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LEVELS OF DEMOCRACY
REPRESENTATIVE GOVERNMENT AND PLEBISCITARY DEMOCRACY: A NEW ATTEMPT AT HARMONIZATION IN THE POST-SOCIALIST SPACE
The article attempts to comprehend one of the most noticeable features of the constitutional models of State structure in democratic post-socialist countries, namely, the combination of a significant increase in parliament’s role along with the weakening of presidential power, together with direct presidential elections in the most of these countries. The contribution of post-socialist States’ constitutions to the enrichment of parliamentarism is analyzed using the example of procedures for formation of a government and for its termination, as well as for the dissolution of parliament. The analysis of those procedures allows the author to conclude that the constitutions of post-socialist countries are characterized by a significant strengthening of parliament’s role in determining the composition of the government and deciding on the termination of its powers, as well as by parliament’s increased political control over the government and by the president’s reduced control. The author comes to the conclusion that post-socialist countries’ constitutionally enriched arsenal of mechanisms for strengthening parliament and directly electing the president are compensatory measures for the recent socialist past, which lacked both the influence of representative bodies in the State mechanism and the practice of elections offering real alternatives. In addition, direct election of the president is aimed at reinforcing his possible role as a mild counterweight to the power of the parliamentary party majority and to the aspirations of this majority to further its narrow party interests. The author believes that these trends result from the developers of these constitutions and amendments rethinking the elements of plebiscitary and representative democracy in the mechanism of a modern democratic state. They also express the desire of these constitutional framers to prevent the revival of authoritarianism. This represents a significant contribution by post-socialist states to the development of possible models of state power organisation in parliamentary republics and to the nuances of the system of checks and balances.
Borrowing the doctrine of precedent has been the subject matter of heated debates in Russia for the last decade. Prominent scholars and judges of the highest courts of the land took part in it. Unfortunately, many arguments made during this exchange of opinions have not yet attracted proper attention from academia. Among other things, advocates of judicial precedent have ignored, for an unclear reason, the traditional objection that only established jurisprudence and not a separate judicial decision can be considered to be a source of law, while their opponents, in turn, have not tried to support this objection by any evidence, apparently holding it to be a self-evident truth. To get to the heart of this question, the dispute should be examined on the basis of a comparative analysis of the two doctrines of judicial rule-making: the common law doctrine of stare decisis and the continental one of jurisprudence constante. The rationale for one or the other doctrine might be found in its advantage in regard to basic constitutional principles and the legal order’s needs. But before such a functional analysis is possible, the content of both doctrines must be clarified. To this end, with reliance on available empirical data, the author conducts a critical reassessment of prevailing ideas about these doctrines. In this article, their normative facts – judicial decisions and established jurisprudence, respectively – are analyzed in turn. According to the author, the determinative characteristic must be the substratum of a normative fact: that it is a single precedent in the first case, while in the second one precedent is indefinitely multiple. In other respects, as a matter of principle, both doctrines show equal variability. In different countries and at different times interpretation of precedent as well as its overruling have been done according to different methods. Today, however, there is a noticeable convergence of doctrines: the common law doctrine demonstrates a fair amount of flexibility, while the continental one is gradually becoming a legal doctrine in a proper sense. Comprehension of this evolutionary process is hindered by legicentrism, a traditional mindset of many continental lawyers which mistakenly views legislation as the primary source, the model, and the exclusive guarantor of any law as such.
CONSTITUTIONAL (CHARTER) COUNCILS OF THE CONSTITUENT ENTITIES OF THE RUSSIAN FEDERATION: IN SEARCH OF THEIR STATUS
The article examines the latest reform of regional constitutional justice. The authors note some similarities in the legal status of constitutional (charter) councils operating under the legislative (representative) bodies of state power of the constituent entities of the Russian Federation with the status of bodies formed in accordance with the French version of the European model of constitutional control. The study examines the genesis of the modern institute of constitutional control in the constituent entities of the Russian Federation. As a conclusion, the thesis is postulated that constitutional (charter) councils are the result of the regional legislatures’ return to the institution of constitutional supervision committees that arose in the late Soviet era.
CONSTITUTIONAL DISCOURSE: CONCEPTS AND APPROACHES
THE CORRELATION OF EUROPEAN AND NATIONAL IDENTITY IN THE DOCTRINE AND PRACTICE OF THE COURT OF JUSTICE OF THE EU
Identity is a multidimensional concept that allows for different interpretations. In the European Union, the concepts of European identity and national identity are used in political documents, Treaties and decisions of the Court of Justice of the EU. European identity is based on a commitment to common principles that express European values. National identity is inherent in EU Member States’ fundamental political and constitutional structures, including regional and local self-government. The concept of national identity has become prominent in European legal discourse since the mid-2000s, when the Constitutional Courts of EU Member States started to put it forward as a limitation on the excessive, in their opinion, promotion of European integration. Until recently, the Court of Justice of the EU did not use the notion of European identity in its decisions. In 2022 it used the notion of “identity” in the context of the European legal order for the first time and defined the content of a national constitutional identity that is acceptable from the point of view of EU law by not contradicting the common values of the Union. The doctrinal development of the concept of European identity, like national identity, will be determined by the development of jurisprudence clarifying the content of European legal categories and principles through dialogue between the Court of Justice of the EU and the Constitutional Courts of the EU Member States.
