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CONTENTS
CONSTITUTIONAL WATCH
DECEMBER • 2020 – JANUARY • 2021
Belgium, Egypt, Hungary, Portugal, Russia, Spain, Ukraine, USA
LANDSCAPES OF DEMOCRACY
THE CONCEPT OF TYPES OF POPULAR REPRESENTATION
Democracy has many appearances. The principle of democracy is implemented in republics as well as monarchies, unitary states and federations. This article proposes a new dimension of democracy – the type of popular representation – which depends on the electoral system used in national parliamentary elections. The ownership of power in the state by the people is ensured by the functioning of a representative body elected by citizens and having exclusive authority to pass laws that are binding on all. In addition, the parliament participates in the formation of bodies of other branches of power and approves the budget. Thus, research into the manifestations of the institution of popular representation is important not only for countries with a parliamentary government, but also for all other states. The direct dependence of the composition of the legislature on the will of the people guarantees that the actions of the state are subordinated to the interests of this entity. An electoral system is used to identify this will of the people. However, the significance of this legal mechanism is not limited to the role of a guide between votes and parliamentary mandates alone. The electoral system is a “double-edged” instrument that can influence the exercise of power by the people. The purpose of this article is to analyse this influence and demonstrate the existence of three types of popular representation formed by different categories of electoral systems. Types of people’s representation arise as a result of the repeated application of a certain mechanism and the following establishment of the party composition of the parliament and party structure of the government. The established type of people’s representation is characterised by the varying degree of effectiveness of political parties in expressing and realising the interests of the people. In addition, the implementation of the principle of alternation of power and the functioning of the checks and balances are also dependent on the electoral system used. This article formulates a concept that makes it possible to differentiate the way democracy is developed in the state and to consider transparently the constitutional and legal consequences of the choice of the electoral system.
CONSTITUTION AND POLITICS
SPOILERS AS A FORM OF ABUSE OF POWER
In the article the author specifies some general theoretical approaches to the concept of abuse of power, which were outlined by him earlier in his article Abuse of Rights and Abuse of Power: To the Formation of a Unified Doctrin published in one of the issues of this journal. In the introduction, the author proposes the concept of spoilers as a form of abuse and defines it in a following way: a participation of representatives of public authorities in the distribution of limited resources, which has the sole purpose of hindering (blocking) the exercise by citizens of their right to free expression of opinion (Article 29) and the right to participate in the life of the state (Part 1 of Article 32) and which is therefore unacceptable within the meaning of Article 18 of the Constitution of the Russian Federation. The main part of the article discusses possible illustrations of spoilers in the following areas of legal relations: the organization of public assemblies (including in single specially designated places), participation in public hearings (in particular, on the adoption and amendment of land use rules), initiation of a federal referendum (namely, challenging the decision of the election commission to register a regional subgroup of the initiative group). Finally, in the last part of the work, the author briefly examines possible models of legal regulation of countering abuse of power, and also warns against uncritical (politicized) use of this category, since this, in turn, may be fraught with violations of citizens' rights. According to the author, among such models are ex ante mechanisms (amending the current legislation and construing the norm in a constitutionally biding manner) and ex post mechanisms (application of the principle of inadmissibility of abuse of power by a court of general jurisdiction when considering a specific dispute), each of which has its advantages and disadvantages.
