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2 Constitutions and Constitution-Building: A Comparative Perspective
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Robert Elgie
Jan Zielonka
Constitution-building is often seen as ‘the hour of lawyers’. Yet the chapters of this book
describing the political bargaining and deal-making of the constitution-building process
suggest that it is also the hour of politicians.1 Constitution-building is a pre-eminently political
act.2 It is perhaps the quintessential political act, by which countries make choices concerning
the most fundamental concepts in political life: power and authority; representation and
legitimacy; liberty and equality. As such, constitution-building is also an essentially
conflictual process. It crystallizes contending political forces, and is often marked by intense
political bargaining and log-rolling. Constitution-building is also a regime-defining process.
The short-term significance of the process is the demarcation of the present from the past and
the promise of a better future. Its medium- and long-term significance is equally considerable,
since it defines the formal rules of the political game and acts as a power-map3 to be used for
navigating through future political struggles. The chapters to follow confirm the thesis that
constitution-building represents the essence of politics.4
end p.25
This chapter examines the nature of constitutions and the constitution-building process by
focusing on some of the most important choices that constitution builders face. It is divided
into four main sections. The first section explores the complex relationship between
democracy and constitutionalism. The second section identifies two major constitutional
types, and considers whether or not constitution builders should adopt a codified constitution.
The third section addresses the timetable for constitution-building and the execution of
political power, including the limits imposed on democratically elected parliaments. Although
constitutions could not independently ensure a smooth democracy-building process, they
proved indispensable in structuring the new governments, spelling out a catalogue of basic
rights, and legitimizing newly acquired self-rule—and in some cases an entirely new state. In
fact, even the most imperfect constitutions (in terms of both substance and adoption
procedures) have been a crucial asset to democratic consolidation.
Constitutional Brakes on Democracy
The relationship between democracy and constitutions is neither simple nor straightforward.
Constitutions are basically about constraining the power of democratically elected
parliamentary majorities.5 As Vernor Bogdanor put it: ‘Codified constitutions are, after all,
valued as a means to the end of limiting governmental power; and, in a democracy, limiting
also the power of the people to whom government is responsible.’6 Constitutions impose a
tight corset on the citizenry, taking away some power from the people and putting it into the
hands of constitutional framers and constitutional courts. Generations of political analysts
have struggled with the questions that this dilemma implies: can a true democracy
end p.26
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serve three different masters: the voters, the framers, and the courts? Why should the people
accept restrictions that have been codified in a past context and by a past generation? Why
should unelected judges have the power to strike down legislation adopted by the
representatives of the people? Is democracy compromised if a (small) minority of members of
parliament (MPs) can prevent any changes in a constitution? Is there not a clear conflict
between popular participation and constitutional constraints? In short, are not all constitutions
inherently anti-democratic?7
Those in favour of constitutional restrictions and the division of power principle have
presented three major arguments. First, they have argued in favour of the so-called
‘deliberative’ type of democracy as opposed to a ‘voluntaristic’ one.8 On this view,
constitutions prevent a tiny majority-of-the-day from revamping the entire constitutional
system. Not only is the tyranny of the majority thus restricted, but also the spontaneous,
passionate, and voluntary behaviour of the demos is tamed. Constitutions force the people and
their representatives to engage in a complex deliberative process by imposing numerous
procedural hurdles, require the state to gain broad public support for its ideas by making
constitutional amendments difficult to adopt, and guard against the easy denial of certain
individual rights. Is it possible to conceive of a democracy where voting rights, freedom of
speech, and other political rights could easily be suspended?
Second, it has been argued that by taking some power away from ordinary parliaments and
putting it into the hands of constitutional framers and courts, constitutions ensure that the
representatives of the people cannot easily betray their electorates. Elected officials have a
tendency to invoke the name of the people to legitimize the pursuit of their own interests. But
dividing constitutional prerogatives between different agents creates a mechanism
end p.27
by which institutions check one another and allows voters more easily to monitor the
behaviour of their representatives.
Finally, it has been pointed out that constitutions create the rules of the game that enable
democracy to function effectively, rather than fall prey to paralysis or chaos. Ineffective
democracy brings no justice to the people. Therefore, by clarifying prerogatives of different
institutions and spelling out decision-making procedures, constitutions create the stability and
predictability necessary for the democratic system, and prevent partisan interests from
misusing democratic institutions.
These arguments have prevailed in all Western democracies. Constitutions are not about
incapacitating the people, it is argued, but about helping the people to organize politically in a
deliberative and predictable manner. Constitutional restraints are not about preventing ‘true’
democracy, but about strengthening it.
