment in Ukraine, or whether it fore - the chairman of the Constitutional Court and a member o f tells the beginnings of a police state, is a moot question . the Constitutional Commission. Although the Court wa s Marchuk is said to be very much his own man and not a created in 1992, and Yuzkov was appointed in July of that client of the president, and he may even be a candidate fo r year, Parliament has held up other appointments, prevent- the presidency himself in the future . ing the Court from convening. With Yuzkov's death, the In any case, Marchuk's tenure seems less than secur e formation of the Court will have to begin from scratch . because on April 3, by a margin of 292 to 15, the nationa l The Constitutional Court's functions continue to b e Parliament passed a vote of no-confidence in his govern- usurped by president and Parliament as part of their never - ment. The ministers will remain in office until Parliament ending struggle for power.

These reports have been written by the CSCEE's affiliates and the staff of the EECR : Cyrus Amir-Mokri, Ania Budziak, Milos Calda , Alicia Cozine, Elena Foley, Venelin I. Ganev, Nida Gelazis, Bohdan Harasymiw, Kathleen Imholz, Rumyana Kolarova, Krenar Loloci , Christian Lucky, Alexander Lukashuk, Darina Malova, Lucian Mihai, Elzbeita Morawska, Agnes Munkasci, Velo Pettai, Julius Rakickas , Peter Roodick, Andrzej Rzeplinski, Dwight Semler, Tanya Smith, Elena Stefoi-Sava, Gintaras Steponavicius, and Anita Usacka .

3 4 SPRING 199 5

Special Reports

Coalition, opposition, and presidency in turmoi l

A Letter from Poland Wiktor Osiatynsk i

Poland has a new government, its sixth sinc e began describing UDL leader Aleksande r 1989. The constructive vote of no confidence , Kwasniewski as a "super prime minister" or "prim e cast by the members of two ruling parties, the minister without portfolio." Union of the Democratic Left (UDL) and Polish The coalition had been forged on the basis of the Peasant Movement (PPM), led to former Prim e two parties' shared affinity for the communist pas t Minister Waldemar Pawlak's (PPM) replace- and of similarities in their electoral platforms . ment by Jozef Oleksy (UDL) . Thus the postcom- During the 1993 campaign, both parties criticize d munist UDL finally assumed direct responsibili- the post-Solidarity government for taking excessive - ty for the government, something it had resiste d ly harsh economic measures. The coalition, by con- sixteen months ago . trast, promised pay hikes, a slow-down of privatiza- In the September 23, 1993 elections, UD L tion, and a more effective fight against unemploy- received 20.5 percent of the vote. Because of the ment and inflation. Acknowledging the general weighted electoral system, however, it obtained a need to continue reforms, the new coalition never- disproportional 37.2 percent of the seats in the 460- theless criticized the liberal faith in free markets and seat Sejm. The PPM, a post-1989 spinoff from th e promised to pursue "capitalism with a human face ." communist satellite United Peasants Party (UPP) , But the parties soon diverged on their visions fo r similarly saw its 15 .4 percent of the vote translate d the future. Responsible for crucial economic depart- into 28.7 percent of the seats in the Sejm (Se e ments in the government, UDL soon realized that EECR, Poland Update, Vol. 3/4, No. 4/1, Fall there was no alternative to continuing market reforms . 1993/Winter 1994) . PPM, instead, tried to undo many of the reform mea- After the elections, the two parties formed a coali - l sures introduced in 1989-1993 . To this end, PPM's prin- tion that came close to controlling the two-third s cipal strategy was the idleness of the prime minister majority necessary to make constitutional changes . himself. For example, when UDL's minister for priva- But for tactical reasons, UDL, although the stronge r tization wanted to continue turning large state factorie s partner, decided to keep a low profile, offering the into publicly-held corporations, Pawlak withheld his prime ministership to the PPM leader Pawlak. To the signature from the necessary documents for almost si x delight of his party, Pawlak, who had failed to form a months. Instead, PPM worked out an alternative strate - cabinet when first named to the post in June, 1992 , gy, the so-called "commercialization" of state factories. accepted. It was nevertheless assumed that rea l "Commercialized" enterprises were to be even mor e power would rest with UDL. Indeed, the media dependent on the state and, by virtue of state support ,

3 5 EAST EUROPEAN CONSTITUTIONAL REVIE W more resistant to privatization . Thousands of positions unless Pawlak revised his decision, and then actually on the boards of "commercialized" enterprises were t o submitted his resignation. This move was perceived as be handed out to PPM's political allies . an attempt to pressure Pawlak and strengthen UDL' s Pawlak and Michal Strak, his minister of local position in the negotiations between Pawlak and administration, halted the reform of local administra - Kwasniewski, to be held after the latter's return from a tion begun by the government of Hanna Suchocka. trip abroad. Without consulting Kwasniewski, how- They replaced almost all incumbent local officials, ever, Pawlak announced his acceptance of Borowski' s promoting, wherever possible, PPM activists . resignation. Angrily, UDL yielded . The government primarily focused on two activ- In the wake of this incident, relations between ities. First, reflecting its immediate electoral interests , the leaders of the coalition parties were tense . PPM subsidized and protected the poorly organize d Kwasniewski did not trust Pawlak, who woul d and inefficient agricultural sector. It introduced pro- promise and never deliver. The simplest decision tective tariffs on food imports and spent enormous would take him months . Pawlak was also hopelessly sums on rescuing the Bank of Alimentatio n vague in communication, never making eye contac t Entrepreneurship from bankruptcy. It eventually when speaking.- He would not say much to begin became clear that the principal aim of Pawlak's gov- with, dodging the press and almost never answerin g ernment was to shift the economic burden of reform s questions straightforwardly. He once admitted that onto cities in order to shelter the agricultural secto r he had learned the art of negotiation from a Polis h from painful but necessary restructuring . Pawlak translation of Getting to Yes by Roger Fisher and feared that such reforms would undermine the oth- William Ury. The lesson he learned was that the erwise steady electoral support of PPM among th e best negotiating strategy is to say nothing . more than 25 percent of the workforce still Having made a decision, however, Pawlak wa s employed in agriculture and living in villages . utterly stubborn. He three times reappointed a police Second, displaying even more clearly his intent to commissar-general who had submitted his resigna- strengthen his party's political base, Pawlak place d tion after being implicated in a cover-up of police cor - his cronies in every available position in the adminis- ruption. Pawlak was simply there, no action, no idea , tration, in industry and on the boards of banks, indus- nothing. He just killed time and let his buddies divvy trial enterprises, and foundations created by the gov- up state offices and assets among themselves . ernment. Pawlak may not have introduced the spoils UDL leaders were powerless. They convened a system to post-1989 politics, but he mastered it to per - number of coalition meetings with top PPM leaders , fection, creating a dense and far-flung web of clients . often negotiating past midnight. Pawlak would reluc- In his vision of government-by-colleagues, room fo r tantly promise to treat his partners seriously only to market reform became smaller and smaller. After all , relapse into his normal pattern of inaction, promise - big government with broad powers and ample bud - breaking, and issuing false, contradictory, and curt gets meant more perks for clients . statements. By the fall of 1994, Kwasniewski was If leaders of the Alliance initially counted on con- seeking the advice of professional psychologists on trolling the government from behind Pawlak's back , how to deal with Pawlak . they soon realized that they had miscalculated. Pawlak UDL's situation was frustrating. While it was the effectively claimed and asserted power. An incident i n stronger partner in the coalition, its freedom of action early 1994 was significant. Pawlak fired a deputy was minimal as it could not form a government single - finance minister, blaming him for improprieties in pri - handedly. Some UDL leaders, including Kwasniewski, vatizing a bank . The deputy minister was responsible would have readily accepted a coalition with the Union for appointing the Ministry of Finance's representa- of Freedom, which had emerged in spring 1994 fro m tives to the boards of privatized banks and enterprises . the union of the Democratic Union and the Libera l Marek Borowski, a UDL deputy prime minister and Democratic Congress . Tadeusz Mazowiecki and hi s the acting minister of finance, first threatened to resign colleagues, however, did not want to emulate th e

36 SPRING 1995

Hungarian example, and refused to enter a coalition Polish elite has long cherished aristocratic values, eve n with former communists . The only alternative left for if a Polish nobility no longer exists, having been trans- UDL was abandoning the coalition, and power, alto- formed into intellectuals, professionals, and politicians . gether, thereby handing the government completel y Condescension and paternalism toward "commoners" over to PPM. This option, however, was especially are central features of this value system. Elites act on unacceptable to UDL members serving in the adminis- behalf of "commoners," but they never conceal thei r tration, for they had no doubt PPM would sweep the m sense of superiority. The elite value system was espe- away within weeks of a UDL withdrawal . cially attractive to those who had successfully climbed The only hope for UDL leaders was staying in th e the social ladder, flirting with and seeking acceptance coalition with PPM, but switching prime ministers. from traditional elites, adopting elite manners and val - Though Kwasniewski hinted at such a switch a num- ues, and severing links with their past. Many commu- ber of times, it was to no avail, since Pawlak had two nist leaders had taken this path. Many Solidarity lead- important assets . First, he had the unwavering sup- ers, including Walesa, acted similarly. Walesa, for port of activists in his party. He had helped PPM avoid example, aimed to prove to the intellectual oppositio n the misfortune of the Democratic Alliance, anothe r that nothing could be accomplished without him . On Communist Party satellite, which had supported th e the surface, Walesa may constantly fight Mazowiecki , Solidarity-backed government in 1989 . Unable to Geremek, Michnik, and other elite politicians . Deep find new leadership or supporters, the Democratic inside, he dreams an unattainable dream of bein g Alliance practically ceased to exist in 1990. By con- accepted by his former intellectual advisors as a full - trast, Pawlak, who is only 33 and therefore too young fledged member of the Polish upper class . to be marked as a communist collaborator, provide d Pawlak's originality can be understood onl y the Peasant Party with stable leadership . He devised a against this backdrop . He was the first Polish politica l strategy of rebuilding the party, using local cells, agri- leader who rejected the values and manners of th e cultural cooperatives, and banks to transform PPM elite outright. Pawlak stuck with ordinary people into a modern interest-group party. Using this strate- and sent a clear message that he did not care what th e gy, the PPM succeeded in rapidly eclipsing the tw o media, the intelligentsia, or other politicians though t post-Solidarity peasants' movements . Ever since his of him. His popularity with common people owed first stint as prime minister in 1992, Pawlak has per- much to his personal interactions with them. He sonified for power-hungry peasant activists their own served as Chairman of the Association of th e prospects for advancement and success . Voluntary Fire Brigades, a movement of volunteer s Pawlak's second asset was more complex . On the with chapters in every small town and village . While one hand, he was not skilled at public relations . The he had no time for many state duties, Pawlak neve r media did not like him, and he did very little to ingra - missed a meeting or annual dance organized by fire - tiate himself with reporters. Politicians from other men. Every Sunday, he showed up for mass, often in parties feared and disliked him. He was ridiculed b y a remote village church . For common folk, Pawla k the intelligentsia, who looked upon him condescend- was the one leader who did not betray them . By ingly. Nevertheless, until almost the very last days o f snubbing the elite, Pawlak gave the masses, especially his prime ministership, Pawlak enjoyed the solid sup - the rural population, a sense of self-esteem . port by over 50 percent of the population . In early For such popularity to endure, however, Pawla k fall 1994, he was even considered a top presidentia l had to stay at the top and constantly win at the polit- contender. Intellectuals, especially, had difficulty ical game. The Polish people, unlike the Polish intel- comprehending the undeniable popular appeal of ligentsia, do not admire losers . this grumpy, increasingly arrogant youngster . Pawlak eventually lost, however, for two majo r In fact, Pawlak's popularity epitomizes the reasons. First, he was unwaveringly loyal to his bud - that has existed more than three hundred year s dies, even corrupt ones. One of his ministers was between Poland's elite and the rest of the public . The implicated in corruption. Another had a drunk driv-

3 7 EAST EUROPEAN CONSTITUTIONAL REVIEW ing accident, and was also suspected of attempte d leader of the Solidarity workers' movement in 1980- rape. Still another was caught lying in public . The 1981, were extremely critical of the Union's leadershi p press, disliking Pawlak, sensationalized these stories . and suggested forming a coalition with the postcom- An even more damaging story charged that Pawla k munist UDL. The Forum was subsequently excluded himself was involved in securing a contract with a by the Union of Freedom . This struggle resulted in a bankrupt firm, now owned by one of his friends, t o decline in support for the unified party to about 12 per- computerize a government office. A related story cent, compared to the combined support of 16 percen t claimed that the prime minister had had a love affair enjoyed by the two parties before their union . with a secretary employed by that firm . Pawlak The Union of Freedom also divided over selectin g either ignored these stories or responded with vague, a presidential candidate. Most party members sup - inconsistent explanations . He refused to terminate ported Jacek Kuron. At the center-left of the party , ministers tainted by scandal . For the Polish people, Mazowiecki and his colleagues in leadership preferre d who are fairly judgmental, these issues began t o either former civilian minister of defense Janusz overshadow Pawlak's populist appeal. But thes e Onyszkiewicz or former prime minister Hanna problems were nothing compared to the blows deal t Suchocka. In the, party's unofficial primaries, Kuron to Pawlak, indeed to the entire coalition, by Walesa . garnered more votes than all other candidates com- If Walesa ever had grounds for treating himself a s bined. In his presidential bid, Kuron had previously a providential figure, it was precisely after the 1993 distanced himself from party infighting and from th e elections. The right-wing parties were unwilling o r Union of Freedom itself He replaced his jean jacket unable to form a coalition, and none crossed the five with suit and tie and presented himself as the candi- percent vote threshold needed to enter Parliament . date of a coalition broader than a single party . The Solidarity Union similarly fell 0 .1 percent short of (Incidentally, as early as June 1994, former President the threshold. As a result, over 30 percent of the popu - Wojciech Jaruzelski told the author that he would as k lar vote was not represented. This 30 percent was sub- UDL to support Kuron for president, but only if h e sequently redistributed among the represented parties . put on a proper jacket . ) The Democratic Union won 10.5 percent of the pop - At the party's April 2 national convention , ular vote and 16 percent of the seats in the Sejm . It was Kuron received 225 votes on the first ballot, while to become the major opposition party. For many rea- Hanna Suchocka received 109, and Janusz sons, however, it could not play this role effectively . Onyszkiewicz 145 . If all supporters of Suchocka had First, representing a small minority, the reform- switched to Onyszkiewicz, Kuron would not have ers could play only a minimal role. Their legislative been nominated. Fearing Kuron's defeat would impotence frustrated many of the party's ambitiou s result in the party's split, some delegates voted fo r leaders. In time, some got so bored they almost never him in the second round. As a result, Kuron received attended parliamentary sessions . 242 votes compared to 231 for Onyszkiewicz. The Second, between October 1993 and Spring 1994 , slim margin of victory surprised everyone. Even the party was absorbed by its unification with th e more surprising was the wide margin by which Liberal Democratic Congress into the Union o f Jacek Balcerowicz won the chairmanship of the Freedom. Previously, each party had blamed the other Union of Freedom, trouncing Mazowiecki who ha d for failing to form a coalition prior to the 1993 elec- held the chairmanship since the creation of th e tions (as a result of which the liberals did not enter Democratic Union in 1990 . Doubts about Parliament at all) . The union included a move to the Mazowiecki's leadership had been growing both right, causing a radical and noisy counter-reaction on after the party's failure to form a coalition with the the part of the left. Some members created the Socia l liberals before the 1993 elections, and especially Forum within the new party, a group with sharpl y after his own poor showing in the presidential elec- antichurch tendencies . Certain members of th e tions of 1990 (where he lost not only to Walesa bu t Forum, including Wladyslaw Frasyniuk, a legendary also to an unknown Stan Tyminski) and in the par -

3 8 SPRING 199 5 liamentary elections of 1993 (when he received , Balcerowicz. On April 1, Balcerowicz bea t within one district, only a fraction of the vote s Mazowiecki in a landslide, 313 votes to 174 . received by Suchocka) . Thus, the architects of change in the Union o f A change in the party chairman had been in the Freedom succeeded in their twin aims of promoting works since February, when a group of leaders had Balcerowicz to party leadership and of supportin g proposed a plan to invigorate the party by renewing it s Kuron's bid for the presidency. Both men are now leadership. Leszek Balcerowicz, a deputy prime minis- confident they can lend support to each other and win ter under Mazowiecki and an architect of Poland's eco- broader support for the Union of Freedom. They also nomic "shock therapy," joined the party. In a bid believe that, in the event of a presidential victory by against his former boss, Balcerowicz promised to trans- Kuron and parliamentary elections returning th e form the Union of Freedom into the party of the grow - Union of Freedom to power as part of a new coalition , ing group of citizens who feel their situation has President Kuron could offer Balcerowicz a protectiv e improved since 1989. Hoping to keep all curren t umbrella similar to the one Walesa held over eco- groups within the party, he nevertheless expected nomic reforms from 1991 to 1993 . more discipline and loyalty from the various factions . Torn by all these internal conflicts, the Union of He also rejected considering a coalition with either Freedom was unable to play the role of effective par - UDL or right-wing parties. According to Balcerowicz, liamentary opposition . Its deputies would not spea k a coalition at this stage would have disrupted the party. for fear that their statements could be misused i n He proposed creating a strong reform-minded party party infighting. Their liberal influence i n which could solidify its popular base and eventually Parliament was negated by the Union of Labor , bid for an electoral victory. Mazowiecki, however, did another post-Solidarity opposition party, but on e not intend to step aside gracefully, and the party was with social democratic leanings . torn by another conflict . This brings us back to Walesa as the sole, deter - It would seem that Balcerowicz's natural allie s mined player capable of challenging the postcommu - would be liberals who had joined the party durin g nist coalition. He truly accomplished the unthinkable . the union, as Balcerowicz personified the economic Singlehandedly, he shattered a coalition with an over- success of liberal measures adopted in Poland . To whelming majority in both houses of Parliament. everyone's surprise, however, the liberals were ini- Even though he had announced such plans a mer e tially discontented with Balcerowicz's candidac y three weeks after the UDL-PPM victory (in an inter - and instead leaned toward Mazowiecki . view with EECR on October 12, 1993), no one One possible explanation for this oddity is that believed it possible. Neither Walesa's parliamentar y Balcerowicz was never an insider in the social circle support, represented by four percent of Sejm seats wo n of Gdansk liberals . He would have overwhelme d by the pro-Walesa BBWR party, nor his presidentia l them. They hardly had a program on the basis of powers suggested that Walesa could successfully fac e which they could compete with Balcerowicz for and challenge the postcommunist coalition. By hook support and influence within the party. Donald or crook, however, he assembled the necessary power . Tusk, Janusz Lewandowski and other liberals spied Walesa waited a few months until the campaig n more room for themselves around Mazowiecki's promises given by the winners turned out to be aging leadership. Only one day before the party impossible to fulfill . He then launched his attack on convention did another liberal leader, former Prime the coalition. The first issue he raised concerned the Minister Jan Krzysztof Bielecki, support proposed change in the mode of adopting a new con - Balcerowicz for the chairmanship . stitution. Walesa favored a constitutional initiative b y Mazowiecki refused to negotiate a propose d citizens. (See "Poland's Constitutional Ordeal, " compromise formula whereby he would become Wiktor Osiatynski, EECR, Vol. 4, No. 2, Spring chairman of the specially formed council of the part y 1994.) To bolster his position, Walesa claimed to rep- while transferring day-to-day leadership to resent the over 30 percent of right-wing voters no t

3 9 EAST EUROPEAN CONSTITUTIONAL REVIEW represented in the National Assembly. He down- the relevant provisions . Falandysz termed his strategy played Parliament's legitimacy by arguing that durin g "balancing on the verge of legality," and Walesa praised the 1993 presidential elections he had received a this effective, broad, and nonrigid use of law. Though greater percentage of the popular vote than the ruling Walesa and Falandysz did not actually violate the letter coalition had obtained in 1993 . Finally, he re-estab- of the Constitution, they often ignored its spirit . lished links with Solidarity, which followed up The struggle for control of the National Board of Walesa's legal initiative and submitted, in September Radio and Television was a good example of this art- 1994, a citizens' draft constitution. ful legal strategy. The law states that the president Although Walesa's popularity ratings were low , appoints three of nine board members, including th e around 20 percent or less, he projected an image o f chairman, but says nothing about the president' s much greater strength by giving the impression tha t right to remove his appointees or the chairman . In he enjoyed support from the right and th e March 1994, disappointed with the broadcasting Solidarity union. Using his veto power to kill a lib- license granted to the nomenklatura-based Polsat tele - eralizing amendment to the abortion law, Walesa vision station, Walesa recalled Marek Markiewicz, reaffirmed his ties to the Church . the chairman appointed by the president, and By the fall of 1994, Walesa had reached out to replaced him with another member of the Board . another group : the poor, the pensioners, and other s In response, the ombudsman for citizens' rights compensated directly from the state budget, that is , asked the Constitutional Tribunal to clarify when its teachers, doctors, and communal employees . For interpretations of law become effective. On April 5 , example, he opposed an otherwise much-needed la w the Tribunal ruled that its interpretations are not disassociating public sector salaries from wage increas- new laws, and therefore apply from the time the law es in private enterprises by making such salarie s being considered came into effect. Thus, Walesa's dependent on inflation instead of the growth of pri- removal of Markiewicz was illegal . There is n o vate sector wealth. He also opposed the tax law whic h mechanism to reverse Walesa's decision, however , set tax rates at 21 percent, 32 percent, and 45 percent. for the president's decisions cannot be legally chal- His rhetoric also reflected increasing appeals to th e lenged in administrative courts . poor and to those disappointed with the government . Moreover, Markiewicz cannot be renominated But the main instrument Walesa used in his strug- as chairman, for he was recalled from the Board alto - gles with the coalition was constitutional politics. gether. In November 1994, Falandysz creatively Walesa has long favored a strong presidency modeled , interpreted a sentence fragment from the decision o f in his mind, on the French Fifth Republic . Last October, the Supreme Administrative Court and justifie d the National Assembly, in establishing the broad out- Walesa's decision to recall Markiewicz and anothe r lines of a future constitution, chose to give the presiden t presidential appointee, Maciej Ilowiecki, for "gross only a modest role, making him an arbiter, not a chief violation of the law." Walesa replaced them with executive. Two weeks later, in a televised address to th e two men, one of whom was a close friend of nation, Walesa asked the people to support the presi - Falandysz. Falandysz's interpretation was so spuri- dential model of government in a national referendum . ous that a public uproar ensued, with both Board Walesa did not wait for a new constitution . With and Parliament protesting the decision. Eleven peo- the help of Lech Falandysz, deputy chairman of the ple, including the two removed by the president , Presidential Chancery in charge of legal issues, h e attended board meetings for a while. Everyone criti- claimed as much power as possible. Given the absence cized the president for abusing his powers. After a of a Polish constitution and a weak constitutional cul - few weeks, however, the noise subsided . The termi- ture, Falandysz would interpret the many vague provi- nated members gave up, and Walesa triumphed . sions of the Little Constitution so as to increase presi- With similar tactics, Walesa also claimed dential power. This was possible because very few of authority over three governmental departments: the the decisions of the Constitutional Court had clarified military, foreign affairs, and internal affairs . The Littl e