PUBLIC HEARINGS AS AN INSTITUTION OF DELIBERATIVE DEMOCRACY IN MAJOR RUSSIAN AND AMERICAN CITIES
Currently, public hearings are one of the most widespread forms of deliberative municipal democracy in Russia. This high level of demand, combined with critique of legal regulations and the practices for bringing this system to reality – justified, in the meantime, by its development (for example, by the Agency for Strategic Initiatives and the Public Chambers of the Russian Federation) of proposals for the correction of corresponding elements of the legal code – make both the study of Russian experiences in this sphere and comparative studies of legal regulations and practical usage of public hearings in Russia and abroad extremely relevant. This article is an attempt to make a contribution to this field of scientific study. If the appearance of public hearings in Russia as an institution of Russian municipal law is connected with the passing of the Federal Law of 6 October 2003 No.131-FZ, “On the general organisational principles of local government in the Russian Federation,” then in the United States, this institution has existed since the beginning of the 20th century, with mass adoption beginning in the 1960s. In this time, the United States has accumulated significant practical experience in the use of public hearings and their legal formulation. Both countries are large federal states, with their own regional specifics and diversity, the presence of three levels of public authority and different principles of federalism, which cause differences in the legal regulation of municipal public hearings. For this reason, this article undertakes a comparative legal analysis of Russian and American experiences of legal regulation and practical use of public hearings, on the example of several major municipalities – the cities of Novosibirsk, Nizhny Novgorod, Voronezh and New York, Los Angeles, and Chicago. A comparison of laws influencing the public hearing processes in these cities is advisable, given the colossal growth in the role of city centers in the industrial and post-industrial eras. Cities in particular are the primary centers for economic growth, the spread of innovations, progressive public policy and the living environment for the majority of both Russian and American citizens. The cities under research are one of the largest municipalities in the two countries by population, and on such a scale, the problem of involving residents in solving local issues is especially acute. In this context, improving traditional institutions of public participation is a timely challenge for the legislator, and the experiences of these cities are worth describing. The unique Russian context for legal regulations of public hearings involves the combination of overarching federal law and specific municipal decrees that regulate the hearing process. There are usually two municipal acts regulating public hearings on general issues of the city district (charter, budget, etc.) and separately on urban planning. In the United States, the primary regulation of public hearings is assigned to the state and municipality level, with a whole series of corresponding laws and statutes; meanwhile, methodological recommendations play a specific role in the organisation of hearings, which are issued by the state department of a given state. It is proposed that regulating the corresponding relationships at the federal subject level will permit a combination of the best practices of legal administration with local nuances, thereby reinforcing the guarantee of the realization of civil rights to self-government. There are other features in the process of organizing and conducting public hearings in the United States, which, as shown in the article, can be perceived by Russian lawmakers as well in order to create an updated construct of public discussions at the local level.
LEGAL REASONING
The article is available for free download
SELECTIVE RATIONALITY? ARGUMENTATION OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION ON THE TERMS OF OFFICE OF THE PRESIDENT IN THE MIRROR OF COGNITIVE SCIENCE
The Decision (Zaklyuchenie) of the Constitutional Court of the Russian Federation on the constitutionality of the constitutional amendments played a significant role for the entry into force of the amendments to the Constitution of the Russian Federation adopted in 2020. For this reason, and in connection with the fact that many of the novels raise questions precisely from the point of view of their compliance with Chapters 1, 2 and 9 of the Russian Constitution, the positions formulated in the Decision attract serious attention. The article analyzes the arguments of the Court on one of the significant innovations – the possibility of being elected to the post of President of Russia by a person who held or holds this position at the time the amendment entered into force, without taking into account the previous terms. This reasoning is placed in the context of the demands of rationality in constitutional law. The article is aimed at implementing bona fide intentions related to confirming the subjectivity of the body of constitutional review and identifying ways to improve its argumentation. The activities of the constitutional court are presented in the article as part of reasonable foresight, which implies the creation of guarantees for the case of deviation from constitutional values. The rationality of its argumentation is understood as the sum of requirements connecting in a certain way 1) formal logic and 2) substantive reasonableness, determined by the value choice made in the constitution. It is demonstrated that the rationality of the argumentation formulated in the Decision of the Constitutional Court on the problem of the term of office of the head of state can be questioned from these points of view and, for this reason, cause associations with cognitive distortions (such as bias in the selection of initial premises for argumentation; incomplete study of scenarios reflecting the consequences of a reviewed amendment; framing; logical circle, etc.). At the same time, the article reveals the limitations of the “naive” cognitive approach, which is insufficient for working with the argumentation of the body of constitutional review and which actualizes additional consideration of the political and legal context of decision-making by this body.
