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.

The Representation of Motherhood in Polish Cinema

The project aimed to analyse representations of motherhood in Polish cinema as a special case of a more general system within the representation of women. It concentrated on the image of the Polish Mother created during the 19th century in Polish culture under the influence of specific political, social and religious factors. Ms. Ostrowska's initial hypothesis was that this symbolic image became one of the most stable elements in Polish cinema and as her research revealed, it was valuable for the preservation of national identity but nevertheless a fiercely constraining model for Polish femininity. In order to fully understand the nature of this persistent image it was initially necessary to related it to broader contexts and issues in representation. These included the image of the Polish Mother within general mythological structures (using the notion of myth in the Barthesian sense). Following her initial research Ms. Ostrowska felt that it was most appropriate to view the myth of the Polish Mother as a dominant ideological structure in the discourse of motherhood within Polish culture. An analysis of the myth of the Polish Mother can provide an insight into how Polish society sees itself at different periods in time and how a national identity was constructed in relation to particular ideological demands stemming from concrete historical and political situations. The analysis of the film version of this myth also revealed some aspects of the national character of Polish cinema. There the image of woman has become enshrined as the "eternal feminine", with virtues which are inevitably derived directly from Catholicism, particularly in relation to the networks of meanings around the central figure of Mary, Mother of God. In 19th century Poland these were linked with patriotic values and images of woman became part of the defence of the very idea of Poland and Polishness. After World War Two, this religious-political image system was adapted to the demands of the new communist ideology. The possibility of manipulating the ideological dimensions of the myth of the Polish Mother is due to the very nature of the image, which as a symbol of civil religion had been able to function independently of any particular state or church institution. Although in communist ideology the stress was on the patriotic aspect of the myth, its pronounced religious aspect was also transmitted, consciously or not, in the denotation process, this being of great significance in the viewer's response to the female character. This appropriation of elements derived from the national patriotic tradition into the discourse of communist ideology was a very efficient strategy to establish the illusion of continuity in national existence, which was supposed to convince society of the rightness of the new political situation. The analysis of films made in the post-war period showed the persistence of this discourse on motherhood in a range of cinematic texts regardless of the changing political situation. Ms. Ostrowska claims that the stability of this discursive formation is to a certain extent the result of the mythological aspect of the mother figure. This mythological structure also belongs to the ideology of Romanticism which in general continues to prevail in Polish cultural discourse as a meta-language of national community. The analysis of the films confirmed the hypothesis of the Polish Mother as a myth-sign whose signifier is stable whereas the signified depends on the specific historical conditions in which it is set. Therefore in the famous propaganda documentary Kobiety naszych dni (Women of Our Days, 1951) by Jan Zelnik, and in other films made after the October 1956 "thaw" it functions as an "empty sign. She concludes that it would be difficult to deny that the myth of the Polish Mother has offered Polish women a special role in national life, granting them a high moral position in the social, hierarchy. However the processes of idealisation involved have resulted in a deprivation of her subjectivity and the right to decide about her own life. This idealisation also served to strengthen traditional patriarchal structures through this set of female obligations to the mother land. In Polish ideology it is not a man who demands sacrifice from a woman but the motherland, which, deprived of the institutions of male power for nearly 150 years, had functioned as a feminine structure. That is why oppressive aspects of the myth have been obscured for so long. While Polish women were doubtless able to accept the constrictions because of their sense of national duty and any misgivings were overridden by the argument of the cause, it is important to recognise that the strength of these constructions, compounded by the ways in which they spoke of and continue to speak of a certain perfection, make them persist into contemporary Poland. Poland is however no longer embattled and the signs that made these meanings are potentially empty. This space for meaning will be and is already being contested and increasingly colonised by current western models of femininity. Ms. Ostrowska's final question is whether this will help to prevent a possible resentful victimisation of the silent and noble Polish Mother.