I am a full-time solicitor with three years’ post qualification experience. I am employed as a professional negligence solicitor with particular expertise in clinical negligence. I work for a top-50 law firm with offices in London. As a result I have access to a wealth of legal resources. I am also a part-time researcher and I have a vast knowledge of all aspects of law including tort, contract, property, employment, international, public and private law. However, due to my wealth of resources I am able to undertake research in almost every area of law. I also intend to undertake a Masters degree in insurance law with a London university.

Sample 1

This assignment will critically assess how the law of passing off protects the functional and the descriptive. This assignment will also look at the extent of this protection, and this will be achieved through a detailed examination of the case law in this area.

To assess how passing off protects the functional and descriptive it is important to first attempt a definition of passing off. The action for passing off is diverse and has altered many times to reflect commercial changes. Whilst this is admirable, it makes formulating a precise and accurate statement intensely difficult (Evren Warnink BV v Townend [1979] AC 731). However, some broad principles can be drawn from Lord Oliver’s decision in Reckitt & Coleman Products v Borden Inc. ([1990] RPC 340 at 499). In this case, Lord Oliver reduced the elements required to bring a case of passing of to “the trinity of confusion leading to deception, and damage”. Confusingly, in the same case Lord Fraser indicated an entirely different test, which was held in subsequent litigation, should be applied alongside Lord Oliver’s test 9 Anheuser-Busch Inc v Budejovicky Budvar Narodni Podnik [1984] FSR 413). Passing off has in essence two functions, these are the protection of the trader against the unfair competition of his rivals, and the protection of consumers who would otherwise be confused as to the origins or nature of the goods or services, which they are offered. As copyright protects creativity and patents protect an invention, passing off protects the acquired reputation; the result of prolonged human efforts.

It is important to internalise the concept that passing off seeks to protect not the mark (for this is the job of trademark law), but the reputation that that mark represents. That is to say it seeks to protect “the attractive force that brings in custom ... it has the power of attraction sufficient to bring customers home to the source from which it emanates (IRC v Muller & Co's Margarine [1901] AC 217, p.224).” An injunction (American Cyanamid Co v Ethicon Ltd [2001] 1WLR 194) will be awarded against “a person, competing in trade, who seeks to attach to his product a name or description with which it has no natural association so as to make use of the reputation and goodwill which has been gained by a product genuinely indicated by the name (Bollinger v Costa Brava Wine co. Ltd [1960] ch.262).” It follows therefore that the name or description, representing the mark, must be sufficiently individual so as to have a causative impact on the consumer’s behaviour. The damage that can be caused by passing off, and that which the law seeks to protect, are risks that the claimant may be exposed to by its consumers (Sony K K v Saray Electronics (London) Ltd [1983] FSR 302) or lost opportunities to expand geographically (Chelsea Man Menswear v Chelsea Girl Ltd [1987] RPC 189) or into related products or loss of licensing opportunity, although the law will consider each individual claim on its merits (Stringfellow v McCain Foods (GB) Ltd [1984] RPC 501).

In Parker Knoll v Knoll ([1962] RPC 243), International, an English furniture maker acquired their name and mark from a type of spring which was invented in the 1930s, by Wilhelm Knoll of Stuttgart. A nephew of Knoll, who had set up a company called Knoll International in the US, wished to enter the UK market. The House of Lords held that the US-based company would not be permitted to use the name “Knoll” as Parker Knoll had acquired a secondary meaning in the UK. In contrast, in the case of Efax.com Inc v Mark Oglesby (Masons Computer Law Reports [August 2000]) an American Company which used “efax.com” as their domain name with allegedly 5,000 customers in the UK were not allowed an injunction against “efax.co.uk”. The reason for this as Parker J observed was that “efax”, in his opinion, was essentially descriptive and was an example of general e-language terminology that had crept into common use. Further, he added that confusion, if any, which was caused by the similarity of names, resulted from the descriptive e-language and not from any misrepresentation on the part of the defendant.

Next we must consider misrepresentation as this is one of the key findings in any successful action for passing off. Misrepresentation is the intentional or innocent “misappropriation” by the defendant of the claimant's reputation in a way that is likely to cause confusion in the minds of purchasing consumers. Misrepresentation for the purposes of the law may also be a true statement which subsequently becomes false (With V O Flanagan [1936] Ch 575) and a statement which, while literally true, nonetheless causes its receiver to be misled (Frank Reddaway & Co Ltd v George Bamham & Co Ltd [1896] AC 199).

Confusion is used, not in the sense of not knowing whose products the public is buying, but in the sense that the misrepresentation by the defendant causes the general public to think that the goods or services of the defendant are in fact those of, or those associated with, the claimant (See the 'Corona' cigars dispute in Havana Cigar v Oddenino [1924] 1 Ch.179; Neutrogena v Golden [1996] RPC 473). In Reckitt & Colman v Borden ([1990] 1 All E.R 873), Reckitt & Colman had for a number of years sold lemon juice in plastic containers which resembled natural lemons both in shape and in their colour. Borden subsequently began selling lemon juice in comparable containers. However, Borden claimed that they had, in order to distinguish their product and avoid confusion, attached a suitably distinctive label to their container. An injunction was granted against Borden to prevent them from marketing their product in any container so nearly resembling the JIFF lemon-shaped container. As Lord Oliver explained, “... where the article sold is conjoined with an object ... of a shape or configuration which has become specifically identified with a particular manufacturer, the latter may be entitled to protection against the deceptive use in conjunction with similar articles of [sic] objects fashioned in the same or a closely similar shape ... The deception alleged lies not in the sale of plastic lemons ... but in the sale of lemon juice ... in containers so fashioned to suggest that the juice ... emanates from the source with which the containers of those particular configurations have become associated in the public mind (Ibid. at 884).”

