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East European Constitutional Review: Winter 1995

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TITLE: EAST EUROPEAN CONSTITUTIONAL REVIE W WINTER 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 VI/I PROGRA M 1755 Massachusetts Avenue, N .W . Washington, D .C . 20036 NCSEER NOT E The quarterly journal EastEuropean 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 (2021387-0168 . PROJECT INFORMATION : ' CONTRACTOR :University of Chicag o PRINCIPAL INVESTIGATOR :Stephen Holme s COUNCIL CONTRACT NUMBER :808-05 DATE:February 1, 199 5 COPYRIGHT INFORMATIO N Individual researchers retain the copyright on work products derived from research funded b y Council Contract. The Council and the U.S. Government have the right to duplicate written reports and other materials submitted under Council Contract and to distribute such copies within th e Council and U .S. Government for their own use, and to draw upon such reports and materials fo r their own studies; but the Council and U.S. Government do not have the right to distribute, o r 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 lending to this report was supported in part by contract funds provided by the National Council for Soviet and East European Research, made available by the U. S. Department of State under Title VIII (tir e Soviet-Eastern European Research and Trairning Act of 1983) . 77re analysis and interpretations contained in th e report are those of the author. East Europea n Constitutiona l Review Volwna.4; Numherll Vlfmter_ 1995 DEPARTMENTS 2 Constitution Watch Country-by-country updates on constitutional politics in Eastern Europe and the ex-USSR . 36 Special Reports Jon Elster on the velvet divorce ; Interview with Bronislaw Geremek ; Vadim Sobakin and Bori s Strashun respond to Sergy Pashin; Venelin I. Ganev on the minority parties in Bulgaria ; and Edwar d Walker on Russian federalism . 81 Constitutional Review Shlomo Avineri on J .F. Brown's Hopes and Shadows. 87 From the Center Conferences in Chicago, Ekaterinburg and Moscow, Russian language Review an d acknowledgment of support. 88 To the Center Skopje or Macedonia ? FEATURE RIGHTS AFTER COMMUNIS M 61 Introduction Cass R. Sunstein 63 The Ombudsman and Basic Rights Ewa Letowsk a The first ombudswoman in Poland explains how constitutiona l rights have started to shape the political landscape. 66 Women ' s Rights in Eastern Europ e Kim Lane Scheppele A pyrrhic victory for women ' s equality in Eastern Europe. 70 Constitutional Rights in Russian Public Opinio n Riga Mikhailovskaia How well do Russians understand their rights ? 77 Trial by Jury and the Rights of the Accused in Russi a Stephen Thaman Presumption of innocence and the privilege against self-incrimination . East European Constitutional Review, Vol . 4, No. 1, Winter 1995 . ISSN 1075-8402 . Published quarterly by the Center for the Study o f 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 Osiatvnski, Can 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 REVIE W Country-by-country updates on constitutional politics in Eastern Europ e Constitution Watc h During the final months of 1994, Berisha declared that the Commission's draft had to be Albania Albanians attempted to approve a approved by a constituent assembly, composed of an equa l draft constitution and organize a number of MPs and members of District Councils . referendum for its ratification . All opposition parties, including the parties that had onc e In September, the Constitutional Commission met to been in coalition with the DP, called the president's proposal a change the composition of its working group, naming to it s violation of the currently valid "Constitutional Laws of th e ranks the prime minister, the minister of justice, the chairma n Republic of Albania ." Members of the opposition and jurist s of the Constitutional Court, the legal advisor to the president , concurred that the president's procedure for adopting th e one MP from the opposition Socialist Party, and one expert. draft could be set in motion only if Parliament, by a two-thirds Except for the latter, these members were taking part in the vote of all deputies, first relinquished its right to approve the working group for the first time . The opposition stated that constitution and then transferred the right to a constituen t the disproportionate representation of the governin g assembly. Furthermore, the opposition stated that a con- Democratic Party (DP) violated the established rule that the stituent assembly must be directly elected by the people . The y working group would consist only of specialists . The token S P claimed that the inclusion of District Council members in th e representative stopped attending the working group's meet - assembly contravened international practice . In addition, they ings after the first few sessions. stated that the views of Council members no longer reflec t The primary task of the new working group was t o those of the electorate, given the political changes that hav e resolve disagreements that had arisen in the Constitutiona l occurred since the July 1992 elections. This was considered Commission over the status and competence of th e equally true of Parliament, which was elected in March 1992 Constitutional Court, the making of constitutional amend- and cannot speak for the new groups and political interest s ments, and the manner of approving the new constitution. that have arisen during the past three years . Relying principally on existing laws, the working group Facing mounting opposition, Berisha offered a secon d worked quickly to draw up a new draft constitution . The procedure for adopting the constitution : direct voting by th e working group presented its draft to the Constitutiona l people through referendum . He called this the "most democ - Commission, which, on September 29, voted to approve it, ratic" way of adopting the constitution . According to Art. 28 . 3 without making any changes . of the constitutional law, the president may propose referen- The draft was criticized because, among other things, i t da, but the decision to hold one is reserved for Parliament. did not assure a genuine separation of powers . It gave broa d Relying on the argument that Parliament had not relin- powers to the president, but did not establish an independen t quished its right to approve the Constitution, the oppositio n and strong judiciary . The president's influence on the newly reiterated that the president's by-passing of Parliament violat- formed working group of the Constitutional Commission a s ed existing constitutional law. well as on the High Council of Justice (of which the presiden t Despite criticism from the opposition, the president wa s is chairman) was clearly reflected in the draft. determined to hold a referendum on the draft, and proposed a According to Art. 16.2 of the "Constitutional Laws of the new draft "Law on Referenda" to Parliament . The oppositio n Republic of Albania," Parliament may adopt a new constitu - argued that Art. 5 of the draft law (which states that only th e tion only with an absolute two-thirds majority voting in favor . president has the right to propose referenda) was unconstitu - Given that the president's ruling DP does not control the vote s tional because the tight must be shared : "the legislative initia - required to adopt the draft, it was unlikely that Parliament tive belongs to the president, the Council of Ministers, an d would adopt a constitution conferring so much power on th e every deputy" (Art. 23 of the "Constitutional Laws of th e president. During a press conference, therefore, President Sall Republic of Albania"). The president's proposed law would 2 WINTER 199 5 strip the legislative initiative away from all but the president . activities. Among other things, he indicated that the figh t Nevertheless, Art . 5 of the draft law was approved by a major- against corruption would be one of the principal areas to ity vote, which prompted the opposition to pick up and leav e which the DP and the government would now direct their the session, alleging that the DP majority had in effect amend - attention . ed the constitutional law through ordinary legislation . Th e Several newspapers have suggested that, by focusing on a remaining 37 articles of the draft law were approved o n fight against corruption, the president is looking to settle ol d October 6. The voting, however, had been conducted in th e scores with his opponents . Recently, the president has sought absence of a quorum, as the opposition had walked out on th e to attack the former minister of finance, Gene Ruli, and the vote. Berisha nevertheless promulgated the "Law o n former minister for problems of local government, Rexhe p Referenda" the following day and the law was published i n Uka (both DP deputies), for allegedly taking part in a corrup- the Official Journal.
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