However, in the early stages of democratic transition in Eastern Europe, arguments against
placing constitutional constraints on the demos gained credibility because of at least three
important factors. First, the democratic legitimacy of constitution framers and constitutional
courts was initially weak. Constitutional framers were either ‘reformed’ communists,
controlling constitutional assemblies on the eve of the transition period, or unelected political
elites participating in semi-secret round-table talks that produced semi-legitimate
constitutional compromises. Institutions of constitutional judicial review had no precedent in
these countries, and the judicial system as a whole had no tradition of independence. At the
early stage of transition, constitutional courts were composed of small groups of political
appointees; and many constitutional judges fell victim to political manipulation or even tried
to use the court as a springboard for their own political ambitions. Most notably, the chairman
of the Russian Constitutional Court, Valery Zorkin, was repeatedly embroiled in open
political battles that cast doubt on the independence and neutrality of the Court.9
Second, after a long period of communist dictatorship, there was intense public pressure to let
the people decide their own fate without any constitutional restrictions. In Russia, most
notably, Andrei
end p.28
Sakharov and other dissidents hailed the slogan: ‘all power to the soviets’ (that is,
parliamentary assemblies elected by the people).10 Even in the most ‘Western’ countries of the
region, the belief that power should rest in the hands of voters and their parliamentary
representatives was very strong. Describing the Hungarian situation, András Sajó asserted that
‘Constitutionality is easily misunderstood as being a problem of majority will.’ Similarly, on
the eve of Poland's transition Andrzej Rapaczynski observed:
Polish views usually yield the following reasoning: all legitimate political power flows from
the people. The depository and embodiment of the people's own sovereignty is the national
legislature, chosen in universal, equal, direct, secret, and proportional elections. Therefore, the
parliament, as the most direct representative of the people, reflecting the principal voices of
the nation, should be the supreme organ of the government, and determine the policy of the
nation.11
Clearly in this absolute, if not ‘fundamentalist’, concept of democracy there was little
sympathy for constitutional constraints or the division of power principle.
Finally, the early post-communist experience in some countries suggests that it is the majority
that needs protection from manipulation by elites, rather than the other way around. In other
words, the possibility of ‘minority tyranny’ proved to be a greater danger than the alleged
‘tyranny’ of passionate and voluntaristic majorities.12 For instance, in Czechoslovakia as few
as thirty Slovak MPs
end p.29
in the Chamber of Nations were able to paralyse the entire parliamentary decision-making
process.13 This subsequently led to the Czech–Slovak split, orchestrated by a small political
elite in Bratislava and Prague, despite the fact that in 1991–2 a majority of the electorate
opposed splitting Czechoslovakia.
In the end, however, all the countries in the region adopted constitutional restrictions on their
demos and created powerful constitutional courts. Why? Certainly the successful Western
constitutional experience played a part here.14 Despite their restrictive features, Western
constitutions secured rather than undermined democracy, and there was clearly no appetite in
Eastern Europe for democratic experiments. But the most important explanation is to be found
elsewhere: the post-communist countries in transition could not function properly without
drafting and adopting new constitutions. This brings us to the next crucial issue, the apparent
indispensability of constitutions in Eastern Europe.
Constitutional Compulsion
In principle, democracy can flourish without a written constitution.15 For example, the
constitution of the United Kingdom is embodied
end p.30
not in a single document but in a series of statutes and conventions of political practice which
date back to 1297.16 These statutes include the Acts of Union, which establish the
geographical boundaries of the state; the 1701 Act of Settlement, which regulates the
procedures for monarchical succession; the 1911 and 1949 Parliament Acts, which set out the
relationship between the House of Commons and the House of Lords; and the 1972 European
Communities Act, which indicates the status of European law in relation to domestic law. It is
certainly the case that various aspects of British constitutional law are contained in certain
official documents, such as the Official Revised Edition of the statutes in force, published by
Her Majesty's Stationery Office,17 but there is still no single overarching constitutional
document in which the British constitution is to be found. The same is true for both New
Zealand and Israel. In New Zealand, the 1990 Bill of Rights Act is ‘rapidly becoming quasi-
constitutional in character’18 since it allows courts to overrule acts of parliament if they breach
the rights contained in the bill. In Israel, the Scroll of Independence has already been given a
similar status by the courts.19
The advantages of having an uncodified constitution are twofold. First, it may help to smooth
the process of democratic transition. In Israel, opposing forces sought to gain control of the
political system during the period of state foundation. These forces were
end p.31
unable to agree on a constitutional document, and their continuing disagreement threatened to
compromise the security of the regime. In this context, the adoption of an uncodified
constitution, in the form of David Ben-Gurion's proposal that each new legislature (Knesset)
would, in effect, have the status of a constituent assembly, represented a compromise that
helped to consolidate the democratic process.20 Secondly, and more generally, it might be
argued that an uncodified constitution allows countries to respond to changing social,
economic, and political circumstances with a minimum of fuss. Arguably, uncodified
constitutions provide the necessary degree of flexibility by allowing decision makers to
engage in incremental constitutional reform, thus protecting the general integrity of the
system while still permitting selected aspects of that system to be subject to change.
