Vol. 21 No. 10 (October, 2011) pp.638-640
CONSTITUTIONAL EVOLUTION IN CENTRAL AND EASTERN EUROPE,
by Kyriaki
Topidi and Alexander H. E. Morawa (eds). Farnham, Surrey: Ashgate Press, 2010.
292pp. Hardback. £60.00/$114.95. ISBN: 9781409403272.
Reviewed by Iyiola Solanke, School of Law, University of Leeds. Email:
i.solanke[at]leeds.ac.uk.
Freedom is not synonymous with autonomy. Especially in a polity such as the EU,
freedom can be frustrated in the complications of multi-level governance, where
tension accompanies many decisions. This volume is an attempt to air in a
constructive manner some of these frustrations and tensions as experienced in
the countries of central and eastern Europe (CEECs) as they prepared for and
achieved membership of the European Union. It aims to give voice to a new
generation of writers as they reflect on ‘post-enlargement constitutionalism’ –
the period after transition from Soviet satellites into full member states of
the European Union. The contributions suggest that joining the latter was not a
simple case of renouncing the former: accession was delayed, drawn out and it
seems disappointing.
In their introduction to the volume, the editors remark that “questions posed in
Central and Eastern Europe about the benefits of EU membership have not stopped
changing since the collapse of communism in 1989” (pp.1-2). That they continue
to be asked in any form suggests a persistent disappointment in the EU – far
from being some kind of panacea to all post- Communist ills, not only did the EU
deliver little but it demanded much, and not all of the political, legal and
economic reforms demanded by the EU were welcome. The simplicity of the
Copenhagen Criteria belied the complex changes required under the accession
process – in order to become EU member states these states had to practically
make themselves anew. As the transition agenda was set out by the EU, the CEECs
did not choose the new design. Likewise, the CEECs did not determine the pace of
accession: it took the majority ten years to meet the accession criteria –
Hungary, Poland, the Czech Republic, Bulgaria, Romania, Latvia, Lithuania,
Slovakia, Slovenia and Estonia joined in 2004. Bulgaria and Romania needed three
more years and joined in 2007. Croatia is now set to join in 2013.
The essays in this volume aim to help the reader understand the varying
constitutional complexities faced in the different CEEC states. Some basic
educational work is also undertaken – the individual historical contexts are
designed to correct the misconception that the accession states are synonymous.
In Section I we are therefore invited to think about communication between the
EU and the Estonian and Romanian constitutions. Kerikmae urges Estonia to engage
in constructive dialogue so as to contribute to ‘the process of building up a
common EU legal space.’ For reasons relating to divisions in Romania on EU
constitutionalism, however, Tanasescu
urges caution – she concludes that the future will be bleak if the EU
constitution claims to accommodate ‘two fundamentally different realities’ – a
‘quick, unreasonable and simplistic analogy’ to domestic law will not [*639]
strengthen but undermine the EU. A third chapter in this section by Topidi
discusses the role of fundamental rights in providing a common ethical language
for this multi-level constitutional communication.
From Estonia and Romania, the reader is taken in Section II to the Czech
Republic, Slovakia and Poland. Here the authors provide perspectives on the
internal behaviour of domestic courts when confronting potential constitutional
conflicts with EU law. The first two chapters, by Dumbrovsky and Mikuli
respectively, are unequivocally critical of the lack of courage of the courts.
Dumbrovsky argues that bargaining has usurped dialogue due to the “inability of
new member states’ judiciaries to grasp the idea of constitutional pluralism and
dialogue” (p.90). This is attributed to constitutional development under
communist rule. Mikuli criticises the narrow practices of the Polish judiciary
and proposes a reformulation of the doctrine of subordination to statute so that
scholarly views can be considered in decision-making. However, the section moves
to a more positive note when Zemanek identifies a new confidence in the decision
of the Czech Constitutional Court on the Lisbon Treaty, describing this court as
”fairly 'fit' for the post-Lisbon European judicial dialogue” (p.156). Finally
Morawa sets out a vision of interaction that fosters constitutionalism – the
introduction of the European Citizens Initiative (Article 11 (4) Treaty on the
Functioning of the European Union (TFEU)) may be a move towards his model of
citizen-driven constitutionalism in Europe within which national constitutional
courts are part of the solution, not the problem.
