After the Fall of the Berlin Wall: The Cases of Romania and the Czech Republic
Since 1989, Central and Eastern Europe had been engaged in a crucial constitutionmaking moment.
As Elster underlines, all countries involved in this constitutional wave shared common elements: they emerged from communist regimes, which tried to completely strike down their once sturdy constitutional traditions; they coupled the democratic transition with a transition from a central to a market economy; and their national stories had always been intertwined.
For these reasons, when the Berlin Wall fell down, the events in one country influenced the neighboring ones in a domino effect,[1531] and they all looked at the European Common Constitutional Heritage to find inspiration for their constitution-making processes.Romania and the Czech Republic are two of the countries involved in this wave of constitutionalism. Their experiences are meaningful because they provide an interesting contrast.
In Romania, the transition was led through a revolutionary and violent regime change, which ended with the execution of dictator Nicolae Ceausescu on December 25, 1989. Then, a transitional council was established under the leadership of the National Salvation Front (NSF), which was strongly tied to the previous communist regime.[1532] At the elections for the Constituent Assembly held on May 1990, NSF obtained a relevant majority (355 seats out of 515), and thus could appoint 13 of the 28 members of the Constitutional Committee,[1533] thereby influencing the debate regarding the content of the Constitution.[1534] Even though it has been considered “the most illiberal constitutional draft presented so far in any Eastern European country, confirming [...] that a ‘second transition’ may be needed”,[1535] the Assembly approved the Constitution on November 21, 1991. A popular referendum ratified it on December 8 of that same year.
By contrast, the Czech Republic’s transition was peaceful, despite its concurrence with the dissolution of the Czechoslovak Federation[1536] (also known as “the Velvet Revolution”).[1537] In fact, the Parliament of the Federation decided to dissolve the union of these two States[1538] beginning on January 1, 1993.[1539] Meanwhile, both States began their respective constitution-making processes. On the Czech side, the Parliament elected on June 1992 appointed a constituent Commission, which drafted a Charter reminiscent of the democratic features of the 1920 Czechoslovak Constitution. With an overwhelming majority (172 votes in favor out of 198 voters), the Parliament approved the Constitution on December 16, 1992 and the same went into effect on January 1, 1993, the same day the Federation was officially dissolved. In contrast with the Romanian framers, the Czech framers decided to only include in the Constitution the provisions regarding the institutional functioning of the State, keeping as catalogue of rights the 1991 Charter of Fundamental Rights and Freedom,[1540] which had been approved before the dissolution of the Federation and remained valid.[1541]
These two different constitution-making processes led to the approval of very different provisions on unamendability. In Romania, only a few amendments were introduced in 2003 in order to comply with EU membership conditions, despite the text being considered “illiberal” at the time of its approval. On that occasion, the provision on unamendability simply “slipped” from Article 148 to Article 152, in order to leave a placeholder for the provisions on the Euro-Atlantic integration (Title VI) without having to change the content. A new amendment process started in 2012, and it is still ongoing in 2016.[1542] Whatever its outcome might be, the clauses on unamendability do not seem to be at the center of the constitutional debate, which would preserve the content of Article 152.
Article 152 prohibits the revision of the provisions concerning the national, independent, unitary, and indivisible character of the Romanian State, the republican form of the government, territorial integrity, independence of justice, political pluralism, and official language. It also states that “no revision shall be made if it results in the suppression of the citizens’ fundamental rights and freedoms, or of the safeguards thereof” and provides for specific timeframes during which the Constitution cannot be amended, such as during a state of siege or emergency or wartime. It is worth noting that the unamendability concerns the provisions on those subjects and not the principles they enshrine. In a way, this makes a reform even harder.[1543] In the Czech Republic, by contrast, Article 9 of the Constitution declares the general unamendability of the fundamental attributes that characterize the legal system as a democratic one. Nevertheless, the essence of fundamental rights may also be considered protected by an implicit unamendability given that (a) the Charter of Fundamental Rights and Freedom is an integral component of the Constitution (Article 3); and (b) the limitation of fundamental rights cannot breach “the essence and the significance of these rights and freedom” (Article 4)—which are inherent, inalienable, non-prescriptible, and irrepealable (according to Article 2 of the Charter). Therefore, in both Constitutions, the focus of unamendability is on democracy and rights, with a clear attempt to safeguard principles that, though proclaimed, were effectively disregarded by the communist regimes in order to ensure the control of the State by the Party. As in the Italian and German cases, a country’s history influences framers’ decisions to introduce unamendable clauses for the purpose of protecting values which are perceived as fundamental but that may be put in danger by unexpected choices of future political majorities. In order to protect fundamental values, Romanian and Czech Constitutions established Constitutional Courts, but, in contrast with the Italian and German cases, the analysis should concern the competences attributed to the Courts rather than their activism. In fact, the Romanian Court proved to be less powerful than one would have expected from a Court constitutionally declared as the guarantor of the supremacy of the fundamental law (Article 146). By contrast, the Czech Constitutional Court demonstrated a great authority in assuming powers not explicitly provided by the Constitution. The Romanian Constitutional Court may review bills for constitutional amendment only as a preventive control (a priori), given that it must review all the amendment initiatives before the Parliament begins the procedure to enact them and to submit the text to a compulsory popular referendum. The Constitution, however, provides the Court with a great ability to test the amendment, including its consistency with the core values of the Constitution that the text itself establishes as unamendable.[1544] The Court was able to halt amending procedures on property rights in 1996 and 2000[1545] because they were inconsistent with the requirements for constitutional revision. Nevertheless, in 2003, the constitutional provisions on the control of constitutional amendment proved to be weak.[1546] The Court declared a part of the bill of revision that vastly amended the Constitution in the light of the EU requirements for the accession[1547] inconsistent with the unamendable provisions on fundamental rights. Although the Parliament seemed to modify the bill according the Court’s decision before approving it, the constitutional amendment has been challenged for unconstitutionality after its entry into force. The Court could not do anything but declare its lack of competence under the a posteriori control of constitutional amendment,[1548] confirming that the Romanian Constitution seems to assign the protection of fundamental values to political powers rather than to the Constitutional Court.[1549]Formally, the same weakness seems to affect the Czech Constitutional Court.
Article 82 of the Constitution only entitles it to judge and nullify acts that are inconsistent with the Constitution. However, the Court itself broadened its powers when determining the unconstitutionality of an act shortening the term of office of the Chamber of Deputies.[1550] The Court stated that the act might be declared void starting from the interpretation of Article 9, which has been considered not a mere declaration but an enforceable provision. Thus, the Court affirmed its competence in annulling any constitutional act that violated the essential requirement of a democratic State.[1551] This decision to annul a constitutional act that complied with the amending procedures because it infringed upon the main pillars of a democratic State seems to be mainly based on the historical origins of the current Czech legal system. It is evident that the Court wanted to preserve the constitutional guarantees to democracy—which had been strongly infringed during the communist regime— by assigning such a specific and important role to the unamendability clauses.[1552] This decision is also relevant because of the Court’s reasoning, which showed the existence of a constant debate among constitutional judges on the very complex topic of controlling the constitutionality of the amendments to the fundamental Charter. In fact, the Court strongly relied on the German Tribunal case law interpreting Article 79 of the Basic Law and affirmed that its self-attribution of competence to conduct judicial review in this field is not ultroneous, but in line with the constitutional developments of European democracies.5