Lustrations and vetting laws

The state, political élites and transition

Initial positions of democratic transition may vary significantly from the ruling élite’s internal plan to democratize the state after the dictator’s death (Portugal, Spain) to revolutionary protests against the unreformed repressive regime (the GDR, Romania). Democratic reforms coming from within the ruling élite or political negotiations between the representatives of authoritarian rule and the democratic opposition are possible only in those regimes actually consenting to the change; rigid and repressive authoritarian regimes, such as the Honnecker regime in the GDR or the Ceausescu regime in Romania, avoided any liberalization and reform until challenged by revolutionary forces.

The end of dictatorships inGreece,PortugalandSpainin the 1970s is a good example of regime power groups steering the democratization process and outlining state and constitutional changes. InPortugal, the internal conflict between different military officers even inspired a short-lived socialist revolution, contained by the free general election in April 1975 and subsequently by the Constitution of 1976 adopted by the Constituent Assembly that solidified the emerging liberal democracy (Manuel 1996: 17-36).

InSpain, the Francoist political élite was both technocratic and pragmatic and increasingly realised the need to join the common European market and achieve economic integration. After Franco’s death in 1975, the free general election and the new constitution of 1977 fundamentally changed the political map of the country and facilitated the Spanish Right and Left’s commitment to democratization and state consolidation. The transitional period, nevertheless, did not end with the adoption of the constitution. Separatist and extremist political violence continued and it was not until the failed military coup attempt in 1981 and the next general election in 1982 that the Spanish army was reformed and democracy finally became consolidated (McDonough et al. 1998: 4-10).

The strong role of the state in democratic transition combined with the élites’ commitment to political changes and public support was a feature not only of Southern European countries. It also defined democratic transitions initiated and controlled by military leaderships in Latin American countries, most notably in Chile and Brazil in the 1980s (Loveman 1994), and some countries of the Soviet bloc, most notably Hungary and Poland in 1989.

A minimum level of pre-existent liberalization by the authoritarian regime is necessary for further political transition (Przeworski 1991: 54-60). However, internally initiated transitions are typically ‘constrained’ by the ruling élite’s interests and power which may slow down the process of democratization and democratic consolidation significantly, as has happened in Latin American countries (Linz & Stepan 1996: 219-20).

The state’s democratization

Transitions from authoritarianism to democracy depend on state administration, bureaucratic culture and civil servants’ loyalty to the old regime and their willingness to embrace the process of democratization (Baker 2001). The state’s democratization can also become critical and potentially destructive and violent during transitions accompanied by the break-up of the state, such as in the formerSoviet Union(Mansfield & Snyder 1995).

Democratization of the state requires political changes in power, representation and accountability (O’Donnell 1993: 1355). Democratic elections and the choice of a specific electoral system (proportionate, majority, etc.) thus provide for fundamentally different answers to the question of who has policy decision-making powers and to whom the state and its officials are responsible. These representative changes are directly linked to notions of popular sovereignty, representative government, the democratic accountability of state officials and factional politics of democratic pluralism (Gillespie et al. 1995).

Apart from the electoral system and the support of emerging political parties and pluralistic politics, the state’s form (unitary state, federation, etc.), regime (republic or monarchy), the relationship between the legislative and executive powers and the means of their democratic legitimacy (general election, parliamentary vote of confidence in government, etc.), the limits to majority rule and the role of judiciary – especially constitutional review – need to be addressed as part of the democratic transition.

These institutional designs significantly affect the success of democratization and the post-transitional functionality of the new democratic state. Furthermore, the transition in the state’s functions is as important as institutional and representative structural changes because it addresses the question of what the emerging democratic state should do and what is the realm of its political and social responsibilities, for instance, in the fields of social welfare, market regulation and property ownership, state security, minority policies, etc. Systemic economic, constitutional and legal changes are an intrinsic part of transitions and policy makers have to address fundamental normative questions of legal and social justice (Offe 1996: 105-30).

