IV. The institutional design of the governmental system (constitution

IV. The institutional design of governmental system (constitution)

The reorganisation of the governmental systems began in many countries during the communist era with the introduction of the presidential office. Among the communist states, only Czechoslovakia retained the office it knew from the interwar period. In the other countries of the “Eastern Bloc,” it had been abolished. Before the existential system crisis of socialism, it had only been created in Romania for Nicolae Ceauşescu in 1974.

During the existential system crisis at the end of the 1980s, the presidential office was first reinstated in Poland. During secret negotiations (February–April 1989) it was implicitly agreed that Wojciech Jaruzelski, who had been responsible for the martial law in the 1980s, would be elected as the new head of state. At that time, the Breshnev Doctrine was still valid and the general was to guarantee that Poland would remain in the Warsaw Pact. One year later, the Soviet party leader Mikhail Gorbachev also became state President. The final establishment of the office, however, was only achieved through constitution-making (the constitutional process) in the post-communist era.

In this process, which some political scientists term “institutional engineering,” the following factors have always played asignificant role: 1. the constitutional tradition of the country concerned and (if no such tradition exists, or) the example of other countries, 2. the institutions of the regime to be overcome, 3. the daily political life of the period of constitution-making.

“Daily political life” can be understood as all political processes, developments, and actions that result from the assertion of current interests and procedures by political actors.

In this context both the duration of constitution-making and the constellation of political forces that influence this process plays an important role.

“institutional engineering”

It is a known fact from history that the shorter the process of constitution-making and the less involved the authors of the constitution are in political struggles, the smoother the process is. As early as 1959, Herbert J. Spiro recommended that a constitution be created by as small a group of experienced politicians as possible, who should not be obliged to make any other political decisions while working on the draft constitution.34

Previous processes of constitution-making often succeeded in fulfilling this postulate. After the constitutional process, however, it often turned out that the new constitution was inoperative. In the 19th century, for instance, monarchs were often reluctant to respect the constitutional limitations of their power. Hence, a rapid constitution-making was no guarantee of a functioning constitutional regime.

It is noticeable that the democratisation of post-totalitarian states that failed to quickly complete the constitutional process often stalled. For example, Russia’s post-communist constitution was not adopted until December 1993 and was created under the circumstances of the violation of the constitution and the use of force. The constitution-making took even longer in Ukraine, which did not adopt a new basic law until June 1996, although in this case, the tanks did not open fire on the parliament. In Belarus, finally in November 1996, in the course of a peculiar coup d’état by President Aleksandr Lukashenka, an acceptable constitution dating from 1994 was transformed into a document that became the instrument by which the President has exercised his omnipotent power to this day.

These three examples could be an argument in favour of for the democratising effect of quick constitution-making if it were not for the example of Poland (see Table 5).

34 Herbert J. Spiro, Government by Constitution; the Political System of Democracy, New

York 1959, p. 472.

Table 5: Sequence of events in the countries studied until the adoption of the constitution

country time and mode of political adoption of the constitution upheaval Poland Round Table negotiations under 2 April 1997 – by the National “bottom-up” pressure (February- Assembly; 25 May 1997 by April 1989) referendum Hungary Round Table (June-September 18 October 1989 – constitutional 1989) to prevent „bottom-up“ amendment pressure Bulgaria post-communist dominated 12 July 1990 – by parliament Round Table (January–March 1990) Czecho- rapid system changes without November 25, 1992 – The slovakia a Round Table (November- Federal Assembly adopts December 1989) the constitutional law on the dissolution of the federation as of December 31, 1992 Slovakia 1 September 1992 – by the Slovak National Council (valid since 1 October 1992) Czech 16 December 1992 – by the Czech Republic National Council (valid since 1 January 1993) Romania “fake revolution” in December 21 November 1990 – by 1989; afterwards post- the Constituent Assembly; communist dominated Round 8 December 1990 – by Table (February–May 1989) referendum Russia failed coup in August 1991, 12 December 1993 – by followed by the dominance referendum of Boris Yeltsin – including the violent dissolution of parliament in September/October 1993

Although Poland country took a full eight years for the final adoption of its new constitution, marked by political struggles within the institutional triangle of the head of state, government, and parliament, it nevertheless built up a democracy. Moreover, taking into account that the Polish provisional constitution (the so-called Small Constitution of 1992) has been amended several times, one has to conclude that also in post-communist countries, the skilfully conducted constitution-making process has at best increased the chances of democratisation.35

35 Jerzy Maćków, Parlamentarische Demokratie und Autoritarismus. Erfolge und Misserfolge der postkommunistischen Verfassunggebung, Hamburg 1998.

