Bogusia Puchalska - Limits to Democratic Constitutionalism in Central and Eastern Europe

BOGUSIA PUCHALSKAM
University of Central Lancashire, UK

First published 2011 by Ashgate Publishing

Published 2016 by Routledge
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Copyright 2011 Bogusia Puchalska

Bogusia Puchalska has asserted her right under the Copyright, Designs and Patents Act, 1988, to be identified as the author of this work.

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British Library Cataloguing in Publication Data
Puchalska, Bogusia.

Limits to democratic constitutionalism in Central and Eastern Europe.

1. Constituent powerEurope, CentralHistory. 2. Constituent powerEurope, EasternHistory. 3. PolandPolitics and government1989 4. Constitutional historyPoland. 5. Constitutional law Poland. 6. DemocratizationPoland.

I. Title

320.9438-dc22

Library of Congress Cataloging-in-Publication Data
Puchalska, Bogusia.

Limits to democratic constitutionalism in Central and Eastern Europe / by Bogusia Puchalska.

p. cm.

Includes bibliographical references and index.

ISBN 978-1-4094-1983-9 (hardback : alk. paper)

1. Europe, CentralPolitics and government1989 2. Europe, EasternPolitics and government1989- 3. Constitutional historyEurope, Central. 4. Constitutional historyEurope, Eastern. I. Title.

JN96.A58P83 2011

320.943dc22

2011007386

ISBN 9781409419839 (hbk)
ISBN 9781315592459 (ebk)

I would like to thank my employer, University of Central Lancashire, for granting me sabbatical leave which allowed me to do preliminary research for this book.

I thank my husband, Pieter Kahrel, the first reader of my drafts for all his work on the text, and my daughter Kasia for her comments. I would also like to thank the publishers reviewers for their helpful suggestions.

The fall of one party-states in the (Central and Eastern Europe) CEE countries was precipitated by events that mobilised the people of these countries into political action on an unprecedented scale. There were mass demonstrations in Prague, East Berlin, Budapest and other places, as well as earlier, more organised forms of channelling popular opposition, such as Charter 77 in Czechoslovakia and Solidarno in Poland, which at the height of its popularity reached 10 million members. In Budapest, the mass rallies on the National Day of 15 March 1989 were the most likely prompts that brought the two sides of the political divide to the Round Table.

Yet, this mass of civil and social energy dissipated with the start of the negotiations between the incumbents and the political oppositions, and was not revived again during the constitutional milestones that were the laying of new political and economic foundations of the CEE countries. The Round Table Agreements, packages of systemic reforms and constitutional re-drafting that took place across CEE, were the result of elite agreements between the political opposition and the incumbent communists leadership. They were not intended to be expression of the will, values, or demands of the masses who in varying degrees participated in the process resulting in the collapse of Communist rule (Saj and Losonci 1993: 328). Yet, despite this exclusion of the people the sovereign power from the political process of constitutional decision-taking and the making of new constitutions, neither the policies of the first years of systemic reforms across CEE nor the new constitutions promulgated across the region have been seriously contested. This might mean that the legitimacy of CEE constitutions and constitutional law-making have been largely decoupled from the authorship and related questions of democratic participation in those events.

The idea of democratic constitutionalism offers a way of analysing the process of legitimisation of the new systemic arrangements across CEE countries in the context of weak popular participation in putting those arrangements in place, and assessing the potential consequences of such legitimisation for the democratic development of these countries. This is mainly because democratic constitutionalism focuses on democratic participation in constitutional politics in constitutional moments (Ackerman 1992), or in constitutional as opposed to normal law-making (Ackerman 1993). When applied to the reformed systems of the CEE countries, this focus on democratic politics at watershed moments of a states history offers an insight into the type of governance that has been instituted in CEE and the political processes that led to such arrangements. This approach also makes possible a more general question: Does denying the masses an influence on the shape of fundamental aspects of the organisation of their states in constitutional moments that occurred after 1989 have a lasting bearing on the quality of future development of democracy and constitutionalism in CEE?