Available in Russian
FEBRUARY – MARCH • 2016
Bolivia, Ireland, Kazakhstan, Macedonia, Moldova, Poland, Russia, Slovakia, South Africa, Switzerland, Turkey, USA
FOCUS: CONSTITUTIONAL AMENDMENTS
This essay argues that invoking the concept of the “constituent power” clarifies some persistent puzzles about the constitutional and legal status of purportedly unconstitutional constitutional amendments. It argues that in some circumstances such amendments should be understood as exercises of the constituent power, effecting revolutionary transformations in a nation's constitutional identity but–sometimes–through the forms of legality. The status of constitutions as law is indexed to time through discrete exercises of the constituent power.
Rosalind Dixon, David Landau
A deep tension exists in many parts of the world between commitments to democracy and procedures for constitutional amendment. Amendments are frequently passed that follow formal democratic procedures but are aimed at achieving anti-democratic or “abusive” constitutional aims – i. e., to help powerful presidents extend their term in office, to remove parliamentary or federalism-based checks on executive power, and to narrow or suspend basic human rights protections. Limiting a power of constitutional amendment, therefore, can have clear democratic benefits. One way to do this is via a judicially enforceable doctrine of “unconstitutional constitutional amendment.”
No part of a constitution is more important than the rules that govern its amendment. Given the important functions served by formal constitutional amendment rules, we might expect constitutional designers to entrench them against ordinary amendment, for instance by requiring a higher than usual quantum of agreement for their amendment or by making them altogether unamendable. Yet relatively few constitutional democracies set a higher threshold for formally amending formal amendment rules.
Constitution of any polity defines its legal order on the basis of a certain system of values. Fundamental values of a constitutional democratic state must be protected not only during a routine implementation of the constitution but also during its amendment procedures. However, the problem of unconstitutional constitutional amendments is complicated and is connected to two different, although interrelated, questions.
The present paper provides a survey of а comprehensive collection of scientific works of Tamara Morshchakova. The author scrutinizes the core ideas and concerns of the scholar, her views on principal judicial issues of our time – the independence of the Constitutional Court, its position within the Russian judiciary, its interaction with other courts, its rootedness in the fundamental principles of law, self-sufficiency of its decisions.
This article focuses on the role of the European Court of Human Rights in the promotion of Europe’s closely related fundamental values – such as human rights, the rule of law and democracy. Human rights and rule of law may be considered as two sides of one coin. They inspire the whole Convention and should be understood as guiding principles of the Court.
Olga Chernishova, Grigory Dikov
This article describes international standards regulating access of judges to the courts in questions related to their appointment, career and dismissal. It is primarily focused on the case-law of the European Court of Human Rights, which originally was reluctant to recognize the right of judges to have access to justice in those matters.
A DIALOGUE OF JUDGES ANATOLY KOVLER AND TAMARA MORSHCHAKOVA
This paper presents a conversation of prominent representatives of the judicial profession Anatoly Kovler and Tamara Morshchakova. Both interlocutors are experienced judges: Tamara Morshchakova – for years has taken the bench in the national Constitutional Court; Anatoly Kovler for more than a decade has been the member of the European Court of Human Rights.
The author analyses the requirements of the Constitution of the Russian Federation which ensure enforcement of international legal standards of human rights and freedoms as well as the significance of these constitutional provisions for supporting Russia’s application to join the Council of Europe.
IN THE RUSSIAN CONSTITUTIONAL COURT
REVIEW OF JUDGEMENTS OF THE RUSSIAN CONSTITUTIONAL COURT: JANUARY – FEBRUARY • 2016