“nominalism” of the constitutional norm

The question of whether institutional engineering was a decisive factor for the democratisation of the post-communist countries does not need to be examined here. Rather, in the context of post-communist systems, it is more important to ask which institutional design these countries adopted as a result of integrating the head of state into inherited institutions.

The emergence and constitutional characteristics of post-communist governmental systems in Bulgaria, Poland, Romania, Slovakia, the Czech Republic, Hungary and Russia are analysed here.36 Except for Russia, these are the former socialist countries that were not part of the Soviet Union and Yugoslavia during the communist era. They represented totalitarian states of external origin that claimed to be sovereign “people’s democracies.” Since 1989/1990, they were able to independently shape their political systems. Russia is of interest here as the legal successor of the former centre in the communist empire and as the largest post-Soviet state.

Before the country analysis, it is essential to define the notion of constitution in terms of political science and to introduce the criteria by which the governmental systems are distinguished from one another.

Political scientists understand the constitution in the sense of the state constitution as the “nature, origin and mode of expression of the functions and institutions leading the state.”37 This understanding goes back to Aristotle’s politeia, which refers to the entire order existing in the polis. Following this term, Giovanni Sartori claims that constitutions are first and foremost instruments of government that limit and slow down political power and enable the exercise of political power to be controlled. Accordingly, constitutions determine “how norms are to be created; they do not, and should not, decide what is to be established by the norms.”38

Authoritarian and democratic regimes have either a “nominalist” or “normative” constitution. Karl Loewenstein explains the “nominalism” of the constitutional norm with the allegory of a suit that does not fit the owner. This is the case when the “actual

36 Ibid. 37 Hans Boldt, Einführung in die Verfassungsgeschichte, Düsseldorf 1984, pp. 174f. 38 Giovanni Sartori, Comparative Constitutional Engineering, Houndmills et. al. 1997 (2ndEdition), p. 200.

state of affairs ... does not or not yet allow for the full integration of the constitutional norms into the dynamics of political life.”39 It is evident that in authoritarian political systems, the temptation to consider the constitution as nominalistic has at times to be strong. On the contrary, in constitutional democracies, where the limitation and control of state power require the de facto applicable constitutional norm, “the suit must fit well.” Hence, democracies promote the “normative” character of the constitution. 40 Only in totalitarianism does state power claim to treat the law as a mere instrument of power. Here the constitution takes on a “semantic” character (Loewenstein uses the term “masquerade” in this context).41

During the post-communist constitutional process, the main concern was to design a system of institutions with an effective executive branch capable of dealing with the crisis-ridden legacy of state-subjugated society. The political upheaval and the constitution-making differed from country to country.

In political science, despite endless disputes over presidentialism and parliamentarism,the majority of scholars still hold the intuitive opinion, even popular among laymen, that the presidential system of government is characterised by a President who wields great powers and the parliamentary system of government by a “strong Prime Minister.” The idea of presidentialism as a regime of the “strong hand of the President, ” which is capable of solving problems through dictatorial decision-making, is also popular in post-communist countries. This vision is contrasted with an equally widespread “lyrical model” of parliamentarism, in which the government is held in check by the parliament. According to this model, presidentialism meant a strong executive that dominated the parliament, while parliamentarism produced a parliament that was strong when compared to the executive. In reality, the opposite is the case, as is apparent in the still best typology drafted by Winfried Steffani. 42

Steffani classifies the existing systems into the categories “parliamentary” or “presidential” based on the “primary” criterion

39 Ibid. p. 153. 40 Ibid. p. 196. 41 Karl Loewenstein, Verfassungslehre, Tübingen 1969 (2. Edition), pp. 154f. 42 Winfried Steffani, Gewaltenteilung im demokratisch-pluralistischen Rechtsstaat, in: „Politische Vierteljahreszeitschrift”, No. 3/1962, pp. 256–282.

