Rights before Courts: A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe

Chou En-Lai, when asked about the impact of the French Revolution, answered that it was too early to say—a long-range point of view. And, as John Maynard Keynes reminds us, in the long run we all will be dead. In that vein, it is difficult to assess the significance of constitutional courts. The introduction and impact of constitutional review systems and their long-term assessment requires public debate. Thus far, there has been little debate concerning the constitutional courts of Central and Eastern Europe either among the public or among the constitutionalists and legal theoreticians concerned with constitutional developments in the region. Wojciech Sadurski's book on the subject is timely and deserves close attention from those interested in Central Europe's constitutional transformation, as well as from legal and political philosophers, especially these concerned with democracy, legitimacy, and constitutional review. Rich in its arguments and complex in its structure, the book cuts across multiple disciplines—constitutional law, legal and political theory, and even political science and social theory. Sadurski moves gracefully among them, presenting his arguments in a logical and coherent way. After 1989, constitutional review by constitutional courts or constitutional tribunals was established in all the former communist countries of the region. In some countries these bodies achieved a high level of independence, power, and prestige. The primary aim was to have a body that would guarantee the observance of constitutional rights. The design of such bodies was not specifically tailored to the postcommunist contexts but was modeled on institutions in liberal democracies in the West, in particular, Western Europe. That is, the court was, in every instance, a specially established constitutional body with the exclusive competence to declare laws unconstitutional. Its decisions were to be made primarily on an abstract basis and were final. Only in Estonia was constitutional review entrusted to a department of the highest court, and even there, if one analyzes the details of the institutional setting, this exception to the postcommunist Central and Eastern European practice of having a separate institution was more a matter of appearance than reality. In all countries under discussion except Ukraine, the constitutional courts engage in both abstract and concrete review—concrete in the sense that they answer questions on constitutionality coming from the ordinary courts when particular cases present constitutional issues. In some countries (Estonia, Hungary, Poland), the constitutional review bodies have the power to decide on constitutionality before a law enters into force—but only when asked to do so by the president. The Romanian Constitutional Court displays two other features worth noting: abstract review can be exercised only before promulgation of law and, until recently, the invalidation of a law was not final and could be overridden by a qualified majority in the parliament. Thus, these are bodies with enormous power and significant implications for legitimacy, democracy, and the constitutional separation of powers. Having sketched the institution of the constitutional court, the author turns to Central and Eastern Europe, where twenty different courts operate in different legal traditions. Is a shared communist past enough to unify the region? This is one of the questions the book addresses. Few important books have been published in English on constitutional courts in Central and Eastern Europe.1 Earlier English-language works focused on the history and institutional structure of the constitutional courts and took a positive view of constitutional review in the region. Sadurski's book is more theoretically sophisticated than the more typical approach found, for example, in Herman Schwartz's The Struggle for Constitutional Justice in Post-Communist Europe, which is devoted to an assessment of constitutional courts in five countries: Poland, Hungary, Russia, Bulgaria, and Slovakia. Schwartz, who served as an expert adviser on constitutional review for various countries, drew not only on printed sources but also on many interviews with judges of constitutional courts and politicians, which gave special insights and a distinct flavor to his book. But the book is not theoretical and focuses, rather, on the specifics of constitutional review in the postcommunist countries, utilizing five case studies. Schwartz started from the assumption that constitutional review tribunals always play a positive role in maintaining the rule of law. Sympathetic in his assessment of their activities, and clearly wanting them to grow in influence and prestige, he confined his criticisms to relatively minor issues. By contrast, Sadurski's book approaches the constitutional courts in Central and Eastern Europe from a critical point of view. He asks penetrating questions about the relationship between this model of juridical order and the accompanying issues of legitimacy and democracy, grounding these inquiries in whether and how constitutional courts uphold constitutional rights. A virtue of the book is that Sadurski does not analyze his case studies in isolation from their political settings and problems. The introductory section, which provides an overview of the historical and structural problems connected with constitutional review, provides a road map for the reader. Highlighting the similarities among the Eastern European constitutional courts in terms of their institutional models, structures, functions, and constitutional and political settings, he illustrates the common problems faced by