From the Law of Force to the Force of Law - a Decade of Post-Communist
Transition in Central and Eastern Europe
Ladies and gentlemen,
I have read many definitions of democracy, but I believe that one of the truest
of them all is the following: democracy is the form of social organization in which lawyers successfully fight against the State, on behalf of
persons that ceased a long time ago to understand anything of what is going on.
In Romania, building and consolidating a new democratic system coincided with
the reform of State institutions, a process in which the contribution of legal
experts a decisive role. Thus, before "fighting against the State", as
the saying goes, the Romanian legal experts sought to ensure the rule of law in
terms of how the authorities of the State worked: the Parliament, the
Administration, the Judiciary.
In fact, the past ten years in the history of Romania have been dedicated
essentially to the reconstruction of the rule of law. I say reconstruction
because Romania did have the rule of law at the middle of this century, even is
not all the institutions at that time fully fit the requirements of what we now
call a consolidated democracy. Communism, however, totally destroyed this
perfectible rule of law and replaced it with an absolute dictatorship.
I would like to say from the very outset that the reconstruction of the rule of
law after a communist dictatorship is much more difficult than reconstruction after a dictatorship of the right. This is true because the
extreme left destroys not only the political democracy, but also normal economic
life, private property and the elementary rules of the flow of goods.
This is why I believe that, in order to correctly present what we have achieved
during this past decade, we must first understand where we had to begin from.
In 1989, Romania fully met the definition in four points which Ayn Rand once
gave for dictatorship: there was a single party; the state punished the
citizens for expressing their views; private property was nationalized or
expropriated according to the whim of rulers; a total censorship prevailed.
In Romania of December 1989, around 3000 normative acts were in force, out of
which over 1700 were presidential or State Council decrees, 1000 were decisions
issued by the Council of Ministers and only 200 were laws. Worth mentioning is
the fact that 1000 of these normative acts were never published.
But the reality that we set out from was even more dangerous because, not only
did democratic institutions lack, but we also had to face the results of a
brutal and consistent propaganda campaign.
Forty years ago, as a student of law, I was taught that the separation of powers
is a false theory. That political pluralism is in fact an example of bourgeois
formalism. That human rights are a senseless motto of the Cold War. That the
state and the law would one day disappear, in an ideal society where neither
criminality nor differences among people existed.
Fortunately, the success of this aggressive propaganda was only a partial one. A
good part of the young people that were also taught this in school found
themselves among the front-line fighters during the anti-communist revolution of
December 1989. And they tried, after that, to speed up as much as possible the
reform of the political system in Romania. Still many of their parents continue
to fall prey to the centralized, state-focused mentality of the past, which
seriously affects the overall functioning of the social system.
By the way, you might have noticed a small group outside, protesting against
the slow pace of property restitution. What matters is not the number of
protestors - 10, 5 or 1 - but rather the principle they stand for. It is a
principle - consolidating private property - that I myself am committed to.
We too share the objective of consolidating private property, but we seek to
achieve it while respecting the rule of law. What we have seen shows that
sometimes mentalities change only at the surface, and that there are citizens,
even here, who expect a double standard. Here in the U.S. they accept the
separation of powers, whereas back in Romania they expect me, as President, to
step in and act, violating those responsibilities that belong to the Judiciary,
the Parliament and the Government.
On the one hand, Romania today is a consolidated stable democracy, with a
parliamentary system now in its third legislature, with a normal and calm
transfer of power, and with a policy regarding minorities that is often given as
a model. On the other hand, delays in the economic field stand as a permanent
danger for political and institutional progress and people are not yet prepared
for undertaking the risks that stem from economic activities in a free
competitive environment.
The political construction can crumble if it is not supported by an economy that
functions normally according to the mechanisms of the free market. And it is
here that communication with the traditional democratic areas of the United
States and Western Europe, and especially direct cooperation, become essential.
No documentary film on private initiative and enterprise can replace a good
partnership between a Romanian company and a serious foreign firm. No
theoretical essay on profit and efficiency can replace the unique and practical
experience of individual success, especially when it occurs under difficult
circumstances.
This is why we salute the new approach of the West, of the United States and the
European Union, in what concerns the strategies for supporting the new
democracies of Eastern Europe. The program of cooperation launched a week ago in
Sarajevo sets in motion, for the first time, substantial economic mechanisms,
which are essential not only for the prosperity but also for the stability and
security of the region we are referring to. They are certainly essential for the
democracies born in this region through their own efforts and under extreme
conditions. But in the context of the global economy and society towards which
we are heading, they are also in the benefit of all.