Both of the above arguments could in theory apply to Eastern Europe. In fact, the wisdom of
adopting a new constitution has been questioned in most of the countries discussed here, and
especially in Poland and Hungary. For instance, as András Sajó and Vera Losonci pointed out,
many leading Hungarian politicians seemed to believe that the unwritten Hungarian
constitution—a fragmentary system of medieval laws and liberal legislation which was
politically repealed after 1920—reflected a genuinely liberal, constitutional, and democratic
tradition.21 However, this book clearly shows that the new democracies in the region could
hardly afford not to have new written constitutions. This was true in the first instance because
all of these states inherited communist constitutions. Although these constitutions contained
numerous undemocratic provisions, they also contained some basic rules for politics and
government. Abolishing these rules without creating new ones
end p.32
would have led to paralysis and chaos. In fact, merely amending the old constitutions proved
insufficient, as was made vividly clear in the Russian case.22 (Although when Hungary revised
90 per cent of the old Constitution rather than adopting an entirely new constitutional draft,
chaos was avoided.) In all of these countries, the adoption of a new constitution was seen as a
crucial symbolic break with the communist legacy. (Although such a break was not
necessarily welcomed by the majority of local elites; in Belarus most notably.) Finally, in new
states, a new constitution was seen as a major and indispensable step in their process of state
building. (Although in the Latvian case the ‘new’ Constitution was in fact the old one,
originally adopted in 1922 and reinstated in 1992.)
Thus constitutions became, to use Bruce Ackerman's words, ‘central symbols of revolutionary
achievement’, and ‘the center of an enlightened kind of patriotism’.23 Writing and adopting
constitutions presented the new democratic forces with an opportunity to articulate
fundamental principles and mobilize broad public support. It also allowed them to fix the
rules of the institutional power struggle which, after all, was detrimental to government
stability and threatened local elites with political extinction.24 Adopting a new constitution
was seen as a test for democratic maturity; and in most of the cases discussed here, it also
became a test of mature independent statehood.
Of course, the establishment of a codified constitution did not necessarily bring about a
fundamental change in the overall way in which Eastern European societies were governed.
Nor did it always result in a democratic system. As Pogany accurately observed, in the post-
communist context ‘constitution-making, the formal act of drafting or revising a constitution,
does not lead automatically to constitutional transformation’.25 Yet this book clearly
end p.33
shows that Eastern European countries in transition had neither the luxury of avoiding the
constitution-making process, nor the option of an uncodified constitution. But the question
remains: does any sort of constitution legitimize a new regime and produce a workable
democratic system? And what is more important: the process or the product of constitution
building?
The Process of Constitution Building
Philippe Schmitter distinguishes between the process and the product of constitution
building.26 The process is the means by which the constitution is drafted and adopted, while
the product is the constitution itself. Arguably, the process is at least as important as the
product. The process creates the immediate conditions in which the product then operates. If
the process is consensual and legitimate, then it is likely that the product will be too. By the
same token, if the process is conflictual and chaotic, then chances are that the product will
reflect this as well. At least as much attention, then, should be paid to the constitution-
building process as to its ultimate product. Three aspects of the constitution-building process
seem especially relevant for the success of democratic consolidation. They concern how long
it takes to prepare the constitution, who takes part in the constitution-drafting process, and
how the final constitutional document is adopted. In the following section, the issues
surrounding each of these sets of choices are examined.
