Studies on Transitional Justice in Context: The Role of Constitutionalism in Central Europe’s Transitional Justice Processes

12/1/2017

Gábor Halmai

How have new constitutions in Central European democratic transitions approached transitional justice, and how have their different approaches influenced reconciliation and democratic consolidation? This paper examines how constitutions and their interpretation by constitutional courts in Germany and Hungary have shaped efforts to deal with the past in the areas of criminal justice, vetting and lustration, compensation and restitution, and access to the files of the former regime.

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It argues that the relative success of the former German Democratic Republic (GDR) in dealing with its past is at least partially explained by the fact that the country was integrated into an already-consolidated democratic state with a well-functioning constitutional system. In contrast, Hungary’s experience demonstrates that, while it may be relatively easy to introduce institutions of constitutional law, including those relating to transitional justice, these are unlikely to work effectively without a concurrent change of constitutional culture as well. It is difficult, however, to determine how much of Hungary’s relative failure to address the past is due to failed transitional measures and how much to the general backsliding of democracy.

Transitional societies necessarily have to face the past, particularly the legacy of human rights violations. The full consolidation of democracy can only be successfully completed if there is sufficient political will to tackle this process of dealing with the undemocratic past. The specific ways in which the past is dealt with very much depend on the power relations at the time the transition towards democracy starts. The question is how differences in the type of transition affect efforts to deal with the past through constitution making.

Three types of democratic transition can be differentiated: rupture, negotiated transition, and transformation. A rupture occurs when the authoritarian regime weakens to the point of collapse, at which time the opposition seizes power. In a negotiated transition, the regime and opposition negotiate arrangements for a democratic transition. In a transformation, the incumbent authoritarian leaders try to transform their regime into a democracy, inaugurating and directing a process of political change that culminates in free elections; in this type of transition, members of the old elite remain politically powerful even after democracy is introduced.1 The paper’s case studies are East Germany, representing a rupture-type transition with an immediate constitution-making approach, and Hungary, as a negotiated transition with a ‘post-sovereign’ constitution-making process.

Date published: 
12/1/2017