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CONTENTS
INTEGRATION TRENDS IN EUROPE AND EURASIA
THE ROLE OF PARLIAMENTARY CONTROL IN ENSURING THE EFFECTIVE FUNCTIONING OF EU AND EAEU INSTITUTIONS
The need for effective parliamentary oversight at the level of an integration association as a whole is becoming increasingly acute. National parliaments within the framework of the integration process are not part of the institutional system of the European Union or the Eurasian Economic Union and cannot participate in the rule-making process at the Union level. They also cannot control the executive authorities of the EU and the EAEU with regard to issues transferred to the level of the Union, thus falling into de facto isolation in integration processes and becoming a kind of “victim of integration”. A solution to this problem of “democratic deficit” seen in the exclusion of national parliaments from EU and EAEU legislative processes could be the creation of a system of additional (subsidiary) control by national parliaments of the acts of bodies of the integration association, in aa search for balance between the guarantee of independent and effective rule-making activity by institutions of the association and the preservation of a certain degree of significant influence of national legislative bodies over legislative processes. In the EU this “democratic deficit” was overcome by the creation of the European Parliament. This body is elected by the population instead of by the European Assembly, which was practically deprived of real powers. It was also overcome by fixing at the level of EU treaties the procedure for joint adoption of normative acts by the EU Council and the European Parliament. In turn, the alienation of national parliaments from the process of adopting normative acts at the EU level, resulting from these large-scale transfer of powers to the EU level, was partially mitigated by creating special procedures for national parliaments’ participation in the adoption of normative acts at the level of the Union. At the EAEU level, there is in principle no representative body in the Union’s institutions, nor are there any procedures for involving national parliaments in adoption of normative acts by the Union’s institutions. This can be explained by the fact that Eurasian integration is at the initial stage of formation. However, we can confidently say that as Eurasian integration develops further, the need for parliamentary control in both its dimensions — at the level of the Union and at the level of national parliaments — will be felt more acutely.
LEGAL REASONING
CONSTITUTIONAL RIGHT TO REASONED ADMINISTRATION
The constitutionalization of administrative law has different manifestations. The fundamental law of every country influences the structure and functions of executive authorities. Most often, constitutions affect public administration by establishing fundamental principles such as democracy, separation of powers, and rule of law. In some cases, such abstract constitutional provisions remain only as a beautiful ideal without really limiting the arbitrariness of administration. In other cases, on the contrary, they predetermine the scope and intensity of judicial review of administrative action. One example is reference to the constitutional principle of separation of powers, which allows courts to justify deference in reviewing governmental actions. Some jurisdictions are declaring “new” fundamental rights in the field of public governance. Among them are the right to just administrative actions and the right to administrative justice. Despite the difference in wording, such constitutional provisions include the right to reasoned administration. This article examines the reason-giving principle in administrative law. The authors’ main argument addresses the possibility of a broader interpretation of the right to take part in the conduct of public affairs in Russia. It is argued that the scope of this fundamental right covers the requirement of reasoned administrative actions. In support of the main thesis, a comparative legal method is used, based on which the paper examines the issue of constitutionalizing the right to reasoned administration. In the next part, an attempt is made to systematically analyze the normative framework of the reasoned administration requirement in Russian legislation. This conceptual analysis is due to the lack of codification of administrative procedures in modern Russia. Finally, the development of the principle of reasoned administrative actions is shown using examples of Russian jurisprudence. Along with individual actions and decisions, the extension of the constitutional right to reasoned administration in relation to subordinate regulations is discussed.