The Time-Frame of Constitution Building
Whether constitutions are produced quickly or after long deliberation, the length of the
process does not always correspond with the intentions of the framers. It is certainly true that
the exigencies of the political system can erase any hope for a swift constitutional revolution
and transform that desire into a protracted constitutional bargaining game. But despite the
difficulties of controlling it, the length of the constitutional process seems to influence the
product in terms of democratic consolidation.
end p.34
The length of the constitution-building process has varied across countries, and within the
same country at different historical moments. For example, although the Third French
Republic was formally proclaimed in 1870, the country's basic constitutional law was not
adopted until 1875. Similarly, the slow reconstruction of post-war West Germany's political
system meant that the country's Basic Law was adopted in May 1949, four years after the end
of the Second World War. By contrast, work on the Constitution of the Fifth French Republic
began in June 1958 and was completed the following September. In Eastern Europe it took
Bulgarians only twelve months to draft and adopt their new Constitution, while nearly eight
years passed before Poland did the same.
There are various reasons why constitution-building sometimes turns out to be a relatively
quick process, and there are several arguments suggesting that a quick process is better than a
slow process. McWhinney makes the general argument that codified constitutions almost
invariably occur ‘in or immediately after a period of great public excitement and resultant
public euphoria when it is relatively easy to build a certain climate of popular political
consensus’.27 Thus, quick constitutional settlements tend to occur when either exhilarating or
traumatic political events bring about constitutional consensus. In addition, such settlements
tend to occur when countries decide simply to reinstate a former constitution (sometimes with
slight amendments), as in Latvia. In this case, there is less work for constitution builders to
do, and the constitution-building process can be completed relatively quickly. Against this
backdrop, Schmitter argues that constitution building in newly democratized states should be
completed as quickly as possible: ‘ “The sooner the better” should be the motto,’ because
‘[t]he longer actors hesitate in this effort, the more they will be capable of evaluating how
specific institutional arrangements can affect them and the greater the difficulty they will have
in coming up with “fair” rules that all can agree to’.28 In other words, newly democratized
states are characterized by a process of institutional learning and it is better, according to
Schmitter, to agree on a constitution before excessive competition and potentially
irreconcilable political interests are clearly formulated and consolidated.
However, the experience of some Western European countries in transition suggest that a long
constitution-building process
end p.35
is not necessarily disadvantageous. Recently, for example, the Constitutional Review Group
in Ireland was given a year to formulate proposals for constitutional change which were then
to be considered for an indeterminate period by a special parliamentary committee. Similarly,
in Italy the reconsideration of the First Republic's Constitution has been long and reform has
occurred incrementally. But can newly democratized states indulge in such a lengthy process?
In principle, there is reason to believe that a protracted constitution-building process may
have certain advantages for new democracies as well. A successful, long-standing, and widely
accepted constitution tangibly represents the compromise reached between contending
political interests in a country. Arguably, the best way to reach such a settlement is through a
long constitution-building process, allowing for an iterated sequence of constitutional
bargaining. If a common accord can be reached, then competing parties will find it more
difficult to rescind parts of the agreement at a later date.
There is also an intermediate option between the extremes of a long and drawn-out
constitution-building process. New democracies may benefit considerably from quickly
adopting an interim constitution while work continues on a permanent constitution.29 While
this option does not require that a complete set of constitutional rules be adopted at the outset
(especially if there is profound disagreement as to the nature of those rules), it is essential that
certain rules of democratic accountability be put swiftly in place. Consequently, an interim
constitution may facilitate implementation of the institutional changes required by rapidly
shifting circumstances, and ease the way towards a compromise on specific constitutional
arrangements.
The examples offered in this book indicate that a lengthy constitutionalization process does
not necessarily result in permanent constitutional deadlock, let alone in total democratic
breakdown. For example, Hungarians are still working on a new constitution, Poles adopted
one only in 1997, as did the Ukrainians in 1996. Despite that, democracy now seems secure in
Hungary, Poland, and probably also in Ukraine. In other words, if elites exercise self-restraint,
adopting a constitution becomes less urgent. Nevertheless, in all three countries, an interim
constitution proved indispensable. The 1989 constitutional amendments in Hungary amounted
to a new interim constitution, as did Poland's 1992
end p.36
‘Little Constitution’, and Ukraine's 1994 ‘Law on Power’. While it is hard to deny the
beneficial effects of these interim constitutions, after their adoption the momentum to draft a
permanent constitution dwindled. Moreover, a lengthy constitutional process failed to produce
more consensus on the constitutional draft than was the case in countries that experienced a
brief constitution-building period. Indeed, Schmitter's fear that a lengthy process increases the
difficulty of reaching a broad constitutional consensus seems to be confirmed by the cases of
Ukraine, Hungary, and Poland.