of the removal of the government. 43 Where the parliament has the right to remove the government, one can speak of a parliamentary system. If, in turn, the head of state is also head of government in personal union, or the head of government depends exclusively on the head of state, the system is to be classified as presidential. The answer to the question of who may remove the government is to be found at the level of the constitutional organs: “that is the constitution itself (as soon as a written constitution is presented) and relevant laws, ordinances, rules of procedure as well as their technical commentary and, above all, their legally binding interpretations.”44

Steffani adds “supplementary” criteria to his typology, which make it possible to subdivide and analyse the basic types. These supplementary criteria can, in turn, be divided into secondary (almost always present in one of the two main types of government) and tertiary (occurring in both main types) distinguishing characteristics. Since parliamentary systems, as opposed to the “closed executive” of presidentialism, have a “dual” (“divided”) executive, supplementary criteria can be used to decide whether the parliamentary system under examination is characterised by presidential or Prime Ministerial dominance.

According to Steffani, the tertiary characteristics include bicameral systems, constitutional jurisdiction, unitary or federal statehood, direct election of both the parliament and the head of state, and referendums.45 In this context, it is worth mentioning the legislative initiative and the legislative veto of the head of state, which is often crucial in the political process. Tertiary characteristics are neither typical for parliamentary systems nor for presidential ones which is why they are not listed in the Table6.

43 Winfried Steffani, Gewaltenteilung und Parteien im Wandel, Opladen 1997, p. 113. 44 Ibid., p. 135. 45 Ibid., pp. 117f.

Table 6: Parliamentarianism and presidentialism according to Winfried Steffani (1962, 1997)*

government system criteria examples – the primary criterion: – in monarchies: England parliament can remove the (prime minister or government (“removal”) cabinet dominance) – secondary criteria: – in republics: France government majority and 1793 (dominance party discipline in parliament of assemblies), parliamentary (dual executive) necessary, opposition present, power to dissolve parliament, compatibility of the electoral France of the III. and IV. Republic (executive cooperation), Federal mandate and the ministerial Republic of Germany office (chancellor dominance), Weimar Republic, Finland, France of the V. Republic (presidential dominance) – the primary criterion: head of – in monarchies: state is the chief executive in German Empire personal union, or the chief 1871 (constitutional executive can be removed by monarchy) the head of state – in republics: USA – secondary criteria: frequently (President is presidential (closed changing voting majorities, government), Latin executive) fixed term of office for the America (President legislative and executive as chief executive branch, no right of removal, with a council of incompatibility of the electoral ministers), Switzerland mandate and the ministerial (President integrated office into government as its chairman)

* Other typologies can be found in Table 8, 9, 10, 11 in the appendix.

As mentioned, all communist constitutions were “semantic” in character. If they had not resembled a masquerade, the core of the political system would have been the government by assembly with parliament as the highest organ of the state. Since such a system does not need a head of state, the Presidium of the Supreme Soviet (in the Soviet Union) or the Council of State (in the GDR and the People’s Republic of Poland), which originates from parliament, would have represented the state. In reality, the party leader was the de facto all-powerful head of state, allowed even to disregard the constitutional norms.

Every effort to bring constitutional practice closer to the constitutional norm had to lead to the strengthening of popular

representation. This is what happened at the end of Soviet socialism. However, even then, the normative constitution with government by assembly was not imaginable, for three reasons. First, there was a strengthening of the government, which replaced the increasingly weakened communist party. Second, the communists hoped to use the presidential office that was to be created to secure their power. Third, in the existential crisis of the communist system, an integrative office of the state President seemed necessary.

The institutional legacy of the government by assembly and the new office of the head of state forced all post-communist systems onto the path of dual executive power. This predetermined the decision for the parliamentary system of government. This fact is confirmed by the compilation of the selected constitutional provisions in table “selected constitutional provisions of the examined states” .

A look at the new systems shows that the authoritarian con-

stitutional practice of several post-communist regimes does

not arise from constitutional norms. The differences in the country-specific arrangements within a divided executive order are not significant enough for this. Even in Russia, where the powers of the President are exceptional, the Duma can remove the government that is close to the President.