RIGHTS AND FREEDOMS
PROHIBITION OF CRUEL AND UNUSUAL PUNISHMENT: THE AMERICAN CONSTITUTIONAL EXPERIENCE
Constitutional law establishes special requirements for criminal punishment as it is the most severe type of state coercion. In the United States, the right of the state to apply criminal punishment is limited by a prohibition formulated in the Eighth Amendment to the U.S. Constitution. This paper analyses the main trends of application of this provision in cases related to the constitutionality of different criminal measures, the methodological features related to interpretation of the prohibition, and the impact of textual, historical, penological, and moral arguments on doctrine and judicial practice. While the issues related to determining fair punishment for a crime are mainly considered political and falling within legislative bodies’ competence, the necessity to protect the constitutional rights of citizens brought to criminal liability calls for judicial supervision over these bodies’ enactments. The author examines the meanings of the criteria of “excessive”, “cruel”, and “unusual” punishment that are used in assessing whether a punishment is permissible, as well as the ways to prove these criteria. The article shows that a presumption of constitutionality applies to most types of punishment. Rebuttal of the presumption requires either proving a punishment to be exceptionally disproportionate or both intentionally cruel and unusual. As a result the constitutional prohibition creates a wide margin of permissible coercion, one seldom found by the U.S. Supreme Court to have been overstepped. One of the reasons for this is the abstract formulation of the constitutional requirement, its broad nature, and its subjective interpretation. The author shows the influence of lawyers’ ideological views on their understanding of the Eighth Amendment and links doctrinal criticism of judicial decisions with a domination by liberal-minded scholars. Despite dramatically different approaches to theories of constitutional interpretation, a compromise has been possible: a first stage of textual interpretation of the constitutional provision and a second stage of moral evaluation of the permissibility of the punishment. The application in practice of the prohibition of cruel and unusual punishment not only predetermines the main features of the national criminal coercion system and ensures its progressive development, but also increases the importance of “dignity” in American constitutionalism.
QUAERERE VERUM: CONSTITUTIONAL VALUES AND POLITICAL TRADITIONS
VALUES OF NON-WESTERN POLITICAL TRADITIONS
In recent years, constitutional law theory has moved from the formal analysis of constitutional practice to evaluating the substantive realization of basic constitutional principles. Along the way, scholars have developed the concept of constitutionalism, based on Western liberal values and purported to be universally and exclusively correct. As a result, the concept of constitution in substantive meaning has narrowed: “true” constitutionalism demands the fulfillment of all constitutional principles and a constitutional system is branded as “imitative” if it falls short. Meanwhile, most principles such as separation of powers, rule of law, and constitutional review are to some extent instrumental, as they have to serve the main value of constitutionalism — limitation of state power to prevent abuse and arbitrariness. While some experts believe that constitutionalism is the only way to achieve this goal, in fact there are alternative ways beyond the liberal model. The article presents ideas and concepts rooted in non-Western polities and manifested today predominantly in political concepts of Islam, Buddhism, Confucianism, as well as in certain political institutions that still persist in African polities, dating back to pre-colonial times. By comparing these with Western liberal constitutionalism, the author concludes that these concepts could serve as viable alternatives to liberal constitutionalism, thus allowing for an expansion of the scope of the very notion of the constitution. This is an extremely topical issue in the current movement for protection of national cultures in the context of re-globalization. Non-Western traditions propose a departure from the opposition between the individual and the state, advocating instead for the pursuit of harmony and the common good. Rather than relying on a rationally constructed system of political institutions designed to restrain the powers of state officials, these traditions emphasize adherence to political traditions, religious dogma and political virtue, with the wellness of humans intertwined with their integration into different social communities. These approaches require a reexamination of many provisions within political and social theory and underscore the importance of taking the equality of political traditions and cultures seriously.
FAREWELL TO UNIVERSALIST CONSTITUTIONAL CONCEPTS?
ESSAY IN RESPONSE TO SERGEI BELOV’S ARTICLE
While there is a world-wide consensus on the need of defining basic principles of State organisation and values in constitutions, there are divergent views about the necessity of including basic elements such as separation of powers, human rights, rule of law and democracy. Sergii Belov argues that arbitrariness and oppression can be prevented by traditions and customs, religious dogmas, and good will — as has, in his view, been shown by non-Western States. He therefore supports the idea of a new “non-Western” constitutionalism. In response to his article it is explained that soft means, such as traditions and good will, are not adequate and effective in preventing abuse of power. It is true that common values are essential for the development of State and society, but they do not replace, but rather come in addition to separation of powers, rule of law, democracy, and human rights. Furthermore, a division between “Western” and “non-Western” States is an oversimplified and not adequate categorization of the different constitutional systems worldwide.