Civil society and democratic transitions

Nevertheless, transitions are not limited to democratic state-building and constitution-making. The state and legal reforms cannot be promoted by political élites – whether from the outgoing authoritarian leadership or the incoming democratic opposition leaders – and expert communities of lawyers, economists and civil servants alone. State transformation is not just a technical matter of the demilitarization of power and its transfer to the civil government, as seen in many Latin American countries, or the dismantling of the state command economy and its replacement by a free market, as in post-communist countries (May & Milton 2007).

Despite the absence of the direct correlation between the level of wealth and democratization, the state of economy and economic development, civic autonomy and activism, class structure and the rule of law thus turn out to be important elements in democratic transitions, their variations and overall success. For instance, regional economic crises significantly affected political democratizations in countries, such asIndonesiaandMalaysiain the 1990s (Pepinsky 2009). Economic development and social changes in other Asian countries, such as Thailand and South Korea, profoundly influenced democratic transitions and continue to impose limitations on the extent and quality of democratic representation and decision-making processes (Stern 2007: 13-40, Kim 2004).

Furthermore, the varieties of democratic transitions seen in Asia, Latin Americaand post-communist countries show the importance of autonomous civil society networks for political activism and opposition to authoritarian rule. In Chile, public protests against the military regime in the wake of the economic crisis of 1982 eventually resulted in the signing of the National Agreement (the Acuerdo Nacional) of 1985. Furthermore, the tradition of party-state populism associated, for instance, with Argentinian, Brazilian or Peruvian politics is a threat to democracy even in a state in which a general democratic vote regularly takes place and the constitutional system is officially respected and enforced (Mainwaring et al. 1992; Smith 2011).

The importance of civil society and its autonomy are even more obvious in developing and more divided political societies, for instance, in Africa and, most recently, the Arab world where democratization often means building, rather than just reforming, the state (Bratton & Van de Walle 1997; Widener 1994). Similar challenges can also be detected in post-communist democratic transitions in which countries with stronger state and civil society traditions and a higher level of economic development and standard of living have successfully evolved into consolidated democracies, many of them current Member States of the EU (Krygier 1997).

The role of civil society associations and movements in transitions is important because they can provide public accountability and democratic scrutiny of the contingent process of democratization and offer alternative and inclusive opportunities for political participation, while articulating and representing the political interests of diverse groups. Furthermore, these civil society networks can mitigate new political conflicts developing during the process of transition and significantly influence state reforms during this period (Cohen & Arato 1992). Societies with stronger traditions and more developed networks of civil society, therefore, have a better prospect of achieving a successful democratic transition because of their ability both to mobilize the democratic public and to constrain the power of the state.

3. DEMOCRACY, THE RULE OF LAW AND CONSTITUTIONALISM

Democracy and the rule of law support each other. Some form of legal monitoring of democratic transitions is necessary to facilitate the stability of the process and engender trust between participating parties to the transition. Reflecting on this particular interplay between the continuity of legality and the discontinuation of the political regime’s legitimacy, some scholars introduced the concept of ‘coordinated transition’ and ‘regime change’ (Kis 1995), meaning negotiated political transition combined with legal continuity and formalism.

Between legal reforms and political revolution, there is a broad spectrum of opportunities for coordinated regime changes. Legal continuity means limitating political change to a constitutional and legal form that relies on a regime’s own constitutional rules of change. However, this form of transition facilitated by legal instruments can succeed only in political societies where the authoritarian leadership and its opposition are able and willing to negotiate and recognize each other’s political interests and goals. In this political condition, the importance of law rapidly grows because it both stabilizes the process of negotiation and instrumentally supports the enforcement of negotiated changes.

Democratic transition and the rule of law

General discussions about the concept of the rule of law can hardly be avoided, and two fundamentally different concepts of the rule of law are commonly contrasted during political and constitutional transitions. The first concept is formal, technical and instrumental and signifies any form of government ruling on the basis of laws. The second concept is substantive and based on the political values of democracy and civil rights. While the first concept draws on the distinction between arbitrary tyrannical rule and non-arbitrary law-governed political power, the second draws on the distinction between the constitutional democratic state and non-democratic forms of government.