Studying the lengthy Polish constitution-making allows for the analytical opportunity to include the influence of daily political life. Poland was the only communist country to enter the political transition with a large number of anti-communist political forces that were well organised and brought with them years of political experience from the underground. The most important of these structures was, of course, the trade union movement “Solidarność.” All these organisations have legally participated in the political process since 1989, facing the challenge of adapting their identity to the conditions of a radical economic and social transformation. The joint fighters against communism were to become representatives of different interests. The brief constitutional process of the other post-communist countries, on the other hand, is paradigmatic for the transformation of communist regimes in an environment of few organised political and economic interests.

The social and economic reforms were initiated in Poland before the adoption of the new and final basic law. Thereafter, Poland took the risk of first constructing the constitutional reality and only then the constitutional norm. Less important in this context was the choice of the economic shock therapy as the path of economic transformation. During this turbulent period of constitution-making, which lasted more than eight years, majorities in parliament were lost several times. The formation of the government therefore repeatedly resembled a tightrope act. The reserve power of the President was often strained. The greater his role in forming the government and determining policies as a whole, the more likely it seemed that a constitution would be adopted that would result in presidential dominance. The more likely this again seemed, the greater the efforts of political opponents to prevent such a constitution. And finally: the more frequently and clearly the constitution-making process was influenced by the problems of daily political life, the less Poland’s long constitutional tradition seemed to be useful. The large number of pre-communist constitutions chosen as models complicated the constitution-making. Considering the multiple ruptures in the history of Polish constitutionalism, too much reflection on the past was of no use when creating a constitution. This reflection threatened to shift the discussion of the constitution to the historical level.

The constitution-making in Poland since 1989was tied to the terms of office of four parliaments. The first stage of the constitution-making process started, as the communist-implemented parliament carried out a constitutional amendment on 7 April 1989, which was a result of the secret negotiations between “Solidarność” and the communist leadership that were held in parallel with the Round Table. For “Solidarność,” the new constitutional provisions that paved the way for the independence of judges (article 60) were among the most significant. However, the most spectacular was the creation of two state organs: the Senate and the President elected by the National Assembly (consisting of the deputies of the Sejm and the Senate). The second chamber of parliament was necessary so that the only “semi-democratic” elections to the Sejm, negotiated at the Round Table, could be accompanied by fully democratic elections to the Senate. The Senate, elected on the basis of majority voting, was granted the power to intervene in legislation. Should the Senate reject a bill,

Contract Sejm the Sejm would need a two–thirds majority to overrule its veto (art. 27.1 and 2). The President, who de facto presided over the coercive branches of the state, was needed to signal to Poland’s communist neighbours the predictability of Poland’s transformation and to protect the interests of the nomenklatura.

The head of state had the sole right to propose the Prime Minister to parliament (art. 32.f1.6). When forming a government, the Prime Minister was dependent on the approval of the President. The head of state could also use his veto against a law passed by the Sejm, which the Sejm could only overrule by a two-thirds majority. At that time, legal experts associated with “Solidarność” criticised this hurdle, which was higher than in France (requiring absolute majority of votes). Equally controversial were the regulations that defined the powers of the head of state in crises. The President was given the right to declare a state of emergency lasting three months. However, during the period of the state of emergency, neither could the Sejm be dissolved nor could the Constitution and electoral law be changed (art. 32.i.4 and 5). Similarly, the Spanish Constitution of December 1978, for instance, explicitly excludes any constitutional amendment during a state of war, alert, emergency or siege (art. 169). The Constitution of the French Republic (art. 89) or the German Grundgesetz (art. 79 (3)) prohibit any amendment of the constitution that alters the foundations of the state.

The second stage of the constitution-making was associated with the Sejm of the tenth parliamentary term of the People’s Republic and (since the end of 1989) the Republic of Poland (19891991). This so-called Contract Sejm did not achieve the noble objective of adopting a new Constitution on 3 May 1991. The Constitutional Committee of the Sejm and the Senate worked out their respective projects between December 1989 and summer 1991. There also existed some party and expert projects. But the two-thirds majority required for the adoption of the Constitution, which was conceivable at the beginning of the Contract Sejm, decreased over time. The political camp of “Solidarność,” which dominated the two chambers of parliament despite the “negotiated majority” of post-communists in the Sejm (in the democratically elected Senate, it held 99 of the total 100 seats), broke up into several factions throughout 1990, some of which developed into new political parties. The prepared constitutional projects

were therefore bequeathed to the Parliament, this time already democratically elected in October 1991.