40 SPRING 1995

Constitution states that the prime minister appoints ceeded in widening the rift between Pawlak and ministers upon consultation with the president (Art. Kwasniewski. UDL leaders, later joined by top PPM 61). According to Walesa and Falandysz, this means leaders, became openly critical of the prime minister . that these ministries should effectively be under th e Finally, the PPM itself proposed replacing Pawlak president's control, an interpretation to which th e with Jozef Oleksy, then speaker of the Sejm, an d government yielded. After General Tadeusz Wilecki , appointing deputy chairman of PPM, Jozef Zych, as chief of staff and Walesa's man in the army, clashed new speaker. The mechanism for making thi s with Minister of Defense General Kolodziejczyk , change was a constructive vote of no confidence cast Walesa hosted a lunch during which he asked th e by deputies of the two ruling parties. generals to pledge allegiance to the chief of staff. Even Walesa has always had an ambivalent attitude though a special commission of Parliament defende d toward Pawlak. In June 1992, on the very night he Kolodziejczyk as guardian of civilian control over th e asked the Sejm to dismiss Jan Olszewski, he appoint- military, Walesa persuaded Pawlak to dismiss him . ed the 31 year old to be prime minister. Pawlak Ewa Milewicz, political correspondent for helped Walesa gain control over the military and Gazeta Wyborcza, coined the new Polish wor d ministry of internal/affairs and thus curb the dissem- "falandyzation," meaning to twist the law to serve ination of secret police files by Olszewski's minister one's short-term political purposes. By the end of the of the interior. Walesa expected gratitude and loyalty year, Falandysz had turned his legal mind to fightin g in return for his appointment. Pawlak displayed the ruling coalition. At issue were the budget and a some, but not for very long. When he returned a s series of statutes to be passed with it, including the prime minister in late 1993, Pawlak began to believe tax law (see Poland Update in this issue) . The Little ever more firmly that he was his own man, no t Constitution states that the budget should be passed Walesa's creature. Walesa, however, continued to within three months of its submission to the Sejm . If behave paternalistically toward the young prime the Sejm fails to act on time, the president may dis - minister. Their breakfasts on Mondays became short - solve Parliament. The Sejm and the Senate passed er and less cordial. Walesa began to distrust Pawlak, the budget in less than two months. Falandysz, how- realizing that he could no longer count on him . He ever, claimed that the three-month deadline include s became bitter, and, in the end, wanted Pawlak out. the time designated for the president's suspensive Pawlak's political assets had significantly depre- veto (30 days) and its overriding by the Sejm. Under ciated. But still believing in his popular appeal, h e this interpretation, sending the budget to the pressed for dissolving Parliament and calling new Constitutional Tribunal, another presidential pre- elections. That option, however, was too risky for rogative, would give cause for dissolving Parliament . PPM leaders, who realized that even if they retaine d The reasoning was dubious, but there was n o their support in the electorate, the right would no t authority to prove Falandysz and Walesa wrong . this time forfeit 35 percent of its seats to the coali- Moreover a vivid precedent was set in the spring o f tion. PPM leaders were uncertain as to what a new 1993, when Walesa dissolved Parliament an d coalition would look like and whether there woul d ordered the doors of the Sejm sealed . be room for their clients . They preferred to stay in a As the three-month deadline approached, an d coalition with UDL and sacrifice Pawlak to their Walesa and Falandysz hinted at dissolution , interests. His broad popular support proved immate- Parliament adopted a resolution stating that dissolu- rial, since the mass electorate does not vote at secre t tion would be illegal and could provide grounds fo r meetings of top leaders. the constitutional responsibility of the president . The governing body of PPM gave Pawlak token Without making open threats, Walesa dismissed the support by making him chairman of the party. New resolution as groundless. At the same time, he began leaders, however, came to the fore in PPM and in the pointing at Pawlak and hinting that a change in the newly organized governing coalition . Jozef Zych, the cabinet could save Parliament. Thus, Walesa suc- new speaker of the Sejm, became perhaps the mos t

4 1 EAST EUROPEAN CONSTITUTIONAL REVIE W outspoken PPM representative. In the Oleksy govern- president's milieu. He became Walesa's liaison for per- ment, Roman Jagielinski of the PPM has been appoint - sonal politics. It was Wachowski, for example, who ed minister of agriculture and one of three deputy would take Pawlak hunting. It was Wachowski who prime ministers. Jagielinski is the foremost advocate of drank with Boris Yeltsin and induced him to accep t structural changes in Poland's agricultural sector. In Poland's membership in NATO, words bitterl y one of his first interviews, he said that the moderniza- abjured after Yeltsin had sobered up . 1t was tion of Poland will entail finding employment outside Wachowski who became the closest friend of the chief of agriculture for more than half of the country's peas- of staff, the commanders of special military services , ants. Such an idea would never have entered Pawlak's and the intelligence chiefs . In short, it was Wachowski head. Under his leadership, PPM had insisted on spe- who provided Walesa with extraconstitutional influ- cial constitutional protection for family farms. ence over the special services and the most sensitive During the recent crisis, PPM radically change d elements in the internal security apparatus . its program . Abandoning leftist rhetoric, it embrace d In recent months, Wachowski had become jealous traditional Polish Catholic values, placing itself at th e of Falandysz. When Walesa was waging constitutional right of center on the political spectrum. We may wel l war, there was notmuch room on the battlefield for the be witnessing the long-delayed arrival of Christia n legally untrained Wachowski. As the media focused on Democracy in Poland. Although pro-Church elite Falandysz, Wachowski became increasingly sour. He parties of the intelligentsia failed in recent elections , lashed back in whatever way he could, causing petty Christian Democracy may be establishing itself in vil- irritations and humiliations. When I visited Falandysz lages and small towns, where Church followers are at the peak of his legal wars with Parliament, he men- more devout, conservative, and reliable than in cities . tioned that all these were nothing compared to his Only after some initial hesitations, did Walesa problems in the Chancery. Two days later, he resigned . appoint Oleksy prime minister. Falandysz had In an interview not long afterwards, Falandys z devised an interpretation of the Little Constitution to stated his fear that there is no role left for the presi- permit Walesa not to appoint Oleksy. This interpre- dent's legal counsel, as Walesa may now be tempted tation strikingly contrasted with the constructive vot e to use the tools provided by the likes of Wachowski . of no-confidence, where the president must accept the He also announced that he would not vote for Wales a will of the parliamentary majority. Nevertheless, the in the forthcoming elections . "If Mieczysla w authors of the Little Constitution sloppily confuse d Wachowski is to receive such immense power, it is h e two words in Articles 58 and 59, permitting Professor who should run rather than Walesa," Falandysz said . Falandysz's imaginative constitutional construction. Two years ago, Jaroslaw Kaczynski publicly After informing Walesa of the possibility, Falandysz accused Wachowski of having been a secret polic e submitted his resignation on February 15 . agent. Kaczynski showed on television a photo - Falandysz's resignation had nothing to do wit h graph of five young men playing soccer at a sum- Walesa or with the legal issues he had been dealin g mer camp for police officers, one of whom he with. He resigned for the very same reason all his col- claimed was Wachowski. A few days later, Arnold leagues had : his inability to cope any longer with Superczynski, police chief of Lublin, recognized Walesa's alter ego, Meiczyslaw Wachowski, who himself in the picture as the man Kaczynsk i seems to have gained total control over Walesa an d claimed to be Wachowski . Superczynski and his office. Wachowski was Walesa's driver, friend , Wachowski have since become good friends . and confidant. When Walesa was in prison , Last week Superczynski was appointed t o Wachowski took care of his family. He took care of head the most sensitive police district in the coun- Walesa when the latter was unemployed . He stood try, the one in Warsaw which oversees, among by Walesa, in fair weather and foul . other things, the police who monitor the Sejm and Wachowski is very ambitious. After arriving at other Polish politicians . This appointment deepl y the president's Chancery, he assumed control of the shocked and frightened Falandysz .

42 SPRING 1995

How minority rights can fuel nationalist extremism

A Dilemma of Dual Identity: the Democratic Alliance of Hungarians in Romania Aurelian Craiutu

The ethnification of politics in Central an d Eastern of the press, and administrative decentralization a s Europe has been one of the most disquieting conse- well as a regime of private property and free markets . quences of the fall of communism. Although it seem s DAHR has constituted itself as an affiance of asso - unlikely that a tragedy on the scale of the former ciated members that share common goals, identities, Yugoslavia could occur in Romania, the dangers of and aspirations. It has 21 local affiliates (in 21 coun- internal unrest and violence cannot be simply dis- ties) and 16 legal Organizations that cooperate wit h missed. The complexity of minority rights is illustrated DAHR in resolving problems of the Hungaria n by increasing tensions between the Romanian majority minority in Romania. Among these organizations ar e and the Hungarian minority. Structural and circum- the Hungarian Christian Democrat Party in stantial factors create a complex situation beset with Romania, the Party of Small Landowners, the strong subjective components that often exacerbate con- Federation of Hungarian Youth Organizations in troversies and impede dialogue. Each side has felt Romania, the Association of Hungarian Workers in threatened by the other and has accused the other camp Romania, and the Federation of Hungarian Student s of radicalism, thus fueling enmity and postponin g in Romania. Various scientific, cultural, technical, and negotiations toward a reasonable compromise. As a professional societies and organizations are also affili - corollary, substantive differences over important issue s ated with DAHR. According to the principles of inter- have sometimes appeared to be almost irresolvable and nal pluralism, all these organizations enjoy autonom y mutual mistrust has given radicals unexpected leverage and have some control over the enactment of deci- over moderates in both camps. At the same time, rea l sions made at the center . differences between the Hungarian minority and th e From the very beginning, DAHR played a vital Romanian majority in life style, income, culture, and political role in an environment that forced it to education have decreased. Moreover, Transylvania , assume a problematic dual identity. Subsequently, where most of the 1.7 million Hungarians live, has had this double role placed significant constraints upo n a long history of cultural, political and religious plural - the party, reducing its ability to maneuver in nego- ism, tolerance and self-government . tiations. DAHR appeared on the one hand, as an eth- nic party, aimed at advancing and representing the Facing the dilemma of dual identity interests of the Hungarian minority in Romania . The Democratic Alliance of Hungarians in Romani a On the other hand, it emerged as a member of the (DAHR) was originally formed to represent th e opposition to the newly formed government led b y interests of Romania's Hungarian minority. An the National Salvation Front (NSF) . The two com- Executive Committee of DAHR was appointed i n ponents have, however, carried different weight . Bucharest on December 25, 1989 and by January For better or for worse, the main focus has been o n 1990, the new party had founded various local affili- ethnicity, which assumed priority over other — ates. Its principal objective was preserving the identi- allegedly more democratic—forms of interest articu- ty of the Hungarian minority as reflected in its tradi- lation and representation . tion, culture, and language. It also supported a consti - In the months following the December 1989 rev- tutional order on the separation of powers, freedom olution, the political atmosphere was not particularl y

43 EAST EUROPEAN CONSTITUTIONAL REVIEW conducive to reasonable dispute-resolution and prag- Furthermore, DAHR argued, the Constitution did matic problem-solving. Indeed, it was widely thought not guarantee the right of minorities to interact freely that an "all or nothing" approach would have to pre- with their mother countries, though Romanians liv- vail over a policy of compromise aimed at securin g ing abroad enjoyed this right. DAHR also criticized full exercise of political rights. This atmosphere con- the Constitution for not guaranteeing the use and tributed to an early radicalization of the Hungarian teaching of native minority languages . These anxi- minority that mirrored the radicalization o f eties were triggered by Art. 4: "The state is based on Romanian society as a whole in the first six months o f ! the unity of the Romanian people," and Art. 13: "In 1990 . Government-opposition relations became Romania, the official language is Romanian." almost exclusively confrontational, while political DAHR also criticized the Constitution for not guar - negotiations were perceived as a zero-sum game . anteeing the use of native languages in education and Some political analysts now believe that this zero-su m justice and pointed out that statutory and organic law s spirit has been extremely detrimental to DAHR, espe - might prohibit the use of minority languages. DAHR' s cially in light of its problematic dual identity. As a leaders further argued that the Constitution did not member of the opposition, DAHR assumed the rol e guarantee an effective separation of powers, a complain t of a political opponent seeking to take power while , with which the entire opposition agreed. DAHR's rep- representing a minority, it was viewed by authoritie s resentatives conceded that the Constitution recognize d in Bucharest as advancing claims that were potential- the right of minority citizens to preserve, develop, an d ly threatening to Romania's territorial integrity. As a express their ethnic, cultural, and religious identity, bu t result, minority issues were highly politicized an d they argued that the Constitution failed to provide insti - handled by the government as if they involved a sig- tutional means for putting these rights into effect, which nificant threat to political stability . would have meant establishing minimal forms o f In the May 1990 elections, DAHR won 41 seats minority self-determination. in the Chamber of Deputies and the Senate, and In the February 1992 local elections, 161 may- became an important component of the opposition . ors, 2681 local councilors and 151 county councilor s As the legislative body was adopting a new constitu- who were members of DAHR were elected . In the tional text, DAHR's representatives were intensel y September 1992 general elections, DAHR won 27 involved in the parliamentary debate, focusing natu- seats in the Chamber of Deputies and 12 in the rally on provisions that affected minorities. In Senate (7.5 percent of the votes) . The formation o f November 1991, DAHR decided to vote against the the new government strongly influenced DAHR' s new constitutional text, claiming that it had failed t o subsequent parliamentary behavior. Having failed secure political, economic, and cultural rights fo r to secure the support of the Democratic Conventio n minorities as required by international covenants . in forming the new government, the Party of Socia l The main object of dispute was Art. 1 which define s Democracy in Romania (PSDR) decided to all y Romania as a "unified national state." To DAHR, thi s with four other political parties, including the Part y "old-fashioned" article proved that the constitutiona l of Romanian National Unity (PRNU) led b y document did not sufficiently take into account the Gheorghe Funar and the Greater Romania Party existence of Romania's 16 national minorities. The (GRP) led by Corneliu Tudor. Both parties are out - phrase "unified national state" was also interpreted a s spoken opponents of granting more political right s potentially suggesting that members of nationa l to Hungarians and use extreme nationalism as a minorities are "inferior" or second-class citizen s means to further their own electoral agenda . A s against whom the state may discriminate at will . mayor of Cluj-Napoca in Transylvania (where hal f DAHR claimed that, by prohibiting "positive dis - the population is Hungarian), Funar repeatedl y crimination," the Constitution failed to comply with attempted to stir up ethnic tensions by defaming th e international covenants, thereby disadvantaging citi- Hungarian minority and threatening to outla w zens in education, justice, and public administration . DAHR for its alleged anti-Romanian activities .

44 SPRING 199 5

DAHR's radicalization and its consequence s ists in pursuing of their own agenda of ethnic hatred . DAHR had to cope with the new balance of forces i n This response embittered the Hungarians in turn , Parliament. On the one hand, it intensified its collab - and contributed to their radicalization . One outcome oration with parties of the Democratic Convention . was the Cluj Declaration, adopted by DAHR o n On the other hand, the rise to power of extrem e October 25, 1992, which defined the Hungaria n Romanian nationalists radicalized DAHR itself, minority in Romania as a 'to-nation" or a "state-build - increasing the gap between moderates and radical s ing nation." This document's emphasis on the multi - within the party and diminishing the chances for rea- national character of the Romanian state was intend - sonable compromise with governmental moderates . ed as an outright rejection of Art. 1 of the In the first two years of its existence, DAHR suc- Constitution. To promote the political equality o f cessfully avoided internal conflicts . The division into Hungarians, DAHR called for "communitaria n radical and moderate factions, however, can b e autonomy," which it described as the continuation o f traced to the second congress of the Alliance in 1991. a long tradition of self-government and ethnic plural - DAHR's first president, Geza Domokos, advocated a ism in Transylvania. While insisting on self-adminis- gradualist policy for securing political and collective tration, the declaration did not rigorously defin e rights, not ruling out occasional compromises wit h autonomy, thus leaving the concept open to different , the government. Domokos believed Romanian - often conflicting, interpretations . Hungarian relations would improve only as a result Reliance on the murky term "autonomy," in fact , of gradual changes in political culture and political , gave rise to general confusion and stirred passions o n economic and social life . These transformation s both sides. Parliamentary debates reflected ethnic ten- were intended eventually to generate greater respon - sions, with radicals in both camps displaying bitte r siveness to minority rights and ethnic pluralism . rage and blocking a reasonable dialogue . The PRNU Led by DAHR's honorary president Laszlo Toke s and GRP eagerly exploited this new opportunity t o and its then vice president Geza Szocs, the radical s play with the Romanian majority's ethnic anxieties . increasingly opposed this gradualist policy, claimin g Funar's party even called for a ban on DAHR . Almost that it had failed significantly to improve the situation all political parties, including all but one of DAHR' s of the Hungarian minority. They even argued that allies in the Democratic Convention, as well as the such a policy had given a political boost to Romania n president himself, expressed their disappointment nationalists . They criticized Domokos for failing t o with the Cluj Declaration . Moderates did their best t o achieve important goals set in 1990, such as the estab- persuade public opinion that the declaration was lishment of a ministry for national minorities, promul - intended as a bid for further dialogue, not as a ste p gation of a law on national minorities and education , toward potential secession. The radicals, however, and revival of the Hungarian-language Bolyai with Tokes in the lead, did not explicitly rule out the University in Cluj-Napoca. Tokes and his follower s latter. Again, the party was caught in a "solidarity vs . challenged the leadership's "submissiveness, con- betrayal" dilemma that reduced the moderates' room formism, and opportunism," claiming that DAH R for maneuver and shifted the emphasis to ethnic soli- needed a resolute policy of self-determination and darity. Thus, the radicals made it more difficult for the autonomy. They urged an end to compromises with moderates to be heard and enjoy credibility . parties hostile to the Hungarian minority. Convened at Brasov in January 1993, DAHR' s This radical wing used the rhetoric of self-deter- third Congress was expected to see the radical wing , mination and autonomy to gain support within the led by then presidential candidate Tokes (he eventual- party in early 1992 . Distressed about the possibility ly decided not to run), wrest power from the moder - of secession, Romanian authorities reacted vigorous - ates. The participants avoided an all-out confrontation , ly. The very suggestion of territorial autonom y however. A new president, Marko Bela, was elected . aroused the stout resentment of the Romanian He served as a bridge between radicals and moderates , majority and justified extreme Romanian national- as his views fell somewhere between those of

45 EAST EUROPEAN CONSTITUTIONAL REVIEW

Domokos and Tokes . The new DAHR program tried 1 state within which they live or to minorities who con- to address the internal crisis that threatened to end the sider themselves members of another state . party's unitary strategy. The controversial term territo- The concept of internal self-determination ha s rial autonomy was replaced by more moderate phraseol - also met resistance. If linked to the idea of ogy about local and regional se administration, personal an d autonomous community, understood in the separatis t cultural autonomy. Not surprisingly, these terms, too , sense, it might foment civil unrest . Even more prob- were misinterpreted in the mass media, increasing the lematic is the notion of an autonomous community a s confusion, and lending support to the radicals in th e a political entity and key component of the state , PRNU, GRP, and PSDR. because this conceptualization leads to a redefinition of the state itself. By advancing the idea that nationa l Between semantics and politic s minorities should be considered legal entities unde r More moderate, but still controversial, concepts wer e public law, DAHR's bill offers a new conception o f prominent in the drafting of DAHR ' s Memorandum the relationship between minority groups and their concerning Romania's admission to the Council of members. Adoption of the concept of self-determina- Europe (August 1993) and the Bill on National tion may very well weaken the protection of individu- Minorities and Autonomous Communitie s al members of minority groups against encroachment s (November 1993), two important DAHR documents on their rights as guaranteed in the Declaration on th e on minority rights . Naturally, the terms in question Rights of Persons Belonging to National or Ethnic, (such as personal and cultural autonomy or self-deter - Religious, and Linguistic Minorities adopted by the mination) were susceptible to conflicting interpreta- UN in December 1992, or even in Recommendation tions. As political analysts noted, territorial autonom y 1201 of the Parliamentary Assembly of the Council of and regional self-determination leading to secessio n Europe. International documents usually refer only could be two sides of the same coin . Only by securing to the rights of persons belonging to national minori- individual rights, it could be argued, are we capable o f ties, and thereby aim at protecting individuals . Article defending personal autonomy and collective rights. 2 of Recommendation 1201 of the Council of Europe The position of DAHR radicals, however, was unam- stipulates that membership in a national minority biguous. To them, these terms meant, first of all, the shall be a matter of free personal choice and no disad- right of the Hungarian minority to elect its own repre- vantage shall result from the choice or the renuncia- sentatives to a kind of Parliament . This initial step tion of such membership . Related to this last issue, toward "self-determination" would lead to the creation some political analysts have argued that the DAH R of a controversial Council of Mayors and Loca l bill does not contain sufficient guarantees agains t Councilors in January 1995 . abuses of individual rights by minority leaders . The draft Bill on National Minorities and The Memorandum on Romania's Admission t o Autonomous Communities, submitted to Parliamen t the Council of Europe (August 1993) registered for debate, gained recognition as a seminal documen t DAHR's main objections to Romania's legal system for its articulation of a political doctrine of minorit y and drew attention to the reforms necessary before rights. DAHR introduced four key concepts : Romania would be eligible to join the Council . autonomous community, internal self-determination , DAHR charged, for instance, that political pluralism political entity, and legal entity under public law . had not produced equality of opportunity. Minorities , Autonomous communities defined as "that nationa l it claimed, are excluded from leadership positions in al l minority that identifies itself as such and exercises it s areas of public life, especially in public administratio n rights according to the principle of internal self-deter- and the judiciary. DAHR also complained that the mination." The three forms of autonomy associate d government had increased its monopoly over the with it are personal, local, and regional. The term media through the newly founded Audio-Visua l community, however, is ambiguous . It could refer Council. It criticized the government for failing t o either to minorities who accept the legitimacy of the implement decentralization, as required by th e

