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CIS: Former Soviet Countries Struggle To Build Enduring Institutions

The Constitutional Court of Kyrgyzstan returns a ruling (file photo) (RFE/RL) April 10, 2007 (RFE/RL) -- Constitutional crises seem to crop up in the former Soviet Union with alarming frequency. RFE/RL correspondent Jeremy Bransten interviewed Thomas Markert, deputy secretary of the European Commission for Democracy Through Law, about what safeguards can be built up to prevent them from leading to systemic breakdown. Also known as the Venice Commission, the European Commission for Democracy Through Law is the Council of Europe's advisory body on constitutional matters.

RFE/RL: Other than having new and mostly untested state institutions, is there a particular reason why constitutional crises, like the ones in Ukraine and Kyrgyzstan, are so frequent in the successor states to the former Soviet Union?

Thomas Markert: I think there is certainly a reason that [such crises] are so frequent in the former Soviet Union. And that is because we have in many countries a power struggle between the president and parliament. On the one hand, there are traditionally strong presidents -- authoritarian presidents -- wishing to maintain or even extend their powers and, on the other hand, the wish of parliaments to assert their own powers.

"I think it's true that you need a bit of time and case law which establishes that the court is doing a good and important job before people have enough trust in the court. Because it's not traditional in the former Soviet Union to have a lot of trust in courts."

RFE/RL: So you're saying that having a mixed parliamentary-presidential system favors constitutional crises? What's different in Western Europe, for example?

Markert: One difference is certainly that in the West, very often but not everywhere, you have a constitutional court with real credibility as an independent body, while in the new democracies, constitutional courts first have to gain this credibility. And another difference is that in most European countries you have a clearly parliamentary system -- except for France -- so usually, such a power struggle would not appear in a European country, because in the end the government is in charge and the government depends on a majority in parliament, while in the former Soviet Union, you can have a situation where the president and the parliamentary majority are from different camps and are opposing each other.

RFE/RL: How do you create a credible constitutional court that has the authority to act as arbiter?

Markert: For a constitutional court, one thing is of course that the composition of the constitutional court has to be credible and when judges are appointed, that this is a balanced and fair system -- that they are not all simply elected by a majority in parliament or simply appointed by the president. You need a system ensuring a pluralistic composition. But I think it's also true that you need a bit of time and case law which establishes that the court is doing a good and important job before -- and I think this is a prerequisite -- people have enough trust in the court. Because it's not traditional in the former Soviet Union to have a lot of trust in courts.

RFE/RL: Are there any countries in Europe with relatively new, but strong constitutional courts that can serve as good examples of what Ukraine and Kyrgyzstan should aspire to?

Markert: [In Europe,] countries that have a strong constitutional court are countries that had either a right-wing dictatorship in the past like Germany, Italy, Spain, Portugal, or a left-wing dictatorship in the past. In the very traditional democracies this need has not been so strongly felt.

RFE/RL: In your opinion, should constitutional court judges be appointed for long terms or for life, to ensure they are not subject to political pressure?

Markert: Certainly what should be avoided is that they depend for their reappointment on the government or on other bodies. So the best solution, indeed, is to have a fairly long term and to exclude the reappointment of judges.

RFE/RL: In an editorial in "The Financial Times" on April 4, Ukrainian President Viktor Yushchenko wrote: "In a democracy, the people must always be the final arbiters of power." Do you agree or do you side with critics who say rule of law should be paramount, not so-called people power?

Markert: I think we would agree with the latter approach that it is important to respect constitutional and legal rules and not simply to disobey them, relying on the 'will of the people.'

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