Constitutional design for democratic prospects – What do the examples of Romania, Estonia, Hungary and Poland teach?

Estonia regained its independence in 1991. Within only seven months, a new constitution was drafted, which declared as its fundamental principles human dignity, democracy, the rule of law, the social state and the Estonian identity. Estonia has been rated the best performer of the Freedom House‘s survey on the development of democracy in formerly communist countries. However, the 2019 parliamentary elections saw also Estonia‘s populist party become a ruling coalition partner. According to a European comparative research project‘s new findings, the Estonian Supreme Court‘s judgements are one of the strongest vis-á-vis the national legislative branch. At the same time, the Estonian parliament has been judged weak compared to the government. This became obvious also in the Corona crisis. The paper takes a closer look at the role the constitution has played in Estonia‘s successful democratisation process and considers whether the stability of democracy may depend on constitutional design.

After the collapse of the totalitarian regime in 1989, Romania seemed to have chosen the path to a liberal democracy. At the declaratory level, the new regime decided to engage in this way, by firstly adopting a new Constitution, meant to enshrine the principles of democracy and rule of law. “Aversive constitutionalism“ was a foundation of the new fundamental law, reflected in the choice of the constitutional regime and in other democratic mechanisms. One of the main goals of the new political regime, expressed during and after the adoption of the Constitution, was the European integration. The paper will discuss the main provisions of the Constitution designed to build the trust in democracy and rule of law, the contextual details and the role that the Constitution has developed in this regard during the last 30 years. Aspects related to the decline of trust in democracy during the Covid-19 pandemic and to the surge of extremist political factions in this context will be touched.

This year marks the 25th anniversary of the adoption of the current Constitution of the Republic of Poland. Over time it has been instrumental in the consolidation of democracy, giving priority to the principle of a democratic state under the rule of law and to integration with NATO and the European Union. However, the Constitution cannot be treated as an absolute guarantee of the existence of democracy. For it is not the constitution that governs, but the people who give the formal rules their real meaning and significance. Suffice it to mention the controversial reforms of the judiciary, especially the disciplinary responsibility of judges, as well as the judgment of the Constitutional Tribunal of 7 October 2021 (K 3/21) and doubts about the observance of human rights during the COVID-19 pandemic. However, one can observe a growing awareness of the importance and role of the constitution, and thus of civic control over the observance of the law.

In the recent decades two constitutions were enacted in Hungary and none of them proved to be successful in building institutional democratic structures in society. The ‘1989 Constitution‘ aimed at safeguarding the conditions for the transition and to be temporary. The ‘Fundamental Law‘ was enacted by the unilateral votes of the governing majority in Parliament in 2011 and functioned as cementing its political preferences. None of these documents involved the people in the constitution-making process and did not lead to genuinely functioning ways of democratic participation in the exercise of public power. Therefore, one may ask, whether the constitution can be considered to be in close relation with the democratic functioning of society. Due to the institutional democratic erosion, the democratic initiatives seem to be stronger in informal structures (actions and relations not specified by formal law) of the society.