46 SPRING 1995

Constitution. Additionally, it criticized th e would restore nationalized properties to churches. Constitution itself for not declaring inviolable the righ t Second, it has continued to plea for strict observanc e to private property. Finally, DAHR claimed that the of constitutional articles requiring administrative 1991 law on land distribution discriminates against decentralization and for the adoption of a law on loca l minorities and their churches. taxes and a law on public finances, both of which To bring the Romanian legal system into compli- would further this decentralization . DAHR has thu s ance with international standards, DAHR asked that attempted to promote its three forms of autonom y the public media be made independent. Its other (personal, local, and regional) by creating institution s demands included creating real financial independenc e for their implementation and enforcement . for local administrations and the adoption of a law o n The first issue aroused heated debate i n local budgets; a constitutional guarantee of the inviola- Parliament. Referring to Recommendation 1201 of bility of private property and the restitution of nation - the Council of Europe, which provides for the right o f alized, expropriated or confiscated private property ; a persons belonging to national minorities to be educat - new law on national minorities that would recognize ed in their native language, DAHR's representative s collective rights and incorporate the principle of posi- argued that the draft law on education did not comply tive discrimination ; the use of native languages in pri- with international standards and discriminated agains t vate and public life, including the use of bi- and multi- the Hungarian minority. Moreover, they added that lingual signs; and a new law on education that woul d the draft law ignored or restricted constitutional arti- guarantee the development ofa native-language school cles, such as Art. 32.3 according to which minoritie s system encompassing all levels and types of instruction. are entitled to study in their native language at all lev- Finally, the Memorandum pressed Romania to sign els of education. DAHR also claimed that minoritie s and ratify the European Convention on Human were denied access to a traditional form of education - Rights and Fundamental Freedoms, the European confessional schools-and asked for the creation of a spe- Charter on Self-Government, and the European cial office within the Ministry of Education to dea l Charter on Regional and Minority Languages . with the issue of education in the students' native lan- The Note concerning Romania's Association wit h guage. Amendments submitted by the Hungaria n the European Union and the enclosed Aide-Memoire, minority met with the opposition of the ruling coali- published in January 1994, advanced almost identical tion, which contended that the bill contained sufficien t claims, and focused on (a) signing and ratifying guarantees for the education of minorities and th e international conventions, (b) promoting the rule o f preservation of their identity. Time and again, the law, and (c) observing human rights and the rights o f most radical Romanian nationalists from PRNU , national minorities. These documents also call for GRP, and PSDR voiced their apprehension that th e guaranteeing judicial independence by revising law s ethnic Hungarian requests for Hungarian-language which now permit the Ministry of Justice to giv e schools and group self-government are but the edge of judges instructions . Finally, DAHR urged a change o f a wedge, first steps toward the territorial secession of Art. 300 of the penal code, which punishes homosex- Transylvania and its annexation by Hungary . uality and requested the release of those imprisoned on The second issue, autonomy and decentralisation , ethnic or political grounds . did nothing to ease tensions within Parliament or in the press. On the contrary, efforts at a dialogue were Recent developments swamped by extreme nationalist rhetoric and under - Since publication of these four documents, DAH R mined by extremists in both camps . DAHR radicals, for has concentrated its energies in two areas. First, it has example, rejected negotiations within the framework of introduced significant amendments to the draft law the newly created Council on Minorities, which i s on education submitted to Parliament by the govern- linked to the General Secretariat of the Government . ment in late 1993, and it has insisted on passing the The most controversial proposal included using the overdue law on religious denominations, which native language in education, administration, and judi-

4 7 EAST EUROPEAN CONSTITUTIONAL REVIE W cial procedures, the free use of national symbols, and the founders of the Council claimed that it was estab- display of bi- and multilingual inscriptions in counties lished pursuant to Art. 6 of the Constitution (guaran- where minorities account for at least 30 percent of th e teeing national minorities the right to preserve, devel- population. DAHR stressed that all these issues op, and express their ethnic, cultural, linguistic, and remained unresolved. Government officials, i n religious identity) and to law 69/1991 "On Local response, complained about DAHR's inflexibility. Administration." The latter declares decentralization Negotiations with Funar's PRNU led to a reshuf- and autonomy to be fundamental principles of loca l fling of the cabinet in August 1994, and members o f administration and guarantees the right of associatio n this nationalist party were appointed to important posi - (Art . 2110) . DAHR also claimed that the formation o f tions. In January 1995 the cooperation of the four par- the Council respected the provisions of the Europea n ties (operational since October 1992) was formally Charter of Local Self-Government, which states tha t approved by its participants: the PSDR, PRNU, GRP local authorities are entitled to form associations for and Socialist Party of Labor (SPL) . This decision had sig- the protection and promotion of their common inter- nificant consequences for subsequent relations and ests (Art. 10.2) . The charter also holds that "loca l negotiations with DAHR. authorities shall be entitled, in exercising their pow- In fact, these changes marked the beginning of a ers, to co-operate and, within the framework of the new wave of DAHR radicalization. On January 14 of law, to form consortia with other local authorities to this year, DAHR held a conference on self-governmen t carry out tasks of common interest" (Art. 10.1) . in Sfintu-Gheorghe (Covasna county) with elected The legality of the Council was contested by DAHR local representatives. They elected a new body, almost everyone, including President Ion Iliescu . The the Council of Mayors and Local Councilors. The latter most extreme nationalists, like Funar and Tudor, too k was given full jurisdiction over matters of local adminis- this opportunity to reiterate their call for outlawin g tration. The Council also acts as an advisory board to the DAHR, and the minister of justice, a supporter o f Council of Representatives, the main decision-making PRNU, seemed to support this call for a ban . On body ofDAHR. Its main responsibilities include: debat- January 16, Funar went so far as to propose that the ing all local administrative and professional matters and Romanian government initiate negotiations wit h protecting interests of the Hungarian minority; coordi- Hungarian authorities regarding populatio n nating the activities of DAHR within local govern- exchanges between the two countries. A few day s ments and initiating and coordinating other activities at later, in a letter sent to President Iliescu, he propose d the local level, such as developing economic and cultur- prosecuting ethnic Hungarians for flying Hungaria n al relationships between communities ; preparing strate- flags or singing national anthems. This letter also sug- gies and proposals for local elections ; submitting draft gested that Hungarians be dismissed from the army. laws and motions for amendments to DAHR' s Funar then accused Romanian authorities of making Parliamentary Group; coordinating the activity of local too many concessions in their negotiations of the long - administration with churches and local civic associa- delayed treaty with Hungary, and condemned the tions; and establishing its own expert committees in the president for his irresolute management of the main fields of local administration. The Council is orga- demands of the Hungarian minority. On January 20 , nized on a regional basis, while the representation of a the Romanian government issued a formal commu- region is proportionally related to the number of the nique pronouncing the formation of the Counci l administrative office-holders in the districts where unconstitutional and demanding its dissolution . DAHR's branches operate. The Council is composed of While abjuring the extremist tone of Funar, Iliesc u 75 members and can be convened for regular an d voiced his concern about the perturbing step taken by extraordinary sessions (regular sessions are held at least DAHR and asked the authorities to prosecute th e twice a year). unconstitutional acts of extremist DAHR members . Romanian public opinion was confused about the Moreover, members of the Democratic Conventio n meaning of this new step taken by DAHR. The formerly allied with DAHR criticized DAHR's con -

48 SPRING 1995 ception of autonomy and the formation of the new and cease supporting extreme nationalists within th e Council as aspects of an overall drive to carve out ruling coalition. On this last point, DAHR's leader s some kind of territorial autonomy based on ethnic cri - denounced the "duplicity" of the Romanian govern- teria. Disagreements generated by DAHR's initiativ e ment whereby it "one day supports the extremist s worsened the internal crisis of the Democratic and the next day condemns them." Convention and, in March, caused the withdrawal of In a recent statement, Teodor Melescanu, th e four important members from the coalition, amon g Romanian Foreign Minister, insisted that Romania them DAHR . would continue to reject the inclusion of the princi- On January 18, DAHR's leadership issued a state- ple of ethnic autonomy in the treaty. Unlike ment rejecting the charges brought against the party Slovakia, the foreign minister argued, Romania and reasserting its willingness to continue working t o would not agree to include in the treaty the much-dis - achieve its three forms of autonomy (personal, local , puted Recommendation 1201 of the Council of regional) within the legal framework of th e Europe, which grants national minorities the right to Romanian Constitution and international norms . set up autonomous organizations. However, he reit- On a recent visit to London, Marko Bela asserted that erated Romania's willingness to observe the provi- the nation could not deal satisfactorily with the sions of the Framework Convention for th e minority problem, a statement that irked the presi- Protection of National Minorities and continue it s dent and some MPs. During stormy debates in the negotiations with Budapest . Chamber of Deputies on February 13, more moder- ate members of DAHR pointed out that the party' s Conclusion recent publications do not speak of "autonomy" o n In 1996, Romania will hold general and presiden- purely ethnic grounds . The express goal is, instead , tial elections. New coalitions have already been personal, cultural, and local autonomy grounded o n formed, while former alliances seem to be on th e the principle of subsidiarity, with clearly-worded pro - brink of dissolution. Of particular significance is th e visions regarding the use of Hungarian, along with current internal crisis of the Democrati c Romanian, in public. They again defended the legal- Convention, which will have a strong impact o n ity of the Council elected in January by invoking the future relations with DAHR and on the opposi- Charter on Local Self-Government which Romania tion's chances to win the elections . is to sign in the near future . DAHR will have to overcome its own internal Romania and Hungary are currently engaged in crisis generated by factions and rivalries between negotiations on a bilateral treaty that is a condition moderates and radicals . A more pragmatic approach for membership in the European Union and NATO. is necessary to prevent the issue of Hungarian minor - Hungary's new socialist-led government has given a ity rights from becoming an electoral slogan that legit - new impetus to the treaty negotiations, which ha d imates extreme nationalism on both sides . met with the resistance of the former government le d Reconfiguring the balance between ethnicity an d by the late Jozsef Antall. Improved relations i s other forms of interest representation might suggest a demonstrated by the willingness of DAHR leader s way out of the present dilemma which threatens to and members of the government to participate in a marginalize the DAHR. The signing of the treaty roundtable at the Carter Center, sponsored by th e with Hungary may bring about a significant improve- Princeton-based Project on Ethnic Relations . ment of minority rights in Romania. However, subse- Hungary now agrees to recognize existing border s quent developments depend at least on the Romania n and formally to renounce any territorial claims, bu t government's willingness to compromise and on requires that Romanian authorities include the much important changes in the country's political culture. disputed Recommendation 1201 in the text of the bilateral treaty. It also demands that the Romanian Aurelian Craiutu is a doctoral candidate in the Department of government change its rigid policy on minority issues Politics at Princeton University.

4 9 EAST EUROPEAN CONSTITUTIONAL REVIE W

The dubious status of the Charter of Rights and Freedom s

A Constitutional Anomaly in the Czech Republic ? Cass R. Sunstein

On May 1, 1995, Prime Minister Vaclav Klaus , Article 26(3) :Everybody has the right to acquire th e the remarkable leader of the Czech Republic, vis- means of his or her livelihood by work. The State shall ited the University of Chicago . His visit becam e provide appropriate material security to those citizen s the occasion for an intriguing discussion of the sta- who are unable without their fault to exercise this right. tus of constitutional rights in the Czech Republic . Shortly after the enactment of this Charter , The bare facts are these. In 1991, the Federal the conflict between the two republics threw th e Assembly of the Czech and Slovak Federal status of the Charter into great doubt. But the Republic passed the Constitutional Act Institutin g Charter had a continuing effect on Czech and the Charter of Fundamental Rights and Slovak constitutionalism . The Constitution of th e Freedoms. This Charter was written with consid- Slovak Republic was passed on September 1 , erable help from Western Europeans an d 1992, and it expressly included the Charter, with Americans. It contains an ample set of rights an d deliberate modifications, in its text . On December freedoms, including freedom of speech and reli- 16, 1992, the new Czech Constitution was enact - gion, protection against abuse of police authority , ed. It did not, however, contain an explicit set o f protection against discrimination, and much more provisions guaranteeing fundamental rights an d in the way of civil rights and liberties. The Charter freedoms. Unlike the Slovak Constitution, it di d also includes a set of social and economic guaran - not include the Charter in its text. Instead it con- tees. Consider the following examples : tained two very short, relevant articles : Article 28: Employees are entitled to fair remuneratio n Article 3: The Charter of Fundamental Rights an d for work and to satisfactory working conditions. Freedoms forms a part of the constitutional order of th e Article 29: Women, adolescents, and handicapped per - Czech Republic. sons are entitled to increased protection of their health a t Article 4: The fundamental rights and freedoms shall work and to special working conditions . Adolescents an d enjoy the protection of the judicial power. handicapped persons are entitled to special protection i n To say the least, these are unusual provisions . labor relations and to assistance in vocational training . A lawyer, a political scientist, or a citizen of th e Article 31ME Citizens are entitled under public insuranc e Czech Republic should at this stage raise tw o to free medical care and to medical aid under condition s questions: What is the precise status of the set by law. Charter in the current Czech Republic? An d Article 30: Citizens are entitled to material security i n what was the genesis of these puzzling articles ? old age and during incapacitation for work, as well as i n The first question seems easier to answer than th e the case of loss of their provider. Everybody who suffer s second. Articles 3 and 4 appear to give th e from material need is entitled to such assistance as is Charter the same status as anything else in th e essential for securing his or her basic living conditions . Czech Constitution. Something that is "a part o f Article 35: Everybody has the right to live in a favorable the constitutional order" seems, at least to an out- living environment. sider, to be a part of the Constitution . In any case Article 32: Parents who are raising children are entitled some such conclusion seems very important t o to assistance from the state . reach, since if the Charter is not part of the

5 0 SPRING 199 5

Constitution of the Czech Republic, there is no Charter and its many parts? Do the social and eco - bill of rights in that republic—no protection of fre e nomic guarantees have the same status as political speech, freedom of religion, fairness in the crimi- and civil rights? Might uncertainty about the nal justice system, or anything else. It therefore guarantees create similar uncertainty for th e seems easy to conclude that the Charter has bee n rights? These are very important questions . But made part of the Czech Constitution . they are not easy questions to answer. But we should not jump to conclusions, fo r We might draw three general conclusion s the problematic genesis of Articles 3 and 4 raise s from all this. First: The leaders and citizens of the many relevant questions. Some people in the new Czech Republic have not yet had a sustained Czech Republic claim that these Articles were no t discussion of what sorts of rights and liberties the y voluntarily adopted by the Czechs at all, and want in their Constitution . Such a discussion were not a product of any deliberative judgment should probably occur before very long, so as to from the leaders and citizens of the Czec h create more security for rights than Article 3 an d Republic. On their view, these articles were pro- 4 may now provide . duced by a form of compulsion from the Counci l Second: Sometimes the problematic origins of of Europe and from West European intermed- a constitutional provision will give that provisio n dlers, and in particular from Brussels and dubious legitimacy. When leaders are aware o f Strassburg. This appears to be right, but it may those problematic origins, a constitutional provi- not be the whole story. Some observers claim tha t sion may not mean much . Articles 3 and 4—and the specific contents of th e Third: In some parts of some postcommunis t Charter—had something to do with pressure s nations, the real-world consequences of constitu- from, among others, communists and forme r tional provisions remain unclear. Under commu- Communists, who wanted social and economi c nism, constitutional guarantees were not worth guarantees to receive constitutional status . the paper on which they were written ; leaders fel t I do not claim that either of these accounts i s free to ignore them if the situation so required . entirely true. In fact I do not know exactly wha t There is no doubt that many leaders in postcom- lay behind Article 3 and 4 .. But it now seems clear munist nations, including Prime Minister Klaus , that the odd genesis of both the Charter an d have done remarkable things under difficult cir- Articles 3 and 4 has made their legal status highl y cumstances, displayed brilliance and courage, an d questionable. Are they or are they not a seriou s improved prospects for their people . But in some part of the Czech Constitution? Are they enforce- postcommunist nations, it is far from certain that able in the Constitutional Court? Are they bind- leaders will deem themselves bound by constitu- ing on the prime minister and the Parliament? Do tional provisions that they find inconvenient o r the prime minister and other officials take the m that they dislike, because of their dubious origins to be binding? What is the current status of the or because of their consequences .

5 1 EAST EUROPEAN CONSTITUTIONAL REVIE W

The challenge of postcommunist state buildin g The Politics of Economics in the Czech Republi c Stephen Holmes

The most formidable challenge facing postcommu - legitimacy as well as efficiency. Klaus has not had nist societies is the creation of effective and Konrad Adenauer's good fortune . The West has accountable instruments of government, able to not handed him the resources with which to pro - extract resources efficiently and channel them not vide public goods and thereby win popular support into private pockets but toward the provision of and cooperation. Indeed, he can gather th e elementary public goods—such as security, sanita- resources he needs only byfirst winning popularity tion, education, transportation, currency stability , at home and abroad. At this difficult boot-strap and the legal preconditions of a functioning marke t operation, he has, so far, excelled . economy, including enforceable contract law. In any case, Klaus's team (20 well-trained Those who say that postcommunist societies are economists who make decisions while sitting around burdened by "state decay," then, are not being nos - a table), not the "miraculous' market, has been in talgic for an iron fist, but are simply looking for - charge. Thus, the Czech example confirms, a con- ward to the creation of, among other things, a trario, that political weakness, ineptitude, inconsisten- coherent legal framework and an effective an d cy, and venality are the fundamental problems plagu- nonpredatory civil service. But how can we say ing postcommunist regimes. The shedding o f that state weakness or disorganization is the princi - Slovakia, essential to Klaus's aim of quick entry int o pal problem of postcommunist societies if the great - the EU, is a case in point. This was the achievement est achievements of the much-praised Czec h not of an economist but of a state builder . Republic have been deregulation, pulling dow n The same can be said about Klaus's creation o f political barriers, preventing administrative inter- local party chapters for the Civic Democratic Party , ference, and allowing the market to flourish ? the most successful example of liberal party-build- The answer is that Prime Minister Vacla v ing in the postcommunist world. (Ironists refer to it Klaus, far from being the antistatist he pretends t o as "a liberal party of the Leninist type .") As a result be, is the most talented state-builder of postcom- of Klaus's organizational strategy, in any case, hi s munist Europe . Despite Klaus's Chicago School party garnered a formidable 25 percent in last year' s rhetoric, the relatively successful liberalization pro - local elections, while recent polls show popular sup- cess in the Czech Republic has been painstakingly port for the party fluctuating between 27 and 3 2 planned and managed from the top down. A cer- percent. Klaus has also managed to keep a firm gri p tain sequence of reforms has been orchestrated i n on power by a deft use of the committee system i n Prague, for instance, and a cushion provided t o Parliament. And he has brilliantly played the issue absorb the economic shock, so that marketization of the missing Senate, neither going forward to elec - has been anything but the spontaneous outcome o f tions nor backwards to a constitutional amend- decentralized choices by millions of private actors . ment. In this way he has strengthened his own gov - The "transition," in this its most successful version , ernment, despite coalition tensions, by deprivin g therefore, is not simply a matter of applied eco- the President of his normal right of dissolution. Hi s nomics. It has required political savvy and leader- recent push for a referendum on membership in th e ship. Above all, it has required careful attention to EU, when juxtaposed to his avoidance of a referen-

52 SPRING 199 5 dum on the breakup of the federation, reveals hi s matter of state building. In general, private property i s skillful opportunism in the service of a public cause . meaningless (will not elicit investment or improve- Klaus's unrivaled mastery of the capitalist buz- ment) if owners do not feel relatively secure about th e zwords has probably contributed significantly to th e future. Hence, in West European language, the state Republic's exceptional attractiveness to foreign must be powerful enough to provide securitejuridique or investors. But constant professions of the free-market Vertrauensschutz, the protection of legitimate expecta- creed also help him throw dust into the eyes of adver- tions. For the sake of foreign investment, presumably , saries and potential critics. Chicago economics is very the government will also have to be able to prevent useful in this regard. He says publicly that all he is doing Czech policemen from shooting to death German is "lifting restrictions" and letting the market work. motorists who like to speed . People who do not look too closely criticize him for Even the most brilliant economic policy will fail, being heartless, then, because he purportedly refuses to under conditions of electoral democracy, if it does no t intervene in the economy. This criticism, although gain support of the public. Since daily life in the inaccurate, is welcome because it distracts attention Czech Republic remains hard for many people , from the important ways his government strategicall y Klaus cannot neglect legitimacy in a one-sided intervenes in the economy, keeping down the value of Chicago-style pursuit of efficiency. The basically the koruna to boost exports, for instance. His political untouched social safety net, an extremely cautiou s style is "hands on" not "hands off." Coupon privatiza- housing policy (rents remain below building mainte- tion itself was a political decision, of course, and a stage - nance costs), the 3 .1 percent unemployment rate (th e managed process. (The proof is that the head of the lowest in Europe), output-per-worker statistics which National Property Fund was dismissed for mismanage- place the Czech Republic behind Poland, and th e ment) In short, Klaus does not broadcast it openly, bu t tiny number of bankruptcies in the country all reflec t he knows perfectly well that an energetic centralized governmental worries about public responses to mar- state has an essential role to play in economic reform. ketization. (If the banks that supervise the funds that, That is why his party has consistently and fiercely in turn, own the "privatized" enterprises expect gov- opposed administrative decentralization . ernment bailouts, it should be noticed, then they ar e The Europe into which Klaus seeks admission is a purely private actors in name only, which migh t system of economies all of which operate within high - explain some politically welcome unemployment- ly complex, and increasingly integrated, legal frame- reducing delays in restructuring even after privatiza- works. The pursuit of entry, therefore, requires both tion.) Since his government first took office, Klaus' s the dismantling of the totalitarian state and the build- principal challenge has been to lead the Czech ing of the liberal state (in line with EU standards) . market-orientedceive reforms as harbingers of a bet s to per - Only an effective state can enforce the law and extract ter future. If he succeeds in this attempt, he will be sufficient taxes to protect basic rights, including prop - able to use his government's stored-up popularity erty rights. The legislative task facing all postcommu- (along with foreign investment) to keep reforms o n nist regimes is therefore immense, including the cre- track even when unemployment begins to mount . ation not only of contract law, but also of trespass law , Given his lack of material resources, Klaus is com - bankruptcy law, patent law, condominium law, envi- pelled to pursue legitimacy by symbolic means . He is ronmental law, and so forth. And the state being buil t postcommunism's greatest Machiavellian for, a s also has to have sufficient strength to repel demands Machiavelli remarked, if you want to make a success- for budget-swelling subsidies and to prevent the for- ful revolution, call it a restoration. Instead of allowin g mation of noncompetitive monopolies. From bitter people to think they are being colonized by the West , experience, the Czech government has learned the which implies the worthlessness of everything the need for more stringent licensing procedures for, an d Czechs have been, Klaus spreads the message that th e greater Central Bank supervision of, private banks, old Bohemia, full of hard-working Czechs, is back reliable depositor's insurance, and so forth . All this is a where it belongs, awoken from a long slumber,