The Eastern and Central European experience also shows that ‘quick-fix’ constitutions (that
is, constitutions adopted in a relatively brief period) proved to be remarkably effective,
durable, and beneficial. The speed with which Bulgaria, Romania, and Lithuania adopted their
constitutions has often been criticized. However, one can hardly imagine that the ongoing
institutional power struggles occurring in these countries would have been curbed by
postponing the adoption of a new constitution. On the contrary, these countries clearly
benefited from their constitutions which specified the roles of various institutions, established
clear rules for political bargaining, and set up a workable balance of political power. We will
return to this issue somewhat later.
Constitutional Framers
There have been many different types of constitutional framers throughout the history of
democracy. Are some types of framers able to enjoy a greater degree of political legitimacy
than others? And, by the same token, are they able to produce a more durable and workable
constitution? Do certain types of framers tend to prefer certain types of constitutional
outcomes? Is it axiomatic, as Jon Elster once put it, that ‘any creator will try to control his
creature’?30
In principle, we can distinguish between four basic types of constitutional framers:
1.Special Constitutional Convention (such as the American Constitutional Convention of
1787 or the German Parliamentary Council of 1948);
2.Sovereign Constituent Assembly (such as the Weimar Assembly of 1918 or the French
Constituent Assembly of 1945);
end p.37
3.Ordinary Legislature (such as the Spanish ‘Constituent’ Parliament of 1977); and
4.Executive (such as Napoleon Bonaparte's governments of 1799, 1802, and 1804, the French
Ministry of Justice in 1958, or President Menem's government of Argentina in 1994).31
According to Ackerman, the American model of a special constitutional convention provides
constitutions with the highest degree of political legitimization. It also prevents the dangers of
endless constitutional tinkering and the mixing of constitutional law with ordinary legislation
(which is bound to happen when parliament drafts the constitution).32 Andrew Arato, on the
other hand, argued that the American model is superior only in theory, since it is virtually
impossible to imitate this model under cultural and institutional circumstances different from
those of eighteenthcentury America. For Arato, parliamentary constitution-making is the
second-best option, while constitutions framed by the executive are usually illegitimate and
potentially authoritarian, despite the apparent success of the French Fifth Republic.33
Developments in Eastern Europe seem to support Arato's argument. Plans to call a special
constitutional convention were seriously considered only in Russia (something Ackerman
implicitly recommended), yet the Constitution was ultimately drafted by President Boris
Yeltsin. Also, the 1996 Belarusian Constitution (officially labelled an amendment to the 1994
Constitution) was drafted by President Aleksander Lukashenka. A sovereign constituent
assembly was employed only in Bulgaria and Romania, but in both cases the assemblies were
dominated by ex-communists, which damaged their legitimacy somewhat. (The new
Bulgarian Constitution was accepted only after fifty delegates walked out of the constitutional
assembly.) In all other cases, the ordinary parliament was given the task of framing the basic
law; and the legitimacy of these constitutions varies from country to country depending on
many different factors. But despite criticism by those not involved in constitution-drafting and
despite dramatic changes to the parliamentary party composition, none of the constitutions
end p.38
framed by ordinary parliaments has been repealed, even where critics won successive
elections. Thus, the East European experience does not provide sufficient evidence to claim
that certain types of constitutional framers are likely to generate a special kind of political
legitimacy.
There is, however, sufficient evidence to claim that framers tend to adopt constitutional
solutions to suit their own institutional interests. Yeltsin's Constitution established a truly
super-presidential system, as did Lukashenka's 1996 constitutional ‘amendment’. At the same
time, parliamentary framers in other countries of the region created constitutions with strong
parliamentary powers and relatively weak executives. Only the 1994 Constitution prepared by
the Belarusian parliament envisaged strengthening executive powers at the expense of the
legislative branch, but one should keep in mind that about 70 per cent of Belarusian MPs
simultaneously worked in the executive branch. Ultimately, this draft was still unable to
satisfy the president's thirst for power, which led to the 1996 constitutional amendment.
