[Elster, Jon (1996), The Role of Institutional Interest in East European Constitution-Making - Explaining legislative dominence, East European Constitutional Review, 5 (6):63-65]

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The Role of Institutional Interest in East European Constitution-Making - Explaining legislative dominence

Jon Elster

To explain constitution-making in Eastern Europe-and elsewhere-one has to proceed in three steps. First, one has to identify the constraints (if any) that limit the freedom of choice of the constitution-makers. Usually these constraints are weak or non-existent because constituent assemblies tend to have (or to arrogate for themselves) what the Germans call Kompetenz-Kompetenz-the power to determine their own powers. In Eastern Europe, the main constraints were the agreements reached at the Roundtable Talks. Yet as the case of Hungary shows, these constraints were not always binding (see EECR, "Bargaining over the Presidency", Vol. 2/3, Nos. 4/1, Fall/Winter 1993/1994).

Second, one has to identify how the feasible options are ranked by the constitution-makers, on the basis of their goals and motivations. Roughly speaking, these may be subdivided into reason, passion, and interest. By reason I mean any kind of impartial concern for individual rights and the common good. By passion, I mean either standing passions such as religious or ethnic animosities or sudden, impulsive ones. Interest, finally, may refer to the personal interest of the constitution-makers, to interests of groups (territorial subunits or political parties) or of institutions. The last is the focus of this article.

Third, one has to identify the mechanism by which these preferences are aggregated to yield the final decision. We may distinguish among three mechanisms. First, there is rational argumentation. Second, there is bargaining based on credible threats and promises. And third, there is voting. Actually, the constitution-making process does not turn only on the aggregation of preferences. To the extent that genuine rational argument takes place, there may also occur a transformation of the initially given preferences. Also, each aggregation mechanism-arguing, bargaining, and voting-creates incentives for the misrepresentation of preferences.

In the literature on constitution-making one sometimes reads that when (but only when!) a choice of institution affects neither individual interest nor group interest, the decision will be made by impartial reasoning about the common good. The East European experience suggests that institutional interest may also be an obstacle to impartiality. Suppose that a political institution is both a participant in the constitution-making process and is among the institutions to be regulated by the constitution. The interest of that institution will then be to enhance its own position in the constitutional framework, at the expense of the other organs of state.

If one believes, as I do, in the doctrine of methodological individualism, talk about "group interest" or "institutional interest" can only be shorthand for individual motivations. If challenged, one has to be able to explain how individuals are moved to promote the political fortune of the group or institutions to which they belong. If members of a parliamentary caucus, for instance, do not follow the party line, they may fail to get renominated or reelected, or suffer financial sanctions. Similarly, if members of parliament systematically favor a strong parliament at the expense of the other branches, they must be motivated to do so. In some cases, this may reduce to simple personal interest. If framers intend to stay on in political life as legislators, beyond the constituent parliament, their desire to enhance their own power may induce them to promote the power of the legislature. In other cases, legislators seem to identify with the institution to which they belong. Independently of reelection, they tend to feel pride in their institution, because of a need for cognitive consonance ("this must be an important institution since I am a member of it"), through socialization, or as the result of other mechanisms.

I shall test four implications of the hypothesis that constitution-makers are motivated by institutional interest. The first implication is that constituent assemblies that also serve as ordinary legislatures will tend to give preponderant importance to the legislative branch at the expense of the executive (president and government) and the judiciary. With regard to the new constitutions in Eastern Europe, this implication is reasonably well borne out. Except for Poland, the presidents are not strong. That exception does not however count as evidence against the hypothesis, as the presidency in that country was an artifact of the Roundtable Talks (see "Bargaining over the Presidency") rather than created by a democratic assembly. Except for Hungary, no country has adopted the constructive no- confidence vote that would strengthen the position of government vis ˆ vis parliament. The strong role of the constitutional courts in the region counts to some extent against the hypothesis. Note, however, that in Romania and Poland, decisions by the constitutional court can be overridden by parliament.

A second implication of the hypothesis is that constituent parliaments will tend to make parliament central in the amendment process, at the expense of referenda or other forms of extra- parliamentary ratification. This implication, too, is reasonably well confirmed. Only Romania has a mandatory referendum over constitutional amendments where Parliament, if it so wishes, can always change the constitution by the "backdoor" method of first adopting an unconstitutional law and then overriding any ruling by the Constitutional Court declaring it unconstitutional.