In Section III the reader travels to Hungary and Bulgaria. Somody evaluates
human rights standards in Hungary and the tension that exists because levels of
protection in the Hungarian constitution are often higher than those in the
European Convention of Human Rights and the EU. She explores the Hungarian
response to this trend via two cases studies focusing on data protection and
racist speech. Smilov focuses on the problems of populism in Bulgaria, a rising
trend against which the courts have not acted firmly. Like Dumbrovsky and
Mikuli, he concludes that the judiciary has on the whole failed to protect
liberal constitutional values – on the contrary they have sometimes themselves
adopted ‘paranoid and illiberal strategies’. The exploration of the role of the
media in Eastern Europe by Nyman-Metcalf suggests a way to address these
problems. An independent media, she argues, “is an important ingredient in the
reform process in countries in transition” (p.231). The media not only transmit
ideas on the EU but more importantly set public expectations on the rule of law,
institutions and rights. It therefore plays a key role in constitutionalisation
and must enjoy freedom of expression to do this effectively. Media legislation
should be used to secure this and ensure that journalists are free to transmit
more than institutional views.
Overall, the book gives the impression of the CEECs asserting their autonomy
through unity. Despite the tone of resignation in the opening quote from
Nietzsche, this is not a collection of essays by Euro-phobes but of authors
positioning their nations as co-creators of the EU. This is not surprising –
Poland is after all the sixth largest member state. Nietzsche’s quote suggests
that as in Waiting for Godot, the CEECs will continue to wait; yet unlike
Vladimir and Estragon, we are left with the clear [*640] impression that
simultaneously they will act, or as said by the editors, be policy-makers not
just ‘policy-takers.’ The contributions demonstrate this – they often contain
practical solutions to the problems articulated which might be useful to their
own leaders as well as the EU.
In terms of structure, the book has a nice symmetry, with each section
containing at least one paper written from a general rather than
country-specific perspective. The papers also relate to each other well across
the sections. All contributions share a positive expectation of liberal
democratic institutions, in particular the courts. However, bearing the
experiences in mature democracies in mind, this faith in the role of the
judiciary is questionable. It may be wise for commentators from the region to
pay attention to issues such as recruitment, diversity and transparency, which,
as the confirmation of Sonia Sotomayor in the USA demonstrated, are heated
topics of debate elsewhere in the world. In addition, such expectations may lead
to further disappointment: the courts in the region may be untainted by the
politics of the past (Yusuf, 2010), but judges are not prone to pioneering –
courts are reactive institutions and judicial entrepreneurship is an exception
rather than a norm. If there is one problem shared by the CEECs it is that this
leaves a vacuum where no institution acts as pioneer of social change: this
vacuum is easily exploited by populists.
The regional focus raises the questions of whether the issues covered are
particular to countries in central and eastern Europe. A number of the
challenges highlighted may have arisen in southern Europe, where transitions
were also made from authoritarian regimes. Are there any parallels? If so,
scholars from central and eastern Europe are in an advantageous position to
conduct new research on meta-tensions endemic in the process of European
enlargement and integration.
The strength of the volume is its introduction of new voices and perspectives to
issues arising from integration in Europe – the majority of the authors are
scholars (researchers and professors) rather than policy-makers or
practitioners. Whilst a useful corrective, the collection does not of course
exhaust the problems or the perspectives in the region: many questions remain
and there is scope for future work exposing new voices from countries such as
Latvia, Lithuania and Slovenia. Taken
together, the contributions serve as a reminder that freedom is a practice; a
verb rather than a noun. Whilst leaders in central and eastern European
countries seek freedom by trying to build national “trust and faith in the idea
that Europe makes sense – that the EU is truly a worthwhile invention” (Tusk,
2011), the European Union must recognise such efforts by demonstrating that it
is listening to them.
REFERENCES:
Tusk,
Donald, Polish Prime Minister. 2011. “Polish Solidarity.” Editorial, Financial
Times, Friday July 1st, p.12.
Yusuf,
Hakeem O. 2010. Transitional
Justice, Judicial Accountability and the Rule of Law. Abingdon: Routledge.
© Copyright 2011 by the author, Iyiola Solanke.