The third stage of the constitution-making was initiated with the “second founding election” on 27 October 1991. The Sejm of the Republic of Poland, freely and democratically elected for the first time, suffered from the fragmentation of the political forces. Under these conditions, President Wałęsa managed to establish a constitutional practise that gave him the right to participate in the decision-making process not only concerning the appointment but also on the composition of the government. The appointment of ministers of the interior, exterior, and defence was ceded to him. The expanding power of the presidential office was propagated by Wałęsa as a means of political stabilisation.

Only amidst the context of this constitutional practice can it be understood that a parliament that had not been able to support any government for more than ten months could prove willing and able to achieve a two-thirds majority for a comprehensive constitutional amendment. The Amendment of 17 October 1992 (“Constitutional Law on the Mutual Relations between the Legislative and Executive Powers and on Territorial Administration”), usually referred to as the “Small Constitution,” left no doubt that the government could only be removed by Parliament.

The amendment indicated that the President has a say in the appointment of the Minister of Foreign Affairs, the Minister of the Interior and the Minister of Defence (art. 61). It also certified the President’s “general leadership” in the field of foreign policy [art.32(1)] as well as internal and external security of the State (art.34). These were all “stronger” powers than those of the Constitution of the Fifth French Republic (articles 15, 20, 21 and 52). However, as they were still vaguely formulated, they could not be undisputed in constitutional practice, unlike the usual practise in France.

All in all, the Small Constitution written by a group of deputies was a hard-fought compromise with the President, although in the end, it limited the powers of the head of state. In parallel with the adoption of this constitutional law, the Constitutional Committee of the National Assembly continued its work on the new constitution.

The parliamentary elections of 19 October 1993 introduced the fourth and final stage of the Polish constitutional process.

“Small Constitution”

victory of the postcommunist alliance They brought the victory of the post-communist alliance. The smaller factions, mostly originating from the former “Solidarność” camp, which together received about 30% of the votes, did not move into Parliament. Cohabitation between the President from the “Solidarność” camp and a post-communist government began, which lasted until Aleksander Kwaśniewski’s victory over Lech Wałęsa in the presidential race of November 1995. Until then, Wałęsa had led a fight “on the edge of the law” against the parliament in 1994.

The permanent dispute between the President and the parliamentary majority did not stop at the Constitutional Commission of the National Assembly. The Commission was often accused of being unrepresentative. Thus, a discussion on the mode of writing and adopting the Constitution, accompanied by conflicts between the parliamentary majority and the head of state, arose. These conflicts heated up the political climate. In April 1994, Wałęsa threatened to dissolve Parliament “even if there [was] no legal basis for it.” As a result, a compromise was reached. The constitutional law on the preparation and adoption of the constitution of 23 April 1992 was finally amended in favour of the President.

The extremely narrow victory of the post-communist presidential candidate Kwaśniewski over Wałęsa in November 1995 did indeed remove the tensions from the dual executive. However, this meant that the decision between the model of majority and consensus democracy had not been taken. The absolute dominance of the ruling coalition with its radical reform programme, which is typical of a consensus democracy, remained undisputed in 1989–1990. This dominance was initially backed by the overwhelming popular support for the Prime Minister Tadeusz Mazowiecki. However, the speed at which this support declined, and the formerly united camp of “Solidarność” disintegrated, shook the consensus model.

The fluidity of the nascent organisations and the party system further complicated the development of a majority or consensus democracy. The presidential elections in November 1995 showed that two major camps had now established themselves in Poland: the post-communists and the many post-”Solidarność” parties. The success of the constitution-making depended on the achievement of a large parliamentary majority. The Constitutional Committee had an easier time with the President, although

Kwaśniewski, who had previously advocated a weak presidential office, began to praise the provisions of the Small Constitution that strengthened the office of head of state, shortly before the presidential elections.