As an example of the diversity of the law of passing off, the protection afforded by this law was extending in the case of Edmund Irvine v Talksport Ltd ([2002] EWHC 367), in which it was recognised that a false representation by a trader that its product or service is certified by an individual may give rise to a cause of action in passing off. As Laddie J., noted, “This is an important point of principle, as it recognises that in some circumstances the tort of passing off may give one an enforceable right in one's own name and image.” Alarmingly though, Irvine's remedy for this infringement of his rights was a sum in damages that fell far short of the amount he would normally receive from such an endorsement. This decision appears to run contrary to the earlier decision of Harrods v Harrodian School ([1996] R.P.C. 697, 713), in which Millet LJ held that: "It is not in my opinion sufficient to demonstrate that there must be a connection of some kind between the defendant and the plaintiff, if it is not a connection which would lead the public to suppose that the plaintiff has made himself responsible for the quality of the defendant's goods or services."

The ambit of passing off was once again extended even further in the case of BT Plc v One In A Million ([1999] F.S.R. 1). In this case the defendant registered a large number of internet domain names involving the names or trademarks of well-known companies, without their consent. At the time of litigation, none of these domain names had been used as active sites, but rather the defendant accepted that part of his scheme was to use his "blocking registration" to sell the name on to its "legitimate" user or threaten to use it or sell it on to third parties. The companies were objecting to the registration of domain names without any active use. The Court of Appeal reacted to this "unfair competition" by finding that the case fell both within standard passing off and the doctrine of instruments of deception. The feeling of the court is that such "dishonesty" by the defendant needed to be stopped and that the tort of passing off could be adapted to meet this need.

To return to the question as to how the tort of passing off protects the descriptive and the functional, it has been demonstrated through case law, that the law increasingly recognises the need to protect the descriptive and the functional. This, however, is not a statement that has always been true, and it is only in recent years that we have seen the law of passing off extended in such a way as to protect the descriptive and the functional. The difficulty that the court faces in such situations is not to impede on the role of the copyright and trademark law. It is argued, therefore, that where the tort of passing off does not protect the descriptive and the functional, the respective copyright and trademark rules do.

Bibliography
Cases
Anheuser-Busch Inc v Budejovicky Budvar Narodni Podnik [1984] FSR 413
American Cyanamid Co v Ethicon Ltd [2001] 1WLR 194
Bollinger v Costa Brava Wine co. Ltd [1960] ch.262
BT Plc v One In A Million [1999] F.S.R. 1
Chelsea Man Menswear v Chelsea Girl Ltd [1987] RPC 189
Edmund Irvine v. Talksport Ltd [2002] EWHC 367
Efax.com Inc v Mark Oglesby Masons Computer Law Reports [August 2000].
Evren Warnink BV v Townend [1979] AC 731
Frank Reddaway & Co Ltd v George Bamham & Co Ltd [1896] AC 199
Harrods v. Harrodian School [1996] R.P.C. 697, 713
Havana Cigar v Oddenino [1924] 1 Ch.179
IRC v Muller & Co's Margarine [1901] AC 217
Neutrogena v Golden [1996] RPC 473
Parker Knoll v Knoll [1962] RPC 243
Reckitt & Coleman Products v Borden Inc [1990] RPC 340 at 499
Sony K K v Saray Electronics (London) Ltd [1983] FSR 302
Stringfellow v McCain Foods (GB) Ltd [1984] RPC 501
With v O Flanagan [1936] Ch 575

Books
Bainbridge D, (2002) “Intellectual Property Law”, Harlow, Fifth Edition
Cornish W, (2003) “Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights”, Sweet and Maxwell, Fifth Edition
Phillips J & Firth P, (2001) “Introduction to Intellectual Property Law”, Butterworths Lexis Nexis, Fourth Edition
Torremans P, (2005) “Intellectual Property Law”, Oxford University Press, Fourth Edition

Sample 2

National Round Table Negotiations in Central Europe after 1989

Introduction and Aim

This assignment will discuss the National Round Table Negotiations that occurred in Central Europe after 1989. It will discuss the effect that these negotiations had on democratic constitutionalism and on the enactment of the rule of law. This will be achieved by looking in depth at each country’s Round Table discussions and then considering in some detail the constitutions that were created both as a result of these negotiations and as a result of other factors. This will be followed by a detailed discussion of the rule of law. It will be concluded that whilst these Round Table Negotiations contributed greatly to the final creation of democratic constitutionalism they also, in some cases, hindered the development of these new constitutions.

1. Round Table Talks in Central European Countries

1.1 Introduction

Initially the Democratic transition created a number of institutions that were specifically created for the process of transition in the former communist countries. This meant that those once stable institutions, such as the parliament and the government, now had only some transitory features. As Aga points out, “The lifespan of these transitory institutions varies from a very short period to many years. The first is the case with the political institutions proper, the second is more characteristic of the socio-economic institutions. The central transitory political institution is the national roundtable; in the socio-economic field this is the central agency for privatisation and marketisation” (Agh A. (1998) “The Politics of Central Europe”, Sage Publications; London).

One of these transitory institutions was The National Round Table (herein referred to as The Round Table). As with all other institutions that were created in Eastern and Central Europe, this was developed immediately following the collapse of the communist regimes. The Round Table was an institution and a device for negotiations and its role can broadly be described as that of a “constituent assembly” (Term extracted from Agh A. (1998) “The Politics of Central Europe”, Sage Publications; London).” Its main role was that of a legitimating device. The reason that such a device was necessary was because, following the fall of Communism there was a large legitimacy lacuna; as those parties that ruled under the former systems were no longer legitimate, but the new opposition forces, in the absence of democratic elections, did not have their own democratic legitimacy before the election.

In order to alleviate this legal lacuna, leaders from both the former government and the new political parties accepted each other as legitimate partners with whom to talk. These Round Table talks prevented revolutions occurring and instead led to peaceable and ordered evolution of respective constitutions. Round Table Negotiations had a lawful constitutional character, and lead, in most instances to a thorough step-by-step transformation. Round Table Negotiations ensured that decisions relating to the constitution were made within the existing legal order and at the same time ensured that the new legal order could move progressively towards democratisation. These negotiations also meant that no retrospective legislation or punishment would exist. And this meant that the partners at these Round Table Negotiations accepted each other as legitimate forces and ensured that, during the eventual transfer of power, none of the former leaders or members of the former political parties could be punished or hung for former political rules, except for those that involved public crime (Agh A. (1998) “The Politics of Central Europe” , Sage Publications; London). This said, it will be argued and demonstrated that only in Poland and Hungary were these Round Table Negotiations particularly effective.