Applying the formalist concept of the rule of law, state authorities are expected to act in accordance with the laws, irrespective of their content and political context. This commitment itself reduces the risk of uncertainty and unpredictability associated with arbitrary power and may facilitate stability and trust during transitions. This concept of the rule of law, however, may immediately attract the objection that modern politics and law have experienced extreme situations in which predictable and clear laws were just a façade for the worst political crimes and genocides. Every dictatorship has its system of positive laws but they would hardly be referred to as rule of law systems. Furthermore, in some systems, the politics of ‘a dual state’ (Fraenkel 1941) is common, effectively exempting the ruling class from jurisdiction and laws applicable to the rest of society. Other systems enact such grossly unjust, repressive and discriminatory laws that they have been labelled ‘unlawful states’ (Unrechtsstaat), such as the GDR (Marxen & Werle 1999).

These jurisprudential disputations are strongly echoed in legislative and judicial bodies during transitional times. For instance, the Constitutional Court of Hungary, established during the process of democratic transition in the country, ruled that ‘there is no substantive distinction between legal rules enacted under the Communist regime and since the promulgation of the new Constitution.’ (Paczolay 1993: 34) However, these early conclusions by the court regarding legal and constitutional continuity and discontinuity are in stark contrast, for instance, to the Czechoslovak Constitutional Court’s distinction between formal legal continuity and the notion of the democratic rule of law, substantively different from socialist legality (Přibáň 2007: 156-163).

These problems with the rule of law and its political uses show how important legitimacy through the democratic rule of law is in the process of political liberalization and democratization. Legalism is inseparable from the liberal democratic state, the concept of individual rights, and an independent judiciary protecting these rights against the oppressive power. However, the formalist rule of law may be instrumentalized by the authoritarian regime to enforce repressive and discriminatory policies, such as in apartheidSouth Africa. It is, therefore, criticized by substantive rule of law theories that identify the rule of law with the protection of the rights and principles of democratic statehood (Dyzenhaus 1998).

Nevertheless, democratic transitions also reveal the importance of legal formalism and the possibility of using the existing constitutional and legal framework of an authoritarian regime as a vehicle of democratization and political consolidation. This is precisely the role of constitutional reforms initiated by an authoritarian regime or interim constitutions negotiated between the regime and the democratic opposition.

Democratic transitions and constitutionalism

The role of law and constitutionalism, especially democratic constitution-making and constitutional justice, therefore, are extremely important in all processes of democratic transition, power restraint and consolidation of the new regime. For instance, post-war Germany’s constitution – the Grundgesetz of 1949 – shows the importance of solid constitutional constructions for the success of democratic transition.

In the realm of constitutional law, the repressive and discriminatory provisions of an outgoing authoritarian regime’s constitution, if not the whole document, are initially suspended and the most powerful positions in the existing constitutional system are neutralized and officials of the old regime removed so that they cannot destabilize the process of democratization. For instance, the Polish round-table talks led to free parliamentary elections, the appointment of the first non-communist Prime Minister since the Second World War in September 1989, and constitutional amendments abolishing the leading role of the communist party and paving the way for the liberalization of politics and full-scale democratization in December 1989. Similarly, parliaments still fully controlled by communists were forced by revolutionary crowds and opposition leaders to effectively declare the end of communist rule in the GDR and Czechoslovakiain 1989. The election of Václav Havel as President of Czechoslovakia by communist parliamentarians on 29^thDecember 1989 was probably one of the most surreal, yet completely realistic, pictures of the early stages of the constitutional transition to democracy in Central and Eastern Europe.

Alternatively, the interim transitional constitution can be negotiated between regime representatives and the democratic opposition to stabilize the process of democratic transition and pave the way for a democratically elected assembly with full legitimacy to enact a new democratic constitution. InSouth Africa, for instance, the constitutional framework was designed to dismantle the system of apartheid while limiting the risks of adversarial politics between incoming and outgoing political representatives. The South African interim constitution of 1993 and even the current constitution promulgated in December 1996 are probably the most persuasive examples of constitutional law’s stabilizing role during the process of political transition and heightened social tensions (Spitz & Chaskalson 2000).