The most important and controversial constitutional debate in the National Assembly took place on 24–28 February 1997. Both the President and most of the members of parliament were interested in a quick closure of the constitution-making process so that several compromises were reached. On 2 April, the National Assembly adopted the constitution by a large majority. The constitutional referendum took place on 25 May 1997. The result was not overwhelming. With a voter turnout of about 43%, about 53% supported the new Basic Law. About 46% of the participants voted against it.

The constitutional design of the Third Polish Republic is characterised by the dominance of the Prime Minister. The Table 7 below shows the evolution of the Polish constitutional norm since 1989.

Table 7: Change and continuity of the constitutional norms during the Polish constitution-making

constitutions norms Constitution of the People’s Republic of Poland (as of 7 April 1989) Constitution of the Republic of Poland and the „Small constitution” (as of 17 October 1992) Constitution of the Republic of Poland (as of 25 April 1997) removal of the government by Sejm (art. 37.1.) by Sejm (art. 66) by Sejm (art. 158) right of the President to dissolve parliament yes (art. 30.1.) yes [art 4(4), art 98(4) and (5)] yes (art. 98.4. and 5.) compatibility of the ministerial office with the mandate of the yes yes (article 8) yes [art. 103(1)] deputy countersignature of the presidential acts by the government yes (art. 32f.2.) yes (art. 46 and 47) yes [art. 144(2)] by the National election of the President Assembly, consisting of the Sejm and Senate popular election (art. 29) popular election [art. 127(1)] (art. 32a.1.)

constitutions norms

President vis-à-vis the government

veto right of the President

legislative initiative of the head of state

decision on state of war and emergency Constitution of the People’s Republic of Poland (as of 7 April 1989) Constitution of the Republic of Poland and the „Small constitution” (as of 17 October 1992)

can chair the government [art. 32f. 1.8]

yes, by a two-third majority vote of the Sejm (art. 27.5.) yes (art. 20.4.) can chair the government [art. 38 (2)]

yes, by a two-third majority vote of the Sejm [art 18(3)] yes [art. 15(1)]

by the President (art. 32.i.1.2.)

by the President (art. 36, 37)

Constitution of the Republic of Poland (as of 25 April 1997)

can chair the Cabinet Council (not the government) (art. 141) yes, by a three-fifth majority vote of the Sejm [art. 122(5)] yes (art. 118) by the President, but at the request of the government; confirmation by the Sejm also required (art. 230, 231)

The findings of the constitution-making in Poland were correctly summarised by Wiktor Osiatyński: 1. The constitution-making was primarily shaped by political leaders and already “institutionalised elements of the power structure”: parliament, government, and head of state. 2. The formation of a large number of political parties called for the inconsistency of Polish politics, while the constitution-making required a high degree of uniformity. 3. The political parties did not do justice to the problems of the constitution-making because they were primarily interested in gaining support from the electorate. 4. The requirements of the constitution-making contradicted the requirements of governability. For the sake of governability, the Polish electoral law was supplemented by a high threshold clause, which called into question the representativeness of the constituent.

Also, in Russia, economic reforms were initiated before the adoption of the new constitution. However, the resulting delay in the adoption of the constitution was handled differently than it was in Poland. In autumn 1993, President Boris Yeltsin had the

unmanageable parliament bombarded by tanks. This enabled the constitution-making to be completed quicker than in Poland (in December 1993), but at the price of dubious legitimacy and institutional design, according to the ideas of a President who disregarded the constitution.

“Keeping open” the constitutional question for such a long time disallowed both Poland and Russia the opportunity to shape the government institutions in such a way that they could have responded better than other countries to the challenges of the post-communist system transformation. Rather, the delay tempted political actors to design their constitutional norms in such away that they could seize as much power as possible. In Russia, Boris Yeltsin proved to be the illegal winner of this power struggle. In Poland, on the other hand, a constitutional compromise was reached.

The emergence of post-communist systems decisively contributed to the fact that in the literature of the 1980s and 1990s, the “institutionalism” seemed to supplant the sometimes prevailing “paradigm of behaviouralism.” It is significant that most authors, regardless of their respective concepts of presidentialism and parliamentarianism, emphasised the strengths of the latter. Guillermo O’Donnell warned that presidentialism is more likely to foster delegative democracy than parliamentarianism. Juan Linz, in his highly acclaimed essay on the dangers of presidentialism, pointed to the rigidity of presidential regimes and the elasticity of parliamentary regimes, which would make the latter a better “fit for transition.” Giovanni Sartori criticised American presidentialism as a system of weak executive power that can only become efficient if the separation of executive and legislative powers prescribed by the constitution is disregarded – not a good recommendation for new democracies. Alfred Stepan and Cindy Skach also praised the “purely” parliamentary system. It would be better suited for post-communist states, not least because it tended to seek majorities for government programmes and was without the tendency to govern on the fringes of the constitutional norm.