In all of the Round Table Negotiations basic constitutional arrangements and new electoral law were created. These Round Table Negotiations also set the date for the first democratic elections – which came to be known as founding elections as they led to the foundation of the new democratic system.

During these negotiations the majority of the Central European and Balkan countries selected a proportional electoral system, which was loosely based on party lists, in order to support representativeness of the new parliament. However, Hungary did defer from this model and introduced a diverse arrangement with a predilection to government stability (Agh A. (1998) “The Politics of Central Europe”, Sage Publications; London). As we will see in Part 2 of this thesis the first actions of the new democracies was to bring about constitutional change and establish the rules for democratic polity.

1.2 Round Table Talks in Hungary

As indicated above, Hungary was one of the few countries in Central Europe which used the Round Table Negotiations in such a way as to bring about real changes to the constitution. As Birch states, “In Hungary, the Round Table was a genuine negotiating arena whose brief was to provide an electoral law ensuring free, competitive elections” (Birch S et al., (2002) “ Embodying Democracy: Electoral System Design in Post Communist Europe” Palgrave Macmillian ).

At the beginning of the negotiations in Hungary, the communists were very much the dominant party, and it seemed at some points in the negotiation process as if the communist rule would remain with Hungary albeit to a lesser degree. However during the course of the Round Table Negotiations there was a shift in dominance from the MSZMP to the opposition, the outcome of the negotiations is a demonstration of this point.

Furthermore, the requirement for legal ratification also gave scope to parliament, increasing the proportion of single member districts agreed at The Round Table in accord with its own strong preference for personal and territorial representation (Birch S et al., (2002) “Embodying Democracy: Electoral System Design in Post Communist Europe” Palgrave Macmillian). The Round Table discussions in Hungary were extremely productive and between January 1989 and December 1990, Hungary altered its political position from a one party communist state to a multi-party parliamentary democracy, which had six main parties. In reaction to this surge in political commotion, the Communist Party relinquished essential elements of its monopoly of political power, to such an extent that by March it declared its willingness to form a coalition government.

The Hungarian Round Table Negotiations in June 1989 began with a reciprocal accepting of the requirement for fully free, competitive elections (Agh A. (1998) “The Politics of Central Europe”, Sage Publications; London). The oppositional Round Table was made up of some nine opposition groups and was formed in March 1989. It began negotiations shortly after the Polish elections in June 1989.

On the governing, socialist side the negotiators had a variety of backgrounds and were formed from various governmental institutions. The Ministries of Justice and the Interior provided constitutional and legal expertise, drawing their members from various departments of public administration. When negotiations began, Central Committee Secretary Gyorgy Fejti was the party overlord. Opposition groups mobilised their contingent of sympathetic experts (Bozoki A & Karacsony G, (2001) “The Making of a Political Elite: Participants of the Hungarian Roundtable Talks in 1989” extracted from Birch S et al., (2002) “Embodying Democracy: Electoral System Design in Post Communist Europe” Palgrave Macmillian). Peter Tolgyessy of the SzDSz emerged as an important figure in relation to those negotiations that were concerned with the transformation of the electoral law. Antall (MDF) used his central position between the reformers of the MSZMP and the radical democrats of the Opposition Round Table to became an “indispensable liaison person (Tokes R , (1996) “Hungary’s Negotiated Revolution: Economic Reform, Social Change and Political Success”, Cambridge University Press, Cambridge(deleted space))”

There was a high level of cross-party, across-the-table agreement on the benefit of retaining single-member districts. Although this said, the opinion of the opposition Round Table was divided. In the end, key political figures from the opposition dismissed suggestions of a proportional system based on party lists.

The draft law that was created by the National Round Table went first to the parliamentary committee on Law, Justice and the Legal System, which also received representations from individual deputies, several parliamentary committees, civic organisations and individual citizens, during the brief consultation period. The committee itself discarded the concept of momentous alterations on the basis that such change would disentangle the entire delicate harmony.

Despite the apparent fragility of the negotiations the Hungarian political transformation proceeded efficiently and proceeded from the beginning on a multi-party basis. Throughout the summer of 1989 the National Round Table fashioned an agreement which dealt with most, if not all, of the key aspects of political transition. Within this agreement there was a blueprint for future negotiated transition and democratisation, this was signed on 18 September 1989. This September Agreement set a date for a wholly free election in Spring 1990. This September Agreement also contained the fundamental constitutional alterations. A new, fully democratic constitution was passed by the Hungarian parliament in October 1989 (Swain N, (1993) “Hungary” in Steven White, Judy Batt and Paul Lewis (eds) “Developments in East European Politics”, Durham NC: Duke University Press). This was still the “transitory Parliament”, elected in 1985 but even at that date elections had been on the basis of mandatory multiple candidacy in each electoral district. The parliament played a major role in the pre-transition crisis and became in 1989-90 a quasi multi-party parliament through dozens of by-elections (Swain N, (1993) “Hungary” by Steven White, Judy Batt and Paul Lewis (eds) in “Developments in East European Politics”, Durham NC: Duke University Press).

1.3 Round Table Talks in Poland

The Round Table in Poland differed somewhat from the Hungarian model and did not have as its aim the generation of a law for entirely competitive elections. The Polish Round Table was “the analogue of elite decisions Soviet Union in 1989 and 1990 to permit more extensive political competition within the framework of social pluralism” (Birch S et al., (2002) “Embodying Democracy: Electoral System Design in Post Communist Europe” Palgrave Macmillian)”.

In early 1989 it became obvious that in Poland the power monopoly should be revoked for power hegemony. Round Table Negotiations began in Poland between the government and Solidarity on 6 February 1989 and the first pact was signed on 5 April 1989. In this April Pact, Solidarity was given legal status and semi-free elections were held in June. Whilst this was an admirable achievement by The Round Table it should be noted that Solidarity could only compete for 35 per cent of the seats in the Polish Parliament. This was because the majority of seats were retained for the PUWP and its party allies, having had parliamentary representation already in earlier decades. However, this did produce the first non-communist government in East Central Europe since the early post-war period. It achieved what can be seen as one of the main aims of the Polish Round Table talks and that is a dynamic for systemic change in Poland.