GOODBYE CONSTITUTIONAL PLURALISM?
RESPONSE TO ANGELIKA NUSSBERGER’S ESSAY
ALL QUESTIONS REMAIN STILL OPEN
REMARK TO REPLY BY SERGEY BELOV
POINT OF VIEW
THE JUDICIAL SYSTEM: A POLITICAL OR LEGAL INSTITUTION (SYMPHONY OR OPPOSITION)
The article attempts to describe the judicial system as a political institution. The author relies on the specifics of the activities of Russian courts, which does not prevent drawing general conclusions that are applicable to the judicial system of any state. The author examines how judges function as political actors and how the political foundations of their decisions are formed. He contends that political science’s viewpoint disputes the legal approach to the courts. Legal positivism and formalism give a one-sided view of the activities of the judiciary. There is an almost complete identification of policy with law in judicial decisions. The political limits of judicial institutions are demonstrated, as shown in the reality of the work of courts. According to the author, we can speak about the political nature of the courts in a traditional (broad) sense and in a narrow sense. In the narrow sense we are dealing with judicial matters involving the acquisition, maintenance and distribution of political power by one or another political actors of the state. In the broad sense, judges are using a political approach in all cases where they make decisions based on their own understanding of the commonweal and where they act within the political function of the courts in a general mechanism of the political-legal system. In both cases, normative legal acts are used in the text of procedural decisions as tools for achieving goals formulated by judges’ political views (in the narrow and broad senses). It is the political background of court decisions that determines in what way and for whose benefit they will be made. This makes it possible to define the courts as first of all a political and secondarily as a law enforcement institution. It is concluded that Russian courts (like the judicial system of any other state) constitute a synthetic political and legal institution.
LAW AND MEDICINE
VACCINATION OF CHILDREN IN A PANDEMIC SITUATION: THE LEGAL FACETS OF THE POSSIBLE
The article attempts to resolve the issue of the constitutionality of a mandatory vaccination regime for children and adolescents against dangerous diseases (using coronavirus as an example) by using an interdisciplinary approach. Data from immunology and biology are analyzed, which may have an impact on the constitutional and legal assessment of a vaccination regime. The risks of using vaccines with varying degrees of effectiveness and verified safety for humans to prevent a pandemic are being assessed. In search of a balance between individual interests and the interests of society, the consequences of limiting the rights of individuals during mandatory vaccination against infectious diseases are revealed. In an attempt to discover a legal remedy that meets the test of proportionality, an empirical study is conducted and statistically supported results are discussed showing the inadequacy of the voluntary vaccination model for achieving herd immunity in situations where experimental vaccines are used. The tendency of citizens to vaccinate children against dangerous diseases (even with experimental vaccines) in the presence of the coercive power of the state has been discovered. However, it has been noted that incentives for vaccination on the part of the state can be expressed not only in the form of a promise of sanctions, but also, for example, in the form of the use of less invasive methods that involve much less interference with personal rights: for example, educating the population on immunization issues and conducting accessible information campaigns. Establishing the real effectiveness of these methods is the task of the next stages of research. As a result, it was concluded that the compulsory vaccination regime (in the form that allows us to model the current legal regulation) does not meet the criteria of constitutional admissibility due to excessive restrictions on the rights of individuals.
