Why is constitutional engineering crucial but difficult for the former communist countries?

When communism was imposed as the incontestable political doctrine at the culmination of the Second World War, many Eastern European nations set upon a new chapter in their respective histories.  During the forty odd years as part of the Soviet Union a degree of economic, political and constitutional homogeneity was brought into this region, which has previously shown diverse traditions in these aspects.  What has unraveled with the fall of the Berlin Wall (and is continuing to this day) makes for an interesting academic exercise.  It also has practical implications for the lives of citizens of these countries, whose future depends on the development of democracy backed by a robust judicial system.  Constitutional reform or engineering toward this end is a daunting task and early signs of this experiment have shown disappointing results[1].  This essay will take an in-depth look into factors that are holding back constitutional engineering in the Eastern European bloc; and especially focus on how the Soviet legacy is still influencing crucial areas of reform.

The ongoing transformation from state communism to a free-market economic system in Eastern European countries is unprecedented in its scope and wide-ranging in its impact.  Given that communism radically altered major institutions in these countries, it should come as no surprise that the early stages of the reform process have not been fruitful.  Since economic growth is a key indicator of a stable constitutional structure, it is instructive to look into this facet of a nation’s health.  It turns out that the degree of economic contraction is larger than what was predicted by analysts.  This trend can be observed in the republics of former U.S.S.R as well. For example,

“With the important caveat that the rise in private sector activity may not be fully captured in the official statistics, the drop in output in the region since 1989 is now estimated to have reached 20   percent, and for some countries it has exceeded 35 percent. There has been some progress in the implementation of reforms in Eastern Europe, but the supply response thus far has been limited. Signs of a bottoming out of the contraction can be discerned in some countries, but further output losses may yet be in store. In the republics of the former U.S.S.R., the reform process has barely started.” [2]

The transformation from communism to democracy involves radical overhaul of former authoritarian institutions.  Hence, political commentators were under no illusion about the turbulences it is going to involve.  Already, in the twenty years since the collapse of the Soviet Union, three former communist countries of the union have seen political upheavals.  The Rose Revolution threw out Eduard Shevardnadze in Georgia and brought to power a 36-year-old lawyer from New York.  The Orange Revolution that followed in 2004 handed power to Viktor Yushchenko, who is known to have the backing of Washington.  Yushchenko’s election victory was disputed by the opposition party and he narrowly escaped an assassination bid as well.  Similarly, the Tulip Revolution of 2005 in Kyrgyzstan removed dictatorial president Askar Akayev (who eventually took refuge in neighbouring Russia) and in his stead brought the opposition leader to power, whose election rhetoric was centred on constitutional reform.  These examples show the magnitude of the task of bringing democracy to the region which has not yet come out from the communist hangover.  At first these so-called revolutions were hailed in the Western press as the beginning of a new era of prosperity and progress for these countries.  But the truth is far from this idealization.  These three ‘revolutions’ are now recognized as total failures.  In fact,

“no fresh heroes rose from the grass roots, swept into power by a newly robust civil society and banished Soviet-era apparatchiks. The “revolutions” were really the product of a split in the “political elite” surviving from the Soviet era. The Rose, Orange, and Tulip revolutions were initiated and controlled by “outs” seeking to replace the “ins.”. The democratic revolutions so beautifully named in the euphoria of mass street demonstrations, Tudoroiu writes, have proven to be not much more than a “limited rotation of the ruling elites within undemocratic political systems.”[3]

It is interesting to note that chaos and political intrigue are endemic to former communist countries in Eastern Europe.  Mikhail Saakashvili, former Georgian leader soon gained a reputation for being a ruthless autocrat, “accumulating outsized powers and fending off lurid charges of murder and corruption”.  This observation could be extended to Ukraine’s former prime minister and head of the national bank, who, after failing to act on his election promises, was ultimately forced to relinquish his premiership to a leader of the opposition group that was alleged to have made an assassination attempt on him.  The events that unfolded in Kyrgyzstan was no different, “whose president has polished coercive institutions to a brighter shine than in the Soviet era itself, is mired in corruption and nepotism and has suffered business-linked killings and political assassinations.”[4]

It could be logically deduced that the problems facing former Communist countries are due to legacy of failings under that system.  But surprisingly, more authoritarian communist regimes such as China have held up solidly amid the surrounding chaos. Considered the last communist bastion, China has succeeded in undertaking and implementing far greater reforms than its East European counterparts.  Admittedly, the authoritarian tendencies within China has escalated in this period, but so did the standard of living for most of its citizens.  In contrast to cases of abuse of power and opportunistic accumulation of wealth by the ruling elite witnessed in former communist countries, China has followed a socialist template for its economic liberalization program.  It is true that China fares badly in human rights reports, but what keeps harmony within its borders is the semblance of egalitarianism it has managed to achieve.  In areas such as access to basic education, access to basic healthcare, etc, China outperforms even some of the advanced economies in the world. [5]

There’s another important reason why constitutional engineering is difficult in former communist countries of Eastern Europe.  In the prevailing world order (of both military and economic dimensions), the United States is the clear leader.  And the persistence of American influence in internal affairs of former communist countries has largely been negative.  With the neo-liberal global order firmly established, American businesses (represented by American diplomats) have indirectly intervened in order to create a favourable atmosphere for their interests.  In this scenario, the establishment of a democratically elected government, under the auspices of a constitution that is protective of its citizens, is hardly the ideal outcome for them[6].  Hence, intervention in the form of strategic diplomacy and foreign capital inflows have either stalled or delayed or derailed meaning constitutional reforms in these nations.  In other words, once the process of foreign capital inflows is started, the priorities shift to earning suitable returns on capital investments and strengthening democratic institutions assumes low priority. A classic example of this is Armenia, a strategically important country with which most Americans are unfamiliar.