5 3 EAST EUROPEAN CONSTITUTIONAL REVIE W

released from a Soviet detention camp. This is not a rights are assigned . So long as free exchange is guar- wholly accurate message of course . (Many of the bour- anteed, an efficient outcome will result. But most geois Bohemians about whom he boasts were actually human beings are not economists. So the palpable Germans and Jews, for instance, which is only to say injustice of private holdings presents a political prob - that the old Bohemia was brutally destroyed and that lem. Western countries never faced this problem , there is simply no chance of picking up where th e since they democratized under conditions of histori- country left off; moreover, the idea of a "return" to th e cal amnesia, having long forgotten the acts of pirac y capitalist past should be measured against the fact tha t and fraud by which private property was originall y Eastern Europe's largest communist vote in a semi-fair acquired. (The Czechs cannot forget because, unlike election, 38 percent, occurred in the Czech part o f some of their neighbors, they had absolutely no pri- Czechoslovakia in 1946.) But the slogan "back to vate property before 1989, and they continue to be Europe" has proved immensely popular . It may even, reminded of the injustice of initial appropriation by as Klaus hopes, turn into a self-fulfilling fiction. For the country's politically necessary but morally ques- similar reasons, Klaus is coaxing the Czech public to tionable refusal to restore the property expropriate d speak and think about integration into the EU, to pre- from 3.5 million Sudeten Germans after 1945 . (See vent it from contemplating the unappetizing prospect Czech Update in this issue.) The consequences of a of annexation to a Greater Germany . palpably unjust distribution of first property rights An aggressively reformist state requires not mere - for postcommunist marketization are difficult to cal- ly acquiescence, but also cooperation . Postcommunis t ibrate. But one thing is certain. Private property, in citizens are being asked to adapt their behavior to the Czech Republic today, cannot be justified by it s new and complicated rules of the game. This increas- origins, but only by its result. Unable to "sacralize" es the government's need for legitimacy. But by what property in the Western manner, the government means can this legitimacy be attained by a state that is must show people that marketization pays off. While short on carrots as well as sticks? Once again, sym- the postcommunist liberal state cannot be "based o n bolism turns out to be an important, and relatively justice," then, it can at least make possible a minimal- cheap, element in the legitimation of Czech reforms . ly decent life. Klaus has been successful, relatively Although President Havel, when thundering agains t speaking, because Czechs believe (as the latest the spiritual emptiness of television commercials , "Eurobarometer" public opinion survey, for instance , probably irks the impatient and professorial Klaus , strongly suggests) that he is on the way of leading he may add to the global legitimacy of the regime , them to a better life . lessening the political alienation of those who hav e All methods of privatizing state assets while th e lost most from the transformation, and preventin g public is watching have their characteristic defects . them from voting communist or looking for extra - Consider the five basic methods: restitution, domestic parliamentary representation . If this is true, then th e auctioning, direct sale to well-heeled citizens, direct new Czech system resembles the nineteenth-century sale to foreigners, and voucher privatization . British regime memorably described by Walter Restitution is problematic for several moral reason s Bagehot: the Queen is the moral and emotional sym- (why should those who lost their lives or careers no t bol of the nation, while the Prime Minister is an effec- be compensated as well?); but its main shortcoming is tive technocrat who gets the job done. In the Czech that it cannot bear enough of the real burden, whic h case, Klaus's policies are probably strengthened , involves putting hundreds of state enterprises into pri- rather than weakened, by Havel's wholly imprac- vate hands. Domestic auctioning and direct sale to cit- tical and apolitical criticisms of the shortcoming s izens are also questionable because money stashe d of market society. away by domestic groups in the last years of commu - Legitimation problems are especially acute whe n nism or the early years of democratic exhilaration wa s it comes to first property rights . An economist will probably stolen. (Nomenklatura privatization, by thi s tell you that it does not matter how first property route, does not take scads of money, incidentally, sinc e

5 4 SPRING 1995 dirt-cheap prices can be arranged by "contacts .") For enforceable, might exacerbate the recruitmen t obvious reasons, direct sale to foreigners will sound problems of postcommunist state-builders. How fine to a Chicago economist, but not to a state builder can an East European government recruit talent- like Klaus. The political costs of such a "sell out " ed and well-trained young people into govern- would be intolerably great. To solve some of the legit- ment service when it has to compete with the pri- imacy problems, to dilute, or distract attention from , vate sector but can supplement the glamour of foreign and nomenklatura buy-outs, voucher privati - office only with noncompetitive salaries? (Th e zation was introduced into Czechoslovakia. Its pur- need to recruit talented young people is pressing , pose was first political, then economic . for government officials must be at least as brigh t Unfortunately, voucher privatization has prob- and innovative as the average tax evader.) The lems of its own . These problems were nicely illus- most widely chosen technique for solving thi s trated by the October 1994 arrest of Jaroslav Linzer , problem throughout the region is to write vagu e chairman of the Center for Voucher Privatization , and toothless conflict-of-interest laws, allowin g found with 300,000 dollars in his briefcase, provid- government officials to hold second jobs, even i n ed by a police anticorruption squad in an sting oper - the industries they monitor, in order to keep their ation. In other words, the coupon system itself can salaries at a normal level . This recruitment-cor- be manipulated to the benefit of inside-traders. But ruption dilemma remains important in all post - even a public which knows about primitive accu- communist societies, including to some extent i n mulation will eventually become disaffected i f the Czech Republic . exposed schemes for the self-enrichment of govern - A concluding note here about the Czec h ment officials are regularly swept under the carpet . Republic's struggle to join the EU . Every inclusion is The exploitation of public office for privat e an exclusion. When Slovenia snuggled up to Austria , benefit is widespread throughout the postcommu- it left Croatia behind to a difficult fate. The analogy nist world. The most pathological example of per- with the Czecho-Slovak breakup are too obvious t o vasive privatistic attitudes and the weak sense o f mention. But the Milan Kundera fantasy, tha t public property is the furtive sale of weapons b y Bohemia was on the wrong side of a political border- Russian draftees to Chechen fighters . But the pri- line which should simply be shifted to the east i s vate use of public office is ubiquitous, from custom s unrealistic. Advocates of a selective treatment of post - officers to tax collectors, from privatization minis- communist countries by the West may gracefully ters to policemen working hand-in-glove with orga- draw our attention to ancient spiritual frontiers . But nized crime . Corruption on such a scale necessarily there will be no second Yalta. The backdoor will not fuels cynicism and bitterly antipolitical attitude s be slammed shut out of respect for age-old religiou s among the public. The crying need for politica l and cultural divides. For one thing, Russia is now to o legitimacy, then, suggests the wisdom of seriou s weak to seal its own borders . Hence, the Czech acces- conflict-of-interest legislation . So why has conflict- sion to the EU, if it happens, will not resemble Wes t of-interest legislation been so slow in coming, if i t Germany's entry into Western Europe after the war. can help solve the postcommunist state builder' s And the now-uncloseable roadway to the east pre- acute need for public acceptance and cooperation ? sents problems (such as the wholly unregulated mar - One reason there has been no effective "clea n ket in ground-to-air missiles) that cannot be solved b y hands" movement in any postcommunist societ y Chicago economics. Such problems can be confront- may be that there are so many assets being ed only by determined political actors, struggling t o divvied up that even the opposition gets its cut . A build effective states with few material resources, an d secondary reason may be that conflict-of-interes t who succeed in bringing collective efforts to bear on legislation, if it were genuinely and fairly common problems.

5 5 EAST EUROPEAN CONSTITUTIONAL REVIEW

Organizational dilemmas of postcommunist assemblie s

Feature: Parliament by Design

Introduction David Olson

The papers published here cover five very different islatures, then, are experiencing a dual transition : parliaments. Our five countries range from one not only from communist to democratic, but als o with a tradition of parliamentary government from provincial to sovereign . (Czech Republic) to two from within the forme r The countries vary in the specific ways in Soviet Union (Belarus and Russia) . Of the other which they encounter generic and pervasive issue s two countries, Slovakia shares a common tradition in parliamentary organization and functioning. with the Czech Republic, but is experiencing a Representative and decision making legislatures, a s somewhat different set of parliamentary develop- opposed to royal councils or the inert and decorativ e ments, while Romania illustrates its own distinc- bodies of communist rule, face the twin tasks of tive political behavior within Southeastern Europe . both expressing and resolving policy disagreements . This set of five parliaments, while it does no t If one task is to express the sentiments of the street, exhaust the variety to be found within the region, another task is to express those sentiments differ- does present us with a wide range of institutiona l ently, in a parliamentary and deliberative, rathe r experiences . than in a street-crowd manner . Four of the five countries discussed are successor In a rule-of-law state, parliaments and also execu - states. Only Romania has had a continuous exis- tives, are bound by clear and accepted rules of proce- tence as an internationally recognized independen t dure both internally and externally. Parliamentary nation-state. The consequences for the legislatures rules and procedures reflect the decision makin g can be enormous. The previous provincial level rules of democratic elections: disagreements ar e assemblies never had any experience with eithe r expressed in a manner which can be resolve d foreign policy or of macro-economic decision mak- through a voting process . Voting by deputies on leg- ing. The range of their internal structures (such as islative questions resembles voting by citizens on par - committee systems), their staff resources, and the ties and candidates. A commonly accepted definition complexity of their rules, were even less developed of the fair rules of contest is essential to both process- at the provincial level than in national-level com- es. But in neither are those rules easily arrived at . In munist era legislative bodies . Four of these five leg - both, the rules develop through an interactive proces s

56 SPRING 199 5 between written word and human action within an impact, because they govern the formation and dissolu- institutional context. tion of governments. Third, other rules are more internal The articles published here provide derailed exami- in their scope. Our papers discuss a wide range of specif- nations of how newly democratized parliaments, onl y ic rules, needs for rules, and conflicts over rule formation . recently emerged from communist rule, are facing the The cameral structure of parliament is a major enduring challenge of rules development . All democra- source of confusion and disagreement in the thre e cies and their legislatures face the task of developing countries with bicameral parliaments . The rules of procedure which can be regarded and accepted Constitution establishes a Senate within the Czech by both citizens and political elites as reasonable, fair, Parliament, but only the Chamber of Deputies is in and workable. In newly democratized political systems , existence . The constitutions likewise provide a Senate they must accomplish this task rapidly. Haste, however, in Romania and a Federation Council in Russia; the is a threat to both consensus and thoroughness. existence of these second chambers, rather than thei r The papers in this symposium explore the absence, creates difficulties in both countries . many different ways in which the largely inexperi- In the parliament's external relations, the critica l enced members in legislatures of little accumulate d question concerns the executive. Either the parliamen- institutional development discover and cope with tary rules or the constitution—but in some cases bot h the ambiguities of their new institution . They have are silent—can define the procedures by which a prime the splendid opportunity to make new policy choic- minister and cabinet officials are nominated, selected, es for their countries, but also carry the formidable and ejected. In those countries with an active president, burden of having to develop their own rules an d such as Slovakia and Russia, questions of proper juris - institutional practices while making those polic y diction and procedures among president, parliament , choices. They are, simultaneously, policy makers , and prime minister are both unclear and contentious. constitution writers, and institution builders Most rules affecting parliaments, however, ar e through each and every act and decision taken dur- more internally directed. One set of rules and prac- ing their terms of office . tices concerns the allocation among political parties o f The newly democratized postcommunist parlia- committee seats and officers. While the general prac- ments face far more encompassing and intractable tice seems to be proportionality, i .e., parties share com- tasks than do the legislatures of more stable and set- mittee seats in ratio to their strength in the chamber , tled political systems. At the same time, however , there are many variations on, and departures from , they have fewer resources with which to accomplis h that general principle. The single most importan t their tasks. The rules according to which parlia- exceptions concern committee chairs: in some parlia- ments function both help define their relationships ments, the party forming the government-of-the-da y with other elements in the state system and are a n or the multi-party coalition would hold all chairman- important internal resource . Internal procedures , ships, as in both the Czech Republic and in Belarus , known to all members, help guide the expression while in others, all the larger parties share those com- and also resolution of disagreements . New, ambigu- mittee leadership positions, as in Romania. The most ous, or absent rules, are handicaps to, but also a n startling departure from proportionality has bee n inevitable part of, new legislatures facing new task s reported in Slovakia, in which the governing coali- with new and inexperienced members. tion, as of early 1995, had wholly excluded oppositio n parties from at least some committees . The categories of rules A second set of internal rules and practices con- Three different topical categories for which legislative cern parliamentary parties. Can elected members rules are needed, but are also disputed, have been identi - change parties? Can members form new parliamen- fied in the papers below. First, some rules, usually found tary parties (sometimes called "clubs")? In the first sev- in the constitution, specify the cameral structure of par - eral years of the newly democratic legislature, part y liament. Second, some rules have a strong external dissolution, formation, and recombination, has been

5 7 AST EUROPEAN CONSTITUTIONAL REVIE W observed in most Central and Eastern Europea n speaker in communist legislatures, too, has remained a countries, perhaps most frequently in Poland and source of difficulty in the postcommunist period . Slovakia, and least commonly in the Czech Republi c The collective internal governance function ha s and Hungary. These rules, however, vary greatly. been handled in several different ways. Sometimes , Minimally, rules specify the number of deputie s the presidium has been transformed into a differen t required for their recognition as a parliamentar y steering body, called, to cite the Czech example, the party. The most restrictive proposed rule is found in Organization Committee. In other cases, a consulta- Slovakia, where, in early 1995, the government par - tive grouping of the leaders of each parliamentar y ties attempted to prohibit party switching . party has been formed, as in the Political Gremium i n Recognition as a party unit within parliament ofte n Slovakia, or the State Duma Council in Russia. A third brings privileges in committee seats, membership i n coordination device is a collective decisional and coor - the chamber's steering body, office space and staff dination group among the governing parties, as found, (and thus financial subsidies), and even regarding th e for example, in both the Czech and Slovak republics. right of participation in floor debate . Another coordination device is the Superior A related set of rules, and especially of internal Coordinating Committee on Legislation in the party practices, may define party discipline and its lim - Duma. It provides coordination between the Duma its. The most disciplined parties among the countrie s and the Federation Council . That this coordinatin g examined here are found in the Czech Republic, but group, which includes external participants as well a s party practice is not clearly defined in any set of writ- Duma leaders, is a subcommittee of the Committee ten rules. While the article on the Czech Parliament on Law and Legislation is indicative of the impor- suggests too much party discipline, other papers in thi s tance of that committee (though variously named) in symposium voice the opposite complaint . many of the postcommunist legislatures . The A third set of internal rules concern agenda set- Committee on Law and Legislation, holding joint ting. This question, for both weekly and daily ses- jurisdiction with other and substantive committee s sions, has been a constant source of conflict in th e on a wide range of legislation, seems both a distinc- newly democratized parliaments. Time is a pre- tive inheritance of the communist past and an effec- cious and scarce resource. Not only do parties differ tive coordination body within the newly democrati c on their priorities, but individual members pursu e parliaments across the region . their own preferences. Time has often been con- The status and formal powers of the presiding sumed at the beginning of a week or day to debat e officer have also been revised in the newly democ- and decide what is going to be debated and decided , ratized parliaments . Paradoxically, leadership ha s thus further delaying consideration of specifi c become more collective and less personal than in items on the agenda . the old legislatures . Fourth, conflicts of interest are often found, or a t A wide variety of other rules and practices, an d least alleged. In some instances, as in Slovakia, there are behaviors developed in the absence of rules, ar e problems of dual office holding by deputies in govern - considered in this symposium. Quorum provisions , ment or other positions. More commonly, conflicts of special procedures for budget and financial bills , interest involve both salaries and privileges for deputies , the formal powers and legislative skills of the pre - and their pursuit of private gain through businesses and siding officer, parliamentary review of administra- the privatization of state economic assets . tion, the availability of professional staff, and th e Finally, a set of rules defines the structures and pro - frequency of floor stage amendments, for example , cedures through which all of the previous questions are are mentioned as serious problems confronting a t raised and resolved. The inherited communist presidi - least one of our legislatures . um, most clearly described in our paper on Belarus, pro - It is .also striking, however, that some topic s vided the initial steering mechanism for the newl y which occur in established democratic legislatures democratized parliaments. The powerful position of the are not mentioned here . The availability, and eve n

5 8 SPRING 199 5 existence, of floor proceedings and voting records , ways in which the new postcommunist democracie s have occasioned major disputes in Western legisla- have been groping their way toward stability. tive history. Ethnic parties are not discussed as a Our papers do not explicitly refer to the process- surely complicating factor in the development o f es by which the many rules affecting parliaments fair rules. Participation by private organizations in have been developed. In many parliaments, lon g the legislative process is discussed in most of the debate has led to inconclusive results. Even estab- papers, though in none of the countries covered i s lished parliaments face unexpected problems and lobbying now subject to regulation. How an d develop new precedents, but only occasionally do when government proposals are submitted to par- they directly face the task of recodifying their emerg- liament is a controversy in some of these legisla- ing practices. The severe conflicts encountered in a t tures. Some of the articles discuss the openness o f least some of the newly democratized parliament s parliamentary proceedings, mass media coverage , promise a long period of disputes over rules as well a s and low public esteem of the new parliaments as over the substance of policy decisions . consequences of the lack of rules . But missing from these accounts is any mention of the interpersonal From past to future conduct of deputies in their capacity as either offi- To construct a rule of law state out of an authoritari - cers or ordinary members . The more frequent rude an past is no mean task. This task is especially diffi- behavior and insults spoken on the floor, the cult for postcommunist legislatures. Their authoritar- greater the need for rules . ian experience was unique, quite different, for exam- ple, from Latin military dictatorships . Sources: from constitution to decre e A lively question in current scholarship o n The sources of the rules and regulations affectin g the new democracies concerns the impact of the the new parliaments of the region are varied. Some past. How extensive and pervasive is the commu- broad structural questions, especially the camera l nist legacy? The paper on Slovakia gives explicit structure of parliament, are answered in the consti- attention to this question. Other commentator s tutions. But a constitution can also detail legislativ e claim that certain practices, especially in the suc- steps, as in Belarus. Some constitutional document s cessor republics to Czechoslovakia, reflect th e are explicitly temporary, as in Belarus, or contai n practices of the inter-war Parliament. The ques- transitional sections, as in Russia . Though not tion of the influence of the past on the presen t explicitly discussed in the articles below, some laws can best be answered, perhaps by examining th e have the special status of "constitutional acts, " structure, rules and procedures of the newl y which develop more specific rules and procedure s democratic legislatures . for legislative activity and organization . The topical coverage of the rules, their varie d Parliamentary chambers can each adopt thei r sources, and their internal conflicts and ambiguities , own rules, as is discussed in the Romanian an d are not unique to the legislatures and constitutions o f Russian papers; long disputes, however, can prevent postsoviet countries . These difficulties are universa l adoption of those internal regulations (as in the in ordered societies and in structured institutions . Czech Republic) just as they have prevented adop- The British Parliament and American Congress, th e tion of new constitutions . The election law, too, ca n occasional legislatures of many developing coun- specify conditions of parliamentary party member - tries, as well as the new postauthoritarian legisla- ship, as in Romania. The parliamentary parties, in tures in both Latin America and Eastern Europe, al l addition, can adopt their own internal ordinances, a s share the same dilemmas . But none have had to act in the Czech Republic . Presidential decrees are so swiftly. Time is more compressed in postcommu - another source of rules, especially in Russia, withi n nist legislatures than elsewhere . which the new parliament works. This wide variety Legislatures themselves are great examples t o of sources of rules indicates the hurried and ad hoc their societies of how it may be possible to expres s

5 9 EAST EUROPEAN CONSTITUTIONAL REVIEW social conflicts and disagreements clearly and in a reg - ambiguity of the existing written rules . Paradoxically, ularized manner, and of how it may be possible t o as newly democratized parliaments gain experience , work toward solutions in the same way. Legislatures and develop both regularized internal structures an d both reflect the existing status of rules and decisional procedures, their capacity to write explicit rules will procedures in a political system, and have the oppor- increase, while their need for them will diminish. tunity, or perhaps obligation, to further develop thos e At some point, the more continuous elements of same rules. Legislatures both reflect and educate a the new emerging practices may be reduced to writ- new political system . ing. The papers collected here may thus help define a Throughout the postsoviet region, parliament s future agenda for formulators of parliamentary rules . are resorting to ad hoc, very pragmatic and/or expe- Whether the new rules of new democratic legislature s dient sets of practices which adapt the existing rules, are written in this or the next decade remains for cur - largely a communist-era inheritance, to the exigencie s rent and future parliaments to discover for themselves . of the moment. This "ad hocery" of searching experi- mentation is a function of both the new members in a David Olson is Professor of Political Science at th e resource-strapped institution, and the diversity and University of North Carolina, Greensboro .

60 SPRING 1995

The constitutional sou rces of legislative disarray

Russia Alexey Alyushin

Russia's current Federal Assembly (Parliament) was matter is found in Art. 96.2 : "The procedure for com - elected on December 12, 1993 . At the same time , posing the Council of the Federation and the manner the Constitution was adopted by referendum . of electing deputies of the State Duma are established Anomalously, then, parliamentary elections were by federal laws." Because the Constitution does not held under the obviously erroneous assumption tha t fix the mode of 'elections, this important set of the Constitution, yet to be ratified, was already in arrangements lies at the mercy of ephemeral majori - force. Notwithstanding this unconventional birth o f ties. So far, federal laws governing these elections d o the Federal Assembly and of the Constitution itself , not yet exist, although the various draft bills govern- the first Parliament convened after the adoption o f ing elections to the next Federation Council are no w the new Constitution is governed by the latter' s being debated (see "Russia Update' in this issue) . "Closing and Transitional Provisions ." One sign that The composition of the Federation Counci l this is indeed only a transitional parliament is that it s poses important practical problems which remai n term runs two years instead of the usual four . unsolved by the Constitution. The first of these ques- Experience with the current Parliament, how - tions is whether members of the Federation Council ever transitional, has revealed defects in some o f should be nominated or elected. The language of the the constitutional provisions governing its activi- Constitution is ambiguous in this respect, although it ties. This experience has also disclosed some gap s seems to favor the nomination option. "Members" in the law which require correcting if parliamen- (chleni) of the Federation Council stand in verbal con - tary performance is to improve. trast to "deputies" of the State Duma (Art . 98) . The potential significance of this language is also reflected Bicameralism in the transitional provisions. Representatives in the One defect of the December 1993 Constitution lies in first and transitional Federation Council were elect- its inadequate provisions governing the formation of ed, and the Constitution refers to them as "deputie s future Federal Assemblies . To begin with, the compo - of the Federation Council." Finally, the Constitution sition of future assemblies is unclear. For example , refers hazily to the "formation" (formirovanie) of th e even though Art. 95.3 sets the number of Dum a Federation Council, whereas "elections" will be hel d deputies at 450, the comparable provision governin g for the State Duma. the composition of the Federation Council is open - If the Federation Council is to be elected, wh o ended. Article 95.2 provides that "the Federation should elect it? Should local legislatures select th e Council consists of two representatives from each members, or should they be elected directly by the subject of the Russian Federation: one each from the people in the component subjects of the federation? 1n representative and the executive organs of stat e April, a proposal allowing the component subjects of power." What this provision will mean in practice i s the Russian Federation to decide for themselves ho w further obscured by the absence of rules for deter - their Federation Council representatives would b e mining the time, place, and manner of future elec- elected (and recalled). The provision would make th e tions to Parliament. All the Constitution says on this Federation Council members wholly dependent on

6 1 EAST EUROPEAN CONSTITUTIONAL REVIE W

the regional electorate that sent them to the capital , Council has 14 days to act on it . If it does not act thereby significantly facilitating regional lobbying. If within this period, the bill is considered approved . selection by local legislatures is accepted, then one Should the Federation Council reject the law, th e must deal with the fact that local legislatures them - chambers may form a conciliation commission, pur- selves have not yet been elected in over 20 subjects of suant to Art . 105.2, to overcome their disputes . the Russian Federation. The fact that executive bodies Afterwards, the Duma may again consider the bill , alone exist in these subjects raises a thorny constitu- and even override the Federation Council's veto b y tional problem, as Art. 95.2 requires that one of the two a two-thirds vote of the total number of deputies . ...organ representatives come from th e "representative This procedure clearly indicates that the Duma i s of state power." Another problem is that nearly 60 cur- meant to play a more active legislative role . The rent heads of local admiristration (nearly 70 percent) Federation Council seems to be designed primaril y have been appointed personally by the president . to slow down the legislative process, not to have an According to one presidential decree, elections for equal say with the Duma . heads of executive bodies in the subjects shall be hel d But parliamentary experience has revealed i n simultaneously with the federal presidential elections , practice the inadequacy of many of the rules gov- scheduled for June 1996. This means that these presi- erning the institution. The practical result of thes e dentially appointed heads of local executives will still ill-designed rules is twofold. On the one hand, par- be in office during the 1995 Federal Assembly elec- liamentarians sometimes abide by them, in whic h tions. Given the local influence of such leaders, many case the result is undesirable because of the perverse of them may well be elected or nominated to th e incentives created by the rules. On the other hand , Federation Council. In such a case, there is a chance parliamentarians sometimes ignore the rules an d that the next Federation Council will be packed with settle on informal practices . This evasive tactic does members beholden to the president . not say much for having the rules in the first place . Third, there is the question of the Federation Parliament has at times reached beyond it s Council's term, especially whether or not it should jurisdiction and attempted to deal with problem s coincide with that of the State Duma . Furthermore, not assigned to it by the Constitution . For example , there is the question of whether the terms of indi- in the spring of 1994, issues such as the situation i n vidual members of the Federation Council shoul d the agricultural sector and the so-called crisis o f be staggered, in order to give the institution a non-payments, though clearly within the jurisdic- greater sense of continuity. tion of the executive, were introduced onto th e That these questions have been all but ignored s o agenda of the Federation Council. The discussion far reflects the faultiness of the Russia n of these issues was not particularly productive an d Constitution. The haste of its authors in drafting thi s ate into valuable legislative time . provision, and their indecision about how exactly to The reason why the Federation Council took u p include the regional electorate and elites in the polit- these issues is that the upper house has begun func- ical process, has essentially turned over the forma- tioning as the primary lobbyist for regional and local tion of the legislature to unaccountable and shifting interests. Most of the members of the Federatio n personal and corporate interests. As many current Council represent institutions of local governments , members of the Federation Council are eager to namely their executive and legislative bodies, an d retain their positions, a self-interested, and perhap s therefore often view matters from a narrow local per- myopic, electoral law is to be expected . spectate, as they try to attain their regional and cor- porative aims as well as to improve their standing i n Legislation and relations between the chambers the eyes of their local constituencies . This parochial Once the State Duma adopts a federal law, it mus t approach does not help solve national problems , be sent to the Federation Council within five days however. But so long as the Constitution's compati- (Art. 105) . Once it receives the bill, the Federation bility provisions allow officials to hold both local an d