THE ROLE OF ŚĀSANA AND SANGHA IN THE DEVELOPMENT OF THE POLITICAL AND LEGAL SYSTEM OF MYANMAR (BURMA)
The article is devoted to the interaction of Buddhism and law in Myanmar (Burma). It consistently examines the ideas of Burmese Buddhists about politics, the history of relations between the Burmese sangha and the state, the current situation (including the events that followed the 2021 coup d’état), the legal instruments for protecting religion, and the organization and practice of church tribunals (Vinicchaya courts). The subjects of the analysis are political and legal concepts, political events, normative legal acts (the Constitutions of 1947, 1974, 2008, the Law Relating to the Sangha Organization, laws on the protection of race and religion, etc.) and the judgements of state courts and Vinicchaya courts. Compared with the legal systems of other Theravada states, the Burmese legal system seems to be the most complex in the part concerning the regulation of religious issues. These issues, along with issues of national policy, are the main ones that concern Burmese society and determine the legal policy of the state. Since Myanmar’sindependence, its political system has been in a state of constant turbulence: democratic institutions have been undeveloped and not had an organic basis in the legal consciousness of the population, while military regimes have not ensured the prosperity of the country or gained a sufficient degree of legitimacy and so have provoked mass resistance. Under these conditions, the sangha is an important guarantor of stability and in fact acts as an independent branch of power: it maintains a constant dialogue with the government, provides it with legitimacy, and restrains its authoritarian aspirations, while forming its own position on political issues and defending them in the legislative process. The reverse side of this activity is the politicization of the Sangha, which has a restraining effect on the development of Buddhist doctrine and practice and, ultimately, might lead to a decrease in the importance of Buddhism and to the further secularization of society.
One of the common features of successive constitutional reforms in Kazakhstan, Russia, and Belarus was the creation of rather specific constitutional bodies that do not fit into the traditional model of separation of powers. These are the Security Council in Kazakhstan, the State Council in Russia, and the All-Belarusian People’s Assembly. The author points out that the competence of these bodies remains uncertain and that, regardless of their justification and fixed formal status, their powers allow them to control and restrain other power institutions, including in some cases the president. These bodies do not change the already established governmental hierarchy but actually establish dual power in it. In a system of separation of powers they are superfluous. In this article, these bodies are called constitutional simulacra, their main task being to simulate constitutional reality and compliance with constitutional norms and principles while actually concentrating real power within their own authority. The author notes that the common feature of these bodies is their ad hoc nature and their being strengthened agents of autocracy. Although the question of the true purpose of these bodies remains open, in Russia and Belarus they were also presumably created for the purpose of the transition of power. The traditional problem of any personalistic authoritarian regime is the peaceful transfer of power in the absence of competitive elections and without shocks to the established power structure. There is an insoluble contradiction in any such transition: the “subject of autocracy” must transfer power while retaining its decisive influence in the existing system. If there is no transition of power, there is no need for additional simulation bodies at the constitutional level. Regardless of whether constitutional simulacra are created for the transition of power or as an additional tool of a personalistic regime, they create an institutional conflict that inevitably leads to conflict with other branches of government and to overturning the entire constitutional system.
The article traces the development of Russian elections and electoral legislation since 1988. It discusses the influence of changes in electoral legislation on the degree of democracy of elections and on their results. It concludes that the laws on elections and on political parties have had a noticeable impact on elections, but other factors often have had a stronger impact. Some of these were related to legislation: the shaping of electoral districts, decisions of the Constitutional Court, and regulations of the Central Election Commission. Others were related to these laws’ implementation, including “special business practices” and administrative election technologies. The article analyzes the recently proposed classification of amendments to electoral legislation. It disagrees with reference to a number of amendments as anti-democratic and notes that in the period after 2002 there were many amendments that were the opposite, with a new amendment canceling a previous one and returning (at least partially) to what existed before. It also reviews criteria for classifying certain norms as democratic or anti-democratic. In this it argues that the mere fact that an amendment is beneficial to the authorities cannot be such a criterion. The question is whether an amendment is beneficial to society, that is, whether it helps to ensure that elections reflect to a great extent the collective will of the citizens. In analyzing this issue, it is important to combine legal and political approaches. Individual norms and institutions are discussed in more detail (e.g., registration privileges, nomination of candidates by groups of voters, candidate barriers, turnout threshold, “against all” voting, municipal filter, early voting, and proportional and mixed electoral systems), taking into account not only Russian but also foreign experience. It concludes that there is a need for a comprehensive revision of the laws on elections and political parties.