“Since 1993, the Republic has received grants and loans from international monetary and lending institutions, such as the International Monetary Fund, totalling more than $1 billion (USD). In addition, since 1992, the United States alone directed more than $1.6 billion (USD) in aid to Armenia. Although the relationship with the United States is a close one and Diaspora Armenians defend Armenia’s interests in the United States, Armenia also maintains close ties with Russia and Iran –strategic alignments that provide a buffer from the hostility of its Turkish and Azeri neighbours.[7]”

After the collapse of the Soviet Union, Armenia declared its independence on the basis of a plebiscite.  But the initial euphoria was short-lived as relations with neighbouring Azerbaijan got strained, leading to military conflict first and later to economic sanctions from the neighbour to the East.  Its neighbour to the West, Turkey, also imposed an embargo, “which interrupted its communications, transport, and energy supply links with Russia and the wider world” and strangled the Armenian economy. This tiny former communist nation also endured a traumatic experience when Members of its Parliament were assassinated during a legislative session during live TV coverage.  The conflict persisted until 1994, when a ceasefire was signed under the guidance of the Organization for Security and Cooperation in Europe’s (OSCE) Minsk Group.  But by this time, plenty of damage has happened.  The Azeri population of the country was nearly wiped out and it occupied a fifth of Azerbaijan’s territory (as recognized by international law).  Armenia also suffered a “devastating earthquake in 1988 that killed 25,000 people. The energy crisis that began with the 1989 imposition of the blockade contributed to a ruinous shrinkage of its economy, epitomized by a 60% decrease in GDP between 1991 and 1993. The energy crisis ended only with the reopening of the Medzamor nuclear plant in 1995.” [8]

Hence, it is easy to see why the process of constitutional change has not received due attention.  The problems faced by Armenia as it tried to pull away from its Soviet past and charter a new course for its future is typical of problems faced by other former communist nations in Eastern Europe.  It is factors such as these that has stalled or protracted the process of constitutional engineering.  Adding complexity to the much needed constitutional engineering process is the standards expected by the EU club.  In order for former communist countries to qualify for joining the European Union, they first need to have stable, democratic institutions in place.  Conversely, it could be argued that joining the EU is a first step toward fostering democratic practices internally.  Indeed, it is a positive development that most of the recently included batch of 10 countries, namely, Poland, Hungary, the Czech Republic, Slovakia, Lithuania, Latvia, Slovenia, Estonia, Cyprus and Malta, previously belonged to the Soviet bloc.  Without a stable and secure domestic environment, it would be an uphill task for these countries to meet the mandates that will be set out in the impending EU constitution.  The challenge of Constitutional engineering at the national level has parallels with the larger project.  And for the 10 countries mentioned above, the problem areas are similar as they pull away from their forty year experimentation with communism.   These countries, which pale in comparison to the economic prowess of Britain, France and Germany will have to abide by the diktats of the bigger players within the Union.  They are also beset by political manoeuvrings internally, where the plutocratic class of the Soviet era is bent on preserving its privileges.[9]

But this is too early to lose hope for meaningful reforms in the region.  There are some positive developments as well, which should encourage further earnest efforts toward constitutional engineering.  In some cases, useful institutions and ideas from the Soviet era have been retained and nurtured under the democratic framework.  One such synthesis is the notion of ‘semipresidentialism’.  The executive diarchies that existed under Communist one-party regimes is thought to have provided the template for semipresidential constitutional arrangements after the fall of Berlin Wall.  Indeed, semipresidentialism “is somewhat similar to Soviet administrative law, in that executive power is divided into strategic and managerial functions. In the Soviet Union, these functions were run by the Central Committee of the Communist Party and the government, respectively.  It is thus a typically Eurasian, natural development from Communist executive diarchy to post-communist semipresidentialism.”[10]

This underscores the fact that post-Communism, it is not a retrograde step to take to adopt a constitutional model that has similarities to the one being replaced.  This is not to say that these countries had no other choice.  Semipresidential constitution, which has its roots in the French constitution of 1962 might have been the primary choice in the post Soviet milieu, but viable models were available in the form of American and British constitutions.  Moreover, the choices pertaining to constitutional reform in countries such as Lithuania, Poland and Slovakia can neither be attributed to “Communist legacy or postcommunist clientalism”[11].  Ukraine is another interesting case, where the adoption of semipresidential constitution was seen as a progressive continuation of Communist executive diarchy.  On the other hand, countries such as Armenia and Moldova still have poorly developed constitutions.