62 SPRING 199 5 national offices, this conflict of interest will persist . mediating sessions in an Art. 105.4 conciliation com- When the local officials come to the center, they will mission. Ironically, the work of the Conciliation not come with national, federal problems in mind, Commission itself has no time restrictions . Neither but with the aim of pushing narrow local agendas . solution, however, is practical or desirable. A better The simultaneous holding of local and nationa l solution would be either a constitutional amendmen t office in this first, transitional Federation Counci l extending the time period for consideration—from 14 also finds support in the Constitution's transitiona l to 30 days, for example—or an interpretation by the provisions, which state that "the Federation Council Constitutional Court stating that only days on whic h members of the first convocation exercise their pow- the Federation Council is actually sitting should coun t ers on a "non-constant basis" (Concluding and toward the 14-day period . Transitional Provisions; paragraph 9). In practice, The awkwardness of this entire situatio n this means that members of the Federation Counci l becomes even more apparent when we consider th e need not view their membership in the Council a s tension between Art. 105 and Art. 106 of the their main job. Eighty-six of 171 Federation Council Constitution. Article 105 states that the Federatio n deputies are either heads (or first deputies) of their Council only has 14 days in which to act on a la w respective legislatures or heads of the executive bod- passed by the Duma . By contrast, Art. 106 states tha t ies in the respective component subjects . However, certain federal laws adopted by the Duma "are subjec t for the Federation Council to be effective, its mem- to compulsory examination" in the Federation bers must first and foremost be Federation Council Council. The Constitution is therefore unclear about deputies and work on a constant basis . Whether such whether the 14-day rule should be strictly enforced in a rule change would lead the regional elite to lose any Art. 106 situations. This question has been officially residual interest they may still have in the national referred to the Constitutional Court by the legislature is another question . Federation Council (see "Russia Update" in this issue) . The importance of concentration on the work of The inadequacy, vagueness, and mutual inconsis- the Federation Council is apparent from another defec t tency of these rules predetermines the observed lack o f in the constitutional rules, namely the 14 day provision coordination and insufficient interaction between th e for reviewing legislation passed by the Duma. Given chambers . The only mode of interaction provided by the reality of working on a "non-constant" basis, the the Constitution is the Art. 105.4 conciliation commis- Federation Council has experienced inordinate diffi- sion. This provision, however, does not seem sufficient, culties in meeting this deadline. Whereas the Duma as information does not flow constantly and reliably holds a plenary session twice weekly, except for two between the two chambers. Personal communicatio n annual vacations, the Federation Council meets only between deputies and experts serving the two bodies is between long interruptions which may exceed 14 days . also lacking. One inevitable consequence of this lack of Thus, if the Duma passes a law during a Federation inter-chamber coordination is confusion in legislation . Council recess, the Federation Council may not eve n In the first few months after the elections, bills on th e convene before 14 days have elapsed . very same subjects were independently drafted by th e Parliament has attempted to solve these problem s two bodies, each unaware of what the other was doing . by convening extraordinary meetings when very The lack of coordination, symbolized by th e important laws are being considered . The problem physical separation of the two chambers (the y with this approach is that it is too expensive, unpre- meet in two separate buildings in the center of dictable, and unwieldy. Not the least problem is lack of Moscow), is not accidental . In the wake of the agreement over what constitutes "important" legisla- events of September and October 1993, Presiden t tion. A second way in which the bodies have tried t o Yeltsin was unwilling to allow Parliament to gain overcome this difficulty is for the Federation Counci l too much strength. Even though there were com- to reject automatically any law it cannot consider with - pelling arguments for allowing both chambers to in the allotted time. This rejection is then followed by reside in one building, Yeltsin, concerned that th e

6 3 EAST EUROPEAN CONSTITUTIONAL REVIEW legislative bodies would again crystallize into an a failure that has left unregulated many areas of socia l opposition as they had done under Rusla n life desperately requiring new legislation . Khasbulatov, chose a divide-and-rule strategy. Th e Contributing to the difficulty of formin g problems of years past, however, may not justify majorities in support of any bill is the well-publi- the current obstacles of parliamentary efficienc y cized lack of party discipline. Individual deputies and inter-chamber coordination . often do not follow party leaders. To prevent The two chambers, it is interesting to notice , deputy defections, the Liberal Democratic have adopted an extraconstitutional mechanism for ("Zhirinovsky") faction, the most ambitious an d easing cooperation, thus compensating for some o f aggressive parliamentary group, attempted to the deficiencies of the Constitution. A Superior introduce a parliamentary rule whereby a deputy Coordinating Committee on Legislation has been would lose his mandate if he systematically voted created as part of the State Duma's Committee on contrary to his faction's position. This proposal, of Legislation, the most powerful Duma committee course, was a reaction to the way the Libera l through which all legislation must pass . The Democratic faction had been losing deputy suppor t Superior Committee, which has only consultativ e due to Vladimir Zhirinovsky's bizarre, authoritari- functions, includes representatives of the several bod- an leadership style. The proposed rule fell on dea f ies that possess the right of legislative initiative . ears. What has kept parties working together, even Another confusingly ambiguous provision of if inefficiently, is the State Duma Council, create d the Constitution is the enumeration o f by the Duma when it was drafting its Rules o f Parliament's powers in Art. 102 and Art. 103 . The Procedure. This Council is composed of the two articles enumerate certain limited powers a s Chairman of the Duma and of the leaders of fac- "belonging" to the legislature. These powers shoul d tions and deputy groups . Its functions include not exhaust the legislative power, but a narro w scheduling hearings, agenda setting, forwarding reading of the articles could restrain Parliament' s bills to committee, and accepting bills from thos e jurisdiction. To prevent such a restrictive under - empowered to initiate them. Its activities are sub- standing, the State Duma, for example, has incor- ject to control by the plenum of the Duma . porated in its Rules of Procedure norms that estab- As the Zhirinovsky experience suggests, stric t lish its prerogative to issue declarations and peti- adherence to party positions may not always be tions concerning foreign policy and international desirable. In this case, Zhirinovsky's charisma an d relations. Similarly, the Federation Council has als o hypnotic style has lured a group of irresponsibl e enacted an internal rule that allows it to issue "con- zanies into the Duma who do not heed the needs of clusions, declarations and petitions" on "genera l the electorate. From this experience, one migh t political and on socio-economic issues . " draw the conclusion that an exclusively party-list system of voting may not, in fact, accurately reflec t Party discipline the sentiments of the people. The composition of Parliament is an important caus e The fault here lies with the electoral system. In of its relative ineffectiveness and lack of focus . There the 1993 national elections, half of the Duma' s is no majority party in the Duma, though perhaps th e deputies were elected through party lists, while the distribution of seats may be a faithful representatio n other half was elected directly in electoral districts . 1 n of the ideological composition of Russian society . Be retrospect, the proportion seems too heavily weighted that as it may, the absence of a majority party, cou- in favor of political parties . The shortcomings the pled with the inability of deputy associations or par- 1993 electoral system are supposed to be corrected by ties to form consistent voting blocs, has made legisla - the forthcoming bill on the Duma elections. As of tion unpredictable and slow. In fact, it has often May 1995, however, no consensus had been reached proved impossible for a majority to form, which part - on this matter. The draft bill favored by the ly explains the low volume of legislation passed so far, Federation Council provides that 300 Duma deputie s

64 SPRING 199 5 be elected, with only 150 deputies running on party dential lawmaking powers. The enumeration s lists. The version prefered by most Duma member s appearing in the Constitution are only partial lists. preserves the equal, 225/225 representation used i n As a result, there is a recurring confusion abou t the 1993 elections. So, the question remains open. whether the president or the legislature has th e exclusive right to make rules governing a certai n Relation with the executive domain. In practice, because of the above-mentione d In the present constitutional scheme, as a reactio n deficiencies in the legislative process, the presiden t to legislative overreaching in the past, the presiden- has taken over the active lawmaking function, fur- cy is the most powerful branch of government. ther threatening the integrity of Parliament . The government is controlled by the president and Similarly, the executive, including both president has only limited independence. The only power and government, is much more active in initiating that can even begin to compete with the presiden- legislation than the chambers themselves . cy is the federal legislature. Notwithstanding the The new Constitution as a whole clearly favors great imbalance of power in favor of the presiden- the president, especially if compared with past cy (Yeltsin, after all, had great influence over th e Russian Constitutions . The 1978 Constitution, for drafting of the Constitution), Parliament still has example, gave the Congress of the People's Deputie s some possibility to act independently and decisive- of Russia "the right to accept for consideration and t o ly, which is essential if there is to be an effective bal - decide on any question which lies within the juris- ance of power between the branches. An example diction of the Russian Federation" (Art . 104 .2). Th e is the power of amnesty, granted by the present Constitution, by contrast, was meant to Constitution. In early 1994, the State Duma grant- resolve such doubts in favor of the president . ed amnesty to all insurgents who participated in The Constitution's pro-presidential bias is reflect- the events of October 1993 . This action shocke d ed in the contrast between the power of the presiden t Yeltsin, who realized that the new Parliament and that of the Federation Council to review the would not necessarily bend to his commands . Duma legislation. If the Federation Council misse s The legislature's independence, however, is limit - the 14-day deadline, the law is considered approved . ed. Currently, Parliament is completely dependent o n If the president misses his deadline, no legal conse- the president financially and materially. By presiden- quences follow. The president of Russia may thus tial Decree N. 1400, September 21, 1993 (section 11) , keep a law unsigned and unreturned for as long as h e all organizations and establishments previously sup - wishes, something he does quite often . plying goods and services to the Supreme Soviet were Another example of presidential prerogative i n withdrawn from its jurisdiction and placed under th e practice is the appointments process. According to the supervision of the federal executive (the Council o f Constitution, the Federation Council has the power of Ministers) . As a result the total reorganization of thes e appointing the attorney general (Art 1021) . It is unclear, organizations and establishments introduced by th e however, what time restrictions apply to the presiden t decree, crucial economic supply functions were take n for presenting candidates for this and other appointed over by the president's Administrative Management positions on which the Federation Council or Stat e Department (Upravlenie Delami, . The provision o f Duma must finally decide. The Federation Council's everything from office buildings to hospital rooms , Rules of Proceeding now establish a two-week deadline . from limousines to computers, is under the presiden- But it is not obvious that the making of such a rule lie s t's control, a humiliating situation for Parliament . within the competence of the Federation Council . The basic problem of legislative/executive The president may simply decline to come up imbalance can be traced to the Constitution. The with nominees . Or, if his nominee is rejected, as has Russian Constitution does not exhaustively enumer- been the case with the current attorney general, Alexe i ate the subjects on which Parliament may pass laws . Ilyushenko, the president may nevertheless decide to Neither does it clearly delineate the scope of presi- appoint his original choice as "acting" officer .

6 5 EAST EUROPEAN CONSTITUTIONAL REVIEW

Ilyushenko, for example, is now serving as acting attor - tern established by the 1993 Constitution . By dis- ney general. Under this title, the president's choic e solving the old Parliament, Yeltsin had clearly vio- may actually hold the office, and wield all its powers , lated the Constitution in force at the time. But h e without having been approved by Parliament . rested his right to dissolve the legislature on wha t Or consider the State Duma's right to consent to he believed was a more fundamental law : the basic the president's nomination for prime minister (Art . principles of "Recht," as opposed to positive law, 103.1a). If the Duma three times rejects the presi- which asked the president to fulfill his duty to pro- dent's candidate, the Constitution gives the presi- tect national security and socioeconomic reforms . dent the power to dissolve the Duma and announce The parliamentary elections, however, demon- new elections (Art . 111.4). A similar situation holds strated to the president that his justifications ha d with no-confidence votes, also a right given to the not persuaded the electorate and that he had suf- Duma. Yet, once again, the Constitution checks the fered a serious loss of legitimacy . exercise of this right by allowing the president t o At the same time, the new parliamentary elec- dissolve the Duma if it passes two votes of no-confi - tions presented an opportunity for many former dence within a three month period . deputies to run for office again and be elected . The war in Chechnya has clearly demonstrate d Presenting themselves as political martyrs, they eas- Parliament's inability to control the executive in situ- ily found- their way back to the legislature . Even ations where military force is used by the govern- though they may not have countervailing legal ment. Notwithstanding Parliament's initially shar p powers, the parliamentarians' political prestige doe s criticism of the interior and defense ministers' han- effectively counterbalance that of the president . dling of the war, the assembly could not remov e All of this, in a roundabout way, gave a boost of them, because these two "power" ministers are direct- legitimacy to the president. By running for office , ly appointed by the president (Art . 83 and Art . being elected and taking up their posts, the new 112.2). The bitter irony is that the only figure over deputies, including Yeltsin's enemies, were recogniz- which the State Duma has exercised its constitution - ing the legitimacy and legality of both the "usurper al right of dismissal was Sergey Kovalev, the com- president" and "his" Constitution. For voter s missioner on human rights, who worked to try t o opposed to the president, the placement of opposi- resolve the conflict peacefully . tion deputies in Parliament was a recognition of th e legitimacy of the president's new system . Thes e Parliament and legitimacy developments have been crucial to the maintenanc e Parliament has been unsuccessful in its legislative of whatever political stability Russia has experi- efforts, partly as a result of constitutional rules , enced during the past year. partly because of its interim character, and partly because of its makeup and factionalism . It has, nev- Alexey Alyushin is consultant for the Department fo r ertheless, served one very important function : Constitutional and International Law, Federation Counci l legitimation of the political and governmental sys - of the Russian Parliament.

66 ' SPRING 1995

Is legislative illegitimacy the price of political effectiveness ?

Czech Republi c Milos Calda and Mark Gilli s

Compared to most East and Central European leg- parties only on the Organizational Committee and islative bodies, the Czech Parliament has enjoyed rel- any investigative commissions, in practice, the pro- ative stability. The assembly's ability to maintain its portionality principle holds on all committees. Each steadiness and effectiveness can be largely attribute d committee, therefore, includes members not only to strong party discipline, the influence of the gov- of the more moderate opposition parties, but also o f ernment on legislation and the decisive role of major- radical groups such as the Communist Party of ity-dominated committees in passing this legislation . Bohemia and Moravia and the populistic and But despite its stability, the Czech Parliament i s nationalistic Republican Party (AR-CRP) . unpopular. Czech citizens seem little concerned wit h Considerations of expertise have also served a s blatant violations of the Constitution, such as a constraining factor in committee formation . Parliament's failure to convene the Senate . But pop - Even the strongest parties will refrain from nomi- ular discontent has been stirred by the many privi- nating technically unqualified members for com- leges and opportunities enjoyed by deputies, a direc t mittee positions if they feel that expertise is need - result of deputy immunity and the absence of mean- ed. An example of this partisan self-restrain t ingful conflict-of-interest legislation . occurred during the nominations for th e Committee on Petitions, Human Rights, an d The structure of Parliament Nationalities. Since the majority coalition fel t Majority control of committees, cooperation o f unable to nominate enough qualified candidate s the majority with the government, and party dis- from its own ranks, members of the opposition cipline have generally given the Czech Republi c now constitute a majority on the committee . one of the more outwardly stable postcommunis t Committee work absorbs the bulk of legislativ e parliamentary systems . activity. Even so, the human and financial resources of The parliamentary majority decisively influ- the committees are very limited. Efforts to improve the ences the makeup of committees . Most commit- situation have been impeded by budgetary constraints. tee seats are occupied by members of the ruling Perhaps this shortage of resources helps explain the coalition parties . Committee members are nomi- dependence of legislation on government initiatives nated by the parliamentary clubs which are, i n and proposals . Most bills are initiated by the govern- turn, composed of deputies of the parliamentary ment. Although committee members may propos e parties. As a result, the majority coalition hold s amendments, not many of their amendments fin d the chairmanships of all 12 committees. Even their way into the laws. Only one-sixth of all proposed -hough members of the minority are represente d amendments have been accepted and passed into law. on the committees, the majority can (and does ) When proposing amendments, committee mem - regularly outvote them. bers will probably be toeing their party line. Party dis- The only constraints on the majority seem to b e cipline, especially for the majority coalition, is indeed informal ones adopted by the parties themselves. very high on committees and in Parliament as a For example, although parliamentary rules requir e whole. One indicator of this pervasive discipline is that proportional representation of all parliamentary few committee decisions are rejected when considered

6 7 EAST EUROPEAN CONSTITUTIONAL REVIEW by the assembly as a whole. To enforce party disci- ther demonstrating the influence of the govern- pline, the majority coalition uses what it calls the ment. For example, several deputies have aban- "pilot" technique. Before the start of a voting session , doned the Liberal Social Union, an electoral con- the party designates an experienced deputy to be th e glomeration of parties sharing little in common . "pilot." The other deputies of the coalition are to follow The Republicans have also suffered defections . the lead of the "pilot" and vote the way he does. As a Half of the club's members defected when their result, parties almost always vote in blocs . Individual leader Miroslav Sladek ordered them to pay sub- deputies routinely receive instructions from their stantial parts of their salaries into the party fund . party clubs. Prior to voting in committee, similarly, Perhaps most noteworthy, the Communist Parry of clubs hold sessions where individual proposals are dis - Bohemia and Moravia, which practices the strictest cussed and where the whip gives cues for voting . control over its members, lost a substantial number This high degree of discipline should not be sur - of deputies, who in turn formed their own group- prising given the Czech tradition of party loyalty. ing, the Left Bloc . As a result, the number of com- Loyalty to one's parry is often seen as a moral issue of munist deputies dwindled, from 35 to ten . loyalty to the organization and principles which Given the backdrop of party loyalty, defector s enabled the deputy to enter Parliament in the first often justify their shift in loyalty by arguing tha t place. A practical mechanism for enforcing party dis- their party has not remained faithful to the promis- cipline is provided by the proportional electoral sys - es it made to the voters. Defectors do not lose their tem, in which deputies represent parties rather than a parliamentary seats. Despite the relative opprobri- particular voting district. Parties have the ability to um still attached to defections, some defectors eve n place the names of rebellious deputies near the bottom receive handsome rewards . Consider the exampl e of the party list, or even to deny them a position on the of Bohdan Dvorak: after defecting from hi s list altogether. Especially for politicians of the majori- party and joining Klaus's Civic Democrati c ty coalition concerned with reelection, this mecha- Party, he became a member of the leadership . nism provides a strong reason for adhering to party positions. Fulfillment of campaign promises is rela- The problem of bicameralism tively easy to monitor, for under this system it is equiv - The Czech Constitution provides for a bicamera l alent to simply keeping faith with the party platform . Parliament composed of an Assembly of Deputie s There are, however, some signs of decreasin g and a Senate (Art. 15.2) . Article 106 of th e rigidity in party ranks. The starting point for thi s Constitution holds that the Assembly is responsibl e shift is Art. 26 of the Constitution, which state s for creating the Senate . Yet, more than two year s that "deputies and senators shall carry out thei r after the adoption of the Constitution, the Senate ha s mandate personally in accord with their oath an d yet to be instituted. This breach of the Constitutio n at the same time they shall not be bound by any - has led to negative commentary in the press an d one's command." This provision has already had an among the public . The CDP has gone so far as to state impact. For instance, parties such as Prime Minister that, if a Senate is not going to be formed, the provi- Vaclav Klaus's center-right Civic Democratic Party sions on the Senate might as well be removed from (CDP) have not included party discipline in thei r the Constitution. It also remarked that the whole sit- internal regulations, believing that the deputy is a uation was reminiscent of recent "history when th e free human being entitled to vote his conscience . communist state introduced the Constitutiona l Even when the party makes voting recommenda- Court into the Constitution and, for 30 years, was tions to its members sitting on committees, it doe s not able to bring it to life." not oblige them to vote the parry line, and in th e Not everyone is complaining about the absence of a past has tolerated dissenting votes. Senate, however. When the Constitution was adopted in In some instances, there have been defection s December 1992, many, including the Social Democrat s from parties, especially those in the opposition, fur - and the Communists, criticized the bicameralism provi -

6 8 SPRING 199 5 sion. As the Czech Republic is a relatively small "uni - Constitution requires that three-fifths of al l tary" state and the population is relatively homoge- deputies and three-fifths of all senators must register neous, it would seem that a second chamber, designe d their approval before the act is adopted. In addition, to protect minority rights, would be superfluous . a declaration of war and approval of the stationin g Indeed, many of the arguments advanced to sup - of foreign troops on Czech soil requires the port the creation of a Senate in accord with th e approval of an absolute majority of both senator s Constitution are unpersuasive. One argument is that a and deputies (Art . 43) . Electoral laws may not be Senate will ensure the continuity of legislative powe r adopted without the consent of the senate (Art . 40) . in times when the assembly is not in session, particu - The senate must consent to the president's nomi- larly when the president has dissolved the chamber o r nees for appointment to the Constitutional Cour t during the interval between two electoral terms . (Art. 87.2). These legislative acts and decisions are These concerns, however, may be misplaced. crucial to the basic functioning of the legal and polit - According to Art. 35 of the Constitution, the assembly ical system. Thus, the role envisioned by the may be dissolved in only four situations, none of whic h Constitution for the Senate does provide a stron g is likely to occur unless the assembly actually wishes t o reason for the latter's existence . be dissolved. As for the interim between terms, it s But if the Senate is so important, why has it not duration by law is only 30 days and it occurs only onc e yet been established? Two arguments are frequently every four years. These do not seem like sufficient rea- presented to justify the inordinate delay. First, oppo- sons for creating a Senate . nents claim that the Senate cannot be created durin g The argument that a Senate would force greater the first few years after the establishment of th e deliberation and prevent hasty lawmaking is n o republic because the public is simply tired of elections . more convincing. Even with the Senate's suspensiv e Of course, any refusal by those in power to hold elec - veto, the assembly may adopt statutes with an abso- tions required by the Constitution is suspect . In this lute majority entirely without Senate approval . instance, the claim particularly stretches credulity Perhaps the Senate can function as a check on ill - because Czechs have had only three free elections i n considered legislation passed when small number s the past 50 years (in 1946, 1990, and 1992), making of deputies are present. The president, however, i s electoral fatigue a dubious excuse. armed with the same suspensive veto, making th e A second argument is that the Republic needs a Senate's power superfluous . fast-track legislature in order to adopt quickly impor - Historically, the inclusion of a Senate in the tant reforms. The claim here is that the Senate would Constitution may have simply been a self-interested impede the progress of the Assembly in passing legis- move meant to assure deputies of the Czechoslova k lation needed for economic restructuring . Once Federal Assembly a position of political prominence . restructuring has succeeded, the argument goes, the In the wake of the split, Czech deputies of th e Senate may be convened . This argument, too, is Federal Assembly wanted to secure a role for them - unpersuasive. As argued above, the Senate's suspen - selves in the new legislature . Even if promises were sive veto need not slow down ordinary legislation . made, they have, of course, been broken by now . A cynical explanation may perhaps be offered These doubts about the need for a Senate and for the delay in constituting the Senate. The assem- the reasons for its original inclusion, however, over - bly, the former Czech National Council, was elect- look a very important function played by the ed to be a subordinate legislature in a federation . It Senate in the Constitution . The Senate is to be elect- then proceeded to dissolve the federation and adop t ed on the first-past-the-post principle, thus balancin g a constitution, creating a new state without seekin g the proportionally elected Assembly of Deputies. In popular consent through a referendum. It thus crucial cases, such as those involving Art . 1 0 took a leading political role without necessaril y (international treaties concerning human rights an d enjoying the normally required democratic back- fundamental freedoms and constitutional acts), the ing. Thus, postponed creation of the Senate may