Another example of the importance of constitution-making in the early period of democratic transitions is the Hungarian interim amended constitution enacted by the communist parliament as part of the round-table talks agreements. The constitution was a guarantee and a vehicle of political changes and trust-building between the communist government and the ascending opposition. The enactment of constitutional amendments in October 1989 was briskly followed by a national referendum on the form of the state, especially the position, assets and militia of the communist party and timing of the presidential election (Bozoki 2000). After the free parliamentary elections of 1990, the democratic parliament merely amended the interim constitution and thus effectively converted it into the constitution of a self-consolidating democraticHungarywhich lasted until the new constitution of 2011.

4. JUDICIAL REVIEW AND ANTI-MAJORITARIANISM IN DEMOCRATIC TRANSITIONS

Reflecting on democratic transitions, Stephen Holmes provocatively wrote that: ‘Democracy does not exist, but degrees of democratization do. A society becomes more democratic if more citizens become routinely able to use legal instruments to protect their vital interests.’ (Holmes 2004: 14). This statement makes a clear link between democratic transitions and legal reforms. According to this view, institutional reforms of the post-authoritarian judiciary are particularly important and need to achieve two primary goals – the liberation of the judiciary from authoritarian influences, and its adoption of democratic values and practices. The principle of judicial independence is not enough because it can result in the judiciary’s pursuit of corporate advantages rather than the reassertion and protection of liberal and democratic values. The re-education of judges, the reformulation of their role in the democratic rule of law, and the democratic cultivation of their expert legal knowledge are as important as formal constitutional guarantees of judicial independence (Britto 1997).

The involvement of the judiciary in political transitions cannot be underestimated. It is typical of all transitional countries (Yusuf 2009) and ‘new democracies’ (Ginsburg 2003). Apart from the process of constitution-making, democratic transitions, therefore, strongly rely on the institutional legitimacy of either the existing, or newly established constitutional and judicial review. Constitutional or supreme courts as guardians of the new democratic constitutional regime and the constitutional rights of citizens substantially enhance the power transfer from authoritarian state to empowered citizenry. Furthermore, they ensure the transparency of decisions and accountability of actions of all political players and parties involved in the process of democratization and emerging democratic constitutionalism.

Democracy and democratization need to be held accountable by the judiciary (Gloppen et al. 2004). Constitutional courts have two basic functions in democratic constitutionalism, namely, the power function of ‘guardian of the constitution’ under the system of democratic separation of power, and the function of protecting citizens’ constitutional rights (Solyom & Brunner 2000). They are anti-majoritarian institutions primarily limiting the powers of other political actors, and therefore can impact strongly on both the process of democratic transition and the subsequent process of consolidating constitutional democracy.

This important contribution of the independent judiciary and particularly constitutional courts is possible to witness in all democratic transitions, from post-communist Europe and post-apartheidSouth Africato democratized politics in many Asian societies. In times of political crises, these courts often become the most important institutions protecting the principles of democracy against the authoritarian backlash. For instance, the role of constitutional courts in constraining political actors and strengthening the constitutional dimension of democracy has been essential in political changes from ‘rule by law’ to the ‘rule of law’ in Taiwan and South Korea (Ginsburg 2003: 206-45).

5. TRANSITIONAL JUSTICE

In the process of democratic transition, the rule of law and a democratic judiciary are indispensable. However, the legal justice of the democratic state is accompanied by a specific category of transitional justice as both a vehicle of the process of transition to democracy and a way of dealing with the crimes and injustices of the collapsed authoritarian regime. It guarantees political change and power transition and protects new political values associated with the transitional process.

The politics of transitional justice

Constitution-making and constitutional reforms have their invaluable transitional role. Political changes and the dismantling of authoritarian regimes are specifically designed as constitutional changes. However, unlike the consolidated democratic rule of law, drawing on continuity, the transitional role of constitution-making and constitutional reforms is to facilitate political and social discontinuity. The transitional politics of democratic constitutionalism and the rule of law is thus also conducted in ways that are occasionally inconsistent with some formal principles of legality, especially legal security, stability, non-retrospectivity and generality of legal rules.