Ladies and Gentlemen,
During these past ten years, Romania has adopted a democratic Constitution,
which sets the fundamental basis even for correcting its own imperfections.
Romania has developed a modern legal system, with independent and immovable
judges, with a new body of prosecutors, totally different from the former Soviet
model, which had been imposed for so many years, and with a new statute of
lawyers. These lawyers now benefit from a variety of means to efficiently
protect their clients. The intelligence agencies have been deeply reformed, they
have new laws and rules of operation and are led by people coming from the civil
society. We have set in place clear control mechanisms in a variety of fields -
public finances, constitutionality of laws, protection of minorities. There are
also institutionalized mechanisms conceived to ensure a permanent dialog among
the main actors on the social arena: the State, the employers' associations and
the trade-unions. During the past ten years, a free and very active mass media
has developed in Romania.
These new or profoundly reformed institutions are the result of intense
legislative work, preceded by intense public debate. The support and cooperation
of the American Bar Association, and especially of the international law
department within CEELI (the Central and East European Law Initiative), have
been instrumental in showing that economic and political reforms need a healthy
judicial system. What is greatly appreciated is also the openness of CEELI
experts to take under discussion, alongside the American experience, also
alternative legal traditions of European law, which has developed modern
legislation in the constitutional, civil, criminal and commercial fields.
I have called this phase that Romania and other former communist countries from
Central and South-East Europe are now experiencing as post-transition. I believe
post-transition is a specific stage of reform, under no circumstances the end of
reform. What defines it is the existence of the essential institutions of a
democratic state, but also the persistence of obstacles, mismanagement and other
negative effects due to mentalities, or bureaucracy, or legislative gaps.
We are now trying to face this type of challenges. For example, these very
days the Parliament in Bucharest is focusing on finalizing the statute of
property, returning agricultural land, nationalized houses, workshops and
forests back to the former owners which the communists had arbitrarily stolen
from.
What we have to do now is to convince the people that whenever democratic
mechanisms (permissive or restrictive) do not function as they should, the
phantoms of the past, of intolerance and chauvinism, can reappear. And that
there still are forces ready to offer political drugs instead of the real
changes which, undoubtedly, are much more difficult to achieve.
At the end of a decade since the fall of communist dictatorships,
post-transition, as I have defined it, is yet limited to the goal of creating a system similar to the consolidated democracies and efficient Western
economies of today. It is a goal which, from the perspective of the future, I
find to be modest.
This goal could have been satisfactory if this last decade of the 2nd millennium
had represented "the end of history" as predicted by Francis Fukuyama
in 1990. We now know that this goal of post-communist societies, which has
animated us for a decade, can build for us the foundation of a global economic
and information society but does not prepare us for the challenges that we will
have to face together in the third millennium.
Communist dictatorships froze conflicts, believing that problems that are not
discussed do not exist. Modern democracies are sensitive bodies that promptly
signal tension and crises, but not automatically do they find solutions - nor
are they prepared to implement them.
The globalization of problems can lead to frightening chain reactions. The
collapse of financial markets, nuclear crises, environmental disasters, social
tension that can generate large-scale violence, the globalization of organized
crime, the crash or virusing of computing systems, crises generated at the limit
between science, religion and morale, the globalization of sub-culture. All
these can launch earth-shattering trans-continental waves which, as in hazard
geology, can only be charted after the disaster occurs. Paraphrasing Malraux, I
would say that the XXIst century will be one of the primacy of law or it will
not be at all.
I believe that a system of accepted and respected laws is the only viable
answer. The force of the law against the law of force can be our one chance in
the face of arbitrariness and chaos. We are all called upon to be the advocates
of man, the only universal dimension worth thinking and acting for.
The award you have bestowed upon me is a gesture meant to honor the efforts of
those Romanians who have chosen the difficult but sure way towards strengthening
democracy. This is why I thank you, on behalf of my fellow citizens, who have
placed their conviction and energy in the rebirth of the Romanian rule of law
and in building a better world for us all.
Thank you.
A D D R E S S to A.B.A/C E E L I Convention
by H.E. Mr. Emil Constantinescu, President of Romania - Atlanta, August 7, 1999
Note: The text of the address was received from Mr. Constantin Matache
at Romanian Embassy.