On balance the new East European constitutions tend to favor parliament more than other recent European constitutions, such as the 1949 German Constitution, the 1958 French Constitution, and the 1978 Spanish Constitution. I have suggested that institutional self-interest may be the explanation. A second possible explanation lies in the legacy of Communism. In theory, at least, the communist constitutions invested all power in parliament. This is why, for instance, the Polish Parliament can override the rulings of the Constitutional Court. The "Little Constitution" adopted in 1992 does not include a reform of the judiciary, which is still regulated by the communist constitution. The Romanian constitution-makers, too, may have been in the grip of the communist legacy when they adopted a similar provision. A third explanation is that parliamentary supremacy, rather than being a continuation of Communism, is a reaction against the centralizing power structure of Communism. Yet although each of the alternative accounts may have some force, the hypothesis of institutional interest is more parsimonious and more comprehensive.

A third implication of the hypothesis is that unicameral and bicameral constituent assemblies will create, respectively, unicameral and bicameral constitutions. This prediction is very largely born out. Bicameral assemblies in Poland and Romania created bicameral constitutions; unicameral assemblies in Hungary, Slovakia and Bulgaria created unicameral constitutions. Poland might seem to be an exception, since here the Senate was originally created in the Roundtable Talks. Yet when the Little Constitution came to be adopted, the existence of the Senate made its perpetuation a certainty. When I asked Polish constitution-makers why they should have a Senate, I first got pious replies about the advantages of bicameralism and the fact that all great European powers have bicameral systems. When pressed, they acknowledged that the bargaining power of the existing Senate was the decisive factor. The Czech Republic is the only exception to the pattern, and even that exception is only a partial one. In 1992, the Czech National Council created a bicameral Constitution to bribe the Czech members of the Upper House of the Czechoslovak Federation to vote for the dissolution of the country, by promising them seats in the upper house of the Czech Republic in exchange. Once they had done that, they conveniently forgot their promise. Elections to the Senate were not called, and its functions were carried out by the Lower House. Only now have elections to the Czech Senate been scheduled (for November 1996).

A fourth implication is that to the extent that the president is involved in the constitution-making process, he will tend to promote a strong presidency. Lech Walesa inherited a strong presidency from the Roundtable Talks, and used the powers it gave him to maintain then in the Little Constitution. Havel tried several times, unsuccessfully, to strengthen the Czechoslovak presidency; later, with equally little success, to create a strong presidency for the Czech Republic. One might want, perhaps, to explain their behavior in terms of personal rather than institutional interest. Yet it appears to me that Walesa and Havel, in their efforts to strengthen the presidency, have not simply been out to enhance their own power. Rather, I believe that from their perspective the advantages of a strong presidency, which can prevent chaos and ensure efficiency in the difficult transition period, have seemed obvious and overwhelming. The same was true of de Gaulle in 1958.

From a normative perspective, the obvious implication is that constitutions ought to be written by specially convened constituent assemblies rather than by institutions that will be involved in ordinary post-constitutional politics. This is what happened in Philadelphia in 1787 and in Bonn in 1949. Yet, in general, a country does not have two full sets of political elites, one to run the country and one to write the constitution. (Remember that in 1949 the Allied powers were running Germany.) This would be even less affordable in times of crisis and turbulence such as those in which constitutions tend to come into being.

The East European experience nevertheless shows that a constituent parliament may be able to overcome its self-serving bias. The Hungarian Parliament of 1989 to 1990 created a strong cabinet, a strong Constitutional Court, and allowed enough power for the president to resist attempts of the cabinet to use force against the population and of the ruling party to monopolize power. The provisions spelling out the president's powers were, however, ambiguous and were sorted out later by the Constitutional Court in favor of the cabinet of the day. The Hungarian framers abdicated a great deal of their powers to other institutions, even though they did not have to. The crucial difference was perhaps that, unlike the other East European countries, Hungary never elected a constituent parliament. The Hungarian Constitution was made ˆ chaud, from day-to-day, by a parliament elected before the transition. Because the institution was in ill-repute, and the deputies demoralized, institutional interest had no purchase on the outcome.

[Elster, Jon (1996), The Role of Institutional Interest in East European Constitution-Making - Explaining legislative dominence, East European Constitutional Review, 5 (6):63-65]

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