The concept of transitional justice as ‘partial and limited’ justice that ‘implies compromise’ (Teitel 2000: 230) is thus closely tied to the processes of democratic transition. Nevertheless, the concept of transitional justice is not limited to the post-authoritarian and post-totalitarian political condition. It is equally employed by non-democratic and democratic countries undergoing processes of political reform, post-conflict consolidation and social reconciliation, for instance, inNorthern Irelandand a number of African countries (Kritz 1995). Furthermore, despite the common view, transitional justice is not a modern political and legal phenomenon but dates back to regime change in classical antiquity, for instance, the retributive and restitutive measures taken against the oligarchs after the restoration of democracy in ancient Athens in the fifth century BC (Elster 2004: 3-23).

Transition from authoritarianism to democracy involves some hard political and moral dilemmas, such as the difference between oppressors and victims, proportionality between crime and punishment, retrospective justice, and political compromises between the outgoing autocrats and their democratic opposition. Transitional justice actions and decisions are influenced by policies and principles, interests and ideologies, reason and emotions (Elster 2004: 8). Persisting tensions between perpetrators and victims can never be underestimated during the period of democratization and need to be addressed in terms of transitional justice.

Transitional justice is both historical, backward-looking justice responding to the crimes and injustices of an autocratic regime, and prospective, forward-looking justice pursuing the goal of the liberalization and democratization of post-authoritarian society. It combines elements of general justice, such as the equality of citizens before the law and protection of their liberties, with calls for political realism and pragmatic compromises required by the process of political transition. It is the ideal of justice adjusted to the process of political transition and consolidation of the emerging democratic regime. It is political justice because it legitimizes democratic ideals by making them part of political and legal reality (Kirchheimer 1961).

Forms of transitional justice

Transitional justice measures can be identified as those of retributive, rehabilitative, and reparatory or restitutive justice. As regards retributive justice, it starts with the question of whether to prosecute and punish the crimes and injustices of the past regime, or apply the principle of amnesty to guarantee social peace and reconciliation.

Complete amnesty for political crimes is one option for transitional justice in securing the process of democratization, for instance, in post-FrancoSpainand post-apartheidSouth Africa. The idea of drawing a ‘thick line’ under what happened in the past and moving on with political transition was equally favoured by the first post-communist government of Tadeusz Mazowiecki inPolandin 1990. This approach was profoundly affected by round-table talks which required mutual respect and recognition and thus significantly limited the possibility of prosecuting communist crimes, even when the policy of amnesty had never been part of the political agreement. Parties to the Polish round-table talks even referred to this model of transition as a ‘Spanish solution’ (Walicki 1995: 188).

On the opposite end of this scale of retributive transitional justice is the principle of identifying and, if possible, punishing all the crimes of past autocratic or totalitarian regimes, such as the prosecution of Nazi crimes. Responding negatively to the politics of amnesty associated with the ethics of reconciliation and forgiveness but also to the practical need to break the political deadlock, prosecutors, nevertheless, have to deal with significant technical problems in criminal justice, such as the period of limitation for some crimes, evidence and its reliability, and the interpretation of the letter of authoritarian laws in the new democratic condition (Arnold 2006: 413).

For instance, examples of prosecuting Nazi crimes decades after the Holocaust show the difficulties surrounding fact-finding procedures. The post-1989 decision of the German Parliament to extend the period of limitation for the most serious crimes committed under the communist regime in the former GDR is an example of compromising the principle of legal security and the prospective nature of criminal law in favour of the principle that no crimes should go unpunished, especially if prosecution and punishment were made de facto impossible for political reasons (McAdams 2001).

The rehabilitation of individuals criminalized and persecuted by the authoritarian regime is another part of transitional justice. The restoration of civic and political status returns human dignity to the persecuted individuals, recognizes the just cause of their struggle against the authoritarian regime, and is usually associated with some form of reparatory measures, natural restitution or financial compensation for past confiscations, imprisonments and other persecutions.

Rehabilitative justice involves corrective and distributive justice. Measures of restitutive justice thus aim at facilitating both political and economic transition and returning expropriated property either in the form of natural restitution (restitutio in integrum), or financial compensation. This form of transitional justice is primarily retrospective and reparatory because it aims at dealing with past politically organized and systemic breaches of justice on the basis of the equal protection of all before the law. Nevertheless, its goals are also distributive and prospective in the sense that restitutive laws and judicial decisions support the economic reform and property rights of individuals, churches, corporations, etc. Restitutions thus involve structural tensions between past suffering and present needs, between ethical motivations and policy priorities (Přibáň 2007: 165).