The Round Table Negotiations broke the political deadlock and produced two important consequences. The first of these was that, as has been demonstrated with Hungary, the whole political transformation proceeded within a framework of constitutionality and legality. It was a “constitutional revolution”, since the negotiating partners changed the current legal order within its own constitutional framework. The compromises that The Round Table revealed were democratic and led to a process of sweeping transformation, which then was followed by further constitutional changes though a series of original compromises. Secondly, the consensual model of peaceful revolution excluded bloodshed as a method to achieve fundamental changes. The transition inside the existing constitution formed a fundamental political transformation that, at the same time, did not allow for traditional punishment of the political vices of previous leaders because they had contributed to the peaceful transition, as partners in commencing these evolutionary changes. The National Round Table and the negotiated transition process elaborated in and experimented with by Poland provided a mould for all ECE and Balkan countries.

Therefore, this equates to the solving of the pre-transition crisis, elevated to the status of a compulsory route to democratic transition in East Central Europe by the display effect of the successful Polish, and the later Hungarian, transformation. The negotiated transition was a precursor to the new age of ECE regional developments. This was viewed as a profound historical break within the former traditions of social transformation and the violent political transition. This negotiated transition operated in an opposite way in the ECE and Balkan countries; this was completely peaceful in the former region, although this political modernism did considerably reduce the violent nature of political change even in the Balkans.

In Poland, the second pillar of the April Pact was an agreement on a strong presidency to make certain a smooth transition for the ruling party. The strong presidency gave the right to appoint employees and to control the three most important ministries. This subsequent two-fold executive power was a second genetic weakness of the Polish polity, the first being Solidarity; this itself is a large and loose umbrella organisation replacing the whole multi-party system. The “moving walls” of the Polish political system, that is, is enthusiasm of change transcending the April Pact step by step, addressed these weak points.

1.4 Round Table Talks in Czechoslovakia

Czechoslovakia was something of a crossbreed (Birch S et al., (2002) “Embodying Democracy: Electoral System Design in Post Communist Europe” Palgrave Macmillian) case. Although The Round Table mechanism was used as a basis, it did not offer a real negotiating forum. The decision to opt for proportional representation was effectively taken by an inner core of the dominant opposition organisation, Civic Forum/Public against Violence. The largest political power aimed was not just a “fair” system embodying pluralist principles of representation, but one in which responsibility for further problems would be shared. Consultations with other political parties took part in two other special Round Table discussions in January 1990, this was without any problems. Firstly, PR suited both the small and new parties and, secondly, as had happened elsewhere – the electoral law was observed as an interim one for the first of the free elections. This law could also claim historical legitimacy, with its basis in the law of 1946.

It has been discussed that The Round Table talks in Czechoslovakia, “were more like a unilateral imposition of terms by the victorious opposition on the defeated regime (Elster J, Offe C & Preuss U, (1998) “Institutional Design in Post Communist Societies: Rebuilding the Ship at Sea”, Cambridge University Press: Cambridge). In retrospect, it can be argued that the leaders of Civic Forum and their Slovak counterpart, Public Against Violence, could have gained even more than they had achieved.

The most important decisions in The Prague Round Table talks were the election of Havel as President, the arrangement of a coalition government with basics both from the party and the opposition, and the recall of between one third and one half of deputies from Federal Assembly and their replacement by members of Civic Forum and Public Against Violence. This led to new elections; these were set for June 1990. Unlike the events of other countries, the electoral laws were not part of The Round Table talks compromise, but were set unilaterally by Havel and his team of close advisors. As with the other countries, the question that remained was whether to adopt a proportional system or a majority system within the single member districts.

The decision to adopt proportional voting was taken in a way that had a curious and possibly important knock-on effect. When this electoral system was debated in a meeting between Havel and some of his powerful associates, it became apparent that they were very close to convincing him to adopt proportional representation. This matter was settled when one of them added that if they made this decision it was not a definitive one; they could always review and amend this system later. It was in that “experimental spirit” that the thought of having the first parliament elected for a two-year period, rather than the standard four years, first was raised (Elster J, Offe C & Preuss U, (1998) “Institutional Design in Post Communist Societies: Rebuilding the Ship at Sea”, Cambridge University Press: Cambridge).

2. The Growth of a Democratic Constitution

2.1 Introduction

The first, and a very fundamental, question that must be dealt with here, is what democratic constitutionalism is. As Kurkchiyan (Elster J, Offe C & Preuss U, (1998) “Institutional Design in Post Communist Societies: Rebuilding the Ship at Sea”, Cambridge University Press: Cambridge) points out, “Law is found in all places in modern society, but undoubtedly it does not have the same significance everywhere”. “Within each society the law is differently embedded in the social texture. It varies in its form, in its substance, in its social functions and regulative impact.”

In well under fifteen years the former socialist states of East Central Europe and the Baltic have turned into established and stable democracies, in the attitude that they gratify the political criteria of European accession. There are checks and balances in operation, to ensure that the elections are free, and the instruments for protecting the basic rights are in place. These results were accomplished with restricted popular participation and without a strong republican obligation. Constitutional passion was barely acknowledged or participated in, with the formative process, and public opinion still remains at its best uninterested, with the values and practices of constitutionalism, they are unconcerned. It could be argued that the presence of a passionate constitutional discussion is not a necessity in forming long-lasting constitutional arrangements, although an obvious lack of constitutional commitment and passion on the part of the population might become a problem should oppressive or corrupt elites attempt to gain power and govern (Sajo A, (2005) “Constitution without the Constitutional Moment: A View from the New Member States”, International Journal of Constitutional Law 3.2 (243)).

According to Vanhanen’s hypothesis of democratisation, democratisation is dependent on the allocation of appropriate power resources. Democratisation can only take place under conditions in which the power resources have become so generally distributed that no one group is in a position to suppress its competitors or to maintain its hegemony. The hypothetical assumption is based on a Darwinian explanation of politics, this theory attains that politics is a part of the common struggle for survival. As a result, the essential theme of politics concerns the struggle for inadequate resources. Within this theory this factor is the crucial characteristic of politics and it is believed to remain the same across every cultural deviation, since all human populations share the same basic behavioural predispositions. Therefore all obtainable resources are used in the political fight for the scarce resources; it is rational then to assume that the distribution of power follows from the distribution of those resources. Power is concentrated in the hands of a small number of individuals, or shared by the many, this is dependent on whether the important economic, intellectual and other power resources are distributed among the many or concentrated in the hands of the few. As a result of this, the allocation of power resources among challenging groups can be regarded as the most crucial social condition of democracy and democratisation.

