IACL World Congress, Mexico
Workshop 16: Constitutional Principles and Democratic Transition
By the second half of the twentieth century, the liberal democratic world had come to the conclusion that domestic constitutions ought to recognize some basic principles (such as human dignity, individual freedom, the non-retroactivity of criminal sanctions, the full availability of habeas corpus, etc.) that all self-respecting constitutional orders should include.
These constitutional principles became especially relevant when formerly authoritarian states in Latin America, Eastern Europe, Asia and Africa started their transition to democracy (around 1985-1995). After more than two decades since the process of democratic transition began it is worthwhile to reflect on the progress made by those countries with respect to the adoption and implementation of such principles. This workshop aims to do that, taking into account that those “new democracies” were quite inclined to adopt constitutional principles that have already developed in the “old democracies”. But, as experience of many countries has demonstrated, that was not always easy and often not attractive.
Against this background five principal questions arise:
- What was the role (if any) that “external principles” (like e.g. human dignity, rule of law, and – on methodological level – proportionality) played in the first period of democratic transition? Many “new democracies” were faced with a problem of “constitutional deficit”: the existing constitutions were no longer acceptable –due to their illiberal nature— but while new constitutions were still on the drawing board some urgent matters demanded a constitutional response (such as dealing with past human rights violations). For that interim period some general “norms/principles of reference” had to be elaborated and observed in the transition process.
- To what extent “new democracies” decided to supplement the traditional list of constitutional principles and to retain some (redrafted) principles and concepts adopted (or – at least – proclaimed) in their authoritarian constitutions? Did it result in certain enrichment of the traditional list? For example, can the principle of social justice, always regarded as one of the cornerstones of the “socialist constitutionalism”, be taken as one of the examples?
- In some instances, the nature of the transition to democracy (‘pacted’ transitions between the ‘old regime’ and the democratic one) precluded the new authorities from completely democratizing the constitutional order inherited from the authoritarian past, leaving even reformed constitutions with ‘authoritarian enclaves’? What problems have those situations created for those countries? Are there ways compatible with the existing constitutional order to change that? What are the dangers (and opportunities) involved in ‘bypassing’ the inherited constitutional order and attempt to replace it with one that is completely devoid from authoritarian legacy?
- To what extent process of democratic transition required some departure from the traditional constitutional principles and to what extent such departures could find legitimization in the quasi-revolutionary nature of that process? As it is well known, necessities of so-called “transitional justice” may interfere with the principle of non-retroactivity and/or may justify establishment of new categories of “semi-criminal” proceedings (the so-called “lustration” being one of the prominent examples); necessities of economic transformation may encourage interventions into the structure of property and may warrant certain disregard to the “old” claims raised by those who once had been affected by nationalizations and expropriations. Transitions involve always some costs. The question, however, arises, what are limits of such compromises and when a critical point is reached when a democratic transition ceases to be democratic.
- The general constitutional principles we have been commenting on took decades (if not centuries) to take hold in the consolidated constitutional democracies. What are the political, social and cultural challenges that transitional countries face in order to get a constitutional culture that respect those constitutional principles in such a relatively short period of time? Are there exemplary experiences from which other transitional countries could learn? What are the key lessons that can be drawn from such experiences?
These questions are not exhaustive. The workshop is open for all interested in any of constitutional problem of democratic transition.
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