6. HISTORY, TRUTH, AND DEALING WITH THE PAST

Unlike in the realm of legality, it is impossible to draw a ‘thick line’ in the realm of collective memory, truth and reconciliation. Apart from retributive, restitutive and rehabilitative policies, transitional justice, therefore, commonly includes specific public policy measures, such as recording and publishing accounts of past political injustices and crimes to remind present and future generations of the autocratic or totalitarian past. The emergence of various forms of truth and reconciliation commissions in post-authoritarian societies in Latin America and South Africa and the establishment of institutes of national memory in the post-communist countries of Central and Eastern Europe show the importance of the ‘archive imperative’ in democratic transitions.

The political present is always a starting point for dealing with the past (Halmai & Scheppele 1997: 155). Dealing with the past, therefore, is a form of dealing with the present and every past to be dealt with is selected by present agents and their interests. Truth and reconciliation commissions and institutes of national memory typically function as semi-legal, quasi-judicial and administrative bodies with a distinct agenda of supporting the emerging democratic public, its ethics and political unity. Their goal is to substitute for the limitations of legal justice and political compromises driving the democratization process and to give voice to the victims of the past authoritarian regime. However, these bodies commonly support some measure of legal justice, especially civic rehabilitation and material or financial restitution to the victims of the regime.

Lustrations and vetting laws

Apart from the institutionalization of truth and reconciliation processes, democratic transitions are characterized by specific administrative measures, such as laws giving public access to former secret police files and lustration or vetting laws protecting the new regime from officials of the previous authoritarian regime.

Lustration or vetting laws are enacted as a way of both dealing with the past and stabilizing the present process of democratization (de-Nazification, de-communization, etc.). They are a reminder of the simple truth that the rule of law and democratization are irreducible to institution-building and constitution-making alone. These political reforms always involve the personal aspect and public trust in new democratic institutions and their representatives (David 2011: 17).

These laws, therefore, typically scrutinize any past activities of police and army officers, civil servants, judges, prosecutors and other public officials which may justify administrative and other sanctions against them. Drawing on the principle of ‘a democracy defending itself’, the lustration laws list categories of officials of the past regime who are not trustworthy and therefore cannot serve in the post-authoritarian regime. The fact-finding process may be judicial or primarily administrative, with the possibility of judicial review. It may be conducted by government or specific bodies established to deal with the files of the former regime. Furthermore, this process may be supported by a preliminary legal request that a candidate for any job must ‘speak the truth’ and ‘be honest’ about her or his past; failure to do so may result in dismissal and a financial penalty or even imprisonment (Mayer-Rieckh & De Greiff 2007).

The variety of lustration procedures reflects the variety of truth and reconciliation processes. Though legitimized as preventive measures protecting democracy, lustration laws often conflate moral and juridical judgements and, using files and facts collected by the past regime’s secret police, actually obscure the problem of the guilt and crimes of the authoritarian past. They thus highlight the profound controversies and limitations of any form of transitional justice and the complexities of the process of transforming transitional justice measures into the rule of law in a consolidated democracy.

7. CONCLUDING REMARKS

Varieties of democratic transitions correspond to varieties of democracy as their final achievement. Common global trends are as important as local, regional and historical differences and the general modern drive towards democratization hardly can obscure political contingencies and reversibility of the whole process.

Transitional politics finds its juridical forms and historical traditions shape common dreams of the democratic future. Politics of democratic transitions has its local, national, international and global contexts. Though profoundly depending on the state and activism of its citizens, the possibility of democratic participation, liberalization and constitutionalism is increasingly affected by global social and political developments.

Complexity of structural preconditions and mechanisms of democratic transitions calls for equally complex academic perspectives and methodologies. Interdisciplinarity combining political, legal, historical, cultural and social anthropological approaches, therefore, is both necessary and typical of democratic transition theories. Recursive influence of these specific theories on general legal, political and social science has been remarkable in last three decades.

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