6 9 EAST EUROPEAN CONSTITUTIONAL REVIE W simply reflect an unwillingness on the part of the lators, the main focus being on private activities, suc h leading parties to submit to elections for fear of los- as involvement in business deals. The Czech Republic ing the strong position they now hold. So the has recently been rocked by several political scandals assembly and the present government—whic h involving conflict-of-interest issues. Although thes e never submitted itself to a vote of confidence when scandals have thus far implicated members of the exec - the Czech Republic was created—shall both remain utive branch, there is nothing to prevent legislator s in power until June 1996 without any possibility from engaging in similar shady practices . that the assembly will be dissolved . Second, the public seems upset by the rules of par - liamentary immunity, which shield parliamentarian s Parliament's image almost totally from prosecution for criminal wrongdo - Despite its efforts at openness, the Czech Parliament ing and allow them to break laws with impunity. has been suffering in public opinion polls. Parliament When CDP deputy Ladislav Blazek was stopped b y has not only opened its sessions to the public, as man- the traffic police and found to be inebriated, parliamen- dated by Art. 36 of the Constitution, but most parlia- tary immunity prevented him from being charge d mentary committees have opened their proceeding s with driving under the influence. He was not even test- to the public as well. The press, government official s ed for the alcohol level in his blood. While the framers from departments proposing legislation, and repre- of the Constitution justifiably sought to protect sentatives of citizens' initiatives regularly attend thes e deputies, the immunity provisions they drafted are proceedings. Nonetheless, Parliament's popularity indisputably overbroad . To preserve public respect fo r ratings hover consistently between 20 and 25 per - representative institutions, deputies must at least b e cent. The executive contributes to Parliament's bad made accountable for ordinary offenses . press by complaining regularly about the poor quali- Finally, Parliament suffers from problems of sym - ty of legislation and the many "gaps" in the laws. bolism. For instance, parliamentarians earn a salary Although some of Parliament's unpopularity may be more than two and a half times greater than that of the attributed to misinformation, there are concrete rea- average Czech. Even more galling has been Parliament' s sons, embedded in rules that govern deputy behavior, decision to move its offices to three former palaces in the which account for its poor public image . fashionable Lesser Quarter district of Prague . Though First, as mentioned, the rules governing incompat- the use of these premises for parliamentary purposes ibility and conflict of interest are defective . Article 22, was not unprecedented, it seems nevertheless to have which declares that "the office of deputy or senator i s confirmed public suspicions that legislators take bette r incompatible with the discharge of the office of th e care of themselves than of the country. president, the office of a judge, and with other offices , which shall be designated by an act of Parliament" i s Mibs Calda isAssistant Professor ofthe Department of -English and overly broad and imprecise. Furthermore, very few American Studies at the Charles University in Prague Mark Gilli s restrictions apply to the professional activities of legis - was formerly a clerkforthe Czech Constitutional Court

70 SPRING 1995

Parliamentary rules and legislative dominanc e

Slovakia Darina Malova

Recent events in Slovakia show how a strong majority. Attempts to regain a majority in Parliament Parliament can complicate cabinet formation and through institutional changes (including a redistribu- undermine executive power, particularly when polit- tion of mandates, and establishing either a chancellor ical parties are fragmented and undisciplined and th e democracy or a presidential regime) were already ini- political elite is unsettled and adversarial . The out- tiated at this time. The second period covers the rul e come can be a regime d'assemblée, modeled on the Third of the broad coalition government (five political par- or Fourth Republics in France. One consequence of ties) under the leadership of Josef Moravcik, which ineffective government has been further popular dis - enjoyed the support of the Hungarian political par - enchantment with the political process. The better ties in Parliament. This period demonstrated the educated, in particular, have tended to withdraw workability of a broad coalition government within a from political participation, leaving the field open to parliamentary framework on the basis of certai n less educated citizens from rural areas mobilized by nonparliamentary institutions and procedure s populist and nationalist politicians. An examination designed to impose party discipline, ensure a majori- both of the relationship between Parliament and the ty, and facilitate voting along party lines . The third executive and of the inner workings of Parliamen t period begins from 10 weeks after the early election s itself shows that many of the deficiencies of the politi- of 1994 and runs until the installation of the new gov - cal process can be traced to unproductive elite behav - ernment. This latest period has revealed the weak- ior, largely caused, in turn, by the inadequacy of con- ness of the incumbent government, which has led, in stitutional and parliamentary rules governing tha t turn, to the shift of some important powers (relate d process. The inadequacy of these rules reflects the con- to privatization) from the government to othe r flicting legacies of Slovakia's past, including its experi- bodies that can be controlled only by Parliament . ences with communism, the interwar parliamentary During the writing of the new Constitution , tradition, and hasty drafting of the Constitution after given Prime Minister Meciar's well-known politica l the 1992 elections. style, various observers speculated that the executiv e branch would simply overwhelm Parliament. Some Constitutional structure and relation s of the prime minister's constitutional powers, such between powers as the right to dismiss cabinet members, the right to To understand the dynamics of executive-legislativ e return laws to Parliament for further consideration , relations in the Slovak Republic, it is helpful to divid e the right to turn the vote on a bill into a vote of con- recent history into three distinct periods . The first fidence in the cabinet, and creation of the position o f period runs from January 1, 1993 (the establishment state secretary to be nominated and removed onl y of Slovakia) up through the vote of no-confidenc e by the cabinet (Chapter 6, Section 2 of the Slovak against Prime Minister Vladimir Meciar 's govern- Constitution), were interpreted as authoritarian pro - ment on March 11, 1994 . The style of Meciar's rul e visions aimed at strengthening the prime minister in during this period was marked by controversy and particular and the executive branch in general . an inability to maintain the support of his politica l Even brief perusal of the Slovak Constitution , partners, so that he gradually lost his parliamentary however, reveals that Parliament itself enjoys consid-

7 1 EAST EUROPEAN CONSTITUTIONAL REVIEW erable powers. These powers, some of which are enu- seemed able to maintain some coherence and to merated in Art. 86, include electing and recalling th e impose discipline on its parliamentary supporters . president (Art. 86.b), adopting constitutional law s Even without a no-confidence provision, th e (Art. 86.a), amending the Constitution (Art . 84.3) and Constitution seriously weakens the executive declaring war (Art. 86.k). These powers may be exer- branch simply because the rules for governmen t cised only upon a favorable vote of three-fifths of all formation are uncertain . The Constitution has been deputies (Art. 84.c). Article 86 lists other powers of interpreted as denying the prime minister autono- Parliament, including the power to propose referen- my in appointing and removing ministers. Both da, establish ministries and other institutions of stat e Parliament (Art. 86.g) and the president (Art. 116) administration, debate fundamental issues of domes - may refuse to endorse the prime minister's candi- tic, international, economic, social, and other policy , dates for ministerial positions. In addition , approve the budget, and consent to the sending o f Parliament may both dismiss ministers and prevent troops beyond the borders of the Slovak Republic . the prime minister from removing an insubordi- A review of the constitutional provisions govern - nate minister. The prime minister's only constitu- ing relations between the legislative and executive tional freedom in this area concerns the initial stage s branches also corroborates the supremacy of of the appointment process . He does not have to Parliament. The articles governing votes of no-confi- appoint a person he does not want as a minister . dence in government and ministers are a good exam - Even in this case, if his own party does not have a n ple, for they essentially make executive leadership by outright majority, the prime minister may come the prime minister impossible . These provisions (Art. under political pressure from a coalition partner t o 88, Art. 115, and Art. 116) facilitate votes of no-confi - make a ministerial appointment. dence, as illustrated in March 1994, when Meciar The absence of clear constitutional rules con- lost his legislative majority. The Constitution doe s cerning government formation and pre-electio n not provide for a constructive vote of no-confidence, coalition agreements have led to a peculiar state of and it is not clear that the dismissed government is to "bi-governmentalism" during the third period . remain in office as an incumbent government until a Meciar's coalition with the Slovak National Party new government is formed (Art .117). Still, Meciar' s (SNP) and the Association of the Workers i n government evacuated the office surprisingly quick- Slovakia (AWS) has gained a majority of 83 of the ly. Although an extreme destabilization of the execu- 150 seats in Parliament . To ensure that its policies tive was averted, because a new coalition govern- are carried out, the parliamentary majority has suc- ment was successfully formed soon after the vote , ceeded in transferring some important executive this episode drives home Parliament's latent capacity powers (mainly in the area of privatization) to insti- to sabotage the executive. tutions under its direct control . (See EECR, Slovakia The vote of no-confidence is also used frequently Update, Vol. 4, No. 1, Winter 1995 .) Parliament is against individual ministers . This same parliamen- able to do this by virtue of its power to create govern - tary power may also explain the vacancies in ment departments and administrative bodies . Meciar's cabinet . During the first period, eight minis - Although the government's consent is nominall y ters—there were 16 ministerial posts in all—eithe r required, practice shows that no such consent is effec - resigned, were dismissed or voted down by votes o f tively needed (Art . 86.f). Hence bi-governmentalism . no-confidence. The vote of no-confidence also bega n Parliament's influence over the executive is als o to be employed by the opposition parties (Movemen t manifested in the power of individual deputies . The for Democratic Slovakia [MDS] and Slovak National Constitution grants specific powers to deputies , Party [SNP]) in order to destabilize the new cabine t such as the right to interpellate (Art. 80.1) . after the formation of the coalition government i n Members of Parliament may submit oral or written March 1994 . This tactic did not enjoy its previous requests to a member of the government or any success only because the government coalition head of a state administrative office, including

72 SPRING 1995 senior civil servants, asking for an explanation o f Parliamentary rules administrative decisions. Under certain conditions, committees can wield powe r "MP inquiries" represent a deputy-centere d over the government. During the period of "divided " political practice that further reflects legislativ e power in 1994, for example, committees exercised self-aggrandizement. A minister may ask any even more influence than they do now in the third peri- deputy to investigate an issue (say, privatizatio n od. That parliamentary deputies are aware of thi s projects) and provide a report to the ministry . In potential is clear from the intensity of activity in th e practice, a deputy often initiates such an inquiry o n new parliamentary committees, especially compared the request of voters, organizations or associations , to the low level of activity in the chamber as a whole. or on his own. As a result of such involvement of Committees exercise substantial power under deputies in administrative matters, several deputie s the Constitution. Article 92 holds that the have been appointed to administrative posts, a s "National Council of the Slovak Republic establish- "experts," during both Meciar's and Moravcik' s es committees of deputies as bodies for proposin g prime ministerships . The only posts incompatible legislation and for oversight." The oversight func- with the post of deputy are president, judge, prose- tion refers in part to Art. 85, which provides that cutor, security service member, prison or judicia l "members of the governments .. .or heads of other guard or professional soldier (Art. 77.1) . bodies of state administration must participate in a The extent of the Slovak Parliament's control session of the National Council . . .or in a session of over the executive may seem extraordinary. A con- any of its bodies, at the request of the Nationa l sideration of recent history suggests an institutiona l Council . . .or of its bodies." This power to summon explanation. By introducing party control over th e any minister or senior civil servant obviousl y entire administrative apparatus, the Communist strengthens the monitoring role of the committees . Party in effect laid the foundation for such parlia- Although the Act on Legislative Procedure s mentary overreaching. The Party's advisory com- requires the establishment only of the Mandate mittees, its control through local organizations ove r and Immunity Committee, Parliament estab- the state administration, and the duplication o f lished many other committees, specializing i n departments within the Central Committee are al l important policy areas . On October 26, 1993, for practices now being replicated by the curren t example, Parliament established the Committee Parliament. Communist organizational practice , for Privatization in order to control the question - which is ironic given the common view of the com - able privatization schemes of Meciar's govern- munist state as a highly centralized system, subvert - ment. Unsurprisingly, the prime minister's MD S ed the centralization of the state administration and voted against the formation of this committee o n the executive branch . After the collapse of the com - the grounds that it would throttle the privatiza- munist regime, the party disappeared, but the sys- tion process. The 1994 parliamentary election s tem of advisory committees and legislative superior - showed, in fact, that committee structure can b e ity remained, transformed from a formal arrange- exploited to yield even more legislative powe r ment to political reality . over the government than was previousl y Legislative supremacy can also be explained fro m believed possible. (See EECR, Slovakia Update , a historical/cultural perspective. In the first Vol. 4, No. 1, Winter 1995 . ) Czechoslovak Republic, Parliament was the domi- Power over the committees can prove immensel y nant political institution. The idea of parliamentary important, therefore, and for internal parliamentary sovereignty was further strengthened by the rhetori c purposes, too. It has become clear, for example, that of the communist regime, which hailed Parliamen t control over the only standing committee which i s as the supreme representative body of the "people' s explicitly stipulated by the act on parliamentary rules , democracy." Hence, in a way, the ideology of legisla - the Mandate and Immunity Committee, can be cru- tive supremacy has always guided Slovak politics . cial. This was demonstrated recently when MDS ,

7 3 EAST EUROPEAN CONSTITUTIONAL REVIE W

SNP and AWS, using their seats on this committee , lish permanent or temporary commissions composed were able to challenge the mandates of Democrati c of deputies, independent experts, or representatives o f Union (DU) deputies in Parliament on the grounds various economic and political organizations . that the DU had failed to submit the number of sig- One type of ad-hoc commission is the investigat- natures required in order to be officially registered to ing commission, empowered to investigate matters participate in elections. They have demanded that the that appear to violate the public interest . DU seats be distributed according to the requirement s Investigating commissions are permitted to scruti- of the proportional representation system (see EECR, nize administrative bodies. Once an investigation i s Slovakia Update, Vol. 4, No. 2, Spring 1995) . completed, a report must be submitted to Parliamen t Given the actual and potential power of commit - along with commission recommendations. During tees, it is not surprising to see competition between par - the first and second periods, several investigativ e ties for committee positions. The Act on Legislative commissions were formed to investigate matters o f Procedures holds that, although parliamentary caucus- privatization and foreign trade. After the 1994 elec- es may nominate their members to serve on commit - tions, new investigative commissions were formed , tees, Parliament as a whole makes the final decision . including those charged with inquiring into the legal- This rule has resulted in the transfer of many opposi - ity of the DU mandates and the "parliamentary cri- tion deputies, who used to serve on important com- sis" of March 1994 . It is still too early to tell what th e mittees, to relatively unimportant committees or to impact of these investigative commissions will be. committees not reflecting their expertise . The Committee on Constitutional Law an d Representation, parties, and disciplin e Legislation, the only committee that reviews all pro- One basis for stable government is a stable and disci - posed legislation, is uniquely situated to influenc e plined parliamentary majority. The communist past, all bills before they go to the plenum . however, produced an understandable bias agains t The Act on Legislative Procedures also lay s rigid conceptions of discipline and even led to a gen- down the rules for committee consideration o f eral rejection of party discipline and its instruments . legislation. Once a bill is presented, the committe e By the same token, Czechoslovak history during the selects a reporter charged with preparing the com- interwar period illustrated the problems of political mittee report and presenting it to the plenary ses- fragmentation and extreme pluralism . 1n response to sion. Voting on complicated bills proceeds by sec- these opposing concerns, the first postcommunis t tion and paragraph, with members permitted t o electoral law introduced a proportional-representa- propose amendments at every stage. The fina l tion system that established a five percent threshold version of the bill is sent to the floor only if adopt- for a single party, a seven percent threshold for coali- ed by majority vote, meaning that a majority on a tions of two or three parties, and a ten percent thresh - committee effectively controls the content of leg- old for coalitions of four or more parties . islation introduced to Parliament. Individual While a system of proportional representation deputies may propose amendments during th e may well succeed in inhibiting extreme political floor debate, but this is hardly a very effectiv e fragmentation within the assembly, it does no t means of influencing legislation . ensure the cohesiveness of the parties themselves . In Paragraph 50 of the Act requires parliamentary Slovakia, Parliament has experienced an extreme committees to cooperate with administrative agencies deficit of discipline among party members . Lack of in the legislative process. Committees are given the party discipline among the ruling parties, for exam- authority to require any administrative agency to pro - ple, has even led deputies from these parties to vot e vide information, including reports by outside experts . against their own ministers in no-confidence votes . Further, committees may institute inquiries into th e Another way weak party discipline hurts the activities of administrative agencies and state-owned executive branch can be observed in the area of legis - enterprises. Committees also have the power to estab - lation. Bills proposed by MPs are reviewed by the gov-

7 4 SPRING 199 5 ernment and its Legislative Council . The Legislative the party line. In this attempt, political parties are usin g Council has the right to decide against recommend- the electoral law to their own advantage. Political par- ing passage of these bills originating from Parliament . ties play the major role in nominating candidates for With a well-developed and stable party system the elections to the legislature, as prospective candidates chances of such bills passing would be minimal . In must secure a place on a party list in order to run. Parties fluid and unstable systems such as Slovakia's, opposi- prepare lists of candidates and submit them to the elec - tion bills are enacted more easily, as even members of toral commission in each district. Although candidates the governing parties end up voting for them . need not be party members, the trend since 1990 ha s One cause of the lack of party discipline may clearly been toward a decline in nominations of "inde - perhaps be sought in political culture; but it is also pendent" candidates on the party slate. It is now unusu- important to notice how rules affect the behavior of al for parties to include such candidates on their lists. deputies. Constitutional provisions such as Art. 73 Parties rank candidates in order of preference. In voting provide the ultimate justification for lack of party for a party, a voter must either accept the party's to p discipline. In a clear break with the political past, choices, or specifically select four other names on the Art. 73 provides that deputies "carry out their man - 1 ballot. Unless the voters are specially intent on votin g date personally, according to their conscience and for a particular person, or unless a lower-listed candi- convictions and are not bound by any orders." Thi s date is well enough funded to conduct his own cam- uncompromising emphasis on the unencumbered paign, chances are that the party's highest ranked can- mandate no doubt reflects a desire to form a new didates will be elected. The crucial role of political par- democracy free from the rigid party discipline tha t ties in candidate nomination was confirmed in inter- characterized the discredited communist regime . A views with deputies elected in the 1992 election : over similar lesson was drawn from the Firs t four-fifths of those interviewed (and two-thirds of the Czechoslovak Republic, where political partie s legislature was) stated that they were either members dominated Parliament and government . In the first of a party or that a party had specifically requested republic, for example, in the run-up to elections, can- them to place their names on the ballot . didates had to sign a "commitment" letter in which Parties have also begun monitoring thei r they promised to vote according to the party line or deputies and overseeing their activities in risk losing their parliamentary seat. Parliament. Deputy performance in voting, general The Constitution furnishes further incentives fo r participation, work on committees, and activity o n deputies to act individually, including the power of the floor are regularly reviewed. This review i s interpellation. Not all such incentives have a constitu- designed to assess deputy performance so that th e tional status, however. The Act on Legislative party can decide whether or not to support th e Procedures, for example, provides deputies with a n deputy in the upcoming elections . In a pre-electora l opportunity to defy party leaders and break part y effort to secure cohesiveness, parties have also ranks. It allows deputies to defect freely, cross part y reportedly asked their candidates to sign letters o f lines, and form new parliamentary caucuses. The "commitment." Unlike the homonymous practice o f only significant requirement for the formation of a the interwar period, however, these "commitmen t parliamentary caucus is the existence of five willin g letters" have not been enforceable . Recently, MD S deputies. When there is no legal or parliamentar y leaders have tried to impose party discipline in way s sanction against such lack of discipline, it may be unre- they believe they can enforce, admitting that MD S alistic to expect party solidarity. In Slovakia, where deputies have made commitments to compensat e the rules endorse and even encourage such behavior, the party financially should they defect (see EECR , cabinet stability may be virtually impossible . Slovak Update, Vol . 4, No. 2, Spring 1995) . The parties, needless to say, have been trying to cir- Parties have also made an effort to build parlia- cumvent the rules in practice, first and foremost b y mentary institutions that will encourage party disci- their treatment of deputies who defect or fail to vote pline. A Politicke Gremium, or Political Consultativ e

7 5 EAST EUROPEAN CONSTITUTIONAL REVIE W

Body, has been established as a forum for leaders of effective conflict-of-interest legislation. No conflict-of- the parliamentary parties to discuss political prob- interest bill has yet been passed, however. lems and facilitate voting . Although the intention of Another example of corruption concerns the this institution is to control agenda setting and creat e salaries of deputies. Parliament has the power to fix parliamentary order, its effectiveness may be limited , deputy salaries. In 1993, the National Council voted to because its decisions are not binding on deputies . increase its members' salaries and benefits to a level There are even some preliminary signs that thes e five times the national average. In a situation of transi - efforts to impose party discipline are beginning to suc - tion, marked by a decline in the standard of living, this ceed. For example, party control over appointments t o was a very controversial decision, and became an issue , the executive branch seems to be growing. Voting on although a minor one, in the 1994 electoral campaign. committees, moreover, has increasingly became party- Deputy incompetence is another source of publi c line voting. Party members themselves seem to desire disillusionment. Floor debates demonstrate the modest greater discipline. 1n interviews, deputies tend to claim level of the deputies' professional and political skills . that the party's national leadership exercises decisive Whereas some important bills dealing with significant influence on party policy, and consequently, on posi- economic and social reforms have not elicited much tions taken by deputies in Parliament . debate and were quickly adopted, other bills, such a s The establishment of a broad coalition gov- those relating to symbols of the nation and ethnic issues , ernment in March 1994 led to the creation of a have been subject to strong disagreements and vituper- nonparliamentary institution which made it easi- ative exchanges. Disputatious behavior has contributed er for the executive to deal with the legislature . to the fall of public support for Parliament from 70 per- This Coalition Council was a mechanism fo r cent in 1990 to 30 percent in 1994 . mediating between the differing opinions of coali- Another example of professional incompetence tion parties on legislative proposals. It facilitate d is legislative drafting. Deputies, of course, have the support for governmental proposals in Parliamen t power to submit bills for consideration . In 1994, 27 and introduced an element of predictability int o percent of all bills proposed were submitted by the executive's relations with the assembly . members of Parliament. Because they do not have legislative staffs and legal support, however, the Other causes of disillusionmen t quality of this legislation has been distressingly low. Slack party discipline and the debilitation of th e After many complaints about this problem , executive by the legislature have led to a situation o f Parliament established an Office of the Nationa l parliamentary uncertainty and ineffectiveness. This Council, meant to provide deputies with the neces- confusion at the top, in turn, has caused high levels sary legislative staff. of popular disillusionment . A related problem is a palpable lack of interest But there are also other major reasons for wide- on the part of some parliamentarians in the work spread distrust of the political process. One is of Parliament. Complaints have been voiced abou t Parliament's obvious inability to put a damper on cor - deputies not showing up for parliamentary meet- ruption. Consider the example of MP inquiries. The ings. One might imagine that chronic absenteeis m substance of these inquiries reveal that a major functio n is due to outside interests or extraparliamentar y of this institution is to facilitate MP participation in pri - careers. Many deputies, however, report that their vatization projects. Debates in Parliament and scan- seat in the assembly is their only occupation . dalous stories in the mass media have chronicled sever - Perhaps an alternative explanation can be sought in al attempts by deputies to influence ministerial decisio n the significant turnover among representatives an d making about privatization projects . The questionable the concomitant lack of political experience . In the influence trafficking of deputies has even extended to 1992 and 1994 elections, 50 percent and 41 percent getting relatives involved in privatization . Nepotism in respectively of parliamentary seats were won b y the allocation of state assets shows the crying need for newcomers. In the 1994 elections, this high per-

7 6 SPRING 199 5 centage was partly a result of the tactics of the par - given parties such as the MDS a justification fo r ties which formed electoral coalitions to maximiz e proposing a presidential system (see EECR, Slovak election gains. The participation of new groups, Update, Vol. 4, No. 2, Spring 1995), instead of such as the AWS, which gained new seats, also developing and improving institutions compatible helps explain the massive turnover . Many of the with parliamentary democracy, such as party disci- new deputies rarely speak in the sessions, and the y pline. Some further conditions for retaining a par- seldom participate in the legislative process by, fo r liamentary system, and avoiding a flight into presi- example, submitting proposals for legislation . dentialism, might include an elite settlement , The Slovak Constitution and the Act on reflected in a new Act on Legislative Procedure or Legislative Procedures clearly favor Parliamen t in the formation of a Coalition Council, and th e over the executive, and have therefore had a deci- introduction of a constructive vote of no-confi- sive impact on the course of Slovak politics . At the dence. It seems inevitable that Slovakia will soo n same time, even under the current rules, stabilit y face momentous institutional choices once again . seems within reach, as is shown by the observabl e trend toward increasing party discipline . The polit- Darina Malova, Assistant Professor of Political Scienc e ical class, in any case, has often failed to abide by Comenius University, Bratislava, is currently Fellow at th e the rules in place and this procedural laxity has Netherlands Institute for Advanced Studies .