The three major stages of democratic institutionalisation are (1) the parliamentary and constitutional changes; (2) the changes in the central government, and the state administration of the “functional governments”, that is, nationwide-interest organisations; (3) the self-governing civil society institutions, first and foremost at local and regional self-governments. In the first stage the main focal point is on the constitutional arrangement of the major power sub-centres all the way through the constitutions-making process of the parliament, president and government, and on the regulation of the parliament itself as the mother and mode institution of the parliamentary democracy (Vanhanen T & Kimber R, (1994) “ Predicting and Explaining Democratization in Easter Europe”, in Pridham G & Vahnanen T, (eds) “Democratization in Eastern Europe: Domestic and International Perspectives”, Routledge: London)

In the second stage, the change within the government, it is the reorganisation and the modernisation of the central government machinery with state administration and its connections with the purposeful or “private” governments of the major interest organisations, and for these reasons it is the most important activity in democratic institution building. In the third stage, though, the so far comparatively neglected or just abstractly regulated civil society associations come to the forefront, as the democratic institutionalisation of micro-politics with their specific and detailed regulations for assorted associations and self-governments (Vanhanen T & Kimber R, (1994) “ Predicting and Explaining Democratization in Easter Europe”, in Pridham G & Vahnanen T, (eds) “ Democratization in Eastern Europe: Domestic and International Perspectives” , Routledge: London).

2.2 The Emerging New Democratic Constitution – Overview

The procedure of institution-building more often than not begins with the formation of a new constitution. Constitutions contain the “meta-rules” (Schmitter, PH (1992) “Interest systems and consolidation of democracies” in Marks G and Diamond L (eds) “Reexamining Democracy”(London: Sage) pp. 156-81) of a system which are to be accepted by all groups supporting the new regime. The wave of democratisation in Europe, after 1989, led to a contradictory situation: the meta-rules had to be fixed, though they were not yet consolidated and agreed upon by many relevant political forces of the transitional regimes. The written constitution, more so than in former transitions, remained a promise for the future. What Schmitter (Schmitter, PH (1992) “Interest systems and consolidation of democracies” in Marks G and Diamond L (eds) “Reexamining Democracy” (London: Sage) pp. 156-81) calls partial regimes of the constitutional systems were hardly developed; the party system took shape, but the system of interest groups remained underdeveloped.

The difficulty therefore was that the more democratic the majority of citizens were who had pushed the system into early concessions to the opposition, the less radical was the constitutional innovation in the first phase of transition. Countries with a clear ruptura were in the situation whereby they could impose constitutional ideas, either by the new democratic forum (Czechoslovakia and Lithuania) or through the reform communists, who in the first period of transition had stayed in power (Romania, Bulgaria, Albania, Serbia). An innovative constitution in the second case did not essentially mean a new constitutional system. Where new states were fashioned as a result of the collapse of multi-ethnic regimes, such as in the Baltic states or in the successor states of Yugoslavia, the motivation to generate a new constitution was great. Only Estonia and Latvia rejuvenated their pre-communist constitutions in order to highlight the permanence of their statehood which had corroded through Soviet annexation.

Many of the new constitutions united Western democratic principles with local and national traditions. In Hungary the bargained constitution announced a “peaceful political operation to a legal state which recognised a multiparty system”. “Social Market Economy” was conciliation after so many unsuccessful experiments with a “socialist market economy” in Hungary.

The unsurpassed intentions were dedicated to the avoidance of systems falling back into totalitarianism. Most abuses of Communist systems were prohibited, such as forced labour, censorship (Russia Article 28,3; Slovenia 1992 Article 1) and the death penalty (Slovakia Article 15.3). “The Right to live (Bulgaria Article 28)” logically entails the outlawing of death penalties.

The counter-reaction in opposition to totalitarian perils led to a recurrent entrance of truisms into the constitution, such as outlawing regulations which limit immigration and emigration of citizens (Estonia Article 36; Russia Article 27), forbidding deportation (Russia Article 36.2), torture (Russia Article 21), medical experiments with men (Estonia Article 18.1 and 18.2), or collecting data on the citizens’ private life (Russia Article 21). It did not reinforce assurance in the new legal state that the provision vanished in the eleventh hour. In some countries the withdrawal of citizenship was outlawed (Article 6.3). Only in Poland did the provision that the president could deprive a citizen of Polish citizenship exist (Article 41).

Truisms of pre-eminent intention entered the constitutional tests, such as the statement that “unpublished laws are not applied (Russia Article 15.3)”. Contradictions and boundaries of granted rights also delayed the trust in the legal state. In Russia it was ruled that human and citizens’ rights should not be diminished by state activities (Article 55.2). However the directory of exceptions invited uncertainties. Not only did “moral reasons, health and the rights and interests of other persons” authorise limitations of the basic rights, but even “the defence of the country and the security of the state”.The difficulty with this is that as any one living under a communist regime will say, state security was perhaps the most mistreated concept under Communist rule.

A sign of true democratisation and of the rule of law is that of the state’s treatment of ethnic minorities. This is perhaps one of the most important tests for the new democratic constitutions. However all states made declarations of “multinational people” or invocations of the “democratic tradition of nation building” which were similar to the rhetoric of the old regime. In practice these new rules did not always necessarily add anything to the regime.

Another important concept and principle in the development of a democratic constitution is fairness. Of equal importance is efficiency - which more often than not is understated in the first period of democratisation. This is because new democracies in the first place look for legitimacy of the new order and, only after considerable time has passed, come to realise the importance of the principle of efficiency (Von Beyme K, (1996) “Transition to Democracy in Eastern Europe”, International Political Science Association).

One of the major problems in the building of new constitutions, and as will be concluded, is the relative weakness of political engagement and this can be seen in part to be due to the inheritance of totalitarianism: the enduring misgiving of parties, politicians and bureaucrats.

