The disagreement on the proper role of judges confronting upon issues of political morality goes back to the renowned debate between Herbert Hart and Ronald Dworkin. The generations of constitutional courts, led by ambitious chief justices in many countries, are considered the most important institutional guarantors of transitional justice and constitutionalism on account of their decisions on political morality, human rights, principles of rule of law and separation of powers. However, the constitutional adjudication is Janus-faced because the activity of the courts may contribute to the re-emergence of authoritarianism. The paper offers different case studies from Russia, Hungary and Moldova to demonstrate how chief justices deal with problems left by former authoritarian parties, during the period of emerging new authoritarianism.
The paths of constitutional reform and democratization in Taiwan and South Korea paralleled as well as diverged from each other. The difference has a huge impact upon their policies and legal strategy toward transitional justice. Constitution in post-authoritarian Taiwan failed to form a new political identity against past atrocity. Even though the Constitutional Court has made effort to instill theoretical bases to redress unfair criminal treatment of political activists, these rulings simply reaffirm the untouchable issue of political legitimacy enshrined in the 1947 Constitution of the Republic of China. The KMT simply passed legislation to award monetary compensation for political victims under martial law. However, Korea has actively investigated at least two political incidents. The case of Taiwan illustrates an outdated constitution not only cannot provide a sound foundation for transitional justice but also fails to facilitate political communication within a growing democracy.
The quarter-century of politics in twelve non-Baltic post-Soviet states shows the approaches of transitional justice from blaming to naming towards the abuses of human rights committed by Soviet and post-Soviet regimes. All post-Soviet regimes officially blame Stalinist regime in general while very few – Georgia and Ukraine – actually blame post-Stalinist regime, name concrete perpetrators of the abuses and collaborators and attempt lustration. Most post-Soviet states keep most of the secret police archives secret yet they permit rehabilitation, compensation and memorialization of victims of Stalin’s purges without naming concrete perpetrators of purges and officials in charge of expropriation – the pattern inherited from the last years of the USSR. Most of these states glorify the memory of the victims and encourage repatriation of ancestors of the victims, like in Kazakhstan, without announcing the names of officials and collaborators with secret police responsible for their fleeing.
One of the greatest challenges facing Hungary is coping with the grievances left by the authoritarian and totalitarian regimes in the 20th century. The question of how to settle the pro-Nazi and communist pasts of the country was first raised during the democratic transition in 1989. This paper discusses how the democratic 1989 constitution of Hungary and its judicial interpretation given by the Constitutional Court dealt with the problem of transitional justice, and how this approach influenced reconciliation and democratic consolidation. The paper introduces those legal solutions. Retroactive justice, responses to state security measures and the regulation of compensation for wrongdoings in the past are also examined. Recently, the question of settling the past has been brought up again as part of the country’s shift toward authoritarian rule. Therefore, the unsettled past has continued to be the bedrock of political fights in the present. It also discusses the 2011 constitution.
This paper offers three different case studies from Hungary, Russia, and Moldova to demonstrate the special role of powerful chief justices – László Sólyom, Valery Zorkin, and Alexandru Tănase – in facing authoritarian past and the possibility of reemergence of authoritarianism. Based on these case studies, I argue that the judgments of chief justices on transitional justice had a great influence on the constitutional development of East-Central European democracies. Sólyom and Tănase were eager for transition toward constitutionalism while Zorkin, once a pathfinder for constitutional ideas, served authoritarian imposition. Though led by entirely different moral and political convictions, neither of them respected objective principles of the constitutional text but simply imposed their own personal convictions. The lesson is that during political transitions constitutional adjudication based upon personal convictions may contribute to the reemergence of authoritarianism.