7 7 EAST EUROPEAN CONSTITUTIONAL REVIEW

Organizing legislative impotence

Romania Elena Stefoi-Sav a

Like many other East European legislatures , mate legitimacy might permit an excessive concen- Romanian's bicameral Parliament has been inef- tration of power. Thus, carbon-copy bicameralism fective, breeding popular disillusionment. The was introduced, ostensibly as a mechanism t o ineffectiveness of Parliament has also had a nega- check authoritarianism, with the two chamber s tive impact on relations with the executive, which checking and balancing each other . is in turn attempting to increase its influenc e The equal stature of the two chambers, further - within Parliament by enticing members of th e more, was originally thought to imply that deliber - opposition into its own party ranks. One danger ation in each .would be of equal value. This lack of of public alienation and executive leverage is the any hierarchy between the two houses, it wa s growing power of a single party. Part of the prob- argued, would lead to greater judiciousness and lem can be traced to constitutional provisions gov - avoidance of hasty lawmaking . Another argumen t erning Parliament and to internal procedura l in favor of undifferentiated bicameralism was tha t rules adopted by the legislature itself. two chambers enjoying popular legitimacy could more effectively counteract the danger of executiv e The problem of bicameralism aggrandizement than one . This concern surfaced Under Art. 59 .1 of the Constitution, both cham- when President Ion Iliescu publicly expressed hi s bers of Parliament are directly elected by the peo- preference for unicameralism during the debate s ple according to one and the same electoral law . over the future constitution. In addition, represen- This provision for a monochrome bicameralism , tatives of minority parties apparently believed that however, was not the original plan of th e carbon-copy bicameralism would diminish the dan- framers, who, preferring a differentiated bicam- ger of majority tyranny. Full equality of the two eralism, wanted to make the Chamber o f chambers was considered proof of the triumph of Deputies alone a directly elected body. The democratic principles . Senate, by contrast, was to represent the counties . Recent developments, however, have cas t One rationale for this distinction was that it spec- doubt over earlier assessments of the virtue o f ified which decision-making body would resolv e bicameralism in general, and of undifferentiated all conflicts between the powers . In the event of bicameralism in particular . Representatives of both disagreement between the two chambers, th e the governing majority and the opposition hav e Chamber of Deputies, because of its greater pop- expressed their dissatisfaction with the bicameral ular legitimacy, would have prevailed. In thi s system. For one thing, many now recognize that the way, legislative delay and deadlock would hav e simultaneous transition from communism to bot h been avoided . democracy and a free market economy requires the The final Constitution called for an undiffer- rapid drafting and adoption of massive amounts o f entiated bicameralism, however, conferring a n legislation. Bicameralism, however, slows dow n identical democratic legitimacy upon both cham- this all-important process and provides excessiv e bers. This unusual choice was partly motivated b y opportunities for dissension and obstructionism . the framers' fear that one institution's claim to ulti - The ostensible advantages of bicameralism, sup -

7 8 ` SPRING 1995

porters of unicameralism argue, can be replicate d between the chambers. As a result, the two cham- simply by having unicameral parliaments go bers often obstruct each other's work by producin g through several "readings" of proposed legislation . vastly different bills or resolutions that purport to The sole supporters of the current form of bicam- deal with the same problem . Bills passed by one eralism are ultranationalist and left-wing parties , chamber do not get priority consideration in th e which benefit from the endless delays that, to thei r other. Similarly, no precedence is given to bills th e delight, demonstrate the failure of both economi c government considers particularly urgent . reform and parliamentarism in general . The majority party, the Party of Social Democracy in Romani a The function of committees (PSDR), unable to implement its new political an d One way of making the legislative process mor e economic program, has been the premier victim of effective would be to give legislative committee s bicameralist procrastination and paralysis. Though some power over the drafting of legislation . Instead the governing party has powerful reasons to want to the rules governing committee activity and the polit- change the current bicameralist formula, alteratio n ical practice that has evolved around them have seems impossible. Any such radical change would helped make committees ineffective. Committee require reconsideration of the Constitution, and all activity now has a strong political flavor, is marke d parliamentary groups concur that this would be a by delay and inefficiency, is an impediment to the risky experiment under current conditions . Thus, the executive, and is a means for personal gain . parliamentary groups continue their futile discus- Art. 61.5 of the Constitution holds that "parlia- sions, while the two chambers obstinately seek to ren - mentary committees are formed in accord with der each other powerless. the political configuration of each chamber ." Thi s Admittedly, the Constitution provides tw o might suggest that a majority in Parliament wil l mechanisms for resolving tensions between th e also have a majority on every committee, in which chambers: the mediating mechanism and the pro - case one might expect at least some efficiency in vision for convening in joint session (both in Art . the legislative process . Other rules, however, 76). In the event of deadlock or inability to agree undermine this outcome . upon the context or wording of a bill, the chair - Although internal regulations of the chamber s men of the chambers may request the formation o f require deputy participation in committees (e .g. Art . a mediating commission, the composition o f 43 of the Senate Regulations), they also prohibi t which is governed by the internal regulations o f deputy or senatorial participation on more than tw o each chamber. The commission then submits it s committees. Depending on the number and impor - negotiated document to the two chambers fo r tance of committees and on the political process o f their approval . Both chambers must independent- appointment, the majority on some committees ma y ly approve the compromise bill . consist of members of the opposition . Two impor- If mediation fails, according to Art . 76.2, the tant examples of this phenomenon are the Senate' s matter is referred to a joint session . (Art. 62.h, in a committees on privatization and on employmen t sweeping clause, permits joint sessions to be held t o and social protection. One consequence has been "discharge other duties, in accord with th e substantial delay in the legislative process . Constitution or the bylaws .") But joint sessions The Senate Committee on Privatization is head - should be reserved for consideration of matters of ed by a member of the Party of Romanian National grave national emergency, and it therefore seem s Unity (PRNU), an ally of the ruling party. When awkward to resort to this mechanism to resolv e the executive submitted a draft of the privatization routine political crises . law, this committee simply suspended any consider - The awkward coexistence of the two chamber s ation of it, floating instead its own very different pro - is further demonstrated by the absence of any set ject. This new project was defeated in the plenum . procedures for handling legislation and coordination Despite this defeat, the committee succeeded in foil-

7 9 EAST EUROPEAN CONSTITUTIONAL REVIEW ing the executive by delaying any decision on priva- mittee with which the government works harmo- tization. The result is that economic restructuring, a niously, promptly answering requests and observ- goal shared by almost every political party, is for all ing "audience hours." The entire situation is para- practical purposes blocked . doxical: the opposition, which heads the commit- The high stakes involved in privatization fuel dis- tee, is right-wing in its ideology, but is forced by its putes over the process, as parliamentary groups tur n position on the committee and its competition wit h privatization legislation into a permanent electora l the government to support socialist policies . The campaign. Different parliamentary parties realize government, which is social democratic, is forced that their respective political capital very much by the IMF and the World Bank to initiate market- hinges on the success or failure of reform . This is one oriented reforms. Although the government an d reason why the economic and privatization commit- the committee are searching for a compromise, thi s tees have attracted so much attention. Debates o n example nicely illustrates the anomalies engen- these committees reflect the serious differences sepa - dered by the combination of committee formatio n rating the majority and its putative allies i n practices and political competition between the Parliament. The entire process also reveals the oppo- majority and the opposition . sition's inclination to vote against major reform s Even when the majority has complete contro l merely to block government initiatives . Current par- over a committee, effective committee performanc e liamentary rules give free rein to the political parties ' is not guaranteed. Lip service is paid to the impor- opportunism in this context . tance of consensus on the committees. On several A second example concerns the Committee fo r occasions, however, committees have presented two Employment and Social Protection, which is head- different and diverging reports on the same topic , ed by a member of the opposition Civic Allianc e because representatives of the majority and the oppo- Party (CAP). The majority initially wanted to let sition could not agree on a final version. These dis- the opposition run this committee, hoping that th e agreements have also paralyzed legislation . public would then hold the opposition responsibl e In cases where a committee does reach internal for increasing unemployment and declining stan- consensus, its work may be undermined when the dards of living. Subsequent events, however, have bill is brought to the floor. Unlike plenary sessions , revealed this to have been a miscalculation, sinc e the proceedings of permanent committees ar e the government has now been forced to coordinate closed to the public. This closed-door rule enable s its policies with those of the committee. When the committee members to deliberate in an uncon- government submitted unemployment legislation , strained and nonideological fashion, to develop a the committee tried to attach many amendments t o rapport with one another, and to work more effi- it. As a consequence, the entire effort failed . The ciently in reaching an agreement. As a result, on a cabinet then presented a second proposal whic h few bills, such as the foreign investment law an d incorporated some of the committee's ideas . The the war veterans' law, committees submitte d committee, however, opened itself to suggestion s reports favorable to the opposition's position . Th e from private citizens and associations. As a result, vote in the plenum, however, tends to be dominat- unions, organizations of war veterans, women' s ed by the majority, where party discipline is mor e groups, and pensioners' organizations have begun effectively enforced, so much so that even commit- communicating directly with the committee, there - tee members who had previously voted one way i n by circumventing the executive. committee, have changed their vote in the plenum . The increasing social tensions and nostalgia fo r Gains within committees, therefore, are often the communist social safety net has forced the gov- lost when bills are brought to the floor . Even ernment to become more accommodating to th e though house rules explicitly prohibit rediscus- committee's requests. In fact, because of the sensi- sion in the plenum of amendments approved or tivity of the situation, this is probably the only cam - rejected by committees, this rule is often ignored .

8 0 SPRING 1995

The result is that the plenum debates a greater ever, and in many ways have undermined the sep- number of amendments than do the committees . aration of powers and heightened tension s Rule infringement is also a feature of the com- between Parliament and the executive . mittees' relation to the executive. If the govern- Two examples will illustrate this pattern . One is ment has initiated a dialogue with a committee , the senatorial commission set up to investigate th e such as the Committee on Employment and Socia l crimes of December 1989, and the other is the par- Protection, it is probably because of political neces- liamentary investigative commission established to sity. In general, the executive is reluctant to cooper- inquire into official acts of corruption. The first of ate with committees . Even committees enjoying a these commissions, which has already had two dif- good relationship with the executive complain ferent chairmen and is currently headed by a mem - about limited access to official information, sinc e ber of the opposition, has failed to observe its repor t they cannot even ask individual ministries fo r deadlines. It blames its tardiness on the uncoopera- essential statistical data. Article 110.1 of the tiveness of institutions in the executive branch, suc h Constitution requires the government and othe r as the police, army, and national security service . organs of public administration to provide request - While some representatives from these institutions ed information to committees. In practice however, have responded to certain inquiries by the inves- the government ignores this provision, feeding tigative commission, they do not seem particularly committees insufficient or irrelevant information . eager to examine the past. In fact, the Intelligence When summoned by the committees—even in Service published a report on the events of 1989 instances where presence is mandatory because th e which tried to shift attention away from criminall y summons has been issued three days in advance— culpable individuals or groups. After the entry of members of the government tend not to show up , former Ceausescu supporters into Parliament, a dispatching officials of lower rank instead . clear tendency to "reinterpret" the events of 1989 Parliamentary committees have no legal means b y also emerged. Under these circumstances, the which to enforce a summons or to compel the exec- secrets sought by the commission are becomin g utive to cooperate. Understandably, the govern- increasingly elusive and, as time goes by, chances for ment prefers to confront legislators when the y discovering the truth diminish . meet in plenary session, where it enjoys majorit y The idea of commissions to investigate corrup- support. The government's readiness to bend and tion surfaced after the press reported several scan - break rules is thus partly a response to the proce- dals involving powerful deputies . The majority has dures governing committee formation, whic h been particularly nimble in using such commis- allow the opposition to control some of the com- sions as instruments with which to fight the oppo - mittees. Given governmental tactics, the commit - sition. The parliamentary minority has refused t o tees, although formally assigned a central role i n sign the commissions' final reports, accusing th e legislation, are almost wholly unproductive . majority of protecting criminals . Thus, reports by Parliament may also set up special commissions special commissions are just as likely to be held dedicated to a single task. Article 61.4 of th e hostage to intractable disagreements as report s Constitution stipulates that "each chamber . ..can set issued by permanent committees . up investigative commissions or other special com - The most glaring fault of these investigative com- missions." Parliament has recently made increas- missions, however, is that they are interfering sub - ing use of this power, primarily for politically sen- stantially with the prosecutorial power of the execu- sitive matters. Commissions have been formed t o tive. The activities of investigative commissions have investigate everything from scandals in suga r clearly exceeded the proper jurisdiction of Parliamen t importation to incidents relating to former Kin g itself. Ironically, even though Parliament is engaged i n Mihai's attempt to enter Romania . Attempts to use institutional self-aggrandizement, it is unable to take this power have had negative consequences, how - any concrete action to remedy the problems it investi-

8 1 EAST EUROPEAN CONSTITUTIONAL REVIEW gates. For instance, recent investigations into a corrup - press frequently criticizes parliamentarians for thei r tion scheme involving the allotment of apartment s dilettantism and vacuous rhetoric. and houses to deputies who already have residence s Particularly disturbing is the inadequacy o f resulted in no charges or indictments being filed. The conflict-of-interest legislation. While certain out- only result was acute political embarrassment and side careers may not involve conflicts of interest , further popular disillusionment with representativ e others, such as engagement in law and business , government. Parliament, of course, is institutionall y resoundingly raise such issues. One result of the ill-suited to take over the functions of prosecution an d absence of effective conflict-of-interest legislation adjudication. All efforts in this direction have failed, can be observed in the change in the personal for- and have resulted only in a popular perception of par - tunes of deputies . 1n addition to the generous liamentary weakness or complicity in corruption . salaries they receive for being parliamentarian s (many times higher than the national average) , Compatibility and conflict of interest many members, especially in the majority, have Although the Constitution states that deputies an d been able to benefit personally from privatizatio n senators may not exercise any "public position o f by becoming owners of land, factories, and other authority" (Art. 68.2), deputies are allowed to serve a s business enterprises . Equally disturbing is the ten- members of the government . In practice, this incom- dency of some deputies to engage in schemes tha t patibility provision means only that parliamentarian s border on the illegal for getting rich quickly . may not be magistrates, judges, or prosecutors. If a Given the immunity provisions of Art. 69 of the deputy or senator violates the incompatibility rule, h e Constitution, however, it is almost impossible to must resign ex officio from Parliament, after which a deter this shady behavior . Article 69 .1 states that a must choose which position he prefers . In spite of this deputy or senator cannot be detained, arrested , rule, a senator from the ruling party acted as chairman searched, or charged with a criminal offense with- of the State Property Fund for two years. His own out the consent of the chamber to which h e party finally demanded that he give up one of his posi- belongs. The only exception is set down in th e tions. After he refused, his mandate was suspended . second paragraph's provision for capital offenses . The compatibility between membership i n For institutional as well as political reasons , Parliament and service in the cabinet has prompted Parliament will lift a deputy's immunity only in some members of the opposition, such as Emi l the rarest of cases . Tocaci of CAP, to demand that incompatibility be declared between a parliamentary seat and servic e Party discipline and deputy independence in executive posts dealing with privatization and Article 66.2 states that "deputies and senators are a t economic restructuring. This proposal has fallen o n the service of the people in exercising their mandate . " deaf ears, however, as the majority coalition, whic h The same article declares that "any imperative man - seeks unbounded control over privatization, is quit e date is null." In the context of Romanian politics, thi s hostile to parliamentary incompatibilities . provision has been interpreted very broadly and has The compatibility issue also raises serious ques- therefore led to some instability in the composition o f tions about the private sphere, as sitting deputies ar e parties and parliamentary groups, since shifting fro m simultaneously able to pursue lucrative private careers . one club to another is not uncommon . Moreover, the Over 90 percent of parliamentary deputies have a sec - problem of defection poses important question s ond job, which absorbs time and energy presumably regarding membership and continuity in the work of needed for political activities. It is not surprising, there - committees . The problem of defection is exacerbate d fore, that television broadcasts from Parliament ofte n by parliamentary rules that do nothing to discourag e show virtually empty chambers. One consequence of defection from one's parliamentary group . close attention to outside pursuits is the relatively poor In fact, the majority party has been able t o preparation of deputies for their legislative work. The elicit many defections. Given the opportunitie s

82 SPRING 1995 of serving in the cabinet—a consequence of the Unable to attract majority deputies, each of th e compatibility rules—some opposition parliamen- minority parties preys on the other . tarians are willing to forget or deny their cam- Given Romania's one-party past and the lack of paign promises and simply enroll in the majority. development of its political parties, the majority's activ- Thus, even though the electoral law requires can- ities, encouraged by lax compatibility rules and the didates to specify their party allegiance for pur- absence of any mechanisms for enforcing party disci- poses of the ballot, once elected, deputies justify pline, may eventually prove dangerous. The majority's defection by pointing to Art . 66. The Nationa l control of the executive branch, because of its access to Liberal Party (NLP) attempted to solve this prob- resources and control over privatization, may also tur n lem by proposing an amendment to the electora l out to be crucial, not only for gradually disarming th e law such that any defection of a deputy would b e parliamentary opposition, but also for neutralizin g grounds for recall from the legislature. The Parliament itself. One symptom of such a trend might majority, benefiting from defections, successfully be an almost casual refusal of the executive branch t o blocked this amendment. The opposition has, on respond to constitutionally proper committee requests. other occasions, complained about the pressure which the majority puts on deputies to defect , Elena Stefoi-Sava is the editor-in-chief of Dilemma but to no avail. Finally, the opposition partie s Review, Bucharest and press correspondent for Radio have began to engage in the same practice . France International in Bucharest

83 EAST EUROPEAN CONSTITUTIONAL REVIE W

Nomenklatura parliamentarism for a quasi-stat e

Belarus Alexander Lukashu k

The current Supreme Soviet (Parliament) of tation but, in reality, only serves to sanction deci- Belarus is the most stubbornly enduring of all pre- sions by the executive." Indeed, the key word fo r sent-day East and Central European legislative understanding the legislative branch in postcom- bodies. While political turbulence has caused an y munist Belarus is "illusion . " number of shifts in parliamentary composition i n The illusory nature of Parliament is clearl y most of the new democracies in Eastern Europe , visible in the behavior of its members . According Belarus's Supreme Soviet remains virtually to a certain vice speaker, the major obstacle t o unchanged. Elected under strict communist con- adopting the new March 1994 Constitution wa s trol in February 1990, it survived the 1991 com- the inability to assemble a quorum, as severa l munist coup in Moscow, successfully averted a ref- meetings had to be canceled because a majority of erendum on early elections in 1992, broke it s deputies simply did not show up. Although pledge to relinquish its powers in early 1994, an d deputies were often caught red-handed voting fo r remains unfazed by the prospect of parliamentar y absentee colleagues, no one was ever punished elections scheduled for May 14 . Parliament's seem - and voting results have never been reviewed . In ing nonchalance masks an ongoing struggle by th e order to avoid a precedent for premature resigna- communist majority to maintain its political gri p tion of deputies from the Supreme Soviet, more - at any cost. Parliament's inability to follow a rou- over, the majority voted to preserve the powers o f tinized procedure, its flagrant violations of its ow n a deputy who adopted foreign citizenship and rules, and its shameless trail of broken promise s emigrated from Belarus—his own application t o has undermined the assembly's reputation as a resign notwithstanding. But, the Supreme democratic institution . The present Supreme Soviet's proclivity to self-preservation is perhap s Soviet may rightfully be called the major inspira- best epitomized by its latest ruling : its five-year tion of popular antiparliamentarism in Belarus . term will henceforth commence not on electio n For a surprisingly prescient description of th e day (as was envisioned in the old constitution) bu t current Parliament, one might refer to the 197 5 on the day it holds its opening session . This inter - edition of the Belarusian Soviet encyclopedi a pretation automatically prolongs the legislativ e which, under the heading "Parliament," states : term by three to five months, depending on th e "Parliament is progressively falling under the con - scheduling of new elections . trol of the government, which in fact exercises no t The soviet-era Parliament was strongly com- only executive but also legislative functions ; the mitted to preserving the regime and protectin g government possesses legislative initiative, wherea s the interests of the Communist ruling elite . The Parliament only approves new laws . Parliament' s postcommunist Parliament has kept this venera- power to supervise and call to account is neutral - ble tradition alive. The Supreme Soviet manage d ized by the government." "A deputy is regarded a s a painless transition for the ruling elite from com - the representative of a nation, not of a constituency , munism to postcommunism : power was convert- and is therefore independent of the voters ." ed into property. Deputies took great care to pro - "Parliament creates an illusion of popular represen - tect their personal interests: many obtained free