Before moving on to look in a little more detail at the emerging constitutions in all of the central European Countries it is important to make some attempt at a definition of constitutional democracy. There have been a number of attempts to define the criteria for democracy. Robert Dahl presents a set of “procedural minimal conditions”:

1. Inclusive Citizenship: exclusion from citizenship purely on the basis of race, ethnicity or gender is not permissible.
2. Rule of Law: the government is legally constituted and the different branches of government must respect the law, with individuals and minorities protected from the “tyranny of the majority”.
3. Separation of Powers: the three branches of government – legislature, executive and judiciary – must be separate with an independent judiciary capable of upholding the constitution.
4. Elected Power-holders: members of the legislature and those who control the executive must be elected.
5. Free and Fair Elections: elected power-holders are chosen in frequent and fairly conducted elections, in which coercion is comparatively uncommon and in which practically all adults have the right to vote and to run an elective office.
6. Freedom of Expression and Alternative Sources of Information: citizens have a right to express themselves on political matters, broadly defined, without the danger of severe punishment, and a right to seek out alternative sources of information; moreover, alternative sources of information exist and are protected by law.
7. Associated Autonomy: citizens also have the right to form relatively independent associations or organisations, including independent political parties and interest groups.
8. Civilian Control over the Security Forces: the armed forces and police should be politically neutral and independent of political pressures, and under the control of civilian authorities (Dahl R, (1982) “Dilemmas of Pluralist Democracy”, New Haven, CT: Yale University Press).

2.21 Hungarian Democratic Constitution

As has been discussed, the constitutional-legal system for Hungary was created and crafted in 1989 throughout the trilateral negotiations between the Hungarian Socialist Workers’ Party, the opposition Round Table and the Third Side. The newly created constitution retains most of the structure of the old one, but with some important and substantial revisions. It was acknowledged and affirmed on 23 October 1989, a few months before the first free elections. From then on, the Republic of Hungary could rightfully be regarded, constitutionally, as a law-based state.

The Hungarian Socialist Party coalition government, in 1994, dedicated itself to create a new “final” constitution in collaboration with the opposition parties. Although the “constitutional moment” had already passed, they created a committee in the Parliament specifically for the purpose of doing the preparatory work for the creation of this elaborated constitution. Constitution-making was seen by the coalition as a legal and policy problem which most people were not interested in or did not recognise as important.

One of the most important and admired parts of the Hungarian Constitution was the constitutional Court, which was created in January 1990 as a consequence of the trilateral negotiations. The judges were selected for this court in various ways and the negotiating partners and others by the newly elected Parliament chose some of the judges. This court has a remarkably wide jurisdiction. It has been said that this was a “functional equivalent of a second legislative chamber (Dahl R, (1982) “Dilemmas of Pluralist Democracy”, New Haven, CT: Yale University Press)”.

The Hungarian Constitutional Court earned the most excellent results for its activities; thoughthe opportunity of accepted suit in the organisation and control of norms put a curious burden on the shoulder of judges. Occasionally the new ideological enthusiasm to comprehend the new legal state causes further strains, this is because judicial restraint has not yet been internalised by the judges. The more authoritarian the traditional regime, the less the constitutional court functions and this can be seen to a degree in Hungary. Nevertheless the Constitutional Court in Hungary was an admirable attempt at securing the position of the new Constitution.

2.22 Polish Democratic Constitution

Poland was the first of the former communist countries to elect the first non-communist Prime Minister, this occurred in 1989. The triumph of Solidarity in the June 1989 elections heralded the beginning of a multifaceted and extensive political transition. The decision to hold presidential elections in late 1990, well ahead of the parliamentary ones, presented a “perverse sequencing in a regime building” “producing the uneasy combination of Lech Walesa and a quasi-communist legislature” (Azminski A & Gogolewska A, (1996) “Civil Control of the Russian Military since 1991” European Security 5:4 Winter 1996 589). However, because of the precise nature of the events in 1989 – the fact that their autonomy was regained as a result of round–table talks – any kind of immense decommunisation in Poland was out of the question. Whilst Poland appeared to achieve results much earlier than the other former communist countries, it will be demonstrated that the utilisation of The Round Table Negotiations meant that communism remained a large part of Poland for a very long time.

On 2 April 1997 the National Assembly passed the text of Poland’s new constitution, which was later adopted in a nationwide referendum on 25 May 1997, by a margin of 53% in favour of and 46% against with a turnout of 43% of all eligible voters. The constitution, which came into force on 16 October 1997, was attacked throughout the constitution - making development by the right-wing parties, Solidarity Union and the Catholic Church.

As Azminski points out, “This fact, which cannot yet be fully evaluated, had created numerous problems which are largely responsible for the present political situation. These include the weak authority of the ruling post-communist group; they are elected but not trusted. This weakness prevents the post-communists from introducing proposed reforms that are, at least in theory, quite reasonable (Azminski A & Gogolewska A, (1996) “Civil Control of the Russian Military since 1991” European Security 5:4 Winter 1996 589)”.

Poland has all of the main features of a formal democratic system. This can be seen in the separation of powers, including an independent judiciary with a very strong Constitutional Court, the judgements of which can be overturned only by a two-thirds majority of the members of Parliament; strong and independent media; and a decentralised political system. The original Polish constitution has roots as far back as 1952, although it has been altered on many occasions. There are some fundamental flaws within the Polish constitution which, it is suggested, “are indicative of the weakness of the cultural substructure of democracy”. These need to be explored in turn.

The first of these is that the decentralisation of political power is principally invented, the reason that this assertion is made is because local government exists at only the lowest administrative level; local government has strong authority but no local money; citizens are, as a rule, not interested in the functioning of the local government; and thus attendance at local elections is generally very poor. The decentralisation of the executive powers since 1989 has been perceived by nearly all governments as an important, but not much supported, decision.

The second fundamental flaw of the system is the seeming lack of independence of the media. The independence of the media is restricted by two factors: inadequate assets, which in turn prevent the creation of a strong newspaper or private TV station; and constant efforts by politicians to pressure the boards of the public TV and radio stations. There are two very strong national daily newspapers in Poland and quite a lot of local ones. The independence of the public TV board is not totally secure in legal terms, because board members are nominated by the two houses of the Parliament and by the president. This means that if one party monopolises all these institutions, the board can become politically dependent.