postcommunist European constitutionalism. Nonetheless, he does not ignore the differences among countries. By combining an approach that is founded in theory yet with close attention to empirical detail, Sadurski successfully navigates between the Scylla of universalism and the Charybdis of particularism. Sadurski subjects Central and Eastern European constitutional courts to scrutiny of a sort that is familiar enough in Western liberal democracies but not with regard to the region under discussion. He does not treat them as special institutions of transitional justice in various postcommunist transformations but, rather, places them within the discourse of Western liberal democratic constitutional theory. This is a justifiable approach now, when nearly all of these countries have become part of the European Union. As Sadurski states in the introduction, one of the book's underlying questions is how the constitutional cultures of the new member states will mesh with the constitutional traditions of the older members of the European Union. Additionally, the author brings together, organizes, and applies the many arguments and controversies regarding constitutional review within Western liberal democracies, and this adds considerably to the book's value. Sadurski systematizes these diffuse arguments of legal and constitutional theory, constitutional law, theory of democracy, political science, and political and legal philosophy, developing them with subtlety and in light of local knowledge. The author is not only closely familiar with constitutional developments in the region but also a legal and political theorist of the first rank. The book is divided into two sections: the first is devoted to the problem of constitutional legitimacy, the second to the problem of protecting constitutional rights by the constitutional courts. In the final chapter, the author tries to bring together these two themes and evaluate the role of the constitutional courts. There is a sort of imbalance in that the section of the book devoted to the courts’ democratic legitimacy is more theoretical and more interesting than the one on protection of rights, which is more descriptive. In the second section, in chapters 6 through 10, Sadurski provides the reader with both an overview of the design of constitutional rights in the Central and Eastern European countries and a review of the most important interpretations of these rights made by the constitutional courts. Thus, while his book is a valuable addition to the growing literature on Central and Eastern European constitutionalism, it is, even more, an original addition to the philosophical debates on legitimacy from which it draws and to which it contributes. As far as rights are concerned, Sadurski focuses first on civil and political rights. He then moves to socioeconomic rights, of special significance in the context of postcommunism, and turns, finally, to equality and minority rights. Sadurski's assessment is that the record of constitutional courts in defense of constitutional rights is “far from unambiguously positive” (p. 289). He does stress that, on balance, the negative instances of missed opportunities or objectionable invalidation are less numerous than the positive examples seen in the courts’ interventions in removing restrictions on rights. However, he also suggests that, since the existence of the constitutional courts is not cost-free, especially from the point of view of their problem with legitimacy, they require more severe scrutiny. Discussing the issue of their impact on societal apathy or what Mark Tushnet called “democratic debilitation” in the region, he says it is not only the impact of constitutional courts on “legislative irresponsibility,” or their role in “blame-sharing,” that is significant but also their effect on the institutional structure of democracy in postcommunist Central and Eastern European countries (pp. 291–298). Constitutional courts in the majority of the postcommunist countries doubtless have played a generally positive role. Nevertheless, after eighteen years of transformation and consolidation of the constitutional structures in the region, a more critical approach is needed. There must be serious debate on the position of courts as quasi-judicial bodies in the constitutional structure; discussion of their role in constitutional politics as separate from everyday politics; their significant role in lawmaking, which brings them closer to playing the role of a possible second or third chamber—depending upon the country—in the legislative process. All these issues are taken up in Sadurski's book. Some of the arguments are too complex to be considered here; suffice to say, the author identifies the most important points and argues with verve and a rare combination of philosophical sophistication and empirical awareness that are the hallmarks of his work. To do justice to the book itself, one must address a few words to the publisher. The title is long and dull. The price, at $199, is set extraordinarily high. And the cover design is uninviting. This state of affairs is unfair to Sadurski and his potential audience. The book has not only brought a more balanced approach to the consideration of the role of constitutional courts and tribunals in Central and Eastern Europe but it has provided potential critics of those institutions with arguments for their positions. This is the right time for such critical analysis. It is a pity, given that the book is published only in English and given its price, that a work so rich in argument will not be circulated widely in the countries in question, struggling as they are with problems of legitimacy, democracy, and constitutional courts so ably addressed here.