84 SPRING 199 5 apartments, bought cars and consumer goods at ment, the Belarusian Popular Front (BPF), was pro- reduced prices, and received food parcels in times nounced illegal before elections were held. Despit e of scarcity (1990-1991) . these and other obstructions, democratic candidate s Another source of antiparliamentarism is mass managed to land about 12 percent of the seats . But psychology. Under socialism, people became accus- the biased electoral laws were nevertheless effec- tomed to the notion that official rhetoric represented tive: 80 percent of the deputies in the Supreme nothing more than ritual . Decisions were made in Soviet represent the communist nomenklatura , secret somewhere else by somebody else . The classi- appointed by the Communist Party. The rest of th e cal parliamentary idea stipulates that a balance be seats were taken by independent candidates . struck between freedom and authority, anarchy and The second period—which began after the failed dictatorship. In Belarus, people have experienced nei- coup in August 1991 and lasted until the end of the ther freedom nor responsibility. They are still not same year—was a period of democratic revenge . free. The most salient features of today's Belarusian Chairman Mikalaj Dzemjantsej lost his positio n society are the public's limited social experience an d because he supported the communist coup . The new extremely low political consciousness . Far from hav- chairman of the Supreme Soviet, Stanisla u ing helped educate and inform its constituency, Shushkevich, together with Boris Yeltsin an d Parliament has only caused more disinterest . Leonid Kravchuk, signed the USSR's death sentence According to numerous polls, voters in Belarus nei- in Belavezhskaja Pushcha and ratified the CI S ther rely on nor respect the present Parliament as a n treaty. The legalization of the anticommunist oppo - institution. This—neither a militarized industry nor sition in 1990 had produced an explosive effect. an unreformed agriculture—is the principal legacy o f Democrats, of course, rejoiced and saw the futur e the totalitarian past. It was this legacy of antiparlia- through rose-tinted glasses. Though minuscule in mentarism that secured Alexander Lukashenka, a number, the opposition forced the bewildered flamboyant populist, his landslide victory in the first majority to ban the Communist Party, abolish com - presidential elections of July 1994 . munist state symbols, introduce historically nationa l symbols, and proclaim Belarusian sovereignty Afte r The four seasons of the Supreme Soviet the coup attempt, the communists renamed them- The Supreme Soviet has passed through four dis- selves, surviving as the "Belarus Group . " tinct political seasons. The first, from Februar y The third season was a slow but steady com- 1990 to August 1991, was characterized by the munist restoration lasting from the end of 1991 to Communist Party's total control. The majority July 1994 . Led by Premier Vyachaslau Kebich, th e occupied all key positions in Parliament and carried majority banned the referendum on early elec- out policies dictated by the Party. The previous tions, re-legalized the Communist Party, attempte d Supreme Soviet had adopted an electoral law at it s to backtrack on national independence and restor e last session in late 1989, which established a slightly the Soviet Union in some form. The democratic amended majoritarian system . The law stipulated speaker, Stanislau Shushkevich, lost his office to a that, out of a total of 360 deputies, 310 were to be former regional police chief, Myacheslau Hryb . elected by direct elections in constituencies . The The communists formed a single party group, a remaining 50 seats were reserved for the represen- united majority that was able effortlessly to restore tatives of four "public" organizations (veterans of its own power. The BPF organized a Democratic war and labor representatives received 29 seats ; Club and, depending on the issue, could count on invalids, the deaf and the blind received the remain- the votes of up to 70 deputies. But the democrati c ing 21). This quota system effectively reserved 5 0 euphoria of the previous season dissipated as soon seats for the Communist Party, since the Party as the real distribution of votes became clear. Still, maintained strict control over the organizations i n the very presence of an organized opposition ha s question. The only democratic opposition move - had a decisive effect on the Supreme Soviet's work .

85 EAST EUROPEAN CONSTITUTIONAL REVIEW

A totalitarian government can function effectively tion, voting becomes grotesque. Nowhere was thi s only under conditions of total secrecy; publicity is more apparent than when the presidency wa s fatal. And even though the opposition has no vote , debated in 1993. Asked to set general guidelines fo r it does have a voice . It is only because of this benign the Constitutional Commission, 147 deputies vote d publicity effect that one may occasionally use the in favor of a strong president/head of administra- word "parliament" when speaking about th e tion, 101 votes were cast for a weak president, and Belarusian legislative body. 130 votes were cast against the very introduction o f The adoption of the new Constitution in March this office. At the time, there were 288 deputie s 1994 and the election of the first president in Jul y present, which means that up to 90 befuddled 1994 marked the beginning of the most recent phas e deputies voted for two, or perhaps even three , in the career of the present Supreme Soviet. This last incompatible concepts simultaneously. period is characterized by the stupefaction of th e It is hardly surprising, then, that many legisla- majority, whose candidate for president, Kebich, lost tive acts are amendments, changes, and correc- to Lukashenka. Quasipolitical organizations spon- tions of Parliament's own hastily drafted and ill - sored by the former government also collapsed . In considered decisions . The new laws, in any case , September, for the first time in four years, members are very often nothing more than phantasms. Not of the majority gathered for a final session of th e only do they not work, they were never meant t o Supreme Soviet only to discover that no one intend - work. For example, a law on bankruptcy wa s ed to instruct them about what to do . With the help solemnly adopted, but it has never been applie d of the Constitutional Court, Parliament suddenly because there is no such animal as a bankrup t turned its attention to rescuing the Constitution enterprise in a still state-owned economy. from the clutches of an authoritarian president. Admittedly, a few counter examples can b e cited. Some laws underwent careful scrutiny b y Legislation international experts and are genuinely well writ - After the Soviet Union broke up and Belarus pro - ten. But, if a law does not work, it is a sham no mat- claimed its independence, the new republic was i n ter how sincere or professional were its origina l need of its own legislation, at least theoretically. In authors. The law on Chernobyl (Belarus absorbe d practice, however, the country's reform-averse lead - 70 percent of the radioactive pollution from th e ership did not want new legislation any more than it 1986 accident) was widely discussed and unani- wanted a new financial system or guarded frontiers . mously supported by the deputies, but it does no t (Belarus still lacks both of these and must continue to work because the state budget lacks funds to put i t be satisfied with a quasi-currency and quasi-borders) . into effect. The law regulating exit from the coun- From May 1990 to September 1994, the assem- try cannot be implemented because there are no bly adopted 1371 legislative acts, including the new new passports. Something similar can be said abou t Constitution. The previous Supreme Soviet, con- many provisions in the new Constitution itself . versely, had adopted only 168 laws and decrees in Many citizens of Belarus, including th e the course of five years. However, this fantastic surge deputies, look askance at Parliament . They do no t in productivity does not reflect a rise in technica l take seriously the laws it adopts. Indeed, very few competence or efficiency. As Shushkevich put it : people consider Parliament's laws to be binding . "Very often, I was struck by the impression that a majority of the deputies simply did not understan d Rulers of the Supreme Sovie t what was being discussed. The majority either fol- It is remarkable how a 300-member assembly, meet - lowed the recommendations of the government or ing in biannual sessions, can manage so thoroughl y some other speaker respected by them." to ignore its constituency. Moreover, Parliament' s When the opinions of communist leaders diffe r ability to act as a representative body is further erod- and they can not offer a single clear recommenda- ed by the wide range of powers granted to th e

8 6 SPRING 1995 assembly's leaders . For four of the five years of its sessions, the Presidium was vastly more impor- term, the current Parliament was bound by the old tant than the marginalized Supreme Soviet . communist Constitution of 1978 . In line with that Speakers were even more important than the document, Parliament was not even a professiona l Presidium. The KGB reported directly to the body, since a majority of deputies continued to speaker. He could solve many political as well a s work in their Communist Party offices or serve i n technical problems on his own . The influence of the army or the KGB. Only the chairman and hi s the three successive chairmen of the presen t deputies, and the heads of standing committees and Parliament varied depending on their relation - their deputies and secretaries (about 20 percent o f ship to the majority, but even the most profes- the members) worked in the Supreme Soviet on a sional chairman, Stanislau Shushkevich, wa s regular basis. As a result, some deputies turned out to known to abuse his powers and bend or bypas s be more equal than others, having a greater numbe r parliamentary procedures . of legal rights than their colleagues . The real powers of the official rulers of the The most privileged deputies remain th e Supreme Soviet depended on changing politica l members of the Presidium . In soviet political his- circumstances and personalities more than on for- tory, this organ was imbued with a very special , mal rules. In general, since 1991, the authority of almost mystical, significance . Being elected to the the speaker and the Presidium has been fadin g Presidium of an ordinary Communist Party meet- with every passing year. The powers of the speak- ing provided a major boost to any career ; failure er and the Presidium were limited by the demo- to get elected might well be the harbinger of th e cratic opposition and by the assembly's sessions , end of a career or even death. The Presidium of which began to drag on for months . Deputies used the Supreme Soviet was a traditional soviet-styl e their right of access to Presidium meetings and , body. It consisted of a chairman, vice chairmen even though they had no decisive voice in th e and heads of parliamentary committees . making of the Presidium's edicts, the threat of According to the 1978 Constitution, th e publicity and further discussions in plenary leg- Presidium was a permanently functioning bod y islative sessions did influence decision making . with a wide range of legislative, judicial, execu- There also exists an intermediate body tive and administrative powers. Among its many between the deputies and the Presidium, the powers, the Presidium had the right to call parlia- Consultative Council, designed to play the role o f mentary and local elections, supervise compliance a sort of inner auxiliary parliament. This body was with the Constitution, change internal bound- to be composed of deputies who worked i n aries and divide territories into districts and Parliament on a permanent basis and it was to con - provinces, annul decrees and resolutions of th e vene twice a week, between sessions, to discuss Council of Ministers, bestow pardons, gran t draft bills submitted by the standing committees , Belarusian citizenship, and ratify or renounc e and either to recommend their passage or not. international treaties . The Presidium was empow- This institution did no particular harm and ulti- ered to exercise all of these functions on a perma - mately died of natural causes . nent basis. No approval by the deputies wa s required. Moreover, between sessions, the The Provisional House Rule s Presidium could, with subsequent ratification a t The majority's self-understanding is actually quite the next session, amend legislation, confirm inter - simple. Inasmuch as they are the highest legislative nal boundary changes and form new territorie s authority in the republic, all their decisions ar e and provinces, establish and abolish ministrie s legal. One reason the parliamentary majority has and state committees, and appoint or dismis s been a relatively successful player in the politica l members of the Council of Ministers . With such game is that it changes the rules of the game when- massive powers and only biannual parliamentary ever it wants. The Provisional House Rules were

8 7 EAST EUROPEAN CONSTITUTIONAL REVIE W adopted at the first session of the Parliament on Advancement of Women's Affairs, Famil y May 31, 1991 . In September 1991, the charter was Protection, Maternity and Child Developmen t amended as often as twice a week and, during the was chaired by a man. Noncommunist candidate s first two years, it underwent a total of seven received only five chairmanships . changes. It is no wonder that many deputies regard Committees are assigned two functions : draft- parliamentary procedure as a negligible constraint . ing laws and monitoring the government in their No law regulates the work of the Belarusia n area. Since kolkhoz managers and party secretaries Parliament. According to the agenda of the last sorely lack familiarity with the legal terms an d session, such a law was to be discussed . No draft norms necessary for drafting legislation, 80 percent for such a law was prepared, however, making i t of draft bills are initiated and prepared by the gov- difficult to follow the procedures established i n ernment rather than by parliamentary committees . the Provisional House Rules for the consideratio n In most cases, standing committees copy and pre - of a draft bill. sent drafts without amendments . For this reason , Although often ignored, the existing Provisiona l not much can be said about the controlling func- House Rules do in fact lay down the procedure for tions of the standing committees . About 70 percent adopting laws . A draft bill is to be referred for con- of parliamentary deputies also work in the execu- sideration to the Presidium, along with a descriptio n tive branch and are subordinated to the very minis- of its basic purpose. The bill's place in the legal sys- ters and other bureaucrats whom they are supposed tem should be specified and social, economic and to oversee. Some heads of committees and their other possible benefits of implementation should b e deputies have left their jobs in Parliament and explained. 1n certain instances, the Provisiona l assumed positions as deputy ministers or govern- House Rules also require financial estimates to ment advisors. The head of the Planning and accompany the drafts. 1f the Presidium accepts a Budgetary Finance Committee, Rastislau draft for consideration, it refers it to the responsibl e Unuchka, founded a private bank and became it s standing committee and to the committee on legisla - chairman. Parliament, however, voted to keep hi m tion. Standing committees, in turn, form preparato- in office. For about a year, this multifaceted deputy ry committees which consider drafts independentl y supervised the state budget and controlled the or with help from experts. Alternative drafts and pri - National Bank and the Ministry of Finance whil e vate-member amendments are considered at the simultaneously managing his own bank . same time. Committees are free to seek the exper- Ad-hoc committees tried to play watchdog to tise of any person, body or institution. the government, but with little success . Very often, In Spring 1990, deputies formed 21 standin g deputies who also sat on investigative committee s committees and a number of ad-hoc ones . Each (these deputies were invariably democratically- deputy may work in his or her choice of any tw o inclined) were deprived of information and acces s standing committees. (Former parliamentar y to executive meetings, and were unable to publi- member Alexander Lukashenka was an exception : cize their findings. But the work of three ad-hoc he joined no committee.) Candidates for commit- committees in particular did attract a great deal o f tee chairmanships were chosen by the Communis t publicity. The first of these, elected at the opening Party, most of the chairmen being former party sec - session, dealt with illegal privileges for the nomen - retaries. The Committee on Rehabilitation of klatura. Parliament was briefed on the committee' s Victims of Political Repression was chaired by a report but decided to take no action. The second police general who started his professional career at ad-hoc committee investigated activities o f the KGB in Stalin's times and had commanded the Belarusian officials during the attempted commu- dispersion of demonstrators at the graves of victim s nist coup in August 1991. Its report was also burie d of repression only a few months before . No women by the communist majority. But a third, the so- deputies were nominated. Even the Committee on called "anti-corruption" committee, was effective i n

88 SPRING 199 5 two major ways. First, the majority used the com- professional or technical point of view, Parliament mittee's report to oust the democratically-oriente d is much weaker than the government. Deputies speaker, Stanislau Shushkevich ; secondly, the com- have no analytical and research services of thei r mittee chairman, Alexander Lukashenka, gained own and, in many cases, have to be satisfied with wide-spread popularity and later defeate d what the government is willing to let them know. Vyachaslau Kebich in the presidential race. (The second outcome, of course, was less welcome to th e The Supreme Soviet in transition majority than the first . ) The new Constitution adopted in March 1994, A preparatory committee reports the result s describes the new role and powers of the Supreme of its discussion to a standing committee. The lat- Soviet. (The majority rejected the proposed histori c ter considers the draft again in the presence of it s names "Soim" or "Rada" for the legislature, preserv- author. If the author agrees with the changes and ing the name "Supreme Soviet," which was intro- amendments proposed by the standing commit- duced by the communists in Russia at the beginning tee, they are included in the draft; if not, such of the century. The majority did this despite the lin- amendments are considered separately by a ple- guistic anomaly: "soviet" is a Russian import. The nary session of Parliament. The same procedure Belarusian word for "council" is "rada.") is used to settle conflicts between differen t Parliament has now been declared the highes t standing committees . representative and sole legislative organ of stat e In order to place a draft bill on the agenda , power in Belarus. The new Constitution stipulates standing committees must submit it to th e that a deputy shall exercise his or her authority in Presidium or to the Consultative Council at leas t Parliament on a professional basis or, as he or she one month before the session . The final decision desires, without taking leave from other industrial , on whether to place the draft on the agenda i s financial or administrative activities. Only MPs taken during the session . This decision is very working in Parliament full time are paid b y often politically motivated. For example, the Parliament. Since its last session (which started in Committee on Mass Media proposed its draft o n September 1994), Parliament has been working on the media four times and, each time, the majority a permanent basis. Some deputies have alread y refused to consider it. Today, Belarus is the only moved onto the parliamentary payroll . former soviet republic in which the old USSR law After the May elections, the new Parliament on the press is still in effect . will consist of 260 deputies (100 fewer than at pre - The Provisional House Rules lay down a spe- sent). The Constitution provides that any citizen of cial procedure for considering the state budget an d Belarus who is eligible to vote and who has attained basic economic and social programs. The Council the age of 21 may be a deputy. (The age limit for for- of Ministers must submit drafts of all such bills two mer Supreme Soviet deputies was 18, identical t o months prior to the session . The standing commit- the age of suffrage.) The new rules on "incompati - tees then consider them and submit their conclu- bility" mean that ministers and judges are now dis- sions to the Committee on Economic Reform, th e qualified from serving as deputies, as is any perso n Committee on Economic Self-Government, and appointed to office by the president . the Committee on the Sovereignty of the Republic . The term of office for both Parliament and the Conclusions are submitted to the Committee o n president has been set at five years . (In the view of Planning and Budgetary Finance one mont h some observers, this term is too long for the tur- before the session. Deputies are supposed to bulent transition period, guaranteeing that the receive all such documents ten days before the ses - assembly will drift out of touch with the elec- sion. These deadlines, however, were missed mor e torate.) The new Parliament can be dissolved nei- often than not. As a rule, moreover, deputie s ther by presidential decree nor by a popular refer- received one-sided information . From a strictly endum. It can only commit suicide, that is dissolv e

89 EAST EUROPEAN CONSTITUTIONAL REVIE W itself by the agreement of no less than two-third s Constitutional Court and the executive, even i f of the elected deputies . the article of the Constitution describing th e Although deputies theoretically supported th e rights of the assembly ends with the following new division of power, they parted with their previ- vague sentence: "The Supreme Soviet ma y ous rights rather grudgingly. In comparison to the decide other questions in accord with th e old Constitution, the new charter significantly limit s Constitution . " the powers of the chairman and the Presidium . The Strictly speaking, the future has arrived (th e chairman chairs sessions, supervises the preparation Constitution has been in effect since Marc h of questions to be considered, and directs the work o f 1994). Belarusian legislators, however, prefe r the parliamentary bureaucracy. The Presidium , loose rather than strict schedules . The Supreme composed of a chairman, two vice-chairmen and Soviet still uses the Provisional House Rules as a other deputies, sets the agenda of parliamentary ses - guidebook. According to the Constitution, ne w sions. Without specifying the number or character procedures shall be determined by standin g of standing committees, the Constitution stipulate s orders of the Supreme Soviet and by other legisla - that Parliament is to elect the standing committee s tive instruments, The new assembly to be elected and other bodies for legislative drafting, preliminary in May will have to determine if Belarus is t o consideration, and preparation of questions within accept or reject its future . parliamentary jurisdiction, and to supervise th e implementation of laws . Alexander Lukashuk is a member of the Commission of the It is obvious that Parliament has usurped Supreme Soviet of Belarus on the Rights of Victims of some of the powers formally assigned to the Political Repression . He is a free-lance writer based in Mins k

90 .

SPRING 1995

From The Center

Workshop in St. Petersburg The Ford Foundation supported a seminar on the future of the procedures for amending a constitution, and a common consti- Russian Constitution, organized by the Moscow branch of th e tution for Europe. A general question that emerged during th e Center and held in St. Petersburg on March 23-24 . Participants conference concerned whether there was one form of Europea n in the workshop, besides a diverse group of lawyers, judges, constitutionalism developing on the continent or whether differ- procurators, professors, and politicians from the St . Petersburg ent countries have distinct and unique conceptions of constitu- area included Gadis Gadzhiev, Stephen Holmes, Andre i tionalism. One of the liveliest debates took place between Rober t Kortunov, Marie Mendras, and Inga Mikailovskaya . Badinter, president of the French Constitutional Court, and Moscow Roundtable Joseph Weiler, professor of law, Harvard University, over their The Legal Program of the Moscow Center, the Open Societ y conflicting notions of French and American constitutionalism. Institute, and the MacArthur Foundation supported a The Center sponsored the participation in the conference o f roundtable on the Russian Electoral Law. At the meetin g Leszek Garlicki, Gabor Halmai, Ewa Letowska, Wikto r held on January 28, 1995, two problems were discussed : the Osiatynski, and Dwight Semler . problem of legislative regulation of elections and the system Parliament Articles of electoral laws for federal offices. The meeting included The articles on parliamentary rules featured in this issue wer e Michail Arutuinov, Vladimir Chetvernin, Gadis Gadzhiev , originally written for a conference on the organization an d Oleg Kayunov, Leonid Kirichenko, Michail Krasnov , functions of parliaments in Central and Eastern Europe, held Anatoly Kovler, Vladimir Lisenko, A. Lyubimov, Leoni d in Chicago on December 1-3, 1994. The conference was sup- Mamut, Inga Mikhailovskaya, Vladimir Nikitin, Alexey ported by the Soros Foundation and the University o f Postnikov, Victor Sheynis, Alexey Sobyanin, Yuri y Chicago Law School . Vedeneyev, Vladimir Vinogradov and Boris Zolotukhin . Russian-Language Revie w Budapest Conferenc e The East European Constitutional Review is published in The Center will sponsor a conference in Budapest to be held o n Russian as Konstitutsionnoe Pravo: Vostochnoevropieskoe Obozrenie . June 18-19, 1995, on the cost of rights. The conference is meant Copies can be obtained from its editor, Olga Sidorovich, at th e to launch a three-year comparative research project, sponsored Russian Science Foundation, 8/7 B. Zlatoustinsky Lane (for- by the National Council for Soviet and East European Research , merly Bolshoy Komsomolsky per .) 103982 Moscow, Russia ; organized by the Center and directed by Stephen Holmes an d facsimile: 7095-206-8774; (e-mail: olga@glas .apc.org) . Andras Sajo, on the way drastic budget constraints and general Acknowledgment of Support impecuniousness, on the one hand, and administrative incompe - The Center for the Study of Constitutionalism in Eastern tence, disorganization and corruption, on the other hand, presen t Europe at the University of Chicago Law School acts in part- massive though not necessarily insurmountable obstacles to th e nership with the Central European University, which provides institutionalization of basic rights in postcommunist societies . facilities, resources and funding for the Center's network of cor - Judge Richard Posner will be the keynote speaker . respondents and affiliates in Eastern Europe . The Center is Conference in Dorigny/Lausanne, Switzerlan d grateful to the CEU and to its founder, Mr . George Soros, for On April 10-12, 1995, in conjunction with the Center, th e cooperation and support . Swiss Institute of Comparative Law (Director, Professor Pierr e The Center is sponsored and generously supported by th e Widmer) and the Forum Europe (of the University of University of Chicago Law School . The Center is grateful for the Lausanne, represented by Professor Roland Bieber) sponsored generous support of the John D. and Catherine T. MacArthur a European colloquium titled, L'espace constitutionnel Européen . Foundation, the Open Society Institute, the Ford Foundation, th e The colloquium was held in French, German, and English. National Council for Soviet and East European Research, th e Topics discussed included: the necessary functions of a consti- National Science Foundation, and the National Endowment fo r tution, the elements of a constitution, constitutional guarantees, the Humanities "Constitution of Democracy" grant .

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