The Constitutional-Judicial Control of the Legislative and Executive Powers in Central and Eastern European Countries

This project looked at the nature, contents, methods, means and legal and political effects of the influence that constitutional courts exercise upon the legislative and executive powers in the newly established democracies of Central and Eastern Europe. The basic hypothesis was that these courts work to provide a limitation of political power within the framework of the principal constitutional values and that they force the legislature and executive to exercise their powers and duties in strict accordance with the constitution. Following a study of the documentary sources, including primarily the relevant constitutional and statutory provisions and decisions of constitutional courts, Mr. Cvetkovski prepared a questionnaire on various aspects of the topics researched and sent it to the respective constitutional courts. A series of direct interviews with court officials in six of the ten countries then served to clarify a large number of questions relating to differences in procedures etc. that arose from the questionnaires. As a final stage, the findings were compared with those described in recent publications on constitutional control in general and in Central and Eastern Europe in particular. The study began by considering the constitutional and political environment of the constitutional courts' activities in controlling legislative and executive powers, which in all countries studied are based on the principles of the rule of law and the separation of powers. All courts are separate bodies with special status in terms of constitutional law and are independent of other political and judicial institutions. The range of matters within their jurisdiction is set by the constitution of the country in question but in all cases can be exercised only with the framework of procedural rules. This gives considerable significance to the question of who sets these rules and different countries have dealt with it in different ways. In some there is a special constitutional law with the same legal force as the constitution itself (Croatia), the majority of countries allow for regulation by an ordinary law, Macedonia gives the court the autonomy to create and change its own rules of procedure, while in Hungary the parliament fixes the rules on procedure at the suggestion of the constitutional court. The question of the appointment of constitutional judges was also considered and of the mechanisms for ensuring their impartiality and immunity. In the area of the courts' scope for providing normative control, considerable differences were found between the different countries. In some cases the courts' jurisdiction is limited to the normative acts of the respective parliaments, and there is generally no provision for challenging unconstitutional omissions by legislation and the executive. There are, however, some situations in which they may indirectly evaluate the constitutionality of legislative omissions, as when the constitution contains provision for a time limit on enacting legislation, when the parliament has made an omission in drafting a law which violates the constitutional provisions, or when a law grants favours to certain groups while excluding others, thereby violating the equal protection clause of the constitution. The control of constitutionality of normative acts can be either preventive or repressive, depending on whether it is implemented before or after the promulgation of the law or other enactment being challenged. In most countries in the region the constitutional courts provide only repressive control, although in Hungary and Poland the courts are competent to perform both preventive and repressive norm control, while in Romania the court's jurisdiction is limited to preventive norm control. Most countries are wary of vesting constitutional courts with preventive norm control because of the danger of their becoming too involved in the day-to-day political debate, but Mr. Cvetkovski points out certain advantages of such control. If combined with a short time limit it can provide early clarification of a constitutional issue, secondly it avoids the problems arising if a law that has been in force for some years is declared to be unconstitutional, and thirdly it may help preserve the prestige of the legislation. Its disadvantages include the difficulty of ascertaining the actual and potential consequences of a norm without the empirical experience of the administration and enforcement of the law, the desirability of a certain distance from the day-to-day arguments surrounding the political process of legislation, the possible effects of changing social and economic conditions, and the danger of placing obstacles in the way of rapid reactions to acute situations. In the case of repressive norm control, this can be either abstract or concrete. The former is initiated by the supreme state organs in order to protect abstract constitutional order and the latter is initiated by ordinary courts, administrative authorities or by individuals. Constitutional courts cannot directly oblige the legislature and executive to pass a new law and this remains a matter of legislative and executive political responsibility. In the case of Poland, the parliament even has the power to dismiss a constitutional court decision by a special majority of votes, which means that the last word lies with the legislature. As the current constitutions of Central and Eastern European countries are newly adopted and differ significantly from the previous ones, the courts' interpretative functions should ensure a degree of unification in the application of the constitution. Some countries (Bulgaria, Hungary, Poland, Slovakia and Russia) provide for the constitutional courts' decisions to have a binding role on the constitutions. While their decisions inevitably have an influence on the actions of public bodies, they do not set criteria for political behaviour, which depends rather on the overall political culture and traditions of the society. All constitutions except that of Belarus, provide for the courts to have jurisdiction over conflicts arising from the distribution of responsibilities between different organs and levels in the country, as well for impeachment procedures against the head of state, and for determining the constitutionality of political parties (except in Belarus, Hungary, Russia and Slovakia). All the constitutions studied guarantee individual rights and freedoms and most courts have jurisdiction over complaints of violation of these rights by the constitution. All courts also have some jurisdiction over international agreements and treaties, either directly (Belarus, Bulgaria and Hungary) before the treaty is ratified, or indirectly (Croatia, Czech Republic, Macedonia, Romania, Russia and Yugoslavia). In each country the question of who may initiate proceedings of norm control is of central importance and is usually regulated by the constitution itself. There are three main possibilities: statutory organs, normal courts and private individuals and the limitations on each of these is discussed in the report. Most courts are limited in their rights to institute ex officio a full-scale review of a point of law, and such rights as they do have rarely been used. In most countries courts' decisions do not have any binding force but must be approved by parliament or impose on parliament the obligation to bring the relevant law into conformity within a certain period. As a result, the courts' position is generally weaker than in other countries in Europe, with parliament remaining the supreme body. In the case of preventive norm control a finding of unconstitutionality may act to suspend the law and or to refer it back to the legislature, where in countries such as Romania it may even be overturned by a two-thirds majority. In repressive norm control a finding of unconstitutionality generally serves to take the relevant law out of legal force from the day of publication of the decision or from another date fixed by the court. If the law is annulled retrospectively this may or may not bring decisions of criminal courts under review, depending on the provisions laid down in the relevant constitution. In cases relating to conflicts of competencies the courts' decisions tend to be declaratory and so have a binding effect inter partes. In the case of a review of an individual act, decisions generally become effective primarily inter partes but is the individual act has been based on an unconstitutional generally binding normative act of the legislature or executive, the findings has quasi-legal effect as it automatically initiates special proceedings in which the law or other regulation is to be annulled or abrogated with effect erga omnes. This wards off further application of the law and thus further violations of individual constitutional rights, but also discourages further constitutional complaints against the same law. Thus the success of one individual's complaint extends to everyone else whose rights have equally been or might have been violated by the respective law. As the body whose act is repealed is obliged to adopt another act and in doing so is bound by the legal position of the constitutional court on the violation of constitutionally guaranteed freedoms and rights of the complainant, in this situation the decision of the constitutional court has the force of a precedent.

Towards a Variety of Family Models: Economic Contributions of Spouses and Family Power

In Western societies the increase in female employment (especially among married women) is seen as having brought about the crisis of the traditional model of the family, reinforcing the position of the "modern" model - the egalitarian family with two working spouses and a "dual-career" family. In contrast, the transitional situation in the post-communist countries during the 1990s is producing a crisis of the family with two working spouses (the basic type of the communist period) and leading to new power relations within the family. While the growth of dual-earner households in this century has implied modification of family models towards greater symmetry of responsibility for breadwinning and homemaking, there is considerable evidence that women's increased employment does not necessarily lead to a more egalitarian approach to gender roles within the family. The group set out to investigate the economic situation of families and economic power within the fame as a crucial factor in the transformation of families with two working spouses in order to reveal the specific patterns of gender contracts and power relations within the family that are emerging in response to the current political and economic transformation. They opted for a comparative approach, selecting the Czech Republic as a country where the very similar tendencies of a few years ago (almost 100% of women employed and the family as a realm of considerable private freedom where both women's and men's gender identities and the traditional distribution of family responsibilities were largely preserved) are combined with a very different experience in terms of economic inequalities during the 1990s to that of Russia. In the first stage of the study they surveyed 300 married couples (150 in each country) on the question of breadwinning. They then carried out in-depth interviews with 10 couples from each country (selected from