Scholarly Articles and Other Contributions
 

Document Type

Article

Publication Date

1993

Abstract

The article consists of two parts. The first is the update of constitutional transformation in the region experiencing the retreat from communism. The organization of this part requires some explanation. The part breaks down into two separate chapters on constitution-drafting in former Soviet Republics and in the new democracies of East-Central Europe. As the former Soviet republics existed within the same statehood until the end of 1991, it seemed appropriate to assemble comments on political developments in the former U.S.S.R in one subchapter examining the end of Gorbachev's era and the process of the establishment of the Commonwealth of Independent States. The country-by-country discussion which follows is limited to the examination of the process of constitutional-drafting in several former Soviet Republics. The comments on the constitutional drafts were organized around several more important issues such as the distribution of powers, the inclination to adopt features of presidential or parliamentary systems, constitutional enforcement, and the flexibility of the constitutional provisions. The subchapter on Constitution Drafting in Former Socialist States of East-Central Europe has a slightly different organization. It focuses exclusively on individual countries of post-socialist Europe with the exception of Yugoslavia where the unstable political situation at the time of this writing does not allow any mature evaluation of a future constitutional system. With all similarities linked to common socialist legacies, the former European Peoples Democracies each had their own statehood and more recently have faced different cultural, religious, economic and ethnic problems. It seemed more appropriate to examine their post-communist traumas separately. Thus, each country-by-country section of this subchapter splits into a short report on political developments and a commentary on the process of constitution-drafting.

The reader who is looking for an explanation of the references made in Part I to French, German or other constitutional models will find them presented in Part II on a more detailed basis. Being more theoretical than Part I of the article, Part II reviews the major constitutional controversies of the post-communist world against the background of deeply-rooted Western constitutional ideas. The primary aim of the second part of this article is to analyze the fabric of the new constitutions. This part focuses on the issues which proved to be most controversial during the process of constitution drafting in East-Central Europe, such as the description of the state in economic, political and cultural terms; the selection of the form of government; the concepts of the division of powers; the review of the constitutionality of laws; and the idea of a constitution being rigid or flexible. Although a long and exhaustive bill of rights can be found in all new constitutions and constitutional drafts, a more detailed analysis has to be based on the examination of the actual record of these countries in human rights protection. This task was left for a separate study. Finally, based on the information collected from the country-by-country reports, Part II also supplies observations on the process of forming a new constitutional model in the region of former communist dominance.

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