In addition, this book suggests focusing not only on formal institutional framers, but also on
individuals and informal groups involved in the constitution-drafting process. Constitutional
expert groups were created in most Eastern European countries to help formulate
constitutional drafts. Although none of these groups took centre stage, as did the 1996
Constitutional Review Group in Ireland or the 1992 Vedel Committee in France, they
presented the framers with alternative constitutional solutions and translated chaotic political
interests into an organized legal framework. In Bulgaria and Hungary, for instance, the
Roundtable Talks conducted between the democratic opposition and the communist
government also led to some important decisions about the future constitutional order.34 In a
way, they represented an Eastern European version of the Spanish Pacts of Moncloa, the 1977
multi-party agreement that outlined the constitutional framework of the post-Franco
democracy.35
end p.39
Referendum as a Legitimizing Strategy
It is often asserted that constitutions require a special kind of popular legitimacy, transcending
that of ordinary legislation. On this view, it is not enough that the constitution is drafted by a
‘legitimate’ assembly following ‘legitimate’ procedures, but the final decision on the basic
law of the country should be made directly by the constituents themselves. This argument
prevailed in many countries. For example, in Western Europe referenda were held to ratify the
1937 Irish Constitution, the 1946 Italian Constitution, the 1946 and 1958 French Fourth and
Fifth Republics' constitutions, amendments to the Danish Constitution in 1953, and the 1978
Spanish Constitution. However, many other constitutions have been adopted by the vote of a
parliamentary or constituent assembly. Such voting may also be extended to the local level in
federal states, as in the case of the US Constitution, which was adopted at the Constitutional
Convention of September 1787, and later ratified by the state legislatures. Similarly, the 1949
West German Constitution was ratified by the Federal Parliamentary Council only after over
two-thirds of the Land assemblies voted in favour of the draft. More often than not, however,
constitutional reform comes about as a result of a vote in the national parliament or
constituent assembly alone, as recently seen in Belgium, where constitutional reforms were
brought about by votes in the national legislature.
A comparison of these two ratification procedures does not suggest that constitutions backed
by plebiscites fare better than those without them. The Federal Republic of Germany's Basic
Law, for instance, has proved to be a strong and durable pillar of democracy though it was
never subjected to a plebiscite, whereas the 1946 French Constitution did not last, even
though it was adopted by referendum.36
In the context of Eastern European democratization, the referendum issue has been fiercely
debated, though in a slightly different manner. The major question was: do the revolutionary
circumstances of Eastern Europe create a greater ‘demand’ for a constitutional referendum?
Supporters of referenda insist that it is not enough that the revolutionary elite reach a
constitutional compromise.
end p.40
Unlike normal legislation, a constitution needs to win a direct mandate from the people,
without which the ‘constitutionalization of the revolution’ cannot occur.37 Opponents of
referenda insist that the revolutionary circumstances of Eastern Europe leave referenda
susceptible to abuse. Because the situation is highly unstable and the political culture is
underdeveloped, referenda fail to provide constitutions with the desired legitimacy, and create
fertile ground for demagoguery. As Merkel argued, the circumstances of Eastern Europe are
‘miles away from that kind of conceptual structure of public discourse which lifts referendum
out of manipulative ratification into the higher sphere of “deliberative politics,” called for by
Jürgen Habermas’.38 The examples presented in this book seem to support the latter argument.
The most striking case of manipulating constitutional referenda occurred in Belarus. The 1996
referendum was organized by the president in clear violation of the 1994 Constitution and
over the opposition of both the parliament and the Constitutional Court.39 The procedures,
form, and substance of the referendum were imposed by the president, who also enjoyed a
total monopoly over the mass media. In Russia, the referendum endorsing President Yeltsin's
constitutional draft was probably the only way to keep democratic hopes alive in Russia after
the violent clash between parliament and the president in September 1993. That said, the
referendum could hardly claim to be a truly popular mandate, since the opposition was
silenced by the president's tanks. Constitutional referenda in Romania, Estonia, Lithuania, and
Poland were less controversial, but even there serious legitimacy problems surfaced. In
Lithuania, for instance, there were only twelve days for public discussion of the constitutional
draft between its approval by parliament and the referendum. In Poland, the referendum's
legitimizing ‘blessing’ was also undermined by the fact that only 24 per cent of all eligible
voters voted in favour of the
end p.41
constitution.40 In short, referenda in Eastern Europe provided new constitutions with little
popular legitimization, and in some cases they proved to be a tool of political manipulation.
The Product of Constitution Building
If constitution builders face a bewildering set of choices concerning the constitutionalization
process, then they face even more bewildering options concerning what kind of regime they
want to constitutionalize. The framers must decide whether or not to include a charter of
rights in the constitution. They must choose the most appropriate balance of power
arrangement between central and sub-central units of government, and ascertain whether it is
best to establish a federal, unitary, or intermediate system of territorial government. They
must agree upon the best relationship among the units of government at the central level and
the degree to which the powers of the executive, legislative, and judicial branches of
government should be separated. They must distribute responsibilities among the individual
units of government at the central level and decide, for example, whether to create a bicameral
or unicameral legislature. They also need to select the most fitting electoral system, choosing
between a proportional system and a majoritarian system, or settle on some form of mixed
system.