PRAXIS
COMMON HERITAGE: GENETIC DATA OF RELATIVES IN THE DECISION OF THE HIGH COURT OF LONDON
The advent of genetic testing and the impressive progress that has taken place in this area are forcing the law to face the problem of adapting to the pace of development of biomedical technologies, called in scientific circles the “pacing problem”. Today it is obvious that the results of such testing can be important not only for patients, but also for their family members, who, if an inherited genetic mutation is identified, will have an opportunity to begin preventive, therapeutic and diagnostic treatment or make more informed reproductive choices. However, if the patient does not consent to the disclosure of genetic information to relatives, then the health care professional is faced with a dilemma, which is to balance the interests of both the patient and his family members. The article is intended to draw attention to this problem, and therefore it is proposed to familiarize yourself with the circumstances of the high-profile Judgement of the High Court of London in the case ABC v. St George’s Healthcare NHS Trust & Ors. This case was initiated by the daughter of a patient who was diagnosed with a severe genetic mutation — Huntington’s syndrome. Despite the discovery of a hereditary disease, health-care professionals did not inform the applicant about the existing genetic risks due to her father’s refusal to disclose confidential information about the confirmed diagnosis. The article describes the factual side of the case, summarizes and analyzes the legal arguments on the basis of which the final decision was made. It is noted that precisely because of the uniqueness and familial nature of genetic data, the information obtained as a result of testing one person can be extremely important for his relatives. Analyzing the legal consequences of the decision, it was concluded that it is difficult to apply a legal regime to genetic data that sets a high bar of requirements for the disclosure of confidential information. In conclusion, the key arguments of opponents of disclosing genetic information to third parties are outlined, perspectives and solutions are demonstrated that deconstruct at least some of the identified concerns, and possible ways to minimize the identified risks and protect the interests of three parties are proposed: patients, their relatives and health-care professionals themselves.
BOOK REVIEW
GLOBAL CONSTITUTIONALISM: INTERNATIONAL STANDARDS AND REGIONAL LEGAL INTERPRETATIONS IN ASIA
BOOK REVIEW: GLOBAL CONSTITUTIONALISM FROM EUROPEAN AND EAST ASIAN PERSPECTIVES / ED. BY T.SUAMI, A.PETERS, D.VANOVERBEKE, M.KUMM. CAMBRIDGE : CAMBRIDGE UNIVERSITY PRESS, 2020
The importance of such fundamental constitutional principles as the rule of law, democracy, and human rights protection is beyond question. These principles have become the grounds for the legitimacy of all political systems, whether with democratic or non-democratic or even authoritarian regimes. Interpretations of these principles, however, and their substance and limits vary dramatically in different regions of the world regarding such issues as the forms and methods of constitutionalisation, legal development, judicial interpretation, practical implementation, and political treatment. This investigation of Asian perspectives focuses on the dominant theories, rule of law treatments, social and socio-ecological aspects of international and national constitutionalism, the changing institutional infrastructure, and the role of international treatises, international courts, and constitutional justice in their implementation. Comparative analysis reveals problematic areas of regional legal regulation where global constitutionalism has unstable positions and confronts various difficulties regarding ideological restrictions, legal traditions, and weakness of civil society institutions as well as the political attitudes of ruling elites. The Asian region demonstrates a great interest in global constitutionalism along with a growing variety in its interpretation – from almost total rejection (China) to a more balanced approach (Japan) and full adoption (South Korea). This asymmetry of approaches reflects the search for some common orientation for the East-Asian region in a world of global constitutionalism which until now has included quite different views of its binding force, the role of the sovereignty principle, new cosmopolitan legal trends, and the possibility of adopting Western legal concepts to regional and national legal systems. The important part of the current debate between protagonists and opponents of global constitutionalism concerns the understanding of the so-called legal identity, traditional values, and peculiarities of the non-Western regions of the world and their role in globalization as both recipients and donors of new ideas, concepts, and experience in the promotion or restriction of the world-wide constitutionalism transformation. The book under review — “Global Constitutionalism from European and East Asian Perspectives” — provides a good opportunity to summarize new approaches and arguments of Western and Eastern scholars. Their principal questions are how broad the limits of global constitutionalism’s interpretation should be; how this theory could reflect the necessities, demands, and aspirations of the non-Western part of humankind; what should be the practical measures for its implementation; and what will be its original impact in the creation of new international law system.