The third restriction on the constitution is that whilst the existence of the voluntary sector is legally guaranteed, the government has shown little enthusiasm in making the life of foundation associations and other non-governmental organisations easier and indeed have made no efforts to connect them to other functions of society. The development of the voluntary sector has been moderately slow, although unwavering. This is due, in part, to the intricate legal framework, which has been distorted several times since 1989 inresponse to neglect by non-profit institutions; the intricate and dubious tax deduction system; and the officious and strict regulations that have restricted the authority of foreign institutions and made external funding difficult to obtain.

2.23 Czechoslovakian Democratic Constitution

In June 1990 the Federal Assembly was elected in Czechoslovakia. It was hoped that they would adopt, within an abridged term of two years, a new constitution. While the federal parliament was called “constitutante”, the main function was neither set out in written law nor was it understood to be exclusive. The customary procedure that would be expected would be for the constitutante to have the power to design a new constitution but not the power to amend the current constitution. This was not the case with the Federal Assembly. The powers of the Federal Parliament were somewhat different to that which were expected. They had powers to only partially alter the constitution that remained in force following communist rule. It can therefore be seen that the only limitations on the apparently all-powerful parliament were to be a shortened two-year term and the political pressure of voters.

During negotiations for the creation of the constitution, those constitutional bills that were presented altered considerably from one another. Some of them were more harmonious than others, some dealt with particular constitutional issues in some depth, whilst others were vague in their content. Some were enthused by the requirement to amalgamate the legal system, others by the longing to make certain new constitutional concepts irrevocable. Others served only as tools to reinforce the political ambitions of their authors. The outcome was such that not a single proposal that sought to modify the constitutional function of the Federal legislature was passed.

In December 1992 the Constitution of the Czech Republic was created. This constitution established the Czech Parliament. The Czech Parliament consists of two chambers: the first of these is the House of Deputies and the second of these is the Senate. These two sections of government are by no means equal in their power to legislate and they are also not constituted in the same electoral system. A short example of this can be provided that whilst the House of Deputies has the power to override a resolution passed in the Senate by a stronger majority vote, the Senate has the power to legislate when the House of Deputies is in a state of dissolution; it can then pass so-called “legislative provisions”. Since the Senate itself cannot be the subject of dissolution its position, compared to that of the House of Deputies, appears to be more stable. However the Senate is not in fact a chamber with larger powers. It has limited competencies with regard to the bills or legislative provisions upon which it can deliberate.

2.24 Slovakian Democratic Constitution

Of all the new constitutions that were created, the Slovakian constitution was perhaps one of the slowest to emerge and did not really gain momentum until the middle part of 1995. This, it will later be concluded, was in part, due to its utilisation of Round Table discussions during the initial post-communist period.

The lethargy employed by the government can be demonstrated by the fact that the commitment to democracy and the rule of law was not stated in its manifesto until January 1995. In fact this very manifesto was reiterated in the memorandum that accompanied the application for membership of the EU in June 1995. The position of the Slovakian constitution can be contrasted sharply with the events that occurred in November 1994. In November 1994 the parties of the current coalition government started to implement “tyranny of the majority”, including concentration of political power, purging of the state apparatus, drastic interference with privatisation and the establishment of total control over state television. Unlike the period between 1990 and 1994 the opposition does not now have a parliamentary vice president; the chair of any parliamentary committee; a representative on the parliamentary body that oversees the Slovak Intelligence Service; a representative on the National Property Fund, which has complete control over privatisation; or a single representative on the councils for public electronic media. This is viewed as favourable and a step in the right direction.

One of the main problems for the creation of the constitutions was the fact that the government coalition and the opposition held essentially differing opinions and therefore their interpretations of democracy and constitutionalism were equally different. This resulted in little dialogue between the two groups and lack of progression towards a unified constitution.

The Slovakian constitution corresponds to the yardstick of most modern democratic states. In spite of the numerous political alterations since its adoption in September 1992, the country’s constitutional system has remained constant and brings with it a sturdy Constitutional Court. Included in the constitution is a Bill of Rights, and the constitution has also incorporated the international covenant on human rights and freedom, which take precedence over the legislation of the Slovak Republic. Slovakia, as an associated member of the EU, it is hoped, will respect the standard of political life trait of EU countries. This will create an important orientated structure for internal political developments in the country. While there are some contradictions and shortcomings within the constitution in relation to the administration of political crises and the failure to provide clear marking out of the division of competencies between the highest institutions of the state, the constitution has had a critical role in preserving the separation of power in Slovakia.

The Constitutional Court has been one of the most important pillars of democracy and constitutionalism. In several of its rulings it has demonstrated its power to limit the “tyranny of the majority”. Some of the court’s decisions are met with disapproval by the representatives of the ruling coalition. Officially, however, nobody from the government or the Parliament has declared that the court’s decisions should not be obeyed. In some controversial cases, though, the government has delayed the implementation of or simply ignored the court’s rulings.

3. The Emergence of the Rule of Law

3.1 Introduction - What is the Rule of Law?

Perhaps the most famous discussion and explanation of the law comes from Dicey. His thoughts on the rule of law are so popular that many people credit him with the creation of it. In his book (Dicey, (1885) “An Introduction to the Study of the Constitution”) he summarised the rule of law under three heads. He first said, “No man could be punished or lawfully interfered with by the authorities except for breaches of law. In other words, all government actions must be authorised by law.” (Dicey, (1885) “An Introduction to the Study of the Constitution”). His second assumption in relation to the rule of law was that, “No man is above the law and everyone, regardless of rank, is subject to the ordinary laws of the land.” (Dicey, (1885) “An Introduction to the Study of the Constitution”). Finally he said, “There is no need for a bill of rights because the general principles of the constitution are the result of judicial decisions determining the rights of the private person.” (Dicey, (1885) “An Introduction to the Study of the Constitution”).

The rule of law suggests that government should not have unfettered power and should not possess discretionary power. It also supposes that there should be legal controls over the government’s activities and no one including government officials should be above the law. These principles, if successfully attained within a society, will result in national stability and security of citizens.