When making these choices, constitution builders are clearly motivated by their short- and
long-term political interests. Constitution builders do not conduct their business behind some
sort of ‘veil of ignorance’. They have supporters to reward, enemies to stymie, principles to
defend, and prejudices to express. Consequently, the final constitutional document may be a
masterpiece of common sense or a patchwork of compromise; it may be a brief statement of
fundamental political principles or a long-winded recitation of almost every conceivable goal,
aspiration, and political desire.
Politics aside, analysts have been trying to cope with one fundamental question: do certain
constitutional products guarantee better prospects for democratic consolidation? The choice
between presidentialism and parliamentarism has probably been the most fiercely debated.
Juan Linz forcefully advanced the virtues of
end p.42
parliamentarism in contrast to the perils of presidentialism,41 whereas Shugart and Carey
insisted that properly crafted presidential or premier-presidential forms of government can
overcome the traditional disadvantages of presidential regimes.42 So far, experience has made
the holes in both arguments visible. Critics of the presidential system were proved right in
their claim that it creates a syndrome of ‘dual legitimacy’ that generates political deadlock.
Moreover, the mutual independence of presidents and parliaments has tended to fuel rivalries
detrimental to both institutions. Presidents have done much to frustrate the development of
healthy party systems in the region, while failing to provide the most lauded benefit of
presidentialism: strong and effective government. That said, presidentialism in Eastern
Europe has not produced the ‘winner-take-all’ syndrome which proved so damaging in certain
Latin American countries. In fact, almost all presidents in the region have found it necessary
to engage in troublesome give-and-take negotiations with both government and opposition
parties in parliament. Nor has presidentialism in Eastern Europe produced a two-bloc system
with cabinets composed solely of members of the governing party. Most Eastern European
presidents are not linked to any single political party, and in some countries they are even
legally obliged to abandon party membership before assuming office. The region's presidents
have indeed shown a plebiscitarian penchant for calling referenda, but often this was more a
sign of impotence vis-à-vis parliaments than an indication of dictatorial tendencies.43 Some
presidents indeed have tried to obtain more power or invoke emergency authority, but
parliamentary leaders have done the same. Post-communist politics has often resembled a
zero-sum game, but parliaments have been as responsible for this as presidents.
end p.43
More important in our context is that the actual functioning of presidents and parliaments has
not always corresponded to the constitutionalized solution. For instance, President Sali
Berisha was able to impose dictatorial rule over Albania regardless of his relatively weak
formal powers, while President Michal Kováč of Slovakia has never been able to utilize fully
his formal powers vis-à-vis the parliamentary cabinet of Prime Minister Vladimír Mečiar.44
The latter case also shows that parliamentarism can also degenerate into semi-dictatorship. As
Merkel rightly asserted:
The apparent power of the parliament over the executive is actually the power of the
parliamentary majority over the government. The parliament in turn is controlled by the
government through increasing party discipline. Majority parties instrumentalize the
executive and legislative branches for their own interests. The rigid domination of a majority
in parliament, the colonization of the justice and public administrations, the cleansing of the
public media and the intimidation of the private media through Meciar's left–right-coalition
show the miniscule autonomy that constitutional organs and constitutional norms enjoy vis-à-
vis the winning electoral majority in the Slovak Republic.45
The debate among constitutional analysts about which electoral system most favours the
development of democracy has also proved inconclusive when applied to Eastern Europe.
Several countries in the region decided not to deal with the electoral system in their
constitutions, and none of them opted for British-style plurality elections. Both ‘weak’ and
‘strong’ proportional representation (PR) systems are employed in Eastern Europe, but a
clear-cut correlation between the choice of electoral system and the overall progress of
democracy has not yet emerged. In other words, countries with strong (if not extreme) PR
systems have not necessarily fared worse than those with weak PR systems. Clearly, factors
other than electoral systems have had significant impact on democratic progress in the region.
Complex aggregate models for the ‘optimal’ constitutional product proved even more difficult
to apply to Eastern Europe. For instance, Arend Lijphart's preference for a ‘consensus’ as
opposed to ‘majoritarian’ democratic system is being severely tested in
end p.44
Slovakia, which meets most of Lijphart's criteria for consensus democracy.46
All this does not suggest that there are absolutely no guidelines for constitution builders to
follow, but only that we are not close to the ‘hyperrational ideal’ for designing institutions
envisaged by Claus Offe.47 What is right for one country might not be right for another.