It is doubtful whether this discussion brought any new insights. Walter Bagehot already valued the parliamentary system more highly than the presidential one because the separation of powers in the American system produces a weak, ineffective

executive. Hence, in legislative processes in the United States asemi-connection … “between the legislative and the executive” is inevitable. Harold J. Laski stated in another classic work already in 1940 that the presidential regime contains a weak executive that usually has a chance to prevail against Congress only in times of crisis.

Juan Linz named two main dangers that the “systems of dual executive power” (by which he meant more or less parliamentary systems with presidential dominance) would entail. On the one hand, such systems are often introduced where there is astrong distrust towards political parties, even though these systems are particularly dependent on political parties. On the other hand, with a dual executive, the probability of the army being involved in politics be relatively high. The president as commander-in-chief of the armed forces could beguile either the army (its chief of staff) or the minister of defence into arranging with the head of state, thus bypassing the Prime Minister. Arend Lijphart, on the other hand, spoke out against strengthening the presidential office, arguing that this would lead to the abolition of majoritarian democracy, although consensus democracy is considered appropriate for countries with deep cleavages.

In contrast, Shugart and Carey advocated strengthening the position of the head of state in post-communist states, which included, in their opinion, the general election of the president: “Only with a directly elected president do [the new democracies] have potential advantages in conflict resolution.” These authors thus supported the use of the political reserve power of the President in post-communist states. Shugart stressed that a strong President would minimise the risk of an unstable government. Similarly, Stephen Holmes pointed out the advantages of a strong President in an institutional system that does not know disciplined and well-organised parties and faces extraordinary challenges.

All these warnings and advice had an abstract character. The post-communist states were almost perceived as a single entity, thus ignoring the differences, which may have been decisive for the success of democratic institutionalisation. It is true that in the 1990s, all the countries concerned had very few political parties, which are central to the functioning of the parliamentary systems in particular, Moreover, there were hardly any genuine lobby groups, but there was the corrupt activity of the nomenklatura

cliques in the state apparatus and society. Given the broad social crisis and the social change that was taking place, it was not unusual for volatile cleavagesto be acommon phenomenon. However, such descriptions of the initial situation are not sufficient to speculate on the chances of development towards democracy or authoritarianism in a particular country. It requires a more differentiated view. This was indicated by Giovanni Sartori when he reiterated the platitude that the best form of government is the one that can be best adopted in a specific country.

Recommended literature

Bagehot, Walter, The English Constitution. With an Introduction by R.H.S. Crossman, Ithaka/New York 1995.

Baylis, Thomas A., Presidents Versus Prime Ministers. Shaping Executive Authority in Eastern Europe, in: “World Politics”, No. 48/April 1996, pp. 297-323.

Lijphart, Arend, Presidentialism and Majoritarian Democracy: Theoretical Observations, in: Juan J. Linz/ Arturo Valenzuela (ed.), The Failure of Presidential Democracy, Baltimore/London 1994, pp. 91–105.

Linz, Juan J., Presidential or Parliamentary Democracy: Does It Make a Difference?, in: Juan J. Linz/Arturo Valenzuela (ed.), The Failure of Presidential Democracy, Baltimore/London 1994, pp. 91–105.

Ludwikowski, Rett R., Constitution-making in the Region of Former Soviet Dominance. With Full Texts of All New Constitutions Ratified through June 1995, Durham/London 1996.

Maćków, Jerzy, Parlamentarische Demokratie und Autoritarismus. Erfolge und Misserfolge der postkommunistischen Verfassunggebung, Hamburg 1998.

Sartori, Giovanni, Comparative Constitutional Engineering, Houndmills et. al. 1997 (2. Edition).

Spiro, Herbert J., Government by Constitution; the Political System of Democracy, New York 1959.