Abstract
This paper analyzes the causes and consequences of constitutional amendments in Eastern Europe. Its results challenge the conventional wisdom that constitutional change is a consequence of institutions and that major changes will increase executive powers and limit rights. It finds that the political and social context rather than institutions is the main cause of amendments. These amendments moreover tend to reduce the power of executives and strengthen guarantees of human rights. The paper attributes these results to the particular circumstances of the postcommunist transition.
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Notes
Lutz develops a point system for scoring difficulty. In a reanalysis of his data, Ferejohn (1997) finds that it is mainly legislative procedures rather than referenda or initiatives that affect amendment rates. See also Rasch and Congleton (2006). Sharlet (1997) has argued that difficult procedures explain Russia’s lack of amendments.
Even legislative fragmentation has roots in institutional choices, particularly electoral rules.
On the other hand, authoritarian rulers may simply ignore the constitution.
The countries are Armenia, Bulgaria, Croatia, Czech Republic, Estonia, Georgia, Hungary, Latvia, Lithuania, Macedonia, Moldova, Poland, Romania, Russia, Slovakia, Slovenia, and Ukraine.
One country, Albania, was excluded due to an inability to find data.
The exception is Russia which has been rated unfree for the period 2004–2006.
Lutz is not clear on his counting rule for amendments.
There is some fuzziness in this measure due to different numbering systems.
Precise data on the number of articles change was not available for Armenia. Blaustein and Flanz (1971-Present), however, report that “There are only a handful of provisions of the original constitution which have not been amended one way or another.” I conservatively assumed that three-quarters of articles were amended.
It is even smaller, r = .02, if Macedonia is excluded.
The amendment rate is the total number of amendments adopted across all countries in a given year divided by the number of countries. The figure excludes Macedonia’s anomalous experience in 2001 when it passed 15 amendments. Note also that some countries adopted a new constitution later than others and thus have not reached the final points.
Countries who experienced improvements in their democracy scores were Bulgaria, Croatia, Georgia, Macedonia, Romania, Slovakia, and Ukraine.
I also considered an interaction between difficulty and fragmentation; greater fragmentation might reduce amendments only when procedures are difficult. This variable was not significant in any specification.
The particular institutions adopted in Eastern Europe do not explain the general low rates of amendment relative to other countries. Eastern European constitutions had very similar amendment procedures and lengths to those in other regions (Roberts 2006).
For a comprehensive review of these historical arguments, see Holmes (1988).
A common occurrence is presidents amending the constitution to remove term limits.
More speculatively, it could be argued that flexible constitutions create both democratic accountability and a constitutional culture. In the first place, they force legislatures to make decisions. Legislative bodies cannot defer to courts or excuse non-action with reference to the restrictiveness of the constitution. This may be important for new democracies because accountability has been missing for so long. Similarly, debate over constitutional changes might introduce citizens to the substance and importance of the constitution. Neither possibility is considered here because they are difficult to measure. See Holmes and Sunstein (1995).
Several amendments did not fit these categories, for example, Hungary’s amendment to change its coat of arms.
Even countries that did not change the powers of presidents witnessed important debates over the nature of the presidency. Few countries seem to be satisfied with the state of presidential powers. Their concerns mirror the findings of political scientists that the strength of the presidency has a strong effect on democracy, economics, and the party system.
The opposition urged a boycott of the referendum on this amendment and claimed fraud in the counting of votes. Its main criticism was that the amendment still left too much power in the hands of the president. On the other hand, the Council of Europe gave the amendment a positive evaluation (Venice Commission 2005a).
An amendment passed under Mečiar actually transferred presidential power to parliament, though this was in his self-interest at the time since the president was associated with the opposition.
Though in some cases they deliberately misinterpreted or ignored the constitution to serve their ends.
The upper house had only a suspensory veto.
A further provision stipulated that international rights treaties would trump Romanian law.
These provisions replaced ones proclaiming solidarity with Macedonians living outside the country’s borders. Pressure from Greece was behind these changes.
For example, several countries have a provision that gives the national bank the sole right to emit currency.
Future accession to the EU was not forefront in the minds of constitution writers operating at the start of the transition because they had other more pressing concerns.
An example of indirect influence is the Venice Commission which was created in 1990 by the Council of Europe as an advisory body on constitutional issues. Consisting of experts in constitutional law, the Commission provides working groups to help countries prepare constitutional changes and independently offers written opinions on amendment proposals.
It is still a mystery though why Putin chose not to amend the constitution to allow himself a third consecutive term as president.
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Roberts, A. The politics of constitutional amendment in postcommunist Europe. Const Polit Econ 20, 99–117 (2009). https://doi.org/10.1007/s10602-008-9059-z
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DOI: https://doi.org/10.1007/s10602-008-9059-z