Moreover, what is right for one set of countries, such as established West European
democracies, might not be right for another set of countries, such as the newly democratized
East European regimes. In short, the transferability of set constitutional rules collides with the
complexity of particularistic political cultures. Moreover, basic concepts, such as the notion of
presidentialism, suffer from epistemological confusion. Different writers use the same term to
mean different things. For example, Russia is frequently classed as an example of a
presidential regime, yet in a number of key respects it deviates from the prototypical US
model. So, arguments suggesting that particular forms of government are better than others
often suffer from conceptual ambiguity.48 Even when such ambiguity is absent, arguments
about the advantages and disadvantages of particular concepts are often normatively laden. As
Pippa Norris has shown, ‘irresolvable value conflicts’ underpin arguments about the
respective advantages and disadvantages of majoritarian versus PR electoral systems.49 Those
who argue for one simply have a different vision of representative democracy from those who
argue for the other.
It would be wrong to assume, however, that constitutional framers can choose different types
of constitutional products without any implications. For example, the choice of a strong PR
electoral system over a weak PR will always imply more parliamentary fragmentation
undermining the efficiency of democratic
end p.45
work. On the other hand, the choice of a weak PR system will undermine the principle of
democratic representation, because many voters will end up with no parliamentary
representation. More crucially, this book bears witness to the fact that constitutions that fail to
establish clear rules of the institutional game and the unequivocal separation of powers will
not contribute to democratic consolidation.
Conclusions: Do Constitutions Matter?
Although all but one of the countries discussed in this book have managed to adopt a new
constitution, the state of democracy varies widely. Does this mean that wrong constitutional
choices were made in some countries? Or perhaps that adopting a new constitution does not
really matter? This book leaves little doubt that constitutions by themselves cannot produce a
workable democracy. Constitutions are one tool among many for democracy builders to use
(or abuse) with greater or less skill.
That said, in the countries considered here, constitutions performed at least three basic
functions.50 First, they provided all countries with a charter for government by spelling out
who their officials are, how they are chosen, their terms in office, how authority is divided
among them. It is difficult to imagine how institutional power struggles could have been
curbed had adopting new constitutions been postponed.
Second, constitutions provided Eastern European countries with charters of fundamental
rights. Since some of these rights were not even recognized by the communist legal system
while others were formally recognized but notoriously abused, constitutions catalogued these
rights and set up mechanisms for their protection.
Third, constitutions have provided Eastern European countries with the symbolic opportunity
to express popular aspirations for free, democratic, and sovereign statehood. Since most of the
countries analysed here are historically new or quasi-new creations, the adoption of
constitutions with broad support was a way to manifest independent and mature self-rule. In
most countries, new constitutions also became symbolic expressions of their European and
Western credentials.
end p.46
Of course, individual constitutions have fulfilled these functions with varying degrees of
success. In principle, the more partisan the constitutional process and unbalanced the
constitutional outcome, the less a constitution affected the democratic process. Yet this book
also suggests that even imperfect constitutions, in terms of substance and adoption
procedures, managed to curb the ongoing institutional power struggle and created legal and
political conditions in which democracy had a chance to assert itself. Even the 1993 Russian
Constitution, imperfect as it may be, proved an asset to Russia's very fragile democracy.
Likewise the hastily adopted constitutions in Lithuania, Bulgaria, and Romania contributed to
democratic development there. Meanwhile, the staggered constitutional process in Poland and
Hungary did not make democratic consolidation any easier.
Have some constitutional models improved democracy in Eastern Europe more than others?
The answer provided by this book is neither clear nor straightforward. First of all, this book
confirms Finer's thesis that ‘different historical contexts generated different preoccupations:
different preoccupations have generated different emphases.’51 Second, this book confirms
that a constitution is not, to cite Julio Faundez, an ‘intellectual commodity that can be used to
sell, impose, or transplant political models’.52 What works for some countries does not
necessarily work for others, and it is therefore difficult to construct a general constitutional
model. Third, this book shows that there are clear limits to constitutional engineering.
Constitutions are products of complex political bargaining and the final product of this
bargaining tends to resemble a hybrid that only partially corresponds with an original design
or model. Fourth, although some constitutional solutions proved to work better than others,
they were not necessarily the products of constitutional engineering, but resulted from
cultural, economic, and social factors characteristic of a given country at a given time.
Constitutions proved indispensable in the process of democratic consolidation in Eastern
Europe. The constitution-making proved to be more important than the varieties of
constitutional products offered. Although constitutions are not always treated as sacred, they
have become an important reference point for all political decisions: in this region, violating
the constitution is no longer a costless practice.
end p.47

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2 Constitutions and Constitution-Building: A Comparative Perspective

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