3.2 The Emergence of The Rule of Law in Central Europe

The perception of the rule of law is one that is most often used to analyse the transitions that took place in Central Europe (See Priban J and Young J (eds), “The Rule of Law in Central Europe”. 1999. Aldershot, Ashgate ). As we have seen above, the exact meaning of the “rule of law” can not be found in any one legal system.

As Dupre (Dupre C, (2003) “Importing the Law in Post-Communist Transitions: The Hungarian Constitutional Court and The Right to Human Dignity”, Hart Publishing; Oxford points out, “the “rule of law” is probably the phrase that best summarises the idealistic spirit of the post-communist constitutions”. The reason for this, she asserts, is because “this principle, explicitly enshrined in a prominent position in all constitutions, signalled the end of communism and of one party rule”. It can be seen in all of the former communist countries that the “rule of law” was the central aim of The Round Table Negotiations and therefore in turn the central aim of the newly created constitutions. We only have to look to the text of post-communist constitutions to see the emphasis that they have placed on the introduction of the “rule of law”. For example Article 2 of the 1997 Polish Constitution declares that, “The Republic of Poland is a democratic state governed by law implementing the principles of social justice”. In a similar vein the preamble of the 1991 Bulgarian Constitution sets out that:

“We, the national representatives of the Seventh Grand National Assembly, in our aspiration to express the will of the Bulgarian People…. proclaim our resolve to create a democratic, law governed and social state, for which we adopt the present constitution.”

There is a general consensus that one understanding of the “rule of law” is that it is negative and has a negative impact. This can be exampled by the former Soviet Union, and that is to say that it was then a rule which was imposed by one man, one party or by the Soviet Union. This argument however, reverts us back to the discussion of what is the “rule of law”, and it could be argued that former communist systems do not support the notion of the “rule of law.” If we consider the “rule of law” in its ordinary sense then we can see why it had such strong appeal. This is because it contained “the hope that individuals’ lives were not to be dictated by the communist ideology.” (Dupre C, (2003) “Importing the Law in Post-Communist Transitions: The Hungarian Constitutional Court and The Right to Human Dignity”, Hart Publishing; Oxford). For those former communists the “rule of law” marked the end of dictatorship of the proletariat, which had once claimed to be the foundation on which these countries were once built.

The “rule of law” was the law which was sought by the people instead of the law that they had had imposed upon them by the Soviet Union. It was the law that people choose and one which they were able to both accept and identify with.

The “rule of law” reflected the aspirations of the new regimes to become democracies and it tied in with the idea of sovereignty; it was their own law that post-communist constitutions were committed to enact and to safeguard. The rule of law implied a hierarchy of norms at the top of which was the constitution, often described as the supreme law of the land. Moreover, the tenet of the “rule of law” had as its intention the limiting of the power of the state. The reason for this was because, to act under the “rule of law”, it had to respect the right of individuals and a constitutional court was created to settle disputes about the competences of state authorities. It has been argued that the “rule of law” principle was one of the most important principles, if not the most important principle, guiding the embellishment of new constitutions. Although outside the remit of this assignment the other key principle in the creation of these new constitutions was political pluralism, i.e. multi-party democracy, together with the free, equal and secret elections were essential in creating the possibility for liberal democracy (Dupre C, (2003) “Importing the Law in Post-Communist Transitions: The Hungarian Constitutional Court and The Right to Human Dignity”, Hart Publishing; Oxford.

3.2 Lawlessness in Post Communist Europe

Galligan (“Administrative Procedure Codes After Communism” in Melanges Offerts a Jaques Van den linden (Bruylant, Brussels) pp. 425-437) suggests that “post communism European Societies do not take law seriously”. The problem he says is not a lack of state law, but that “although there is plenty of law made by legislatures and their delegates, it is disrespected and disregarded, and of limited use in regulating social activities.”

As Kurkchiyan ('Administrative Procedure Codes After Communism' in Melanges Offerts a Jaques Van den linden (Bruylant, Brussels) pp. 425-437) suggests those in post-communist countries tend to assume that the law is not binding on them. “Their record of legal behaviour is known to be one of the worst in the world” (Black D, (1976) “The Behaviour of Law” New York: Academic Press. “Such a generalisation is justified because, although all of the newly independent states have their own legal culture, the similarities between them are pronounced.” He goes on to say that “All of them experienced the homogenizing impact of the Soviet Union period, with its single body of law, identical administrative structures, and common indoctrination. Faced with the same bureaucratic rigidity, citizens right across USSR managed to live normal lives partly by learning how to be artful dodgers. These precise skills of knowing how to find the crack in the law have not been lost since 1990.”

Kurkchiyan points out that in these post-communist countries people do not believe that anything can be achieved by the law in general, and accordingly do not feel obliged to allow it to restrict their own behaviour.

4. Conclusions

It has been demonstrated by the discussion of The Round Table Negotiations and the development of constitutions in Central European Countries, that in some instances Round Table Negotiations assisted and in others they did not.

Two important conclusions can be reached. The first of these is that those countries that embraced The Round Table Negotiations, i.e. Hungary and Poland, developed constitutions with relative ease and very quickly; those that did not embrace this procedure did not establish constitutions with such ease and speed. This said, however, The Round Table Negotiations in relation to Hungary and Poland proved problematic for two reasons. The first of these is, and the basis for the other reason, that the communist ideology still remained. The reason for this was because the former communist governments played a large role in the negotiation process.

The second problem is because of the communist influence in the negotiation process, distrust and apathy existed amongst the community of the countries. As was discussed under the “rule of law”, certain countries still remain distrustful of the government and disrespectful of the law. As Kurkchiyan ('Administrative Procedure Codes After Communism' in Melanges Offerts a Jaques Van den linden (Bruylant, Brussels) pp. 425-437) suggests those in post-communist countries tend to assume that the law is not binding on them. “Their record of legal behaviour is known to be one of the worst in the world (Black D, (1976) “The Behaviour of Law” New York: Academic Press. “Such a generalisation is justified because, although all of the newly independent states have their own legal culture, the similarities between them are pronounced.” Apathy in relation to voting is also apparent because of the people’s perception that they remained powerless to change their current situation because of the involvement of the communist parties. Therefore whilst development of Negotiated Round Table talks was slow in other countries, the government and constitutions that were created, appeared to their people to be much more trustworthy.

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