Democratic transitions and constitutionalism

The role of law and constitutionalism, especially democratic constitution-making and constitutional justice, therefore, are extremely important in all processes of democratic transition, power restraint and consolidation of the new regime. For instance, post-war Germany’s constitution – the Grundgesetz of 1949 – shows the importance of solid constitutional constructions for the success of democratic transition.

In the realm of constitutional law, the repressive and discriminatory provisions of an outgoing authoritarian regime’s constitution, if not the whole document, are initially suspended and the most powerful positions in the existing constitutional system are neutralized and officials of the old regime removed so that they cannot destabilize the process of democratization. For instance, the Polish round-table talks led to free parliamentary elections, the appointment of the first non-communist Prime Minister since the Second World War in September 1989, and constitutional amendments abolishing the leading role of the communist party and paving the way for the liberalization of politics and full-scale democratization in December 1989. Similarly, parliaments still fully controlled by communists were forced by revolutionary crowds and opposition leaders to effectively declare the end of communist rule in the GDR and Czechoslovakiain 1989. The election of Václav Havel as President of Czechoslovakia by communist parliamentarians on 29^thDecember 1989 was probably one of the most surreal, yet completely realistic, pictures of the early stages of the constitutional transition to democracy in Central and Eastern Europe.

Alternatively, the interim transitional constitution can be negotiated between regime representatives and the democratic opposition to stabilize the process of democratic transition and pave the way for a democratically elected assembly with full legitimacy to enact a new democratic constitution. InSouth Africa, for instance, the constitutional framework was designed to dismantle the system of apartheid while limiting the risks of adversarial politics between incoming and outgoing political representatives. The South African interim constitution of 1993 and even the current constitution promulgated in December 1996 are probably the most persuasive examples of constitutional law’s stabilizing role during the process of political transition and heightened social tensions (Spitz & Chaskalson 2000).

Another example of the importance of constitution-making in the early period of democratic transitions is the Hungarian interim amended constitution enacted by the communist parliament as part of the round-table talks agreements. The constitution was a guarantee and a vehicle of political changes and trust-building between the communist government and the ascending opposition. The enactment of constitutional amendments in October 1989 was briskly followed by a national referendum on the form of the state, especially the position, assets and militia of the communist party and timing of the presidential election (Bozoki 2000). After the free parliamentary elections of 1990, the democratic parliament merely amended the interim constitution and thus effectively converted it into the constitution of a self-consolidating democraticHungarywhich lasted until the new constitution of 2011.