among the educated layers of the population), focusing on the process of the social construction of gender, using breadwinning and homemaking as gender boundaries which distinguish men from women. By analysing changes in social position and the type of interpersonal interaction of spouses they distinguished two main types of family contracts: the neo-traditional "communal sharing" (with male breadwinner, traditional distribution of family chores and negotiated family power) and the modern one based on negotiated agreement. The most important pre-conditions of husband-wife agreement about breadwinning seemed to imply their overall gender ideology rather than the economic and/or family circumstances. In general, wives were more likely to express egalitarian views, supporting the blurring or even elimination of many gender boundaries. Husbands, on the other hand, more often gave responses calling for the continued maintenance of gender boundaries. The analysis showed that breadwinning is still an important gender boundary in these cultures, one that is assumed unless it is explicitly questioned and that is seen as part of what makes a man a "real man". The majority of respondents seemed to be committed to egalitarian ideology on gender roles and the distribution of family tasks, including decision making, but this is contradicted by the persistent idea of the husband as the breadwinner. This contradiction is more characteristic of the Russian situation than of the Czech. The quantitative study showed a difference in prevailing family models between the two countries, with a clearer shift towards the traditional family contract in the Russian case. The Czechs were more likely to consider their partnerships as based on negotiated agreement, while the Russians saw theirs as based on egalitarian contract, in both cases seeing this as the norm. The majority of couples said they felt satisfied with their marriage, although in both countries wives seemed to be less satisfied. There was however a difference in the issues that aroused dissatisfaction, with Czech women being more sensitive to issues such as self-realisation, personal independence, understanding and recognition in the family, and Russians to issues of love, understanding and recognition. The most disputed area for the majority of families was chores in the home, presumably because in many families both husband and wife were working hard outside the home and because a number of partners had differing views as to the ideal distribution of chores within the family. The distribution of power in the family seems to be linked to the level of well being. The analysis showed that in the dominant democratic model there is still an inverse connection between family leadership and well being: the more prominent the wife's position as head of the family is, the lower the level of family income. This may reflect both the husband's refusal to play the leading role in the family and even his rejection of any involvement in family issues in such a family. The qualitative research revealed that both men and women see the breadwinning role to be an essential part of masculine identity, a role which the female partner would take on temporarily to assist the male but not permanently since this would threaten the gender boundaries and the man's identity. At the same time, few breadwinners expressed a sense of job satisfaction and all considered their choice as imposed on them by the circumstances (i.e. having a family in difficult times). The group feel that family orientation and some loss of personal involvement in their profession is partly reflected in the fact that many of the men felt more comfortable and self-confident at home than at work. Women's work, on the other hand, was largely seen as a source of personal and self-realisation and social life. Eight out of ten of the Russian women interviewed were employed, although only two on a full-time basis, but none saw their jobs as adding substantially to the family budget. Both partners see the most important factor as the wife's wish to work or stay at home, and do not think it wise for the wife to work at the expense of her part of the "family contract", although husbands from the "egalitarian" relationships expressed more willingness to compromise. The analysis showed clearly that wives and husbands did not construct gender boundaries in isolation, with the interviews providing clear evidence of negotiation. At the same time, husbands' interpretations of their wives' employment were less susceptible to the influence of negotiation than were their gender attitudes and norms about breadwinning. One of the most interesting aspects of the spouses' negotiations was the extent to which they disagreed about what they seemed to have agreed upon. Most disagreements about the breadwinning boundaries, however, were over norms and were settled by changes in norms rather than in behavioural interpretation. Changes in norms were often a form of peace offering or were in response in changes in circumstances. The study did show, however, that many of the efforts at cooperation and compensation were more symbolic than real and the group found the plasticity of expressed gender ideology to be one of the most striking findings of their work. They conclude that the shift towards more traditional gednder distributions of incomes and domestic chores does not automatically mean the reestablishment of a patriarchal model of family power. On the contrary, it seems to be a compromise formation, relatively unstable, temporary and containing self-defeating forces as the split between the personal and professional value of work and its social value expressed in a money equivalent cannot be maintained for generations.