THEORY OF CONSTITUTION
SUPRA-CONSTITUTIONAL NORMS IN CONSTITUTIONAL LAW
The idea of supra-constitutionality was formulated in the science of constitutional law in the second quarter of the 20th century and associated with the names of M. Hauriou and K. Schmitt, who for the first time noticed the possibility of the existence of norms that are higher than the constitution. This article is an attempt to give the doctrine of supra-constitutionality an actual theoretical and dogmatic meaning in the context of the study of the material limits of constitutional changes. The doctrine of supra-constitutionality claims to play an important role in explaining that unchangeable norms can exist in constitutional law and that they cannot be excluded, changed, limited, overcome, affected by the other sources of constitutional law, including the constitution itself. Supra-constitutionality is viewed as a characteristic of unchangeable constitutional norms that constitute the material limits of constitutional changes. Supra-constitutionality presupposes the existence of norms that surpass the rest of the constitutional norms and predetermine their content through the definition of what can, should and should not be included in the constitution or excluded from it. The basis of constitutional supra-constitutionality is the argument of hierarchical differentiation. In addition to recognizing unchangeable constitutional norms as supra-constitutional, the article raises the question of the existence of natural law and international law supra-constitutional norms. Natural law supra-constitutional norms have an external and non-positive character. They are not enshrined in the constitution, but stem from a reasonably understood concept of what is due in the most civilized societies, which is determined by the constitutional court. International law supra-constitutionality is understood as the superiority of the norms of international law over the constitution. It has an external and positive character. International law supra-constitutionality can cause political objections from opponents of the absolute rule of international law. Supra-constitutional constitutional, natural and international law norms can come into conflict with each other. The paradox of the doctrine of supra-constitutionality lies in the fact that it creates a hierarchy of norms within the constitution itself, distinguishing between simple and supra-constitutional constitutional norms, or distinguishes certain non-positive norms that are outside the constitution, as having priority over the constitution, or puts some norms of international law over all norms of national law, including the constitution. The purpose of the doctrine of supra-constitutionality is to preserve the inviolable fundamental (natural or generally recognized) values, which justifies its logical flaws and paradoxicality.
BOOK REVIEW
PERSISTENCE IN CHANGES: ON THE TRUE CAUSES OF THE IRRESISTIBLE ATTRACTION OF THE CONSTITUTIONS OF EXOTIC COUNTRIES
In the great international literature on comparative constitutional law, main theoretical observations and constructions normally been made on the ground of principle Western models interpretation. That is quite natural because the experience of established democracies in their historical and political implications formed the basis and resource of inspiration for many new nations looking forward to create the similar forms of constitutional government in spite of various cultural and social difficulties. But this approach substitute the problem by its ideal solution sometimes ignoring the whole bulk of emotions, hesitations, exaggerated hops, disappointments and interests, which are represented in regions and countries of so-called “periphery zone” of legal development acutely pressed to search their own strategy of constitutional modernization in quite different cultural and political context. This problem becomes the central point in the monumental work under review – “The Oxford handbook of Caribbean Constitutions”. The book providing a solid ground for the complex academic deliberation of one of such regions – a very specific group of countries, which formerly were part of the great European colonial empires, recently proclaimed their independence and stay in a permanent process of constitutional self-determination trying to find their proper way in legal globalization. Carefully summarizing the materials and ideas of this collective work, the author of this review article discusses some general conceptual items of this type of constitutionalism: the role of common culture and history in pre-colonial, colonial and post-colonial legal development; the impact of “colonial legacy” in formation of post-independence constitutionalism of respective countries. He reconsider the place of indigenous forms and imported imperial constitutional design in the establishment of the new constitutionalism and administrative governance; the specific trend to hybridization of different legal traditions, norms and institutes in process of their evolution and selection through constitutional amendments, constitutional jurisprudence and projects of reforms. In concluding part of this article the author summing up his vision of continuity and ruptures in legal development balance of Caribbean region in comparison with Post-Soviet region’s current constitutional transformation.